ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
m.s., A.S. & A.S..
Applicants
– and –
A.R.
Respondent
Dani Z. Frodis & Ilana Arje-Goldenthal, for the Applicants
David Frenkel, for the Respondent
HEARD at Toronto: April 20 to 28 & May 4 to 8, 2017 with submissions June 30, 2017
Reasons for judgment
For publication purposes, to preserve identity of the children's initials are used in this judgment whenever names of the family members are referred to.
KRUZICK J.
Overview
1This is a divorce proceeding. The Applicant, M.S. (“mother”), and the Respondent, A.R., (“father”) were married for almost 16 years. The theory that opposites attract is often attributed to relationships. In many ways the parties in this case are polar opposites. However, we live in an age where cultural norms no longer sustain and enforce the continuation of long-term partnerships where differences, which at one time may have been attractive, clash.
2While both parties comes from the same cultural and religious backgrounds, they have different work ethics, social lives, attitudes, opinions, inter-personal relationships and different parenting styles. Given a high level of distrust and conflict, the parties’ ability to communicate effectively broke down well before the date of their separation.
3After hearing and reading the evidence and weighing the testimony of the all the witnesses, I come to the conclusions set out below in paragraphs 249 and onwards.
Background
4The parties were married on November 25, 2001. They have two children, namely EMR1, born in 2004 and EMR2, born in 2007. The parties separated on February 1, 2015. They remained under the same roof, at the former matrimonial home, until February 2017 when the mother left.
5The mother is a lawyer. Apart from two periods of parental leave, the mother has been steadily employed during the marriage.
6The father is currently not working and receives employment insurance. Last employed with Equitable Bank in August 2016, the father worked as a mortgage underwriter. He is also a licensed real estate broker/agent and was employed in various capacities during the marriage as a personal banker, investment consultant and mortgage broker. During the marriage, the father’s income from employment varied.
7The children are enrolled in and have always attended a Jewish parochial school where they are good students and have made good progress. The children have all their lives been involved in activities outside their home and school. The children are enrolled in overnight and day camps during the summer. Since separation, the parties continued in their respective parenting roles.
8In 2002, the parties purchased their first house for $466.700. With a loan of $50,000 secured by a promissory note to A.S. and A.S. (grandfather and/or grandmother/grandparents) and a BMO institutional mortgage, the parties purchased a home on Glen Cedar. It was owned in joint tenancy. The BMO mortgage was discharged when the grandmother and grandfather advanced funds to the parties. This debt was for $295,000 secured by a mortgage. The $295,000 amount included the original $50,000 (secured by the promissory note). The mortgage loan to the grandmother and grandfather was reduced by the mother when she inherited $35,000 from her grandmother’s estate. That house was sold in 2005 for $691,000.
9In 2005, the parties purchased the second matrimonial home on Old Park Road for approximately $1,200,000. The parties used the net proceeds of $652,273 from the sale of Glen Cedar together with a new mortgage loan from the grandmother of $600,000. Given the mother’s employment as a lawyer, the parties decided that this home would be registered solely in the name of the father to safeguard their investment in the property.
10The parties ventured into a financial investment with Kaptor Financial Inc. and CarCap Auto Finance Inc. (Kaptor Group) in 2007. The investment was funded by the mother and father with capital primarily from a line of credit. The father managed the investment. Both the mother and father are signatories on the credit line. By 2011, the line of credit was at $975,000
11In 2011, a number of the Kaptor Group companies went into default after charges were laid by the Ontario Securities Commission. A subsequent lawsuit was commenced by the investors, including the parties. As their share of a partial settlement, the parties received $147,935 from the lawsuit. The lawsuit continues so that more funds may be recovered.
12With respect to the mortgage to the grandmother, the mother and father made significant payments of principal so that, in September 2011, only $350,000 was owing. The debt of $350,000 to the grandmother was never repaid. The principal on the promissory note for $50,000 to the grandparents was never repaid.
13In December 2010, while still owing $370,000 on the mortgage on the matrimonial home, it was discharged by the grandmother. The father relies on that discharge and a subsequent conversation with the grandfather and takes the position that the debt on the discharged mortgage was forgiven. The grandparents claim both debts are owed to them.
14The parties continued to pay the interest on the mortgage loan until September 2011 by way of post-dated cheques. In September 2011, the grandfather returned the remaining post-dated cheques for 2011 to the father, Thereafter no payments of interest or principal were paid to the grandmother or grandfather.
15In this action, the grandparents seek recovery of the original promissory note of $50,000 payable to both of them together with the principal of the mortgage of $350,000 plus interest of $57,759 owing to the grandmother and calculated since October 2011.
16In April 2017, the Old Park Road property sold for $2.2 million with a closing date of June 26, 2017. The father remained in the home until its sale. The proceeds of sale are being held in trust.
17The separation of the parties was acrimonious. The parties had growing difficulty in their communication which culminated in their separation in February 2015. Given continued and growing difficulties, the mother left the home and secured her own premises. The children spent time with both parents at their respective residences and during the summer at camp.
The issues
18The issues in this case are:
(1) Custody/access
(2) Child support & extraordinary expenses
(3) Spousal support claim by the father
(4) Property including:
(a) The Debt or Loan to the Applicant grandparents
(b) Equalization of net family property
The postions of the parties
Position of the Mother
19The mother takes the position that:
(1) It would be in the best interests of the children that she have sole custody with primary residence with her and have time with the father 5 night/6 days in a two week cycle. The mother also proposes the sharing of holiday and vacation time.
(2) Based on income attributed to the father of $70,000 a year, there should be table child support of $1,037 payable monthly by the father. The mother asks for contribution to the extraordinary expenses of the children based on her income of $199,126 and the father’s income of $70,000 being 74% (mother) and 26% (father).
(3) The father pay her arrears of $32,244.11 for his portion of the extraordinary expenses paid for the children since the date of separation.
(4) The father’s claim for spousal support should be dismissed.
(5) A resulting trust claim order be made that the father holds one-half of the proceeds of sale of the matrimonial home in trust for her. She also takes the position that in full satisfaction of the claim by the other applicants, she will then pay them $50,000 together with interest on a promissory note together with $350,000 plus interest of $57,759.
(6) An equalization of net family property in the amount of $121,362 to be paid by the father.
Position of the father
20The father takes the position that:
(1) The children should be in his sole custody or, in the alternative, joint custody with a 50-50 sharing of time with the children.
(2) The mother pay him table amount of child support of $2,064 a month based on the mother’s annual income of $199,127 with a set off for annual income attributed to the father of $35,000.
(3) Based on his imputed income of $35,000, the apportionment of extraordinary expenses should be at 15% for the father and 85% for the mother.
(4) The mother pay him monthly spousal support of $1,500 with a fixed termination date of February 1, 2025.
(5) The mother pay him an equalization payment of $1,971.49 plus a payment (for post-valuation date credit) of $6,724.
(6) The claim of the other applicants be fixed at an amount of $25,000 for his portion owing to the grandparents with the balance of the claim dismissed.
Position of the other Applicants
21The other applicants, the grandparents, claim that the mother and father owe them $50,000 plus interest on a promissory note together with $350,000 on a mortgage loan to the grandmother plus interest of $57,759.
Analysis
Overview
22This is one of those cases unfortunate divorce cases that should never have gone to trial. Financially, neither party can afford the expenses of a 10 day trial nor the additional legal fees of this litigation. Emotionally, the trial will only serve to further polarize the parties as they continue their ongoing obligations to their children.
23Once the parties decided to separate, they were unable to effect a physical separation other than living together under the same roof. As the tension increased, when the father would not leave the home, the mother secured her own premises. Through counsel they eventually agreed that the matrimonial home should be sold.
