CITATION: S.S.1 v. S.S.2, 2017 ONSC 5177

COURT FILE NO.: FC-11-927-1

DATE: 2017/09/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

S.S.1

Applicant

– and –

S.S.2

Respondent

Self-represented

Jennifer E. Jolly, Counsel for the Respondent

HEARD: In Writing

AMENDED REASONS for judgment on trial

heard september 26-30 & october 5-8

& december 5, 6, 8, 2016

The text of the original reasons was corrected on September 29, 2017, at para 56 sub 22, paras 190, 223(a), 186, 187 and the explanations of the corrections are appended.

Shelston, J.

Overview

[1] On June 3, 2013, Justice McLean granted a Divorce Order where he ordered that the parties have joint custody of the children, granted a very detailed custody and access regime as recommended by the assessor, determined the parties’ incomes and set child support, equalized the net family property, dismissed the father’s claim for spousal support and made no order as to costs. The father appealed the denial of spousal support and costs.

[2] On June 12, 2015, the Divisional Court granted the father’s appeal and ordered the mother to pay to the father $800 per month in spousal support commencing January 1, 2015, and awarded the father costs of $15,000 for the trial and costs of $15,000 all-inclusive for the appeal.

[3] On May 25, 2015, before the appeal was heard, the father commenced this Motion to Change dealing with issues of custody, access, child support, spousal support, sharing of section 7 expenses, arrears of child support, contempt of court, a determination of whether the father is still a shareholder in […] Ontario Ltd and costs.

[4] The mother, in her Response to the father’s Motion to Change, seeks an order for sole custody, removal of the parenting coordinator, child support, a lump sum payment towards future child support and section 7 expenses, a retroactive child support order to June 7, 2010, sharing of the section 7 expenses, an order requiring the father to obtain and maintain life insurance to secure the father’s obligation to pay child support, variation of spousal support, a restraining order, an order varying the family property adjustment, pre-judgment and post-judgment interest and costs.

[5] At the end of the trial, I requested that the parties provide me, by January 31, 2017, with their positions on specific questions related to child support, spousal support arrears and interest on the equalization. As well, I requested that both parties provide me with their version of a multidirectional order sought in this proceeding.

[6] I received the information requested but also received from the father additional documentation making further submissions that were not addressed on the final day of the trial. I will not consider these additional documents in my decision. I will not do so because the trial ended on December 8, 2016, both parties had an opportunity to make their final submissions and it would be prejudicial if one party was allowed to reopen the litigation without affording the other party the opportunity to respond to new submissions and additional evidence.

Issues before this Court

[7] The issues are as follows:

(a) Should the mother be granted sole custody of the children?

(b) Should the father be granted equal time with his youngest son, A.E.S.?

(c) What access regime is in the best interests of the children?

(d) What additional conditions, such as ordering a parenting coordinator or reunification counselling, should be placed in an order for the best interests of all children?

(e) What are the parties’ respective incomes, including imputation of income towards the father?

(f) What is the table child support payable for all five children, depending on the physical custody order of this Court?

(g) Should the Court quantify future child support and section 7 expenses, including post-secondary expenses, and deduct an equivalent lump sum from the equalization payment owing by the mother to the father?

(h) Should the Court order the father to pay table child support and section 7 expenses retroactive to the date of separation, being June 7, 2010?

(i) What are the section 7 expenses for the children?

(j) Should the Court order the father to obtain and maintain life insurance in the amount of $1,000,000 as security for child support?

(k) Has there been a material change in circumstances to allow the Court to either vary or terminate spousal support payable by the mother to the father?

(l) Is the father a shareholder of […] Ontario Ltd? If he is, what is the appropriate relief for him?

(m) Is a deduction or retroactive reduction, or any other relief, required to address the spousal support income tax reduction issue?

(n) Who should pay costs and on what scale?

Background

[8] The applicant (“father”) and the respondent (“mother”) married in a religious marriage ceremony on September 2, 1991, a civil marriage ceremony on April 26, 1996, and separated in December 2010 after 19 years of marriage. The parties have five children.

[9] Since the separation in late 2010, the parties attended a trial in 2013, an appeal of the trial decision in 2015 and another trial in 2016. These parties are very conflicted in their relationship and resort to the courts for their disputes.

[10] The father lives in his rooming house. He graduated from the University of Toronto in 1985 with a degree in mechanical engineering. He graduated from the Israel Institute of Technology with a Master’s degree in 1988.

[11] The mother graduated with a Bachelor’s degree in dentistry and currently lives with four of her five children and her partner and his eight-year-old child.

[12] The parties have five children of their marriage, namely:

(a) M. (“M.”) I. S., born […], 1996;

(b) S.M.S. and J.C.R.S., born […], 1999;

(c) T.B.S., born […], 2002; and

(d) A.E.S., born […], 2005.

[13] As a result of the trial decision, the children’s primary residence was with the mother, with the father having the children one week from Wednesday after school until Friday morning and the next week from Friday after school until Monday morning, as well as additional time for holidays. Communication between the parties has been extremely volatile and difficult. The Children’s Aid Society and Ottawa Police Service have been involved with this family.

[14] Since the first trial in 2013, the four oldest children have had no relationship or a very minimal relationship with the father as follows:

(a) The eldest child, M.I.S., has been attending the University of G[…] since September 2014 and has not returned to Ottawa since the summer of 2015. He has not had any communication with his father in over a year.

(b) The twin daughters, J.C.R.S. and S.M.S., have not seen their father since the summer of 2015. They plan on attending university in September 2017.

(c) T.B.S. does not want have a relationship with the father and blames him for removing her from a private school where she had many friends and excelled as a student. She currently attends a public school. She suffers from attention deficit high anxiety disorder and is on medication and sees a therapist. She has made allegations that her father sexually molested her when she was six and eight years of age. The allegations were investigated and no charges have been laid.

(d) The youngest son, A.E.S., follows the access schedule as set out by Justice McLean. He suffers from a serious learning disability and is in grade 5 at B[…] Public School. He requires assistance with the school work and is performing at a grade 3 level despite attending grade 5.

Should the mother be granted custody of the children?

S.M.S., J.C.R.S. and T.B.S.

[15] During the trial and in his closing submissions, the father consented to a final order that the mother have custody of the three girls, being S.M.S., J.C.R.S. and T.B.S.. The father acknowledges that the three daughters no longer wish to see him and for that reason, there has been no regular access for an extended period of time.

[16] The father concedes that the mother should have sole custody to allow her to make all decisions regarding their schooling, health issues, religion and extracurricular activities but the father wishes to be consulted by the mother prior to any such decision being made. He further wishes to have an opportunity to speak to the various healthcare providers. As a result of the ages of the three girls, that disclosure must be subject to their consent.

[17] I find that due to the toxic and highly conflicted relationship between the parents, one parent must be designated as the custodial parent. I am also cognizant of the fact that the two eldest girls will be attending university in September 2017 and that they will be attaining 18 years of age in […], 2017.

[18] Both parties have at times acted very badly towards each other and the children. There are many instances where these parents have not acted in the best interests of their children. The mother has denied access to the father on numerous occasions, including but not limited to attempting to have criminal charges laid against the father, alleging that the father had left three of the children unattended on a boat and failing to provide the father with a passport or travel letter to allow the child to travel with the father. During a mediation in 2015, the mother jumped on a desk, started screaming and swearing at the father and threatened to sell her dental practice and leave Ottawa with the children so the father would not see them again.

[19] On Super Bowl Sunday in February 2016, the father, having been denied access to his son on the Friday after school, decided to remove the child early from Hebrew school on Sunday morning and took the child to a restaurant to watch the Super Bowl, all without any notice to the mother. The mother contacted the police alleging that the father was molesting the child. After having located the father the police entered a crowded restaurant and requested that the father answer their questions. The father provided a letter from the Children’s Aid Society of Ottawa confirming that the allegations had been investigated and the file was closed. The police left and the father was very embarrassed.

[20] The father has not been blameless. For example, in 2014, despite not having access to T.B.S. since October 2013, the father objected that the mother had bought an Air Canada ticket for the child to travel to Fort Lauderdale from February 17-23, 2014. If the father was trying to reconcile with his daughter, this was the wrong way to do so.

[21] These parents have brought a multitude of motions since the final order of Justice McLean on June 3, 2013. The amount of correspondence exchanged by counsel is staggering. The parties cannot agree on many important issues regarding their children. The father is estranged from all of his children except A.E.S..

[22] The mother is to be the parent with sole decision-making power for all three girls, based on her strong and positive relationship with the girls, the father’s nonexistent and negative relationship with the girls, the girls’ stated wishes and recognizing the children’s ages.

[23] I do not find that it is in the best interests of the three girls that the father be consulted on the major decisions affecting their lives. S.M.S. and J.C.R.S. will be 18 years of age in […], 2017, at which time they will attain the status of adults and a custody order will have no effect on them.

[24] With respect to T.B.S., due to her age and wishes, I do not find that it is in her best interests that the father be consulted on major decisions affecting her life.

[25] Consequently, an order shall issue that the mother shall have sole custody of S.M.S., J.C.R.S. and T.B.S. and that she is not required to consult with the father before making a decision regarding any of the girls, but must advise him of any decision that she makes, if any of the girls consent.

A.E.S.

[26] With respect to the youngest child, A.E.S., in his closing submissions, the father requested an order of parallel parenting whereby the mother would have sole custody on decisions regarding dental care and religion, on the understanding that she must consult with the father before any final decision is made and that the decision must be in the best interests of the child. On issues of medical care and education, the father would have sole custody but would be required to consult with the mother before making any final decision.

[27] The father’s concern is that if the mother is granted sole custody of A.E.S., she will eliminate him from having any input into decisions regarding the child. The father is concerned that the mother did not consult him regarding her decision to have the child see a psychologist, to see an allergist, to enrol him in a program at the Eastern Ottawa Resource Centre or to engage tutors. He is concerned that the mother did not advise him when J.C.R.S. and A.E.S. had serious eye issues. The father is concerned that if the mother is granted sole custody of all four of the younger children, she may be overwhelmed; whereas if he had custody of A.E.S., he could focus more on his specific medical issues.

[28] The father acknowledges the mother may be suffering from memory loss and post-traumatic stress disorder, which may have an effect on her ability to focus on all her children. On the issue of education, he feels he is better suited to care for A.E.S.’s needs, again arguing that the mother may be overwhelmed by caring for the three girls. The father testified that he tutored all five children to teach them to read before they started kindergarten.

[29] I have received evidence from Ms. Yegandorf, an associate therapist with a Master’s degree in educational psychology. In her first report, delivered May 13, 2016, Ms. Yegandorf identified clinically significant issues with A.E.S., such as inattention, hyperactivity, learning problems and oppositional defiance disorder. Criteria for an attention deficit hyperactivity disorder diagnosis were met at both home and school, as were the criteria for oppositional issues. The report indicates that A.E.S. has difficulties relating to anxiety and attention. At page 9 of her report, she indicates:

During the clinical interview, A.E.S. appears to experience feelings of apprehension and inner tension about his home situation. He wants to go “50/50” to each parent and hope that it would make “fighting stop”. A.E.S. reported feelings of sadness about the tension he experiences with respect to his parents relationship.

[30] In her summary and recommendations, Ms. Yegandorf indicates that in the original psycho-educational assessment that she conducted in 2013, she identified that A.E.S.’s IQ was in the low end of average range, that he had a significant learning issue and that he was receiving assistance at school. She concluded that his progress has been slow and she states at page 9 of her report:

Of concern is that A.E.S. has been dealing with major changes and stressors. Although his parents have been separated for a number of years, there continues to be significant conflict and tension between them.

[31] At page 10 of the report, she indicates:

Indications on projective measures suggest A.E.S. is dealing with negative emotions such as anger, sadness, frustration and anxiety. There are signs that he has a tendency to react to these feelings by exhibiting acting out behaviours. It will be important to ensure that A.E.S. is provided with access to intervention to address these issues and that specific strategies and supports are available to him and implemented both at home and at school to improve his emotional and behavioural functioning

[32] Ms. Donna Stainthorpe, a child protection worker for the Children’s Aid Society of Ottawa, filed a report dated May 11, 2016, in which she concluded:

The Children’s Aid Society is concerned that if the parents continue to engage in conflict, the children, especially A.E.S., will continue to be impacted in ways that may hinder their ongoing ability to move forward and flourish. Furthermore, the Society is worried that A.E.S.’s anxiety will increase, and his self-esteem a decrease, resulting in A.E.S. being disadvantaged academically, socially and emotionally. It is hoped that both parents can gain a strong understanding of their part in the events that have occurred over the years and actively work towards ending this conflict.