24At trial, the mother and father contradicted the evidence of the other. I preferred the evidence of the mother who was forthright and straightforward in her testimony. In cross-examination, I found her responses direct and contemplative. She readily admitted when she thought she was wrong or did not know how to answer. The father, in his testimony was defensive and, particularly in his cross-examination, argumentative.
25In their testimony, the parents were able to agree upon one thing. Each confirmed a key point that both love the children and that the children love both of them. Each parent enjoys a relationship with the children.
26The parties continued in their respective parenting roles following separation. However, they differ as to their roles, involvement and commitment to the children. It is clear that they do not communicate and have not done so for some time. Most significantly, they do not agree as to their past or their ongoing parenting roles.
27During the relationship, the mother was the major income earner. She has had a successful legal career. When the parties married, she was a lawyer in private practice with a large private law firm. She left the law firm in 2011 to become in-house legal counsel, where she continues to be employed.
28When it was clear the mother was not in line for partnership at the law firm, she made the decision to take a position as corporate in-house legal counsel to better serve the needs of the family. Her salary decreased substantially. The income reduction created financial stress for the family and increased friction in the relationship of the parties.
29In 2012, the mother noticed significant changes in the behaviour of the father. Denied by the father, she testified he exhibited paranoid behaviour concerning the mother’s activities outside the home and made accusations including that she is a lesbian. The mother testified that the father began withdrawing socially. Her testimony is that he became progressively aggressive, angry and controlling so that living with him became difficult. While denied by the father, there was little in the evidence to satisfy me that his behaviour had not changed. Apart from his family and the activities the mother organized for the children, he did not have a personal social life. The evidence supports dinners with their respective families after 2012. There was no evidence of a social life which the parties enjoyed together apart from the family dinners.
30The mother, on the other hand, had a social life outside of work and her commitment to the family. She testified to having a network of supportive friends one of whom testified at the trial. The father denied the mother's accusation of his behaviour. He argues that increasingly the mother shut him out and refuse to involve him in decision making. Her position is that he was uncooperative and argumentative so that nothing would be accomplished if she did not proceed to make necessary decisions.
31Throughout the relationship of the parties, the grandmother and grandfather assisted the couple both financially and in being there for them and the children. The grandparents made themselves available to babysit the children, were involved with pickups and drop offs to school and in the girls’ activities. The father complains that the mother’s family, and particularly the grandmother, meddled in their family affairs and were “always” present at the home.
32Without the personal and financial assistance of the maternal grandparents, the mother and father would not have had the finanical success and benefits they enjoyed. While the father admitted the grandparents assisted them financially, he does not acknowledge they are, even morally, indebted to them.
33In February 2015, the mother consulted legal counsel. When the mother saw growing differences and a failing family life with no prospect of the parties reconciling interpersonal difficulties, she decided to separate.
34From February 2015 to February 2017, the parties lived separately in the former matrimonial home. According to the mother, living separately under the same roof was stressful, unhealthy and taking a toll on her and on the children. The mother felt she had to move for the sake of the children and her own well-being. When the father refused to leave, the mother effected the physical separation.
35While separated, the mother observed no interest or initiative on the part of the father to contribute to the financial needs of the family. Since separation, the larger share of the financial burden for the family rested with her.
36The mother’s decision to move from the home was not well received by the father. The day of the mother's move resulted in a disturbing incident involving the grandmother, the grandfather and the mother’s uncle who were present at the home to assist mother. The police were called. Subsequently, the father filed a report with the police which led to criminal charges being laid against the grandmother and the uncle. Because the elder child was in the home during the altercation, the authorities were obliged to notify the Children’s Aid Society (“CAS”) who conducted a preliminary investigation. The father did not inform the mother of a CAS interview with him and the child until after it was completed. Following that interview including one with the mother, the CAS file was closed. There were then, nor are there now, any new child welfare concerns.
37At the date of trial, the criminal charges against the other family members of the mother remained outstanding.
Custody and Access
38Custody and access are the two most important issues and I propose to deal with them first. It then allows me to determine the child and spousal support claims.
39In deciding the issue of custody, the focus in my determination is the best interests of the children.
Best interest Analysis
40A full and sensitive inquiry into best interests is required by s. 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). The relevant provisions of s. 16 of the Divorce Act read:
Custody Orders
Order for custody
16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
Terms and conditions
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
Factors
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
Past conduct
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
Maximum contact
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
41Even though that the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA) is not directly applicable, s. 24 provides a fulsome and helpful checklist in the determination of the best interests test. It reads:
Merits of application for custody or access
24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
Same
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.
42I turn then to consider the best interests of the children.
Love, Affection and Emotional
43There is no doubt that both parties love their children dearly. The parents' relationship with the children is clearly their own.
44Sadly for the children, the relationship between their parents is highly strained. The parents deeply distrust each other and have serious difficulty in their communications and decision making concerning the children. They disagree on major aspects of decisions that need to be made for the children.
45Despite the relationship difficulties of the parents, the children appear to be doing well emotionally, socially and academically. While the children spent time with both parents, it is the mother who paid for everything for the children and took charge maintaining continuity and stability for them.
Care and Upbringing
46Since they started school, both girls have been enrolled in Bialik, a Jewish private school. The school has the advantage of being in their neighbourhood. When the girls were originally enrolled the parents decided they were to remain in the school until Grade 6. The mother testified that the original thinking mirrored her own educational path. However, when EMR1 finished Grade 6, the mother was of the view it would be best for the child academically to remain in the school until she finished Grade 8. The father did not agree. The mother decided to continue to pay for the continued enrolment. The father did not protest or take other measures. In the end, the mother’s decision has served the child well.
47The mother describes EMR1 a “mini-me” personality-wise, sweet, easy-going and a loving girl who loves to be with family and friends. The father described her in much the same way. Both parents also seems to agree that the older child is less secure than her younger sibling.
48The younger child, EMR2, is described by both parents are being outgoing and as a girl who gets along well with everyone. She excels academically and appears to be more secure than her older sister.
49EMR1 does well academically, but is not as strong scholastically as her younger sibling. The mother testified that at Bialik she benefits from access to a unique resource learning programme available for her. The mother is also of the view changing schools for this child would be difficult socially. The mother is particularly sensitive to the fact that the child will be required to change schools again after Grade 8.
50EMR1 and EMR2 are involved in dance. The dance classes have been part of their life since they were young girls. The children enjoy dancing classes and both are good at it.
51During various parts of the years, both girls are engaged in skiing, drama, singing, gymnastics and baseball unique to their interests and talents. They also attend camps in the summer.
52Of the two girls, the mother was of the view that EMR1 particularly would benefit from spending more time with her than the schedule the parents fell into since they physically separated this year. The benefits to EMR1 would be for homework, for which mother testified EMR1 relies on her. The mother also testified that because EMR1 is less outgoing than her sister, her social needs would best be served by being with her mother. Being with her father, who himself prefers to be at home and who is of the view the children have too many outside activities, would not serve their child well.
53I accept the mother’s evidence that EMR1 was more open with her and more likely to ask her questions. While she had less concerns for EMR2 academically and socially, the mother was of the view the two girls benefit from being together and should be together. The father did not opine on the girls not being together.
54On care and upbringing, the evidence of the grandmother and nanny confirmed the mother’s testimony that two girls are different with unique needs. EMR1, described as more quite, sensitive and lacking self-confidence, often waits for or relies on her mother. Since the separation, the mother testified that EMR1 saves the homework she had when with her father because she wanted her help. The maternal grandmother described the mother as an ideal teacher, always calm and patient, especially with EMR1.
55The father acknowledges that the children have a good relationship with their mother. He, however, is of the view that their best interests would best be served if he had primary care of the children because he has looked after their needs and is able to continue to do so.
56The mother clearly acknowledges the father’s love for both girls. She is supportive of his time with them and testified that she would continue to promote a healthy and close relationship with their father. The mother is of the view that it would be in the girl’s best interests to be in her primary care.
57It is the father evidence that during the marriage and since the birth of the girls, he has been the primary caregiver. The father’s evidence is that the mother was hard working and dedicated to her career so that he was the parent left with the primary responsibility of looking after the children. The mother disagrees. It is not denied by the mother that she was the major earner during the relationship or that throughout the marriage she worked outside the home. While doing so, the mother maintains that she still looked after the needs of the children and the household. The mother’s position is that, while dedicated to her career, her focus was on her family with a concentration on the children.
58Denied by the mother, the father maintains that early in the marriage the parties decided that the mother would focus on her career and he would be responsible for child care. The father states that the mother’s legal career as an associate at a major law firm in Toronto demanded significant time leaving him at home with care of the children. The mother’s position is neither of them was a stay-at-home parent and, even if the father worked from home or was unemployed, she remained the primary parent.
59On work-roles issue, the mother’s evidence is that she encouraged her husband to pursue his careers and employment. When the father expressed dissatisfaction with his banking career, it was the mother who supported and encouraged him to use his talents to re-tool in real estate. Successfully, he completed the real estate courses and program earned a broker’s licence.
60The mother states that while she worked hard outside the home, she made a point of being home in the evenings to be there with and for the children. It was not denied that mother took full advantage of two parental leaves of absence (of 9 and 6 months) following the birth of the children when she was exclusively at home with the children while the father worked outside the home.
61The mother’s evidence, which I accepted, is that once the parties had children she arranged for child care and domestic help enabling her to return to work. I accept the mother evidence that she conducted the nanny search and hired the nanny, G.P., after the birth of the first child.
62G.P. testified at the trial. I found G.P. to be totally neutral and straightforward in her evidence. She confirmed the mother’s evidence as to the mother’s role in making sure the children were looked after during the day. G.P. took her instructions from the mother, who hired her, not the father.
63While the mother acknowledges the father’s involvement with the children before and after they were enrolled in school, her evidence is that the responsibility for the children was hers. When the mother was not there, she left the charge to the nanny. The father testified, during the pre-school period, he would often be at home during the day. The nanny confirmed that, even if the father was at home, if a problem arose she would call the mother.
64For some five years, from 2005 to 2010, the nanny lived with the family. While G.P. described both parents as being “hands-on” parents, she identified and confirmed that the mother played the primary role with child-rearing and in directing her.
65The nanny testified that when the second child, EMR2, was born in 2007, the mother was at home with her during her second parental leave. With the two of them being in the home, their roles then were such that the mother attended to the baby while G.P. continued the daily care of the older child.
66Once the mother returned to work, the nanny assumed the routine of looking after both infants. The nanny testified that the father would sometime drive her and the children as needed to appointments if he was home and available to do so, because she did not drive. She also would rely on the grandmother if neither parent was available.
67After living with the family for five years, the nanny left when she was married. By this time the children were in school/preschool. She was later employed by the mother as live-out caregiver so that the continuity of care for the children would remain in place.
68As for medical appointments, the father’s position is that he assumed that role almost exclusively. The mother does not deny that the father took the children to appointments, but states that even though she worked outside the home, she was the one who organized the children’s health care giver whom the children consulted. The mother testified that she also attended those appointments and made work arrangements to do so.
69The father testified that the mother was rarely home during the week. The father endeavored to create the impression that the mother was not a home in the evenings. He testifies that she often did not return home from work until after 9:00 p.m. or later leaving him with the responsibility of preparing meals, bathing and putting the children to sleep. The nanny testified that she prepared the meals and bathed the children. The nanny testified the family ate together so that both parents were home for bed time.
70The mother did not deny while there were some late nights at work, but these were not frequent. I prefer the mother’s evidence that her schedule was such that most evenings and weekends she was at home so that she could devote her time to the children.
71Not contradicted was the mother’s evidence that she would be at home in the mornings with the children before and after they started school. Once the girls began school the mother’s routine was such that she would drop the children off at school and then carry on and go to work so as to be there with them.
72To support his position that he was the primary care-giver, the father relied on a letter dated October 3, 2008. The contents of that letter reads, “no person other than [A.R.] has ever been primarily responsible for the care and upbringing of [EMR1 and EMR 2] …”. While the mother acknowledges the preparation of the letter, I accept her position that the letter was written solely for child tax credit purposes and filed with CRA for income tax advantage.
73G.P.’s evidence supports the mother. The nanny’s evidence as to the parenting role of the parents during her many years of employment with the family belies the testimony of the father as to his role.
74The father testified that during the marriage he and the mother made major decision jointly. His position is that they did so in choosing preschool, school, camps and extra-curricular activities. In my assessment of the evidence on this point, I find that the mother did the preliminary research and took the initiative on all of these involvements. To her credit, at all times, the mother kept the father informed. I also accept her evidence that in or about 2013, she paid the tuition and proceeded with the enrolment, of the older child at the private school when the father expressed his disagreement. The father testified that the mother began to make unilateral decisions with respect to the children without consulting him. I find that prior to separation, it was the mother who always finalized the decisions after consultation with the father. It was only after all communication broke down that the mother made the necessary decisions, but always informed the father of them.
75The children are involved in numerous extra-curricular activities that include dance, drama, gymnastics, and baseball and, for a short time, were in piano. With respect the extra-curricular activities, while the father states he continuously supported the children’s activities, he complained to the mother and, at trial, that the children are “over-programmed” by the mother.
76The father argues the children are in these programs because the mother is not able to be with them. On the contrary, I find that the mother has ably engaged the children to suit their interests, unique talents and abilities. There is no evidence that the children do not enjoy or excel in their activities. The mother listens to what the children need and want. She conveys understanding and sensitivity to the children’s respective differences and skills. It is the mother, I find, who then has strived to enroll them, not out of self-interest, but in doing what was best for each child. It is interesting to note that with all these activities the father engages them in an addition activity, his passion, which is baseball which he coaches and organizes.
77In 2011, when the mother was not asked to join the law firm as a partner, she made the decision to leave the law firm and join BMO as in-house corporate counsel. The decision was made so that she had greater control of her personal time and had greater availability for the children.
78The nanny testified that while she prepared the evening meal for the family, the family ate together and that the mother was home from work to be with the children.
79The father’s evidence was that following the birth of the children, decisions concerning the girls were made by the parents jointly. That changed in or about 2013 as testified by the father, when he was simply informed.
80The change occurred when the mother perceived increasing changes in the behaviour of the father. The father’s behaviour impacted on their relationship and on the children. Her testimony is that he became progressively aggressive, angry and controlling so that it impacted on their ability to communicate on issues involving the children.
81With respect to what would be best for the children, the mother testified that the major issues that concern her are school, scheduling, coordinating the children’s activities and parenting responsibility. The father expressed concern for the mother's commitment to the parenting role arguing that she has kept the children busy and involved in activities avoiding her parenting responsibility.
82The mother's view is that the father objects to the children’s activities because they take time, require attention and cost money. The mother’s philosophy is that these activities are good for the children’s development and keep them out of trouble. From the schedule, it is apparent that the children are enrolled in extra-curricular activities mostly on the weekend which does not interfere with school or their homework. More importantly, the activities in which the children are enrolled cater to their individual and personal strength so that they are beneficial to their development and growth. The mother testified that she wants them to be active in activities that they enjoy and in which they thrive socially.