At this time, a clear decision is needed in relation to custody. Hopefully the decision would be clear enough for the parents to follow but also gives room to negotiate any future issues via a parenting coordinator, so as not to keep returning to court. To date, the parents have spent a lot of money attempting to resolve their conflict, and this has put an enormous amount of stress on the children. The Society has been involved for a total of six years and the same issues keep being brought up, the underlying cause of which is the parent’s inability to work together for the children’s well-being.

[33] A Voice of the Child Report with respect to A.E.S. and T.B.S. was prepared by Ms. Susan Galarneau, dated April 25, 2016. She met with the children. With respect to T.B.S., she met with the child on two separate occasions. She found the child to be extremely well-spoken and strong academically and socially. T.B.S. was clear that she wants nothing to do with her father, that her father was not dependable and that he has let her down on many occasions. She is frustrated and angry with him. Her position with respect to her current relationship with her father was clear and consistent; however, Ms. Galarneau reported that there was a possibility of re-establishing some type of relationship in the future but that the child would not initiate it.

[34] With respect to A.E.S., the child expressed frustration that the parents did not get along. The child was insistent that the schedule be changed to alternating weeks because all his friends had that schedule. When pressed, the child could only name one friend who had such a schedule. Of concern is that A.E.S. said that if the schedule did not change to week about, his father would go back to court but his mother would not. When explaining differences between his mother’s home and his father’s home, the child provided several differences. At his mother’s home he does a lot of stuff there, he takes cello lessons and practices daily, has video games, plays with his dinky cars, the house has a big kitchen, he has chores to do, he has a tutor and his friends come over. At the father’s house, he indicated there is not a lot of stuff there, he plays the ukulele but does not practice, does not have video games, plays with remote control cars, the kitchen is very small, there are no chores, he has a dog at his father’s home, his father tutors him and his friends do not come over. In conclusion, Ms. Galarneau indicates that the most important thing for A.E.S. is the elimination of the ongoing conflict between the parents.

[35] During the trial, I requested an update of the Voice of the Child report by Ms. Galarneau. She prepared her report dated September 30, 2016. In her original report, Ms. Galarneau indicated that T.B.S. was open to the possibility of contacting her father but felt no pressing need to do it at this time. Her position effectively had not changed since the original report. A.E.S. indicated that the father told him that the schedule would be changing to week about and that A.E.S. said that the alternating weekly schedule would be good because he could he could see his dog, see his father more, have friends over to his father’s home and have more time to play with his toys and cars.

[36] I have considered the evidence of the parents, the evidence contained in the Voice of the Child Report and the psycho-educational assessments and the past history of the interaction between the parents regarding this child. I find that it is in the child’s best interest that one parent be granted sole decision-making power over A.E.S..

[37] I find that there is simply no ability to communicate between the mother and the father. An order for joint custody is not appropriate because there is no evidence that the parties would be able to communicate and consider the best interests of their children. The parties need not consent to an order for joint custody but before ordering joint custody the court must have some evidence that the parties are able to communicate effectively with each other. (Kaplanis v. Kaplanis (2005), 2005 ONCA 1625, 249 D.L.R. (4th) 620 (Ont. C.A.)).

[38] I find that an order for parallel parenting is not in A.E.S.’s best interests. I find that one parent must be designated as the parent to make all major decisions regarding the child. I find that the mother should be the parent to make the final decisions regarding the child because of the following factors:

(a) she has been the primary parent and the one responsible for his routine medical and dental needs;

(b) she has been the parent who interfaces with his school and the parent that arranged for a psycho-educational assessment and counselling for the child;

(c) she has been the parent who followed up with the recommendations of the counsellor to try administering ADHD medication on a temporary basis;

(d) she has been the parent who hired a tutor with training in special education to work with the child;

(e) she has been the parent who registered the child in Hebrew school;

(f) she has been the parent who registered the child in extracurricular activities such as soccer and basketball;

(g) she has been the parent who registered the child for cello lessons and summer camp; and

(h) she has been the parent who has assumed 100% of these costs.

What should the residential arrangements be for A.E.S.?

[39] At the time of the trial, the father was having access to A.E.S. on one week from Wednesday after school until Friday morning and on the following week from Friday after school until Monday morning.

[40] The father seeks to have the child on alternating weeks, with the changeover occurring on Friday morning at school, and if there is no school at 9:00 a.m. His rationale is that the morning drop-off allows the parent, who observes the Sabbath, to travel out of town to visit family earlier especially in the winter months. The second reason is that historically there have been incidents of denial of access by the mother, who had taken the child out of school early to prevent the father from exercising access. Finally, the father submits that it is in the best interests of A.E.S. to live equally with his mother and father.

[41] The mother’s position is that the father should have access every second weekend from Friday night until Monday morning, and then alternate Mondays, resulting in a one-day reduction in the father’s current access but allowing the child to spend the majority of the school week in one household. The mother proposes that the parties share holidays equally, that each have two weeks of summer holidays and that the remaining five weeks of the summer holidays rotate on a week on, week off basis.

[42] The mother raised a series of issues as to why the father’s current time with his child should not increase but in fact should be reduced. The allegations are as follows:

(a) the child has difficulty in school and with his behaviour as a result of visits by his father;

(b) the father does not support the child’s extracurricular activities;

(c) the father’s residence is unsafe;

(d) the father’s residence is dirty;

(e) the child does not have his own bed or bedroom at the father’s residence;

(f) the father may molest the child as he has sexually molested the girls; and

(g) reducing the father’s access would provide more stability for the child.

[43] The mother registered and attended with A.E.S. for counselling starting in 2014, without the consent of the father. Once the father found out, he contacted the counsellor to indicate that he was not consenting and the counselling stopped. As of September 2016, the child is back to the counsellor every other Wednesday.

[44] The father’s house has been reviewed by representatives of the Children’s Aid Society of Ottawa to ensure that the child’s basic needs are being met. They did not substantiate the allegations made by the mother. Further, pursuant to the affidavit of Mr. Eugene Shershen dated May 16, 2016, he has been renting a room from the father’s home since September 2015 and attests that the facility has very impressive sound isolation, each party has sufficient privacy and that the tenants are courteous, polite and quiet. Mr. Sheshen’s comments are confirmed by another tenant, Mr. Leeman, who indicated that A.E.S. has his own bed.

[45] A child protection worker, Ms. Danaj, testified that she was able to have entry to the father’s single-family home, which is converted into a rooming house. She toured the entire home to ensure that A.E.S. has a double bed, desk and chair and that his bathroom is attached to his unit that it is shared but has locks on both sides. She found that the arrangements were adequate and that A.E.S.’s room was tidy and clean. Despite concerns raised by the mother, this worker was not concerned about the child living in the rooming house.

[46] With respect to the allegations that the father sexually molested his daughters, there is no evidence to corroborate such an allegation. No criminal charges have been laid and the Children’s Aid Society has not acted. Despite the decision of the Ottawa Police Service not to lay criminal charges and the decision of the Children’s Aid Society not to act, the mother continues to believe that the father is at risk of molesting his child.

[47] The father lives in a residence that he has converted into a rooming house, which allows him to rent six rooms to potential borders. In 2016, the father had 13 different tenants. While the father and A.E.S. have their own beds and bedrooms, the kitchen and family room are shared by all residents of the rooming house.

[48] The mother has consistently made allegations that the rooming house is an improper environment for the child to live in because of the numerous tenants. While I have concerns about a child living in a rooming house and potentially interacting with 13 different individuals over the course of the calendar year, I do not find that the child is at risk of harm in his father’s care. However, the question is the child’s best interests in face of the parents’ competing positions.

[49] I find that the child has special educational needs that have been addressed by him receiving medication for his ADHD issues, and that he requires the assistance of a tutor. I find that the child requires stability and that frequent changes during the school week are not in his best interest.

[50] The father seeks an order that will fundamentally alter the child’s interaction with both parents by requesting an alternating week about schedule. I am not prepared to experiment with the child’s stability by creating a completely new schedule, especially considering he will be starting a new school in September 2017.

[51] When I compare the plans of the mother and the father and taking into consideration the residential arrangements as well as the historical interaction between the child and his parents, I find that it is in his best interest that he should live primarily with his mother and that he should see his father every second weekend from Friday night until Monday morning and then alternatively Monday after school until Tuesday morning.

[52] In my decision I have considered what custodial arrangement is best for the child and not what is best for the parents. This child has been in the middle of a very conflicted and destructive litigation brought by both parents. The parties have involved the Ottawa Police Service and the Children’s Aid Society on numerous occasions and have made multiple applications to court.

[53] I find that A.E.S. is being negatively influenced by his father. The father has discussed this court proceeding with his son, including his request to increase the access schedule. The father should be insulating his son from rather than engaging his son in these discussions. While I appreciate that A.E.S. expresses a desire for alternating weeks, his views and preferences are only one factor to be considered.

[54] The decision that I have made regarding the child’s residential arrangements is made with the purpose of providing the child with stability. I have considered the evidence of Ms. Yegandorf, who testified that the child feels he is being pulled apart as a result of the strife between the parents. The child indicated to her that his mother’s home is very structured: he has chores, practice time for his cello and is interacting with three sisters. In contrast, when he is at his father’s home, he plays cards, watches TV and does not practice his cello. Ms. Yegandorf concluded that A.E.S. has a mild intellectual disability, which requires a calm, secure and predictable environment. She admits that the child would be well-received in a multisensory environment but does not agree that the father should tutor the child because he is too emotionally invested. Further, she testified that the child is preoccupied because the parenting styles are so different and the parties cannot communicate.

[55] I find that it is in A.E.S.’s best interests that he reside primarily with the mother. I find that A.E.S. needs stability during the school week. I find that he should have access with his father as proposed by the mother. During this trial, these parents indicated that they require a very specific order setting out their rights and obligations regarding their children.

Multidirectional order regarding the children

[56] Both parties agree that their specific rights and obligations regarding the children need to be specified in a court order. Both parties provided me with their submissions on what should be included in such an order. Taking into account the past history of the parties and the best interests of all of the children, I make the following order:

1. The mother shall have sole custody of the children of the marriage, namely, S.M.S., J.C.R.S., T.B.S. and A.E.S. (“the children”).

2. The mother shall have the right to make major decisions in all areas relating to the children’s academic education. The mother must advise and consult with the father before making any major decision except that with respect to any decision regarding the academic education of S.M.S., J.C.R.S. and T.B.S., the mother will not have to advise and consult with the father unless S.M.S., J.C.R.S. or T.B.S. wish her to. However, if the mother seeks a financial contribution by the father to any of the post-secondary educational expenses for M.I.S., S.M.S., J.C.R.S., T.B.S. or A.E.S., the father must be advised and consulted and provided with all necessary documents before any such decision is taken. If the parties cannot agree, the matter shall be determined by application to the Superior Court.

3. These rights and responsibilities shall include, but are not limited to the following:

(a) the right to decide which school the children attend;

(b) the right to determine whether the children require academic assistance or support, including but not limited to tutoring, and to determine the professional bracket(s) that will provided this assistance and support;

(c) the right to sign consents relating to the children’s academic education; and

(d) the right to sign consents relating to the children’s school activities.

4. The mother shall have the right to make major decisions relating to the children’s medical and healthcare treatment and assessment, including but not limited to issues relating to the children’s physical health, emotional and psychiatric health, dental care and eye care. The mother must advise and consult with the father before making any major decision. These rights and responsibilities shall include, but are not limited to:

(a) the right to decide which medical and other healthcare professionals will be involved with the children;

(b) the right to make and take the children to all appointments respecting the children’s medical and healthcare treatment and assessment; and

(c) the right to decide all issues and sign all consents regarding the children’s medical and healthcare treatment and assessment; this shall include the right to sign all such consents required to carry out school-related psycho-educational assessments.

5. The terms of paragraph 4 above shall not preclude the father from administering standard over-the-counter medication and treatment to the children for routine health issues or concerns.

6. In the event the children require immediate medical or healthcare treatment or assessment while in the father’s care, the father shall forthwith take all reasonable steps to contact the mother so that she can exercise her rights under paragraph 4.

7. The father may take the children for medical or healthcare assessment or treatment in this situation, but the mother shall have the right to decide where and by whom the children will be cared for, treated or assessed, and she will also have the right to attend. These terms shall not apply if, in the opinion of the attending healthcare professional(s), the situation is so urgent that the time required to attempt to contact the mother would place the children at risk.

8. In the event that the father is unable to reach the mother in the circumstances referred to in paragraph 6 after making reasonable efforts to do so, or the time required to contact the mother or obtain her consent would in the opinion of the attending healthcare professional(s) place the children at risk, the father shall have the right to make the emergency medical or healthcare treatment or assessment decisions respecting the children.

9. The mother shall be named as the emergency contact with the children’s schools and any other organizations or professionals involved with the children.

10. The mother shall have the right to decide the extracurricular activities that J.C.R.S., S.M.S. and T.B.S. will be involved in, taking into consideration their views and preferences. The consent of the father to their participation in the activities that the mother chooses shall not be required and the father will not be required to contribute.

11. The father and the mother shall have the right to enrol A.E.S. in extracurricular activities of his choice, without the consent of the other party, that occur while A.E.S. is solely in their care. They may sign any consents necessary for A.E.S. to participate in the activities that they choose for A.E.S. and the consent of the other party shall not be required. Each party shall use all reasonable efforts to allow A.E.S. to participate in the extracurricular activities in which he has been enrolled during their time with A.E.S., but they shall not be required to take A.E.S. to the activities if they fall during their time. Unless otherwise agreed upon between the parties, each party shall be responsible for paying the costs of the extracurricular activities in which they enrol A.E.S., with the exception of summer camp. The extracurricular activities of A.E.S. will be limited to two at a time, except during the summer months, with the parties each choosing one activity. During the summer months, when he is not vacationing, A.E.S. may be registered for up to two weeks at sleep away camp by the mother.

12. Neither party shall interfere with the religious observance of the other with the children. However, the mother shall have the right to decide whether the children participate in formal religious education, such as Hebrew school, and if so, the particulars of that religious education.

13. The father will take A.E.S. to Hebrew school if he is enrolled by the mother and unless A.E.S. is ill, he will miss no more than three Hebrew classes per term while in his care.

14. Before making any final decisions in any area of decision-making for A.E.S., the mother shall inform the father of her intended decision at least 14 days before making the decision. She will advise and consult with the father in regards to all major decisions regarding A.E.S. and shall seek the father’s input. It is only after this consultation process, if the parties cannot agree, that the mother shall be able to make a decision and, upon doing so, shall immediately inform the father of the decision that she has made.

15. Each party shall be entitled to receive copies of all medical, dental, school and other reports related to A.E.S. and shall be entitled to consult with A.E.S.’s teachers, caregivers, physicians, dentists and other healthcare providers concerning the general wellbeing of A.E.S.. The mother shall execute consents and authorizations to allow teachers, physicians, dentists and others involved with A.E.S. to speak fully and openly with both parties in accordance with this order.

16. Both the father and the mother shall advise each other, in a timely manner, of all important events, functions or appointments for A.E.S.. With the exception of family or other social events, both parties shall be entitled to participate in these events, functions or appointments.

17. The parties shall provide each other with the names and contact information of any professionals involved with A.E.S. within five days of the professionals becoming involved.

18. The mother shall have the right to obtain, renew and replace all legal documents relating to the children, including but not limited to the children’s passports, birth certificates, social insurance cards and health cards without the consent of the father. The mother shall provide to the father a notarized copy of these documents within 30 days of this order and will provide the father with A.E.S.’s passport for travel, provided the father gives the mother seven days’ notice and the details of any trip requiring the passport that is 48 hours or less in duration, and one month’s notice if the trip is longer than 48 hours. Details are to include where A.E.S. will be staying, the method of travel and a telephone number where A.E.S. can be reached during his trip.

19. In the event of a serious illness, accident or other misfortune involving A.E.S., the party then having A.E.S. in their care shall immediately and promptly notify the other party. During any period of illness or recovery, each party shall have generous and reasonable contact with A.E.S., consistent with the conditions of this order and the welfare and happiness of the child.

20. Should the father or the mother suffer a serious illness, accident or misfortune that prevents them for adequately caring for A.E.S., they shall promptly notify the other party, who will then care for A.E.S. until the other party recovers.

Access

21. S.M.S., J.C.R.S. and T.B.S. are currently residing with the mother. They do not wish to see their father. They will have access to the father in accordance with their wishes.

22. A.E.S. shall reside primarily with the mother and secondarily with the father. The father shall have access in Week One from Monday after school until Tuesday morning at 9:00 a.m. He will also have access in Week One from Friday after school until Monday at 9:00 am in Week Two. If the father’s access is scheduled for a Friday that is a professional development day, his access shall commence at 9:00 a.m. on that day. When A.E.S. is not in school, the father shall be responsible for picking up A.E.S. at the mother’s residence at the commencement of his parenting time and dropping him off at the mother’s at the end of his parenting time.

23. During the summer holiday, when A.E.S. is not vacationing with one of his parents or at sleep away camp, the access regime will switch to week on, week off, commencing and ending Sundays at 7:00 p.m., such that the parents have A.E.S. in their care an equal amount of time in the summer.

Christmas

24. Christmas vacation is that period of time commencing at the end of the last day of school in December and terminating on the first day of school in January. The holiday is to be evenly divided between the parties, such that each party will have A.E.S. in his/her care for half of the holiday, with the changeover occurring at 1:00 p.m. on the day in the middle of the holiday if it is an odd numbered holiday, or at 5:00 p.m. on the last day of the first part of the holiday if it is an even numbered holiday.

25. Commencing in 2016, and every even year thereafter, the father shall have A.E.S. in his care for the first half of the Christmas holiday, from the last day of school until the end of the first part of the holiday as defined above in paragraph 24. The mother shall then have A.E.S. in her care for the second half of the Christmas holiday until A.E.S. returns to school, when the regular schedule will resume.

26. Commencing in 2017, and every odd year thereafter, the mother shall have A.E.S. in her care for the first half of the Christmas holiday, from the last day of school until the end of the first part of the holiday as defined above in paragraph 24. The father shall then have A.E.S. in his care for the second half of the Christmas holiday until A.E.S. returns to school, when the regular schedule will resume.

March Break

27. March Break is that period of time commencing Friday after school (or 3:00 p.m. if the children are not in school) for the March Break holiday until Monday at the start of school (or 9:00 a.m. if the children are not in school) after the end of the March Break Holiday, after which the regular schedule shall resume.

28. In odd years, the father shall have A.E.S. the first half of the Break until Wednesday at 1:00 p.m., and the mother shall have A.E.S. the second half of the Break until school resumes.

29. In even years, the mother shall have A.E.S. the first half of the Break until Wednesday at 1:00 p.m., and the father shall have A.E.S. the second half of the Break until school resumes.

Summer Vacation

30. Summer vacation will be divided into two sessions, with the first session running from 5:00 p.m. the Friday before Canada Day weekend to the Sunday at 5:00 p.m. fifteen days later. The second summer holiday will run from 5:00 p.m. the Friday before the August long weekend until Sunday at 5:00 p.m. fifteen days later.

31. In even years, the father will have A.E.S. in his care for the first period of summer holidays and the mother will have A.E.S. in her care for the second period of summer holidays. In odd years, the mother will have A.E.S. in her care for the first period of summer holidays and the father will have A.E.S. in his care for the second period of summer holidays.

Father’s Day / Mother’s Day

32. The father shall have A.E.S. in his care every Father’s Day from 9:00 a.m. until 7:00 p.m. and the mother shall have A.E.S. in her care every Mother’s Day from 9:00 a.m. until 7:00 p.m.

Jewish Holidays

33. Jewish holidays will only be celebrated the first two days of the holiday unless otherwise stated or agreed by the parties. To allow travel time to Toronto before sundown for a celebration with extended family, the first day of the holiday will run from 12:00 p.m. to 7:00 p.m. the following day, with the second day running the same 24 hour period, after which the regular schedule will resume.

Shavuot

34. The father will have A.E.S. in his care for the first 24 hours of Shavuot in even years and for the second 24 hours in odd years. The mother will have A.E.S. in her care for the second 24 hours of Shavuot in even years and for the first 24 hours in odd years.

Sukkot

35. The father will have A.E.S. in his care for the first 24 hours of Sukkot in odd years and for the second 24 hours in even years. The mother will have A.E.S. in her care for the second 24 hours of Sukkot in odd years and for the first 24 hours in even years.

Rosh Hashanah

36. The father will have A.E.S. in his care for the first 24 hours of Rosh Hashanah in even years and for the second 24 hours in odd years. The mother will have A.E.S. in her care for the second 24 hours of Rosh Hashanah in even years and for the first 24 hours in odd years.

Hanukkah

37. The father will have A.E.S. in his care for the first 24 hours of Hanukkah in odd years and for the second 24 hours in even years. The mother will have A.E.S. in her care for the second 24 hours of Hanukkah in odd years and for the first 24 hours in even years.

Purim

38. The father will have A.E.S. in his care during Purim in even years and the mother will have A.E.S. in her care during Purim in odd years.

Pesach

39. The father will have A.E.S. in his care for the first 24 hours of Pesach in odd years and the second 24 hours in even years. The mother will have A.E.S. in her care for the second 24 hours of Pesach in odd years and for the first 24 hours in even years.

Yom Kippur

40. The parties will follow the regular access schedule for Yom Kippur and A.E.S. will be in the care of the parent with whom he is regularly scheduled to be that day.

A.E.S.’s Birthday

41. A.E.S. shall spend his birthday with the party who has care of him in accordance with the residency schedule set out above.

Other Holidays

42. All other holidays and special vacations, including but not limited to Family Day, Victoria Day and Halloween, shall follow the normal residency schedule.

Activities, Communication and Travel

43. Parenting time shall only be altered on consent of the parties as evidenced by a signed agreement, an agreement on Our Family Wizard or by further court order or on the recommendation of a medical professional in the event of a medical emergency. Both parties shall discuss any medical emergency concerning A.E.S. with the professional in that event.

44. There shall be no makeup time for missed parenting time unless the parties agree otherwise, in writing or in Our Family Wizard.

45. If A.E.S. is sick, the transition from one party’s care to the other party’s care is to proceed, unless A.E.S. is too sick to travel between the parties’ homes as determined by A.E.S.’s physician. If either party is unable to meet the other party at the transition location due to inclement weather or unreasonable traffic, that party shall advise the other party by email/text as soon as reasonably possible.

46. The father and the mother shall advise each other within one day of learning of any special activities or events that arise during the times that A.E.S. is scheduled to be with the other parent. They shall make reasonable efforts to allow A.E.S. to attend these activities or events, unless they have previously scheduled other special activities or events.

47. Both parties shall be at liberty to attend scheduled school events and extracurricular activities for A.E.S., whether or not they occur during their parenting time. The party in whose care A.E.S. is residing at the time of the school event or extracurricular activity will ensure that A.E.S. is brought to the school event or extracurricular activity. To maximize the benefit of A.E.S.’s participation in ongoing events and activities, both parties shall make their best efforts to ensure regular attendance.

48. Both parties shall be at liberty to attend field trips and participate in classroom events while A.E.S. is in their care, and will not attend those events if A.E.S. is in the care of the other party at the time. If a parent is not able to attend such field trips or events even though A.E.S. is in their care, the other parent is allowed to attend the field trips and classroom events.

49. There shall be no restrictions placed on A.E.S. with respect to personal items, toys and gifts that he may wish to take with him between the residences of the parties. Should A.E.S. wish to take personal items, toys and gifts, he shall be permitted to do so without the intervention of the other party.