Views and Preferences of the Children
83The views and preferences of the children were not canvassed. The evidence supported that the children get along and have a good relationship with both parents.
Length of Time the Children has lived in a stable environment
84The father argues for the status quo which has existed since February of this year. Until the end of the school year, the children spent more or less equal time in the home of both parents. The children are now involved in camps and a summer programme. Simply because the parties fell into an arrangement until the house was sold does not persuade me that a status quo arrangement is established. The current arrangement which the father advocates, I put in place on a permanent basis has only existed for the four months. Prior to that, both parents resided in the home with the children so that each parent spent time with them.
85The father testified that he attempted to be a good role model for the children by being involved in their school, coaching the girls' baseball leagues, maintaining social networks and showing support for the children activities.
86What is persuasive is that for the past four years the mother, not the father, has had care and control of the children's day to day life. The mother closely monitors the children and provides them with the stability they need. In coming to this conclusion, I find that:
(1) the mother has identified, and more than the father, recognizes the children’s strength and weakness;
(2) she is the better role model for the children given her work-life balance; and
(3) while the father and members of his family testified as to their involvement with the children, the mother’s nuclear family, all of whom testified at this trial, have a significantly closer relationship with both children.
Willingness to Provide Guidance, Education and the Necessaries of Life
87Both the mother and the father testified as to their respective ability and willingness to provide for the children,
88Both parents care about the children’s education. The children were enrolled in a Jewish Private school because the mother had the same elementary education. The father had a public school education and is of the view that, as it was fine for him, it would be fine for the children too.
89The mother, I find, has a better understanding of the children’s academic curriculum and study program. The father argues that it is he who has greater knowledge of the children schooling needs and understands their homework assignments. He relies on the fact that he described EMR2’s homework sheet in detail and elaborated on the particular times during the week he spent with EMR1 on quizzes, projects and assignments.
90While I accept that the father understand and helps the children with homework, as he should, his testimony was contradicted by a number of the witnesses, including the mother, her friend K.S., her sister, S.L, and the grandmother.
91On this point, G.P., the nanny, confirmed the mother’s evidence that the child, EMR1, would wait until the mother came home to start her homework. The nanny observed the mother with EMR1 whenever something was difficult for her. The nanny testified that the mother helps her learn calmly and is able to ease her difficulties.
92I am satisfied that both parents are able and willing to help the girls with their homework. However, the evidence supports that the mother is better able to do so with her calmer demeanour and controlled temperament.
93While I accept that the father was involved in the children school as a class parent, recess monitor and at the PTA., these involvements did not convince me that it provided him a better insight into the children’s educational needs than the mother has.
94Both parents, I find, participated in drop-offs to the school and kept in close communication with the teachers. The mother, in her evidence, laid out a more thoughtful plan for the children’s present and future education.
95For example, on weekends, the mother in her plan proposes that beyond school assignments, she will promote and pay for continued enrollment of the children in various activities so as to teach them more than what they learn in school. The mother also expressed a willingness to find ways and means to afford the best education the children could be provided. She has already done so by being a good provider as well as being a good mother to the girls.
Security and Stability
96Of the two parents, I find the mother is better able to provide the children with security and stability. Despite holding down responsible and demanding jobs, it was her initiative to enroll the children in their school and activities and to then monitor them. To assist her, she has a reliable support network with her parents, her sister and supportive friends.
97I accept that the father’s family have regular contact with the girls and benefit from it. I find, however, the mother’s family and friends have actually cared for them and been far more involved. From the evidence of the mother's parents, her sister and close friend who testified, I find they know the children better than the father’s bother, sister-in-law and the paternal grandfather.
98In my assessment of the evidence, I find the mother has provided the girls a structured life to make sure that they are busy, engaged and stimulated. The father would prefer that they had more time at home and for homework. Sensitive to the views of the father on this point, the mother in her plan proposes that the father’s time be when the children do not have mid-week commitments after school.
99There was no evidence that the children are not happy or doing well either in school or in their extracurricular activities. In fact, from all the evidence at this trial, the girls are doing well in their routines, activities and appear to be thriving scholastically, physically and emotionally. The only activity that presented a problem was piano which was discontinued by the mother.
100While both parents are committed parents, I find that the mother is able to better provide them with a stable, healthy and happy home. .
The Plan Proposed by Each Parent
101The mother proposes a plan where the children would live with her in her custody with frequent and regular contact with the father.
102The father proposes a plan where the children would live with him in his sole custody with frequent contact with the mother. Alternatively, a joint custody arrangement with shared equal time with both parents.
103Both parents testified to the importance of the other in the care and upbringing of the girls.
The Permanence and Stability of the Family
104Both parents have rented apartment accommodation in the community to ensure the children will have the permanence and stability of the neighbourhood and environment with which they are familiar.
105As already set out, there is no doubt that the mother’s family have been far more involved with the children in babysitting, driving them to activities and school, during vacation times and in the traditional Friday night dinners. The father’s family also have traditional Friday night dinner where the children are exposed to and have contact with the father’s family. The paternal grandfather testified to his engagement with playing with the children and helping them with Hebrew and Yiddish. Whatever the living arrangement, he will still be able to assist the children as needed.
106Of the two parents, there is no doubt in my mind that the mother has a better and well-established support network so as to provide permanence and stability.
The Ability to act as a Parent
107Of the two parents, the father has his own needs. He testified to having difficulty with the breakdown of the marriage and his need to distance himself from his family and friends. He testified that the loss of his job and his inability to now secure employment concern him.
108When the mother physically separated, she did so motivated by what would be best for the children. The father refused to leave the home when the mother asked him to do so. In the end, the mother made the decision to leave to provide not only the children, but both of the parents a better environment. According to the father, the physical separation benefited the children who are now more relaxed and at ease.
109When it comes to the needs of the children, the father expressed his concerns as financial and the significant time commitment of their activities. He testified that he expressed a preference for less expensive schools, camps and fewer extra-curricular activity which did not happen.
110Flexibility is important in parenting. The mother comes across as being open in her ideas while the father is more rigid. The mother in her present work is able to be flexible with her time. The father's future and the demands of his employment is uncertain.
111Of the two parents, I find the mother has a better understanding of parenting methods. The mother, the nanny, the grandmother, her friend and her sister all testified to the mother’s role and parenting ability.
Past Conduct, Violence and Abuse
112The mother testified to physical violence and threatening behaviour of the father. She referred to an incident when the father slammed her finger in the door frame. The father’s position is that the incident was precipitated by the mother barging into the computer room and her demand to use the only computer in the house. Whether or not she first approached the father, his action and the mother’s resulting injury is inexcusable. As a result of that incident, the father left the home and stayed out until approximately midnight. Concerned for her safely, the mother called the grandmother who came to the home and slept over which did not make the father happy.
113The evidence of the paternal grandfather was that during the separation, the father came to his home and, in anger, punched and damaged a wall in his house. There was also evidence from the family friend, K.S. that when the mother was moving out, the father aggressively grabbed items as they were removing even with the police present. K.S. stated that she was nervous testifying in the father’s presence given his behaviour and what she observed that day.
114When asked about negative aspects in the mother’s character, the father's family members identified a single outburst during a Friday night dinner. The parents were already separated. From all accounts despite what was described as an outburst by the mother, dinner continued. The sister-in-law testified that afterwards everyone pitched in with clean up. Thereafter, they sat on the couch and “hung out” suggesting that this incident was uneventful and not of serious concern.
115During the separation, there was concerning aggression by the father. I conclude the father is volatile and quick to lose his temper. As several witnesses testified and he himself admitted, he has and uses a loud voice when confronted. It is the father’s version of events that on that occasion the mother, members of her family and a friend were removing things from the home. His evidence is that he was punched in the throat and kicked in the stomach by the mother's uncle. While that evidence is not confirmed, it was not a pleasant scene that could and should have been avoided, particularly since EMR1 was present. The father could have absented himself or had someone else at the home with him or for him. He did not. The father's reporting to the police is keeping the incident alive with criminal proceeding still pending against the grandmother and the mother's uncle.
116I cannot conclude that the incidents of domestic violence, which may have occurred during the height of the separation, impact significantly on the ability of the father to act as a parent.
117What is of greater importance is that this history reveals the parents' inability to communicate effectively. They clearly do not communicate and have not been able to do so for several years. This inability to communicate escalated to the incident that occurred in the presence of EMR1. The father could have avoided the incident by simply allowing the mother to effect the move.
118Prior to the move, the mother made an effort to divide possessions with the father. When he refused to participate, the mother then, without his participation, divides the items as fairly as she deemed. The father continues to take issue with the division and wants to have a reference with respect to the chattels.
119The father challenges the police report made on the day of the move which states he exhibited “major anger issues”. The father says this is false recording and refers to other inaccuracies in the report including a statement made that the mother would “have custody of the children”. From all accounts of this incident, the father exhibited that he could not control his temper, particularly knowing that his daughter was present. His position on his issue provides further insight into his character and an inability to let go.
Maximum Contact
120In making an order, I bear in mind the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child. It is argued by the father that I should, as an alternative, order joint equal custody. The section of the Divorce Act that the father relies upon does propose a joint custody regime, but an arrangement that is “consistent with the best interests of the child”.
121I take into consideration the willingness of the parents to facilitate contact with the other. While there is no evidence that either parent has obstructed visitation, the mother has expressed a willingness to give in to the father’s wishes for his time so that during his mid-week time the children are not pre-occupied with activities.
122The mother's plan does recognize the principle of maximum contact.
Conclusions on Custody
123In making my decision, I bear in mind the principle of maximum contact with the father. I refer to the Supreme Court decision in Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R.3 where at paragraph 117 L’Heureux-Dube J. states:
[T]he court shall give effect "to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. [Emphasis added.]
124In this case before me the father should have regular and continued contact with the children as it is valuable to them. I remain mindful that maximum contact should not be to serve the interests of the parent, but the best interest of the children.
125To support his position on the no communication issue, the father relies on the Court of Appeal decision Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. 275 ground for custody. At paragraph 11, Weiler J.A. states:
The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis.
126In this case there was no evidence of effective communication between the parents. The evidence was to the contrary. The email communications made as exhibits in this trial demonstrate that the parents get nowhere in decision making. For more than the past three years because of the breakdown of communication, the mother has made all the decisions and kept the father informed of them.
127The parties have serious personal difficulties of trust. They question the motives of the other. Regrettably, they (and more specifically, the father) have not been able to set aside their personal differences and to work together in the best interests of the children. The arrangements now put in place is that the children are looked after by the mother. In making the arrangements for the children, the mother has been forthright in keeping the father informed.
128The father argues that the breakdown of the communication is as a result of an unreasonable desire by the mother to have control of the children’s lives and activities to the exclusion of the father. He relies on Saldandha v. Saldandha, 2016 ONSC 252 where the court made an award of joint custody notwithstanding the parents’ inability to effectively communicate. In that case, the court found that the mother took the unreasonable position that the father’s access would be on her terms or the father would have to resort to go through lawyers to resolve the dispute. That is not the case here. The mother has acted reasonably and not prevented contact. She has always kept the father informed. The mother has never interfered with the father’s time with the children.
129In the case before me, the mother wants the father to have a good and meaningful relationship and have a lot of time with the girls. The mother’s position is that from the point of view of the children’s needs and schedules, it would be better and easier for them if they were in her custody.
130The father also relies on the decision of Koplowitz v. Savage, 2016 ONSC 6629 where Diamond J. found, upon observing the mother in that case, that the mother put her own interests above that of the children without regard to the rights of the father. That is not the factual situation before me. Here the mother is supportive of the father’s role in the lives of the children. There is no evidence in this case, as in Koplowitz v. Savage, that the mother’s attitude toward the father was detrimental to the children’s well-being.
131This case is also distinguished from Alqudsi v. Dahnus, 2016 ONCJ 707. In the case before me, I find that the father has shown no genuine intent to be cooperative with the mother in decision making. Any efforts of the mother were thwarted so that in the end, the mother had no choice, but to proceed with decision-making. It is clear the father is opposed to the extent of the children’s activities and how much they cost. Neither of these are realistic concerns. The children have thrived and are doing well with their activities. Moreover, the mother has borne the all the costs putting the children above herself. If decisions were not made by the mother, the children would be the ones who would suffer.
132I have concerns about the motives of the father in making a claim for sole custody or, alternatively, joint custody given a number of factors: the high level of animosity between the parents, the father’s suspicions of the mother and her family and the financial circumstances of the father since separation. It is interesting to note that the father’s issues have been with both education and the extra-curricular activities which are the most significant aspect of the s. 7 expenses. I am concerned that the father is motivated to have custody, or joint custody to curb these expenses so that more funds are available for him rather than doing what is in the best interests of the children.
133After considering all the evidence, I find that the mother places the interests of her children ahead of her own. She is also supportive and will promote their relationship with their father. I therefore find that it is in the best interests of the children that the mother be granted sole custody with a fixed parenting schedule than minimizes the possibility of conflict, where the father would not have mid-week obligations for extra-curricular activities so as to maximize his time with the children.
134In summary, my conclusion, based on the “best interests” of the children are as follows:
(a) There is strong love, affection and emotional ties between the children and both parents. The mother has been the parent to whom the children have turned to for emotional guidance and support, and more particularly, the older child.
(c) The children have not expressed their views and preferences. While they have a good relationship with both parents, the evidence supports that they rely on their mother and turn to her when presented with problems even when they are in the care of their father.
(d) There has been no real status quo since the parties physically separated. The children were living in the home with their separated parents until February 2017. Since then they have been living in two homes for less than 4 months at the date of trial.
(e) During the course of her own testimony and from the evidence of the witnesses who testified at this trial, I find the mother is a calm, patient and controlled person. She is well-educated, a hard worker and has managed and balanced a steady career and the interests of her family, particularly the children. I find she is the parent best suited to provide the children with guidance, education, and the necessities of life. The father, in his testimony and from the totality of the evidence presented, has not been able to control his emotions with a tendency to be loud and have outbursts of anger. Given that the older child requires extra time, and someone to be patient with her homework and studies, the mother is better suited to meet her needs.
(f) In assessing the plans of the parents, the mother’s plan for the children is stable, well thought out and more realistic. The mother plans to purchase a home. The mother has a priority in locating a new home which offers a high school that meets the older child’s needs, both academically and socially. For the older child, she expressed choosing a public secondary school. The mother’s plan for the younger child is to have her continue at the private school where she has a strong network of family and friends who will be there to help with the children after school when she is not able to do so. The mother will continue to oversee, monitor and enroll the children in their extra-curricular activities. The father in his testimony is now living in an apartment with two bedrooms. He hopes to purchase a home in the neighbourhood. While his evidence was that he intends to allow EMR1 to remain enrolled at Bialik until she completes Grade 8, his preference was for the children to leave Bialik after Grade 6. The mother has a stronger commitment to the school notwithstanding the associated cost. The father expressed concerns about the extra-curricular activities based on cost and on his views that the children are over-programmed and do not have enough free time.