50. Both parties are to provide the other, using Our Family Wizard, with their current address and phone number where they can be reached at all times.

51. The parties are to use Our Family Wizard for routine communications. Alerts to urgent or time-sensitive communications in Our Family Wizard can be made by text.

52. Both parties are to advise the other by email through Our Family Wizard if A.E.S. will be other than in that parent’s home for more than one night, and to provide the details of where A.E.S. is, as well as a phone number where A.E.S. can be reached.

53. The parties shall abide by the following principles in their relationship with each other and their contact with the children:

(a) they shall refrain absolutely from denigrating each other or members of each other’s households or families in the presence or within earshot of the children;

(b) they shall not question the children about the other party’s personal life and activities;

(c) they shall not video- or audio-record the children for the purpose of recording statements or discussions about the other party, members of their household or family, or parenting issues;

(d) they shall refrain absolutely from engaging in any disputes with each other in the presence of or within earshot of the children, and from involving the children in any manner in conflicts that may arise between the parties;

(e) they shall not use the children to pass messages or documentation to each other; and

(f) they shall encourage the children to have a strong and positive relationship with both parents, and shall use all reasonable efforts to foster a meaningful relationship between the child and extended family members.

54. Neither party shall discuss with the children, or with another party in the presence of the children, present or past legal proceedings or issues between the parties related to present or past legal proceedings, including any outstanding property or financial issues relating to the parties or the children, or regarding conflicts between the parties relating to parenting issues.

55. Neither party shall leave out or make accessible to the children any information or documents pertaining to any issue arising from the parties’ separation and divorce, including any material that pertains to the matters referred to in paragraph 54 above, and neither will permit the children to access their personal email where communications regarding these matters are stored. Both parties shall ensure that the children will not have access to information regarding the parties’ separation and divorce by password-protecting any area of their personal computers that holds such information.

56. The parties shall communicate about the children by email using Our Family Wizard. The emails shall not be read by the children. Each party will respond promptly by return email to the email of the other. The parties shall exchange information regarding A.E.S.’s care, homework, assignments, scheduled activities, medication and appointments, medical and otherwise. All emails between the parties regarding the children shall not be deleted nor shall they be forwarded to third parties without the other parent’s consent. Emails shall be brief, respectful and related solely to the children, with no reference to either of the parties or their activities. Absent an emergency, the parties shall not email each other more than once per day.

57. The parties shall share all documents pertaining to A.E.S. by scanning the document and then sending it to the other parent by email. The parents shall not rely on A.E.S. to transport documents between them.

58. Neither party shall go to the other’s home except for the purpose of picking up or dropping off A.E.S., or on the consent of the other, as evidenced in writing (which includes an email in Our Family Wizard). A.E.S. shall take responsibility for the movement of his possessions as necessary between the parties’ homes.

59. Neither party will leave the motor vehicle in which they travel to the other party’s home during access pick-up or drop-off.

60. Any of the children may travel within Canada for vacation purposes with either parent. This travel will not require the consent of the other party.

61. The children may travel outside Canada for vacation purposes with either parent, with the consent of the other party. This consent is not to be unreasonably withheld. The travelling party shall request the consent of the non-travelling parent a minimum of 60 days in advance of the scheduled trip, unless otherwise agreed, and the non-travelling party shall provide a notarized “Travel Letter” authorizing the children to travel with the travelling party a minimum of 21 days in advance of the scheduled trip.

62. Should either party desire to take the children out of the Province of Ontario for vacation purposes, they shall advise the other party in writing of dates of travel, location, flight details (if applicable), address and phone numbers where the children can be reached, a minimum of 21 days in advance of the scheduled trip, unless otherwise agreed.

What school should A.E.S. attend?

[57] On July 18, 2017, I released an endorsement where I ordered that A.E.S. should attend a public school chosen by the mother with reasons to follow. I did so because the decision on school was time sensitive. These are my reasons.

[58] The father proposes that the child attend Heritage Academy in September 2017 because A.E.S. needs to be involved in a multisensory approach in his learning environment. He is concerned that the psycho-educational assessment dated April 2016 indicates that A.E.S.’s level of intelligence and learning skills are borderline and that he is at the low end of average for learning. Further, the report indicates that there is a social aspect to his learning difficulties, which is causing the child anxiety.

[59] The Heritage Academy uses the simultaneous multisensory teaching method. He proposed that the child attend this program in July 2013, sent the letter to the mother and put down a deposit to hold him a spot. The mother spoke to the school and in August 2013 emailed the father indicating he should be attending the B[…] public school. The parties litigated this issue and Master Roger ruled that the child should attend the B[…] public school as of September 2013.

[60] On May 13, 2016, the father raised again the issue of the child attending Heritage Academy as of September 2016. One of the reasons that he did so is that the B[…] public school is an open concept school. There was no response from the mother.

[61] When asked why the father did not seek to change schools after the ruling, he indicated that he did not want to push a change of school because A.E.S.’s social contacts were at that school and he needed stability and the teachers at the B[…] public school asked the father to give time to see if the process works.

[62] Based on the May 2016 psycho-educational assessment, the father’s view is that the system did not work and change was required.

[63] The father’s position is that the child should not change schools and should complete his education at the B[…] public school until June 2017, but that it is a good juncture to change schools after that time. There are a variety of reasons stated by the father, including that the child would be transitioning from an elementary school to middle school and that he would be finding new friends in a new social environment.

[64] The mother’s position is that if the Greenbank public school is closed as of September 2017, the child should attend a Learning Disability program offered by the local school in the Ottawa-Carleton District School Board of Education.

[65] The child’s teacher, Miss Riou, testified that as a result of the medication that the child is receiving, he is more focused and more conscientious in class, allowing him to take the initiative and seek clarification on things he does not understand. She testified that his learning skills are all improving. His current progress report card indicated he was progressing well. The child does not always take his medication and both the teacher and the mother noticed significant improvement in his behaviour when he takes the medication.

[66] Ms. Doherty, a learning support teacher at the B[…] public school responsible for educational assessments and special education, testified that A.E.S. was working towards modified expectations in his Individual Educational Program (“IEP”). That document was amended after receiving the psycho-educational assessment. She indicated that the multidisciplinary committee would have to retest the child to determine if he would qualify for the learning disability program in 2017. This program is highlighted by only eight students receiving individualized, small group attention for half of their school day in their core subjects, with the other half being integrated in regular classrooms. Ms. Doherty testified that the multidisciplinary committee has reviewed Ms. Yegandorf’s report and that the child’s current IEP incorporates many of those recommendations.

[67] The father indicated both parents could drive A.E.S. to school. The Heritage Academy is on Bayswater Avenue in Ottawa near the Civic Hospital, while Greenbank Middle School is on Greenbank Road in the West End of Ottawa. The father indicates that transportation is not an issue. The mother’s view is that transportation of the child would be very problematic for her.

[68] The father states that the Heritage Academy will help A.E.S. adjust with his self-esteem and anxiety as there are many other children with the same type of issues at the school. In contrast, Greenbank Middle School will have between 28 and 30 children per class, while the Heritage Academy classes have between 6 and 10 children.

[69] With respect to the difference in costs, the father acknowledges that the cost of Heritage Academy is approximately $15,000 per year, whereas there is no cost for the public school. He proposes that the cost of Heritage Academy be shared as a section 7 expense. In considering whether to choose the private school over the public school, the annual cost must be considered when one realizes that M.I.S., S.M.S. and J.C.R.S. will all be attending university in September 2017.

[70] Considering three children will be attending university on a full-time basis, all children are involved in extracurricular activities and the parties’ incomes, I do not find that it is reasonable for the parents to incur an additional annual cost of $15,000 for A.E.S. to attend Heritage Academy. Further, I find that the public school authorities have identified A.E.S.’s needs in his IEP, that his needs can be met in a public school and that it is in his best interests to attend the public school.

[71] The decision as to where the child is to attend school is intertwined with the decision as to which parent will have custody of the child. I have decided that the mother would have custody of the child and consequently she shall have the right to determine which school the child attends. She shall consult with the father but in the event of a disagreement, she shall have the right to decide which school the child attends. Consequently, the child shall attend a public school chosen by the mother.

What additional conditions should be placed in an order for the best interests of all children, such as ordering a parenting coordinator or reunification counselling?

Parenting coordinator

[72] The father seeks the appointment of a parenting coordinator while the mother’s position is that the past parenting coordinators have not been effective in resolving the disputes. The Children’s Aid Society has stated that a parenting coordinator could be of assistance to this family.

[73] The mother opposes the appointment of the parenting coordinator because it will not work. The mother feels harassed and did not feel that the previous parenting coordinator supported her views. She is concerned that it is impossible to communicate effectively with the father and that if he does not agree with the decision, he threatens to go to court. For example, in 2016 there was a case conference in February, a motion date set in March, pre-trial motions, motions on summer access and then this trial.

[74] The last parenting coordinator quit in December 2015 and before him there were two previous parenting coordinators, both extremely experienced. None of these individuals wish to be involved with this family. I find that parenting coordination has not worked in the past with these parents.

[75] Without having a valid option, I am not prepared to make an order for parenting coordination when there is no suggested name of a parenting coordinator and three parenting coordinators no longer wish to work with this family.

[76] While I would have hoped that the parents could have communicated effectively for the best interests of their children, unfortunately for the children that is not the case. These parents need a very specific order setting out their various rights and obligations. The best way to achieve this goal is to create a multidirectional order to try to eliminate the highly destructive and antagonistic interaction between these parents. Both parties agree that there should be a multidirectional order to eliminate conflict between the parties.

Reunification counselling

[77] At the commencement of the trial, the father had advocated reunification counselling with T.B.S..

[78] To be able to ascertain T.B.S.’s views and preferences regarding attending such counselling, the Voice of the Child Report dated April 25, 2016, indicated that she wanted nothing to do with her father. In the second Voice of the Child Report, the child was open to having some limited contact by text with her father but was not interested in resuming access or contact with him or in attending reunification counselling

[79] The issue of reunification counselling was canvassed by Justice Jarvis in Testani v. Haughton, 2016 ONSC 5827. He stated the following at paragraph 18:

In summary then,

1. The court may order reunification therapy. That jurisdiction arises from the provisions of section 24(2) and 28(1) (b) and (c) (viii) of the Children’s Law Reform Act.

2. Such orders are to be made sparingly.

3. There must be compelling evidence that the therapy will be beneficial.

4. The request must be adequately supported by detailed proposal identifying the proposed counsellor and what is expected.

5. Resistance to therapy is an important but it is not the determining factor whether such an order should be made.

6. Where a clinical investigation or an assessment is underway, no order should be made pending their conclusion.

7. Wherever practical, appropriate direction should be given to the counsellor/therapist and a report made to the court.

[80] Applying those principles to this case, I do not find there is compelling evidence that the reunification therapy would be beneficial in the face of the child’s views, coupled with the lack of any detailed proposal from any counsellor as to what is to be expected. I do not have the name of a proposed counsellor to conduct such counselling. I acknowledge that ordering reunification counselling is to be used sparingly and I do not find that this is a case to impose such a regime on the child. For those reasons, the request is denied.

What are the parties’ respective incomes, including imputation of income towards the father?

Father’s income

2014

[81] Both parties agree that there will be no variation of the child or spousal support up to December 31, 2014.

2015

[82] For 2015, the father proposes that his income should be set at $43,000, based on an imputed income of $25,000; $5,000 for the benefits that he receives for the shelter costs at the rooming house; plus $13,000 for half of the RRSP income that he received.

[83] The mother’s position is that the father’s income in 2015 should be $67,848, based on interest income of $122; all of the father’s RRSP income that he received in 2015 in the amount of $26,303; half the salary of a building inspector in the amount of $26,423; and the benefits received in living cost-free in the rooming house of $15,000.

2016

[84] For 2016, the father proposes that his income be $40,552, consisting of imputed employment income of $25,000; $5,000 for the shelter cost for the rooming house; and $10,552.29 being the net amount after the deduction for HST and legal fees for the wrongful dismissal suit.

[85] The mother proposes that the father’s income should be $79,632, based on a full-time position as a building inspector in the amount of $52,846; interest income of $122; interest of $4,950 on the sum of $256,000; and rental benefits of $21,713.61.