(g) The children will have the permanence and stability of a secure and loving family with their mother. The father’s future is less certain. In his testimony, he offered no insight into his future. While the father's family is supportive of him and his relationship with the children, I could not help but glean that the family relationship was not as strong or secure as the mother’s.
(h) Neither parent is involved in another relationship. While both parties are able parents, I find that the mother is the more responsible and stable of the two.
(i) The children enjoy a close relationships and love both of their parents. From the totality of evidence, particularly of the mother’s witnesses, which I accept, the children are more guarded in their relationship with their father and fear his responses to them. There was no evidence the children are not comfortable or at ease with the mother.
(j) In giving effect to the principle that a child should have as much contact with each parent, I considered which parent would more likely facilitate contact with the other parent. The children in this case need contact with both parents. The mother's proposal that the children spend 5 nights out of 14 with their father is a significant amount of time. The mother’s schedule also provides the children with consistency, stability and a routine that enables them to complete homework throughout the week, and attend activities and appointments that will not only provide for their needs, but also ensures they have as much contact with their father so that they are not in activities when they are with him mid-week.
135While the father makes a claim for custody, in the end, it appears he seeks joint custody with a 50-50 split believing it to be in the best interests of the children. There is no doubt that the children are much loved by both parents and their extended family members. Each parent provides something different.
136In the end, I find, the mother has a better understanding of their emotional needs and is better able to provide for them. Of the two parents, I find she is more likely to be supportive of the father and his relationship with the mother.
137While the children are bonded to both parents, I am of the view that their established relationship with both parents can continue so that their best interests are served by being with the mother in her care and control and the father having generous and carefully defined parenting time.
Property Issues
The Debt or Loan to the Applicants/the Grandparents
138The grandparents claim repayment of a promissory note and a sum of money that relates to the mortgage on the matrimonial home.
139The grandparents are both children of Jewish immigrants. They worked outside the home and raised their daughters until retirement. The core of their values is family and hard work. By no means wealthy, the grandparents by their industry and commitment to hard work were able to educate their children and financially assist them and their families.
140The grandparents claim they are owed $460,375 by the mother and father. The amount of $460,375 claimed is with respect to the principal mortgage loan and interest of $461,375 plus $50,000 on a promissory note.
141The father does not deny the debt on the promissory note for $50,000 and is content that the amount be deducted from the sale proceeds of the matrimonial home (being held in trust) before distribution.
142The mortgage loan was registered between the grandmother as mortgagee and the father as mortgagor. It is not denied that the mortgage was formally discharged in December 2010.
143The father takes the position that the money advanced (by the grandmother) to purchase the matrimonial home was forgiven by the discharge and in conversation he had in a September 2011 with the grandfather.
144Up until 2011, the mother and father made monthly interest payments to the grandparents on the mortgage loan. The father relies on a conversation he had with the grandfather in September 2011 when the grandfather returned to him the remaining three post-dated interest cheques for the 2011 calendar year (October, November and December). Since then no payments of principal or interest were made on the debt.
145In 2014, the father argues as a result of the marital difficulties, the grandfather made a request for a written acknowledgment of the loan. The father refused to sign the acknowledgement.
146Both grandparents testified that when they made loans to the mother and father, just as to their other daughter and son-in-law, the loans were always expected to be repaid. The grandfather denied ever forgiving the loan which related to the matrimonial home. The mother’s sister testified she and her husband had a similar arrangement. Although their loan was similarly discharged, it was never forgiven and they are still paying down the loan.
147The grandparents and the mother testified the sole purpose of the discharges was to facilitate the mother and father with their credit. The discharge on title was done to enable the father to borrow money for what they believed was the father’s intent to get into a real estate venture with his brother. Both the father and his brother denied any such venture.
148The father and the mother testified that after the registration of the discharge (December 2010), they continued to make regular payments of the interest and principal. The grandfather relied on his handwritten records tracking of the payments he received from the mother and the father. The principal amount was reduced to $350,000 by 2011. The father acknowledges that in the September cheque he wrote in the memo line that the principal owing was $350.000.
149The father testified that he was not made aware of the discharge until these proceedings were commenced. I accept the evidence of the mother confirmed by the grandparents that the discharge was registered on title to give the couple financial flexibility and so as to allow them to increase the line of credit with CIBC if necessary. The line of credit was secured against the matrimonial home. I also accept the grandparents’ testimony that they were comfortable with the discharge on title given the good re-payment history of the father and the mother.
150I do not accept the father testimony that he did not know about the formal discharge. Even if I am wrong in coming to that conclusion, the CIBC line of credit was increasing and he was the person who was increasing it after the discharge and at a point in time when he was not working.
151The grandfather testified he returned the post-dated cheques because of the unfortunate investment in Kaptor and the financial impact that had on the father and mother. The evidence of both the father and the grandfather confirmed that in September 2011, Kaptor Investments stopped paying interest to the father and mother. The grandfather testified he was then made aware that apart from the investment in Kaptor, the father had no other income steam and was still not employed. I believe the mother when she states that the Kaptor circumstances created further cash flow issues for them. The father, who denied the cash flow problems confirmed he had no other income stream at the time. The only source of income for the family came from the mother.
152Because the grandparents also invested in Kaptor, they were aware of this financial development and predicament. I accept the grandparents’ testimony that given the Kaptor situation, they wanted to help the family's cash flow by not requiring the monthly payments at that time.
153With respect to Kaptor, the mother testified that it was in late 2011 that she became aware of the extent of the borrowing on the CIBC line of credit debt to acquire Kaptor. She also was aware that the source of income from Kaptor ceased. It is the mother's position that she was alarmed by the large debt on the line of credit coincidental with the cessation of income from Kaptor. The mother maintains that she left the investments to the father and did not pay attention to the line of credit. The father says she was always aware of their finances. On this point, I prefer the mother’s evidence that given the father’s ongoing involvement, she left that aspect of their finances to him.
154The father testified that all the bank statements were available to the mother. On this point, I accept the mother's evidence that she did not pay attention to either the line of credit or the investments which she left to her ‘banker’ husband. I also accept her evidence that it was only when she subscribed to online banking in 2014 that she began closely tracking the bank statements.
155The father acknowledged that the mother was not copied on the exchanges and emails he conducted with Kaptor apart from asking her to do some bankruptcy searches with respect to the investment. From the evidence, I am satisfied that the mother only learned of the extent of her husband’s investment activity in late 2011, when she was asked to help in the restructure to protect the failing Kaptor investment.
156The grandfather acknowledges that he was responsible for the introduction of the Kaptor investment. The father’s position is that the mortgage loan was forgiven in September 2011 because the grandfather felt “guilty” about the Kaptor investment losses. The grandfather denied ever feeling “guilty”, but admitted to feeling badly for the father and mother, his other daughter and others, including himself. The grandfather never knew the details or amounts the others invested in Kaptor.
157On this point, I also accept the grandfather’s evidence that while in September 2011 the Kaptor investment stopped paying interest, negotiations continued into 2012 with respect to restructure so that the extent of the losses were not known in 2011 and that recovery was still possible. In any case, the grandfather takes the position that while he administered the loan extended by his wife, it was formally made with her so that it was technically not his to forgive.
158The grandfather does not deny that he informed the father and mother that the interest payments would not have to be paid monthly until they had a better understanding of what was happening with the Kaptor investments. This was confirmed by the mother.
159The grandfather version of what happened in 2011, which I accept, is that while he felt badly for the losses he did not feel “guilty”. He had no control over the company or the investments made nor did he know the large amount the father had invested.