Father’s employment history and efforts to seek employment

[86] After graduating with his Master’s degree in 1988, the father found employment as an engineer in 1989. He then was transferred to sales with his first employer. Until 1996, the father worked as the regional system specialist providing technical support to the sales team. He was laid off in January 1996 and was self-employed for a period of time.

[87] From 1998 to 2002, he acted as an employment recruiter. After the high-tech crash in 2002, the need for engineers dropped off considerably. Consequently, the father started to work in the water and wastewater treatment area.

[88] From 2003 to 2007, the father was self-employed performing house renovations with a focus on secondary suites.

[89] In 2005, the mother purchased a dental practice. While working on the house renovations, the father assisted the mother in running her dental practice by answering the phone and helping with human resource issues. For these services, the father was paid a salary.

[90] In 2007, the mother purchased another practice. The parties jointly agreed that the father would cease working on house renovation business work and that he would work full-time for the mother’s practice. He was paid a salary.

[91] In 2009, the mother purchased a third dental practice, which required further involvement of the father. In June 2010, the parties separated and the father’s employment with the dental practice ended.

[92] The father sought employment and on November 15, 2010, he was hired as a technical salesperson for Capital Control. At the time of the trial in June 2013, the father was working as a technical salesperson for Capital Control, earning approximately $60,000 per year.

[93] Four months after the trial on October 23, 2013, without notice, the father was terminated from his employment. He could not agree on a severance package with his employer. The father sued and in July 2016 he received a severance package in the amount of $15,500, of which $2,500 represented legal fees.

[94] After being terminated from his employer on October 23, 2013, the father compiled reference letters to assist him in the pursuit of employment. He made a list of companies that sold control panels throughout Ontario. He contacted Summa Controls in Mississauga to ascertain if they were prepared to branch out their services to the Ottawa area. He started a company called S[…]-Touch Instrumentation and Control Solutions to make bids on contracts. He identified technical people who could help perform tasks. From January 2014 to April 2014, the father pursued a possible commercial agreement with Summa Controls without arriving at an agreement.

[95] In May 2014, the father emailed the principal shareholder, Mr. Nurse, of ACA Control Systems Limited, to discuss a possible business relationship. They met in June 2014, when the father proposed to be the Eastern Ontario Sales Representative of the company. On September 23, 2014, the father and the shareholder came to an agreement whereby the father would be paid based on commissions earned. Over the fall of 2014, the father made two quotes without success. The father had to pull back his sales effort, according to the father, due to a very heavy court schedule in this case plus the requirement to make his house ready for sale. Not until March 2015 did the father resume pursuing sales. From the end of March to the middle of June 2015, the father made five proposals without success. By the end of June 2015, Mr. Nurse asked the father to stop pursuing any work on behalf of his company. There were no further communications from the father until Mr. Nurse received a notice of garnishment by the father’s former family law counsel. Consequently on January 4, 2016, Mr. Nurse terminated the business agreement. In that entire period of time that the father was involved with that company, he earned no income and generated no sales.

[96] Since being terminated in 2013, the father applied for different jobs including salesman, delivery driver, short order cook and aerial photographer. The father did not apply for any jobs in the construction field or any related to a dental practice.

[97] Despite working in the renovation field for a period of years, the father testified that he does not have a certification for a specific trade, that he does not have a project management designation and that his job was selling and quoting possible jobs.

[98] On the issue of working in a dental office, despite admitting he did all the required tasks, he never applied for any such job.

[99] The father investigated working as a building inspector. The father was one course short of obtaining his certification, which he indicated cost $3,511 in 2011. He never pursued completing that course after he was terminated in 2013. The father did not pursue the course because, in his view, there is no company that employs building inspectors and there is a significant requirement for liability insurance. In addition, the father had no existing clients and he was concerned about the long delay in building up a sufficient inventory to be able to make ends meet.

[100] The father’s financial statement dated September 23, 2016, shows that he receives social assistance of $681 per month since March 2016. The father was originally entitled to Ontario Works as of January 2016 but it was stopped in March 2016. He appealed and it restarted in July 2016. When the father applied for Ontario Works benefits, he did not disclose his entitlement to the share of the proceeds of sale of a cottage property received in the fall of 2015. He admitted that he did not disclose when he applied for Ontario Works that he lent his sister $180,000.

[101] The father also failed to disclose on his Food Bank intake form that his assets included the monies received from the sale of the cottage property and the account receivable owed by his sister in the amount of $180,000.

[102] During the period of time that the father was receiving Ontario Works benefits, he travelled to Lake Placid in January 2016, skiing at Mt Cascade and purchasing a ski pass. On Father’s Day 2016, he took his youngest son, A.E.S., on a zip line. The father admitted he also went to Orlando in December 2015 with A.E.S. and that this trip was paid for by his sister; that he went snowmobiling in March 2016 with A.E.S. and that this trip was paid for by his brother; and that he rented a motorcycle in August 2016 with A.E.S., which was paid for by his brother. All of these activities took place when the father was applying for or receiving Ontario Works benefits.

[103] The father’s evidence is that his financial situation is precarious because he does not receive the interest income that is accruing on the amount owed by the mother to the father as an equalization payment. Further, the father testified that he has significant debt to Visa in the amount of $27,200. He testified that he paid $20,000 in January 2016 and has been paying $600 a month since January 2016 to have it paid off by the end of December 2016.

[104] On October 15, 2015, the father stated that he borrowed $27,200 from his brother’s numbered company to be paid in monthly instalments starting November 1, 2015, and ending October 15, 2020. The loan agreement does not provide any specific amount to be paid in monthly instalments. The father testified that his brother was concerned about being repaid so his brother requested that he be the property manager of the father’s rooming house and that all leases at the father’s rooming house be in the name of the brother’s numbered company. As part of this agreement, the brother would receive all rental income, pay all required expenses, deduct the monthly payment under the October 15, 2015, loan agreement and pay himself a fee as the property manager based on a percentage of the rental income. The father then agreed to register a mortgage on the rooming house for the $27,200 plus $631.92, representing the registration cost for the mortgage. None of these loan agreements were signed by the brother through his numbered company. There is no written agreement regarding the request by the father’s brother to be the property manager, the request that all leases be in the name of the brother’s numbered company or the purported financial arrangements regarding the rent expenses and deductions as testified by the father.

[105] In addition, according to the father, his brother agreed to pay the father’s yearly car loan, car insurance and gas totalling $7,074, as well as his cell phone totalling $1,198.54. Again, there is no written document that confirms this arrangement.

[106] According to a residential lease signed by the father and his brother’s numbered company, the father leases a room in the rooming house at a monthly cost of $650 per month but the father does not pay the monthly amount.

[107] The father provided a profit and loss statement prepared by the father for the year 2016, which indicates that the rental income is $49,263, representing rent of seven suites at $650 per month for 12 months. The father filed supporting documentation for the leases, hydro expense, gas expense, water expense, internet expense, insurance expense, taxes, cell phone and mortgage payments, which total $5,859.12 and were withdrawn from the rental income. The father indicated that the rooming house required roof repairs, that his brother paid from the rental income on behalf of the father the sum of $2,979.24 representing an RRSP loan and that he paid himself $386.03 as a property management fee.

[108] The father testified that as of September 23, 2016, he has the following debts:

(a) CRA income tax arrears of $19,889.73;

(b) To Sullivan Law, the sum of $88,000 with a pending assessment for an additional $3,200. The father indicated he commenced a proceeding in April 2016 against his former counsel, alleging negligence and breach of fiduciary duty. This matter is still before the court;

(c) CRA re-HST owing in the amount of $23,829.46 for the period that the father was self-employed and he failed to file HST returns; and

(d) TD business overdraft in the sum of $223.47.

The law on imputing income

[109] In this case, the relevant part of Section 19 of the Federal Child Support Guidelines, S.O.R./97-175, as am. (“Guidelines”) is as follows:

19. Imputing income.—(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse

[110] The Ontario Court of Appeal in Drygala v. Pauli (2002), 61 O.R. (3d) 771, at para. 23, set out a three-part test for determining whether income should be imputed on the basis of intentional under-employment or unemployment as follows:

1. Is the spouse intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[111] A spouse is intentionally underemployed if he or she chooses to earn less than he or she is capable of earning having regard to all of the circumstances (Drygala, at para. 28). There is no requirement that the under-employment or unemployment be undertaken in bad faith or with the intention of avoiding support payments (Drygala, at paras. 29-36).

[112] The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is intentionally under-employed or unemployed (Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28).

[113] There is a duty on the spouse to “actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children” (Thompson v. Thompson, 2013 ONSC 5500, at para. 99);

[114] A spouse’s capacity to earn income can be influenced by his or her age, education, health, work history, and the availability of work that is within the scope of his or her capabilities (Marquez v. Zapiola, 2013 BCCA 433, 344 B.C.A.C. 133, at para. 37);

[115] Once intentional underemployment is established, the onus shifts to the payor to show one of the exceptions of reasonableness (Jackson v. Mayerle, 2016 ONSC 72, at para. 702).

[116] Where the spouse is intentionally and unreasonably under-employed or unemployed, the court has a large range of discretion to impute as income an amount founded on a rational basis (D.D. v. H.D., 2015 ONCA 409, 335 O.A.C. 376 at para. 101).

[117] The main factors a court should consider are the age, education, skills, and health of the spouse, along with the number of hours that can be worked in light of competing obligations and the hourly rate the spouse could reasonably obtain (Drygala, at para. 45).

Analysis

[118] Both parties agree that I should impute an income to the father. They differ on the amount.

[119] The father’s income tax returns disclose the following information:

(a) 2013: $52,851 with an employment income of $2,170, RRSP income of $18,556 and dividend income of $32,125;

(b) 2014: $104,045.15 with interest and other investment income of $110.67 and RRSP income of $103,934.48; and

(c) 2015: $26,424.42 with interest and other investment income of $122.42 and RRSP income of $26,302.

[120] The father’s position is that he has done everything possible to find work but is prepared to accept that I impute an income to him. The question is in what amount.

[121] I accept that the father was terminated without notice in October 2013. The question is what has he done since that time to discharge his obligation to work and pay child support for his five children.

[122] The father provided reference letters from previous employers and contractors, who confirmed that he had impressive skills, is technically proficient, was organized, polite, and a self-starter. A job-search tracking tool provided by the father indicated that he made many applications for employment in 2013 and 2014 to different contractors and corporations.

[123] By 2015, the father had made applications for being a sales manager and an outside sales engineer. Despite not having any success in his efforts to find employment, the father then started to seek employment as a delivery driver, part-time server in a restaurant, part-time server/short order cook, non-profit fundraiser and night time courier. In many of the applications, the father indicated he was available for work 18 days per month because he had his child every other weekend and every other Wednesday and Thursday.

[124] In addition, he indicated to potential employers that his “day job” was working on a contract as a technical sales representative.

[125] The father provided evidence as to what a sales consultant can earn in Kanata, which is an average of $41 an hour. He also indicated that according to a Service Canada website, someone in the food services field would have an average income of approximately $23,800 per year.

[126] Despite the father’s efforts, he did not find remunerative employment since he was terminated in October 2013.

[127] In the fall of 2015, the father became entitled to a significant sum of money. In October 2015, a company incorporated to own legal title to a cottage property in the Muskoka region of Ontario sold the cottage for approximately $1.6 million, with each shareholder share being $501,830.67. The three equal shareholders were the father, his brother and his sister. The father indicates that as a result of this corporate transaction he has a personal tax liability of $88,824. This issue is disputed by the mother

[128] On October 28, 2015, the father received the sum of $231,830 by the way of a tax-free capital dividend, which was the specific amount to pay off the mortgage on his rooming house, which the father did once he received the money.

[129] In addition, the father was entitled to receive an additional ordinary dividend in the amount of $190,000. The father allegedly owed his sister a personal debt of $85,000 and consequently his share of $190,000 was reduced to $105,000 after the payment to the sister of $85,000.

[130] Rather than receive the $105,000 and the balance of owing of $80,000 for a total of $185,000, the father decided on November 1, 2015, to lend the entire amount to his sister to be repaid by November 1, 2035, with interest calculated from the date of distribution being 1% per annum.

[131] The father readily admitted that he decided not to receive the money to which he was entitled to avoid paying his creditors. Secondly, the father wanted to ensure that he had enough money to pay the income tax owing on the dividends being received. He admitted that if the funds were deposited into his numbered company’s bank account or his personal account, the father’s existing debtors, such as Sullivan Law and the Canada Revenue Agency, could garnish his bank account to pay the outstanding debts.

[132] Further, the father admitted that he agreed that all rent from the rooming house would be payable to his brother’s numbered company to avoid his tenants receiving garnishment notices from his creditors.

[133] Also in November 2015, the father purchased the mother’s interest in the rooming house. The consideration for such transaction was that the mother would receive a credit of $116,000 against the trial equalization payment of $493,000 owed by the mother to the father.

[134] I find that the father has been intentionally underemployed and has chosen to earn less than he was capable of earning. Taking into consideration the father’s age, education, excellent health and varied work experience, I impute an income to him in the amount of $60,000. I do so for the following reasons:

1. The father has extensive experience in the construction field yet made no applications for employment in that field. I do not accept his explanation that he was not qualified, considering that in the past he was acting as a renovator.

2. The father has extensive experience working in a dental office for which he was paid by the mother. There is no explanation provided by the father why he made no such application.

3. Many of the applications made by the father were for jobs that were part-time employment such as a restaurant driver. While the father made applications for employment, many of the applications were for jobs well below his education and work experience.

4. Despite never working in the food industry the father selected the food industry as the average salary for the evidentiary basis of imputing an income to him of $25,000. I reject using the income in the food industry because the father never worked in such an industry.

5. The father had an opportunity to work as a building inspector but made no efforts to pursue completing the final course. Further, I reject the father’s position that he could not afford to pay for the course considering that he was entitled to receive approximately $501,000 in the fall of 2015. The father did receive approximately $231,000, which he used the pay off the mortgage on his rooming house and then undertook a series of legal manoeuvres to ensure that any future funds were not received by him to avoid the funds being seized by his creditors.

[135] I find that the father could have earned an income starting in 2015. His attempts in 2014 produced no sales and no income. He should have been working by 2015, 14 months after he was terminated. He had the skills to earn income. I find that the father intentionally avoided working. He did so in the face of a legal obligation to support his children.

[136] In deciding to impute an income to the father, I must do so based on an evidentiary record. Even if the father worked in the food industry or another low entry job, he could have earned at least $25,000 per year without any overtime plus $20,000 of benefits received by his brother’s numbered company paying the expenses on the rooming house and, as conceded by the father, the $13,000 of RRSP income. I find that the father’s income for support purposes is $60,000, effective January 1, 2015, going forward.

[137] For 2016, the mother submits that the father should be imputed income of $52,846, representing the medium income for a building inspector according to a Pay Scale Internet printout showing the average pay for a building inspector in Canada to be $52,846. I have not considered this evidence because it is opinion evidence and an Internet printout does not qualify as an expert report under the Family Law Rules. Secondly, it is clearly hearsay and such information could not be accepted for the truth of its contents.

[138] Further, the mother submits that I should impute an income of $4,114.83 based on the father receiving a tax-free capital dividend in the amount of $256,000, which he used to pay off the mortgage against the rooming house. I reject that argument because the money was received by the father, was used and is no longer available.

[139] I accept the mother’s argument that due to the car loan, car insurance, gas, cell phone charges and RRSP loans paid by the father’s brother’s company as well as the fact that the father has use of three rooms and pays rent for only one room, an additional sum of $5,000 should be added to his income. I find that these expenses and benefits total approximately $25,000.

[140] For 2016, I find that the father’s income for support purposes is $60,000, based on an imputed income of $25,000 plus $25,000 for housing and personal expenses paid by his brother’s company and $10,552.29 for the wrongful dismissal suit.

Mother’s income

[141] In 2015, the mother’s position is that her income is as declared in her income tax return in the amount of $92,060 plus the dividend income that was paid to the eldest child M.I.S. in the amount of $47,200 should be imputed back to the mother’s income for a total of $139,260. For 2016, the mother submits her income should be set at $139,260, subject to review once her tax return information is available.

[142] The father’s position is that the mother’s income in 2015 was $214,597 and $215,949 in 2016.

[143] I have reviewed the medical evidence filed by the mother, being the reports of Dr. Rosenbloom dated May 10, 2016, and May 16, 2016, the report from the Ottawa TMJ and Sleep Apnea Clinic dated November 19, 2015, and the orthopaedic consultation from the Ottawa General Hospital dated December 2, 2013.

[144] I find that since the 2013 trial, the mother’s ability to work five days per week has been negatively affected by neck and upper back/scapular pain. The mother also sees a psychologist related to stress from suffering from significant pain in left side of her body. The mother currently works shorter days and can no longer work five days a week because of her physical impairments.

[145] The mother testified that she has no financial assistance from anyone and she is assuming all of the children’s section 7 expenses and is on the verge of bankruptcy. She indicated she is in dire financial stress.

[146] For 2015 and 2016, I accept the mother’s evidence that her income is $139,260, based on dividend income of $47,200 and $92,060 of income from other sources.

What is the table child support payable for all five children?

[147] The father’s position is that child support for M.I.S. should have terminated on […], 2014, upon him attaining 18 years of age. The mother agrees that the table child support for M.I.S. should have ended in June 2014 but argues that M.I.S.’s postsecondary educational expenses qualify as shareable section 7 expenses and that the father should have paid table child support for four months in 2015 when M.I.S. lived with the mother.

[148] Regarding the four other children, the mother’s position is that they continue to reside in the full-time care of the mother and that child support should be paid for them. Since June 3, 2013, the children have resided primarily in the care of the mother.

[149] M.I.S. started attending university in September 2014. M.I.S., at the time of the trial, was attending G[…] University in his third year. The father challenges M.I.S.’s entitlement to support as a “child of the marriage” within the meaning of the Divorce Act. For M.I.S. to be entitled to child support, he must be unable to support himself to pursue his educational path on a full-time basis. In reviewing M.I.S.’s income tax returns, he received dividend income from the mother’s dental corporations, which the mother admits should be imputed back to her. I find that M.I.S., who is continuing his education, continues to be a “child of the marriage” within the meaning of the Divorce Act and that his university expenses qualify as section 7 expenses within the meaning of the Federal Child Support Guidelines.

[150] I also find that when M.I.S. returned in the summer of 2015 to live with his mother, the father should have paid table child support for those four months.

[151] With respect to the four other children, as they continue to reside with their mother, they are entitled to full table support under the Federal Child Support Guidelines.

[152] As well, based on my ruling on custody and the residential arrangements regarding A.E.S., the father does not have shared custody of any of the children and consequently he should pay full table child support based on his income.

[153] Based on my calculations with the mother earning $139,260, the father earning $60,000, four children residing primarily with the mother and M.I.S. being entitled to support during the summer, I order that the father pay the table amount of child support of $1,382 per month for the months of January to April 2015 and from September to December 2015. I order the father to pay table child support of $1,554 per month for the months of May, June, July and August 2015.

[154] Commencing January 1, 2016, the father should pay table child support for the four youngest children in the amount of $1,382 per month.

What are the section 7 expenses for the children?

[155] The mother’s position is that the father should pay his share of the section 7 expenses incurred for all five children.

[156] The father’s position is that he was never consulted on the expenses before they were incurred, that he received no disclosure as to the amount spent by the mother until he received a document brief prepared by the mother for the trial on September 16, 2016, and that because he was not receiving the interest on the equalization payment he could not make any contribution towards the child support and section 7 expenses.

[157] The mother’s position is that the father has been advised and was aware of the expenses and simply ignored or refused to contribute. Further, the mother submits that there is no obligation to pay interest on the equalization payment until the principal is due. In his trial decision, Justice McLean ordered the mother to make the equalization payment in 10 years with interest accruing. Further, the mother argues that the father received the equivalent of $131,150 when the mother transferred her interest the matrimonial home to the father.

[158] The parties agree that as of the date of the trial, the amount of the interest owed by the mother on the equalization payment was $58,773.62.

[159] Paragraph 6 of the Divorce Order of the Honourable Justice McLean dated June 3, 2013 stated as follows:

Effective June 3, 2013, section 7 child expenses under the Child Support Guidelines shall be apportioned based upon the applicant’s income of $60,000 and the respondent’s agreed-upon income of $172,664 so that the applicant shall pay 26% and the respondent shall pay 74% of such expenses.

[160] The father was aware that he had an obligation to pay section 7 expenses as the trial decision provided him with his percentage share of 26%. Further, in the Divisional Court decision dated June 12, 2015, the Court held at paragraph 25:

In addition to imputing the income figures of the parties as noted above, the Divorcemate calculation also reflects the fact that the appellant must pay child support of $1750 out of after-tax earnings. Furthermore, the appellant must pay his pro-rata share of s.7 expenses. Since the oldest child is now at university, a figure of 20,000 was used in that regard.

[161] Further, I heard evidence from Mr. Michael Rappaport, former counsel for the mother. In his affidavit dated October 3, 2016, and his testimony during the trial, he indicated that in numerous court appearances, the issue of section 7 expenses was discussed and that he provided a statement of arrears to the Family Responsibility Office, including spreadsheets in receipt of expenses that were submitted to then counsel for the father.

[162] Despite the father indicating that he was unaware that these expenses were being incurred, I accept the evidence of the mother and Mr. Rappaport that throughout this litigation the mother provided the father with the spreadsheet of expenses incurred for each child. In the affidavit filed as Exhibit 113, the spreadsheets and receipts were attached.

[163] Further, in Exhibit 44, the father in an email to the parenting coordinator acknowledged that he was aware the mother was incurring section 7 expenses and the father in fact made a proposal as to which section 7 expenses he would contribute to. In Exhibit 90, the father sent an email in 2015 directly to his daughter in which he acknowledged her camp and dance expenses.

[164] Consequently, I find that the father was aware that the expenses were being incurred, was prepared to accept certain expenses but made no payment and allowed the mother to assume all of the section 7 expenses for the children.

[165] At trial, the mother sought that the father pay $32,281.26 towards the children’s section 7 expenses while the father was prepared to pay $6,963.37 towards the section 7 expenses plus the Hebrew school expenses and a portion towards T.B.S.’s summer camp.

[166] To qualify as a section 7 expense, the Federal Child Support Guidelines has a three-part test:

(a) the necessity of the expense in relation to the child’s best interest;

(b) the reasonableness of the expense in relation to the means of the spouses; and

(c) the reasonableness of the expenses in relation to the child and to the family’s spending pattern prior to separation.

[167] Section 7 of the Federal Child Support Guidelines indicates the following expenses qualify as shareable expenses:

(a) Child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapists, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meets the child’s particular needs;

(e) expenses for postsecondary education; and

(f) extraordinary expenses for extracurricular activities.

A.E.S.

[168] In Exhibit 37 and Exhibit 38, the mother filed the documentary evidence to support her claim for reimbursement of the section 7 expenses that she has incurred. With respect to A.E.S., I find that the expenses listed below qualify as section 7 expenses:

(a) speech therapy $48.00

(b) counselling $618.00 $1,133.00-$515.00 (expense prior to June 2013)

(c) health insurance $2,202.00 agreed by the father

(d) summer camps $3,675.00 agreed by the father

(e) extracurricular activities $1,357.78 $1,387.73-$29.95 (expense prior to June 2013)

(f) tutoring $3,025.00

(g) Hebrew school $1,650.00

Total $12,575.78

T.B.S.

[169] I find that the expenses listed below qualify as section 7 expenses:

(a) medical expenses $1,150.80

(b) health insurance $1,510.15 agreed by the father

(c) summer camp $5,000.00

The mother had the right to register the child in a summer camp. From July 2013 to May 10, 2016, the mother incurred expenses in the amount of $15,453.15. Most of these expenses were incurred in the years 2015 and 2016, save the sum of $929. The mother spent $14,524.15 in two years. However, the mother was not given carte blanche to register the child in any camp. The cost should be fair and reasonable considering that there are five children incurring section 7 expenses. I find that the expense incurred for the summer camps to be excessive and unreasonable. The mother did not provide an explanation as to why the child had to attend two summer camps. When comparing the summer camp expenses for all four children, A.E.S.’s expense of $3,675 covered the period of April 2013 to April 2016. The summer camp in 2016 was $1,373. With respect to S.M.S., her summer camp total cost from July 2014 to July 2015 was $8,355. J.C.R.S.’s summer camp expenses from June 2013 to October 2015 were $2,842.