160Apart from the discharge, which was explained and negated by the ongoing loan payments after the registration, there is no evidence of the grandmother forgiving the mortgage loan.
161In December 2014, the grandfather asked the father to sign an ‘Acknowledgment of Loan’ document. He refused to do so stating that the mother had refused. The mother contradicted his evidence refers to the acknowledgement signed by her with her secretary as her witness.
162The father testified that when he was presented with the acknowledgement, he noted it was full of errors yet he admitted that he never provided a corrected version of it himself or responded to the grandfather's request. At no time prior to these proceedings did the father convey his belief that the debt was forgiven. While the father challenged the form and format of the ‘Acknowledgment’, he was asked to sign, I find it telling that the father did not respond to the most critical aspect, being the existence of the debt itself.
163On June 22, 2016, the grandparents demanded payment of the debt by the father and the mother. No payments were forthcoming. The father maintains payment was then being sought because of the separation of the parties and in an effort to recover money for the benefit of the mother and her family.
164At trial, there was extensive evidence of a similar loan arrangement that the grandparents have with the mother’s sister (also discharged given the Kaptor circumstances). Supported by the grandfather’s handwritten records, his accounting statements and testimony confirmed that the sister and her husband continually paid on their loan. It is unreasonable to find that one side of the family was forgiven and the other are not when all along both sides were always treated equally.
165The father and the mother could have continued making their payments in the same way, but they were in financial circumstances where they could not afford their lifestyle with the added financial burden of the payments.
166The father in his evidence disagrees and says they could have continued the payments because they had cash savings. The father relies on bank records which show positive balances. When asked why, if they were financially sound, they did not continue making the payments the father stood firm that the loan was forgiven. While the father relies on the bank balances at the end and middle of 2011, 2012 and 2013, he ignores the large and disproportionate size of the line of credit and the cash flow benefit the family enjoyed by not making regular payments on their housing loan. The savings (at their highest less than $100,000 in those years) hardly matched the almost $1 million line of credit. I accept that the mother was shocked when, in or about September 2011, she discovered that the father had increased their line of credit from approximately $450,000 to $1 million dollars.
167The father argues that even if the loan to the grandmother exists, the loan in reality was never intended be collected, or at least, will never be collected as against the mother. The father relies on the Court of Appeal decision in Code v. Rotstein, 2004 CanLII 24269 (ON CA), [2004] O.J. No. 286 for the proposition that the value of the alleged debt should be discounted to reflect the reality that it is a debt that was not only forgiven, but one that would never be collected. I do not agree. The debt was a real debt where the principal was being reduced by the parties and where interest was being paid explained by the events in 2011.
168There is no cogent evidence, which I find, that the mortgage loan was forgiven or never to be collected.
169Unlike in the facts in Code v. Rotstein, the grandparents here testified to wanting to be paid and needed the money for their retirement. The grandfather testified that as a result of his own financial circumstances, he left retirement and returned to work. At the date of this trial, he was still employed. He and his wife were neither prepared, nor in a financial position, to forgive the loan they gave. I also distinguish the facts in this case where the mortgage to the grandmother replaced a conventional mortgage and loan structure previously in place.
170The father also argues, relying on Code v. Rotstein and Poole v. Poole, 2001 CanLII 28196 (ON SC), 2001 CarswellOnt 1939, for the proposition that if a loan is found to exist, that a discount would be appropriate. I do not agree. The facts of this case are different where the mortgage debt and promissory note were not only acknowledged, but being repaid. Furthermore, need by the grandparents has been established by them and now that the house is sold, there is ability by the parties to repay.
171I was referred to Pecore v Pecore, 2007 SCC 17, Chao v Chao, 2016 ONSC 7911 and Barber v Magee, 2015 ONSC 8054. On the facts of this case, I cannot find the loan from the grandparents to be a gift to the mother and the father. The onus is on the father to satisfy me that the grandparents intended to benefit the father and the mother by forgiving the loan. The father has failed to do so. The factors on which I rely and find in this case are the following:
(a) there is historic documentation of the loan;
(b) the repayment of the loan was specified and understood by the parties;
(c) the repayments were made and documented;
(d) the repayments of the loan were honoured until there was an explained suspension;
(e) there was partial repayment and reduction of the principal amount;
(f) there was a registered discharge, the repayments continued so that there was no cogent evidence that the loan was forgiven even though discharged on title;
(g) there was security for the loan until the charge was lifted and when lifted, continuing repayments were made;
(h) the circumstances of the discharge were fully explained;
(i) there was a demand for payment;
(j) the demand for payment was made before the separation of the parties;
(k) there was expectation and clear likelihood of repayment given the sizeable proceeds of sale of the property; and
(l) there is no basis to discount the debt claimed.
172As a result, I find that the mortgage loan and interest together with the acknowledged promissory note should be repaid by the mother and the father. Accordingly, accepting their calculation, the grandparents are owed $460,375 by the mother and father equally. They shall be repaid from the proceeds of sale of the former matrimonial home as set out below.
Equalization of Net Family Property
173Before I deal with the claims for support, it is appropriate to deal with the property issues as between the mother and father.
174The mother claims the father owes her an equalization payment of $121,362.76, subject to an adjustment the father should receive credit for $50,000 which the mother received from the Kaptor litigation funds. She asks that the equalization payment paid be made from the father’s 50% share of the net proceeds from the sale of the Matrimonial Home.
175The father in his net family property statement (sworn April 3, 2017) claims an equalization amount payable by the mother of $1,971.49. In submissions, he also claims the mother owes him a post-valuation date payment of $6,724.
176In the opening statement, counsel for the father acknowledged two of the mother’s date of marriage assets being her Canada Savings Bonds and RRSP with MRS Trust Company. The father disputes the inclusion of the mother’s TD chequing account. The mother with request to this account made best efforts in retrieving her old bank records. I accept her evidence that the closest statement she could find for this account was the one dated August 4, 2001, three-and-a-half months prior to the marriage date. I am satisfied that the bank was not able to provide her with other statements from 2001. The mother testified, and I accept, that she did not have major expenses or debts prior to marriage. The husband testified that if she had these savings they were depleted by the cost of the wedding. He provided no evidence to purport his assertion. I accept the mother's evidence that her parents paid for her portion of the wedding, and that she had accumulated these savings because she was earning a good income at that time.
177The father challenges the pre-marriage position of the mother and relies on the account balances as in 2005. I agree with the mother that the reference is flawed. In 2005, the parties were already married, owned a home and had a child, I accept that these expenses would have depleted the mother’s account balance by that time. The best evidence on pre-marriage balance is that of the wife, which I accept.
178The other property issues still in dispute between the parties result from the fact that the mother placed the Kaptor litigation lawsuit funds of $147,000 on the father’s side of the net family property statement. The father did not include these funds. Both parties now agree that any recovery from the Kaptor litigation should be equalized. I agree the Kaptor funds should be on the father’s side because all the investments were held in his name alone and he is the party in the Kaptor lawsuit. The $147,000 amount should be reduced by $50,000 which was paid to the mother.
179The father is seeking post-separation credits for expenditures from the parties’ joint accounts. The mother testified that any funds she spent were on the children and the house, and that there should be no post-separation adjustments. Further, from the date of separation to the present, the father was been receiving the Universal Child Care Benefit from the government of $120 a month not her. The mother has not requested that the equalization payment be adjusted to account for this income.
180The husband is also seeking post-separation adjustments so that the amount the mother deposited to the RESP in 2014 and 2015 be credited back to him. He seeks credit from the educational funds of his children which would have the effect of increasing his net family property. This was a pre-separation decision. I am also of the view this is an unreasonable position given that in 2011 (also pre-separation) the father deposited $20,000 into the children’s RESPs.