I do not find it reasonable nor affordable that the father should be required to contribute to the excessive amount of summer camps incurred for his daughter T.B.S.. When comparing the three other children’s expenses, I find that a reasonable amount for the summer camps for T.B.S. should be $5,000.

(d) extracurricular activities $2,669.98

The extracurricular activities include saxophone, hockey, Boot Camp, dance, skating, tennis lessons and ski club. The father’s position was that he was never requested to consent and because of his strained relationship with T.B.S. he refuses to. Upon a review of the documentary evidence to support these activities, I find that the dance expenses qualify as section 7 expenses and that none of the remaining expenses qualify as extraordinary extracurricular activities.

Total $10,329.00

S.M.S.

[170] I find that the expenses listed below qualify as section 7 expenses:

(a) medical expenses $257.08 agreed by the father

(b) health insurance $1,510.15 agreed by the father

(c) summer camp $5,000.00

The father was consulted by S.M.S. when she wanted to attend summer camp. The father proposed a cheaper summer camp. She wanted the camp that she was registered in and refused the father’s suggestion. The summer camps are divided into two years. In 2014, the total camp expenses were $2,411. I find this to be a reasonable amount. In the year 2015, the camp expenses were $5,944. Considering that there are five children incurring section 7 expenses, I find the cost incurred in 2015 to be unreasonable. I find that a reasonable cost for summer camp would be $2,500, for a total expense of $5,000.

(d) extracurricular activities $3,094.90 agreed by the father

Total $9,862.13

J.C.R.S.

[171] I find that the expenses listed below qualify as section 7 expenses:

(a) medical expenses $1,876.00 agreed by the father

(b) health insurance $1,510.04 agreed by the father

(c) summer camp $2,842.00 agreed by the father

(d) extracurricular activities $4,672.50 agreed by the father

(e) tutoring $700.00

Total $11,600.54

M.I.S.

[172] M.I.S., the oldest child, at age 16 moved to Toronto in September 2012 to attend high school. He lived in different accommodations. In September 2013, he started attending the Community Hebrew Academy of Toronto and graduated in June 2014 with a high school leaving certificate.

[173] The father advises that on May 23, 2015, the parenting coordinator who had been appointed pursuant to the order of Justice MacLean dated June 3, 2013, requested that the parties set out their positions on section 7 expenses and specifically addressed four issues:

(a) determining which expenses would qualify as section 7 expenses;

(b) imposing a requirement of consent to be obtained;

(c) capping the contribution by the lower income parent to section 7 expenses; and

(d) determining who would conduct therapy for the children.

[174] Unfortunately, the arbitration process was never completed and in December 2015, the arbitrator withdrew from participating with this family.

[175] On the issue of M.I.S.’s section 7 expenses, the father accepts the medical expense, the health insurance, the school expense of $1,000 and the English course of $845. With respect to the room and board expense claim, he denies such coverage as he indicates that his child support should cover room and board.

[176] With respect to M.I.S.’s university expenses, in September 2014 he decided to attend G[…] University where his girlfriend was going to school. There was no consultation with the father. He received the disclosure as to the specific amounts claimed on September 16, 2016. His last communication with M.I.S. was in October 2014. He testified that he communicates with him on […], M.I.S.’s birthday, Father’s Day, and the father’s birthday on […] of each year. The father understands that M.I.S. is registered in the Bachelor of Science program for a four year degree.

[177] The father’s position is that if the child had attended the University of Ottawa (being closer to home), his expenses would have been significantly less. Further, in determining the contribution by the parents towards M.I.S.’s university expenses, the father submitted that M.I.S.’s own income should be taken into consideration. The father argues that he should not contribute to the increased cost of M.I.S. attending university outside of Ottawa because he could have pursued his Bachelor of Science degree at the University of Ottawa, where the tuition for September 2014 would have been $6,691.72. The father is prepared to agree that approximately $3,200 of other university expenses should be included but that the expense for residence and meal plan should be withdrawn. I reject this submission because M.I.S. has not been living in the city of Ottawa since 2012. He left in 2012 to complete high school and then college in Toronto before deciding to pursue postsecondary education. This is not a case were M.I.S. was living and going to school in Ottawa then unilaterally decided to attend a university away from Ottawa. When I look at the tuition costs between first-year university at the University of Ottawa and G[…] University there is approximately a $500 difference. If M.I.S. were living and going to university in Ottawa, the father would not be paying for the residence and meal plan but he would be paying for table child support.

[178] For the 2015-2016 school year, the father’s position is that M.I.S.’s university cost would be approximately $10,000 and that his income excluding dividend income would have been sufficient to cover those expenses

[179] For the 2016-2017 school year, the father makes the same argument. The father indicates that M.I.S. has earned $10,524.76 as of August 25, 2016, and that should be more than enough to cover his expenses of attending the University of Ottawa.

[180] In 2014, M.I.S.’s total income from all sources was $79,175. However if the dividend income of $74,900 is removed and transferred to the income of his mother, his total income is reduced to $4,275.

[181] In 2015, M.I.S.’s total income from all sources was $57,909. However, if the dividend income of $47,200 is removed and transferred to the income of his mother, his remaining income is $10,709.

[182] M.I.S.’s income as of August 25, 2016, was $10,524.76.

[183] I find that the expenses listed below qualify as section 7 expenses:

(a) medical expenses $1,473.62 agreed by the father

(b) health insurance $1,510.04 agreed by the father

(c) school expense $1,845.00

The parties agree that the father should have contributed to M’I,S,’s expenses while he attended the Community Hebrew Academy of Toronto from September 2013 to June 2014. The father is prepared to agree to contribute to the school registration fee and the English course but refuses to pay for a graduation trip in the amount of $755, transportation costs in the amount of $265.55 and room and board in the amount of $6,000. I agree that the father should contribute to the registration cost and the English cost and no other costs because during this period of time he was paying or should have been paying table child support. The child was not residing at home with the mother and both parties agree that there will be no variation of support up to and including December 31, 2014.

(d) first-year university expenses $7,360.71

The mother proposes that M.I.S.’s budget for his first-year university commencing in September 2014 should be $21,007 and $35.71. Having reviewed the mother’s budget, I will delete the sum of $800 for extra food/snacks, $500 for outings with friends and leisure and $75 for a gym membership, leaving a balance of $20,360.71. From that amount, I deduct the amount of $13,000 being M.I.S.’s contribution of $5,500 representing 65% of his income earned in swimming lessons; $3,000 scholarship and $4,500 from the bank account related to the trial decision of Justice MacLean, leaving a balance of $7,360.71 to be shared by the parties.

(e) second-year university expenses $13,271.55

The mother proposed a budget for the 2015 to 2016 university year to be $21,371.55. I have deducted from that amount the sum of $500 for outings with friends and $600 for a gym membership, leaving a balance of $20,271.55. M.I.S. has earned $5,000 from swimming lessons and $5,709 from a summer job for a total of $10,709. The mother proposes that M.I.S. contribute $7,000, which is 65% of his total earnings. I agree that is a fair contribution by M.I.S., leaving a balance of $13,271.55 to be shared by the parties.

(f) third-year university expenses $13,820.00

The mother proposed a budget of $21,920 for the 2016 to 2017 university year. I have deducted from that amount the sum of $1,100 for outings with friends and for a gym membership, reducing the budget to $20,820. M.I.S.’s income during this period of time was $10,524.76. The mother proposes that M.I.S. contribute $7,000, which I agree is reasonable, leaving a balance to be shared by the parties of $13,820.

Total $39,280.92

Analysis

[184] I find that the total section 7 expenses for A.E.S., T.B.S., S.M.S. and J.C.R.S. from 2013 to 2016 total $40,853.88.

[185] I find that M.I.S.’s section 7 expenses from 2014 to 2016 total $39,280.92.

[186] In the mother’s submissions, she has calculated the contribution to section 7 expenses by the father to be 26%. Based on my findings regarding the parties’ incomes for 2015 and 2016, the percentage has increased to 35.7% in 2015 and 36% in 2016.

[187] Consequently, the father should contribute $14,584.83 towards the section 7 expenses of A.E.S., T.B.S., S.M.S. and J.C.R.S. up to and including September 2016. Further, the father should contribute $14,141.13 towards M.I.S.’s expenses. As a result, the father owes the mother $28,725.96 towards his contribution for the children’s section 7 expenses.

[188] The question is how the father is to pay this amount retroactively and prospectively. The parties agree that the mother owes interest on the equalization payment. The father owes the mother his share of the section 7 expenses. For the retroactive amount, I order that the sum of $23,254.81 be set off against the interest accruing on the equalization payment. The mother shall be entitled to a credit of $23,254.81, to be applied to any interest accruing on the equalization payment.

[189] The mother further requests that I quantify the section 7 expenses and that the enforcement be by the Family Responsibility Office upon the mother presenting the appropriate receipts and documentation. The mother shall forward to the father a copy of the invoice and proof of payment for any of the above noted expenses. The father shall have 14 days to pay those expenses.

[190] I find that the following expenses qualify as section 7 expenses that may be incurred by the mother for the children:

(a) speech therapy

(b) counselling

(c) medical expenses

(d) health insurance

(e) tutoring

(f) Hebrew school for A.E.S.

(g) dance

(h) postsecondary educational costs

(i) tutoring

(j) summer camps

[191] In the past, the parties have not been able to agree on the sharing of section 7 expenses. I will not order that the Family Responsibility Office become involved in the event of default by the father. I order that any arrears of the father’s contribution to the children’s section 7 expenses not paid within 60 days of the request shall be deducted from the equalization payment owed by the mother to the father.

Should the court quantify future child support and section 7 expenses, including post-secondary expenses, and deduct an equivalent lump sum from the equalization payment owing by the mother to the father?

[192] The mother submits that because the father has not contributed to any of the section 7 expenses and is in default of his obligation to pay table child support, a lump sum amount should be deducted from the equalization payment owing by the mother to the father. The father objects to such a disposition and argues that he has not received any of the interest owing on the equalization payment.

[193] The father proposes that his share of the interest that he was entitled to receive on the equalization payment be considered his contribution to section 7 expenses since June 2013, up to and including the date of the completion of the trial evidence in December 2016.

[194] I have considered the mother’s request for a lump sum deduction but considering that S.M.S. and J.C.R.S. will be attending university in September 2017 and that M.I.S. will be completing his education in 2019, it is too uncertain to be able to quantify a lump sum amount on an ongoing basis.

[195] However, I accept the mother’s submission that the equalization payment can be used as security to ensure that the father pays his share of the section 7 expenses. I find that it is in the best interests of the children that any arrears of either table child support or section 7 expenses owing by the father as of the date of the payment of the final equalization payment shall be deducted from the equalization payment.

Has there been a material change in circumstances to allow the Court to either vary or terminate spousal support payable by the mother to the father?

[196] The father’s position is that his income has dropped, the mother’s income has increased, M.I.S. is no longer living at home and consequently, the spousal support should be increased.

[197] The mother’s position is that there been no increase in her income since 2013 and that spousal support should either be reduced or terminated. The mother proposes that the father’s spousal support be reduced to the low end of the range and that it end in September 2021.

[198] The parties agree that there has been no material change in circumstances for the 2014 calendar year.

[199] Based on my findings of fact, the father’s income is $60,000 commencing January 1, 2015. However, the mother’s income has dropped from $172,664.02 to $139,260. Further, M.I.S. is no longer entitled to table child support but his post-secondary or educational expenses are shareable expenses. In these circumstances, I find there has been a material change in circumstances allowing the Court to review the father’s entitlement to and the quantum of spousal support.

[200] The issue of the father’s entitlement to spousal support was canvassed by the Divisional Court in its ruling dated June 12, 2015, where the Court agreed with the trial judge that the father was not entitled to spousal support based on the compensatory support theory. However, the Court found that the trial judge failed to conduct an analysis of the means and needs of the parties and the impact of the child support order on the ability of the father to provide his own support. On the basis of non-compensatory support, the Court found that the father was entitled to support on the basis of need.

[201] The Divisional Court considered the length of the marriage, that the father had benefited from the parties’ joint incomes and that he suffered a substantial decrease in his standard living as a result of breakdown of the marriage. At paragraph 23, the Court stated:

The appellant’s income at the time of the trial was agreed to be $60,000 per year. The respondent’s income was agreed to be $172,664. Over the 18 year duration of the marriage, the appellant would have benefited from the parties joint incomes, and would have suffered a substantial decrease in his standard of living as a result of the breakdown of the marriage. Such a large difference in the income of the spouses cries out for an award of spousal support and even more so when one of the factors is the impact of the child support.

[202] The Divisional Court went on to indicate that it was abundantly clear that the father was in need of spousal support. Further, a review of the Spousal Support Advisory Guidelines without spousal support calculations showed that the father would have 13.6% of the combined net disposable income. The Court ordered that the father receive $800 per month as support retroactive to January 1st, 2015 being the mid-range of support under the Spousal Support Advisory Guidelines.

[203] I have been provided with DivorceMate calculations of support, however, the incomes used by the parties differ from my findings of fact. I have prepared DivorceMate calculations to determine the amount of spousal support. I have not included the section 7 expenses because I have lump summed those amounts and deducted them from the interest accruing on the equalization payment owed by the mother to the father. As well, on a go forward basis, as I do not have any quantification of the ongoing section 7 expenses, I will not insert those amounts into the DivorceMate calculations.

[204] On the issue of entitlement to spousal support, little evidence was led during the trial to provide an evidentiary basis for the termination of spousal support. The parties had a religious ceremony on September 2, 1991 and separated in December 2010 (a period of 19 years). At the time of separation, the father was 48 years of age. The combination of the father’s age and the length of cohabitation equates to 67 years, which according to the Spousal Support Advisory Guidelines provides for an indefinite amount of support entitlement. That entitlement is not without limitations based on a material change in the parties’ circumstances.

[205] I do not find that the father was or is entitled to compensatory support. However, he continues to require needs-based support. In these circumstances, I will not terminate his spousal support nor will I impose an end date. The amount of spousal support is to be paid subject to a material change in circumstances.

[206] In the decision of Justice McLean and the Divisional Court, the table amount of child support was $1,750 based on the father’s annual income of $60,000. In the mother’s submissions, for the year 2015, based on the father’s income of $67,848, the table child support for five children is $1,571. Based on my calculations, the table child support for five children based on an income of $60,000 is $1,554.

[207] As I now have received the evidence as to what the parties earned in 2015 and 2016, I am in a position to determine the amount of spousal support based on my calculations of the child support.

[208] For the year 2015, based on the father paying a monthly average of $1,439 as table child support, the Spousal Support Advisory Guidelines provide a range of support of $872-$1,018-$1,163 per month. The mid-range of spousal support would leave the father with $3,057 per month and the mother with $9,845 per month of the parties’ net disposable income. The mother supports herself and four children. I find that the mother should have paid to the father spousal support in the amount of $1,018 per month as of January 1, 2015.

[209] For the year 2016, the Spousal Support Advisory Guidelines provide a range of support of $848-$989-$1,131 based on table child support of $1,382 per month for four children. The mid-range of spousal support would leave the father with $3,098 per month and the mother with $9,802 per month of the parties’ net disposable income. I find that the mother should have paid to the father spousal support in the amount of $989 per month commencing January 1, 2016.

[210] I have received no submissions on the applicable tax rate to determine the net amount of spousal support payable for the year 2015. I direct that the parties attempt to resolve the amount owed by the mother to the father for net spousal support for the year 2015. If the parties are unable to resolve the issue by September 15, 2017, the father shall provide his submissions by September 22, 2017, and the mother shall provide her submissions by September 29, 2017.

Should the court order the father to designate the mother as the beneficiary of a life insurance policy in the amount of $1 million as security for child support?

[211] The mother requests that she be designated as the beneficiary of a life insurance policy as security for the payment of table child support for the five children of the marriage. Further, she submits that A.E.S.’s special needs require security for the future.

[212] The father does not own a life insurance policy.

[213] In Katz v. Katz, 2014 ONCA 606 at paras. 66 to 74, the Ontario Court of Appeal canvassed the issue of life insurance securing support obligations and provided the following principles:

(a) The Divorce Act does not have a provision like s. 34(1)(k) of the Family Law Act, which permits a court to order a spouse to obtain insurance to secure payment of support following the payor’s death.

(b) Despite not having the specific provision, the court is given broad discretion to impose terms, conditions, and restrictions in connection with an order for child or spousal support, including the power to order a spouse to obtain insurance to secure the payment and that the payments are binding on the payor’s estate.

(c) There are several factors to be considered in determining the quantum of life insurance, once the issues of insurability and cost of the insurance are resolved: the amount of life insurance cannot exceed the amount of support payable over the duration of the support order; the amount of insurance to be maintained should decline over time as the amount of spousal support payable will diminish over the duration of the award; the obligation to maintain insurance should end when the support obligation ends; and the court should first order that the support obligation is binding on the payor’s estate.

[214] I have considered the following factors in arriving at my decision regarding life insurance:

(a) Under the Divorce Act, I have the jurisdiction to order the father to obtain and maintain life insurance to secure his payment of a support obligation.

(b) Under the Divorce Act, I have the jurisdiction to order the support obligation to be binding on the father’s estate.

(c) I have ordered the father pay monthly child support to the mother.

(d) The father does not have any insurance.

[215] I will not order the father to have life insurance because I have no evidence as to his insurability and the cost of the insurance. I also have no calculation as to the amount of life insurance required to secure the amount of support.

[216] The father has a legal obligation to secure his obligation to pay child support. I order that the father’s obligation to pay child support shall be binding on his estate. This obligation shall be limited to the amount of the child support owing and payable at the date of the father’s death over the duration of the children’s entitlement to child support.

Is the father a shareholder of […] Ontario Ltd? If he is, what is the appropriate relief for him?

[217] Both parties admit that the father is a shareholder in this corporation. The father states that his shares were transferred illegally by the mother. The shareholder register indicates that on June 3, 2013, the father’s shares were transferred to the mother. The father indicates he never consented, was never consulted and was unaware of such a transfer. The share transfer agreement filed does not contain the signature of the father.

[218] The mother admitted in her testimony that the father should retain a 10% interest in the numbered company.

[219] Consequently, I order that the June 3, 2013 share transfer of the father’s 10 class C common shares in […] Ontario Ltd is null and void. Further, the 2013 director’s resolution removing the father as director and officer of the corporation is deemed null and void. I order that the corporate records, including the shareholder register, be modified to reflect the nullification ordered herein.

[220] The father sought an order for the sale of the corporation. Justice McLean ordered on June 3, 2013, that jointly owned property was to be divided or transferred in kind pursuant to directions issued by Master Roger. Justice Roger (formally Master Roger) has remained seized of the matter and will decide the issue once the valuation has been received.

Is a deduction or retroactive reduction, or any other relief, required to address the spousal support income tax reduction issue?

[221] The father refiled his income tax returns and received a notice of assessment (Exhibit 129) that included the $800 a month in spousal support. This issue has been resolved.

Pre-judgment and post-judgment interest

[222] In his trial decision, Justice McLean ordered that post-judgment interest would accrue at 3% per year from the date of the judgment. Justice McLean ordered that the mother pay the father an equalization payment of $493,000, payable within 10 years of his judgment on June 3, 2013. The father indicates he has never received any interest payment on the net family property payment. After the transaction in November 2015, when the mother transferred her interest in the matrimonial home to the father, the mother received a credit of $116,000 against the principal of $493,000, leaving the balance owing payable by the mother at $361,000.

[223] The parties agree as follows:

(a) the father is entitled to pre-judgment interest in the amount of $13,678.39;

(b) the father is entitled to post-judgment interest up to October 30, 2015, in the amount of $35,221.19; and

(c) as of October 30, 2015, the balance owing on the equalization payment by the mother to the father is $361,850, with interest on the outstanding balance accruing at 3% per annum.

Calculation by the Family Responsibility Office regarding child support and spousal support

[224] Based on my decision, the child support and spousal support arrears require recalculation. The father is to be credited the sum of $1,750 (made by the father as part of the terms of a refraining order), the sum of $8,750 paid to the mother from the funds being held in trust and the lump sum amount and spousal support ordered by the Divisional Court payable by the mother to the father in the amount of $8,640.

Costs

[225] I will defer requesting cost submissions until the issue of spousal support for 2015 is resolved.

Shelston J.

Released: September 29, 2017

APPENDIX

1. On August 30, 2017, I released my reasons for judgment in S.S.1 v S.S.2 2017 ONSC 5177. In those reasons, I ordered that the parties attempt to resolve the calculation of the net spousal support owed by the respondent to the applicant for the year 2015.

2. By letter dated September 18, 2017, which was copied to the applicant, counsel for the respondent indicates that the applicant and the respondent agree that the respondent owes the applicant an additional $2,091.49 in net spousal support for the year 2015. Consequently, I order that the sum of $2,091.49 be deducted from the child support arrears owed by the applicant to the respondent.

3. In addition, counsel for the respondent seeks clarifications in my reasons before a final order can be drafted. Further she indicated the correspondence was shared with the applicant who asked her to advise me that he had yet to access DivorceMate in order to evaluate her calculations. I have not received any correspondence from the applicant.

4. In the letter dated September 18, 2017, the respondent raised additional issues and the following amendments are made:

Para 56, sub 22 is amended by deleting the 3rd sentence and replacing it with the following: 56(22) “He will also have access in Week One from Friday after school until Monday at 9:00 am in Week Two”.

Para 190 is amended by adding “summer camps” as sub paragraph (J).

Para 223(a) is amended by deleting the word “annual”.

5. With respect to the quantum of spousal support, counsel for the respondent has been unable to duplicate my calculation of the midrange of spousal support. In 2015, the respondent submits that the range of spousal support is $850-$992-$1133. In 2016, the respondent submits that the ranges of spousal support $814-$949-$1085. She submits that the midrange of spousal support in 2015 should be $992. Based on my calculations, I found that the proper amount of spousal support payable in 2015 to be $1018 per month and as of January 1, 2016, the sum of $989 per month. I do not find that I made an error in the calculation of the spousal support payable. My decision regarding spousal support is within the range of spousal support under the Spousal Support Advisory Guidelines. In the circumstances, I will not change the amount of spousal support.

6. With respect to the applicant share of the section 7 expenses. In paragraph 186 of my reasons for judgment, I found that the respondent’s share was 30% for the years 2015 and 2016. I agree with counsel for the respondent that I made a calculation error and that the respondent’s share in 2015 is 35.7% and in 2016 is 36%. I order my reasons amended accordingly.

7. As a result of my amendment of the applicant’s share of the section 7 expenses in paragraph 26 of my reasons, paragraph 187 of my reasons for judgment are to be amended as follows:

8. Consequently, the father should contribute $14,584.83 towards the section 7 expenses of A.E.S., T.B.S., S.M.S. and J.C.R.S. up to and including September 2016. Further, the father should contribute $14,141.13 towards M.I.S.’s expenses. As a result, the father owes the mother $28,725.96 towards his contribution for the children’s section 7 expenses.

9. In my reasons for judgment, I deferred the issue of costs until the resolution of the calculation of retroactive support for the year 2015. I order the applicant to provide me with his cost submissions by October 13, 2017 and the respondent provide me with her cost submissions by October 27, 2017. The cost submissions are to be no longer than 3 pages plus a detailed bill of costs and any offers to settle.

CITATION: S.S.1 v. S.S.2, 2017 ONSC 5177

COURT FILE NO.: FC-11-927-1

DATE: 2017/09/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

S.S.1

Applicant

– and –

S.S.2

Respondent

AMENDED REASONS FOR JUDGMENT

Shelston J.

Released: September 29, 2017