181The father in his evidence took issue with the chattels that the mother removed from the matrimonial home. The move and the altercation on that day was the subject of a great deal of evidence at this trial. In his evidence and at the conclusion of this trial, the father maintains the position that the mother removed more than 50% of the possessions and took better items. He seeks an accounting.
182I am of the view that any such accounting would be a waste of time and money and would only serve to prolong the ongoing acrimony between the parties. In any case, I accept the evidence of the mother that prior to dividing the chattels she asked the father to participate in the division which he refused to do. Her evidence, which I accept, that given the chattel's position she attempted to be fair and left him with more than half of the things.
183The cost of an accounting would simply be disproportionate to any recovery.
184In the end, with a credit to the father for the $50,000 paid to the mother on the Kaptor investment, she is owned an equalization amount of $71,362.76 payable by the father.
Support Claims
Father’s Income
185Central to the father claim for spousal and child support is the father’s income.
186Throughout the parties’ marriage, the father held various positions of employment. When the parties married, the father worked as a personal banker. He also worked as a mortgage underwriter and a real estate broker/agent. During the marriage, he managed the family’s investments. At the date of trial, he was unemployed and receiving EI. Most recently, between 2014 and 2016, he worked for Equitable Bank as a mortgage underwriter. There was no evidence as to why that employment terminated.
187From 1999 to 2006, the father was employed as a personal banker and a mortgage underwriter. He was earning on average $40,000 to $60,000 a year. I rely on an income analysis from 2001 to 2016 made as an exhibit at this trial.
188In or about 2006, the father obtained his real estate licence. The mother supported and encouraged this career pursuit. The grandmother, by then a real estate agent, testified that she was happy to take the father under her wing and network in the in the industry. Between 2006 and 2008, when the father was engaged in real estate, his income ranged between $16,000 and $65,000. At trial, the father testified that although he renews his licence year to year as a measure of security he was not interested in pursuing that career route.
189The father managed the family’s investments with the Kaptor group of companies. He entered into a consulting contract with Kaptor. The father testified this was not true employment contract, but rather a vehicle created by Kaptor to yield greater return on the investments he was making. In 2009, the father declared an income of $98,450. In 2010, he declared an income of $287,556 and in 2011, he declared an income of $62,493.
190While the father testified that the consulting agreement was an investment product and was not an employment arrangement, his knowledge of that investment industry leads me to believe he considered dealing with the investments as his job because during that period of time he neither had nor gave evidence that he sought other employment.
191The mother testified that, in late 2011, she became increasingly frustrated with the father for not making efforts in finding gainful employment. In early 2012, he was briefly employed with Street Capital. The father's income in 2012, 2013, and 2014 fluctuated between $9,000 and $22,000 with gross business income in those years being a little higher.
192The mother testified that it was in 2012, 2013, and 2014 that the father stopped making efforts to secure employment and, instead, spent time on his computer at home.
193In September 2014, the father was employed by Equitable Bank as a mortgage underwriter. He worked until August 22, 2016. In 2015, his line 150 income was $74,219. From his T4s in 2016, the father earned approximately $46,000 from Equitable Bank and approximately $6,000 in Employment Insurance.
194The father testified to searching for employment from September 2016 to the date of trial. He relied on a spreadsheet summary of his search efforts from September 1, 2016 to March 14, 2017. He testified to spending 4-5 hours a day in his efforts to secure employment. In cross-examination, he acknowledged that the entries in the spreadsheet did not support 4-5 hours of search efforts daily. In reviewing his summaries, I find it hard to accept that he devoted that much time to the search. With the father’s education, previous employment and contacts, his experience, and qualifications, I cannot help but doubt the sincerity of the father’s efforts to become gainfully employed.
195The father testified that if hired, he expects to earn approximately $50,000 to $55,000 as a mortgage underwriter. The only evidence that the market for mortgage underwriters was now soft was his own. The father acknowledged that he earned approximately $70,000 in 2015 as a mortgage underwriter, but without further evidence states that he would not earn that amount today. This in contrast to the email thread with a Senior Recruiting and Marketing Strategist, where the father was seeking an annual salary of $83,000 to $90,000. The father testified that he had not considered other employment outside of mortgage underwriting, nor has he pursued working as a real estate agent, or even a minimum wage job, such as Tim Horton’s.
196In making an order for child support, this court is obliged to follow the Ontario Child Support Guidelines, O. Reg. 391/97 ("the Guidelines"). See Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), s. 15.1 (3) and s. 17(6.1)
197In case such as this, where line 150 income is in issue, this court may impute income to a parent as is appropriate in the circumstances. See s. 19(1)(a) of the Guidelines
198The appropriate test for determining whether income should be imputed requires me to assess:
(a) whether the spouse intentionally under-employed or unemployed; and
(b) if so, is the under-employment or unemployment reasonable?
If the court finds under-employment, there must be a determination of what income should be appropriately imputed in the circumstances.
199In my assessment of the facts, this is an appropriate case for imputing income on the basis of intentional unemployment/underemployment. The father does not dispute that imputation is appropriate in this case. The question to be decided is what amount of income should be imputed. It is the position of the father that, based on his income over the last five years, it is reasonable to impute an income of $35,000 a year. The mother argues that $70,000 a year is more appropriate given the father's education, abilities and income historically
200The test is: what is reasonable in the circumstances. The factors to be considered include age, education, experience, skills, and health of the payor. The court should also look at the availability of job opportunities, the number of hours that could be worked in light of the parent’s overall obligations, and the hourly rate the parent could earn. See Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (C.A.)
201In Selznick v. Selznick, 2012 ONCA 686, the Court of Appeal upheld averaging income over three years and then adding to that average where the parent was deliberately choosing to remain home and work on a part-time basis.
202In Ariyaratne v. Ariyaratne, 2012 ONSC 1055, an income of $50,000 per year was imputed to the father who stopped working full time after his contract position expired. The father had the ability to earn significantly more than the $16,000 he earned in 2011. Income was imputed to him even though the father had, on at least two occasions, been laid off and had to relocate to a new city after making modest job search efforts.
203Imputing income to a parent is also appropriate where that parent placed his or her need above that of his children, by being under-employed and not being able to contribute to the dependent children’s expenses is also appropriate. See Hall v. Hall, 2011 ONCJ 47
204In this case the evidence supports and I find, that the father is under-employed for the following reasons. He is:
(a) young, healthy, capable of working, and he should be expected to work;
(b) a professional with experience and designations, including a real estate agent, broker, mortgage underwriter, and banker;
(c) able to generate a good income when working at full capacity; and
(d) on average income over the last 16 years (as analyzed by the mother), he is able to earn $63,631.18
205I bear in mind as well that early this year, the father in his own correspondence with a recruiter requested an annual income between $83,000 and $90,000.
206While the father testified to making efforts, I am not convinced he has earnestly committed himself to finding gainful employment. In his evidence, he failed to expand on his search. The father’s evidence alone did not satisfy me that he has been earnest in his search. Alternatively, the father may be content with the income he has from Employment Insurance to satisfy his own needs. However, his current income is not enough to meet his obligations to support his children or contribute toward their expenses. The responsibility to contribute to the children’s needs and expenses should not rest solely with the mother alone.
207In the circumstances, it would not be farfetched to find the father with all his abilities, education and experience could earn an income in the range of $80,000 to $100,000 a year. If he applied himself to sales in real estate which he does not wish to do, he could likely earn more. He himself admit to his underemployed where in his submissions, he acknowledges an imputation of $35,000. After my review of the evidence, I find it would not be unreasonable or unfair to impute income to the father of $70,000.00.
Periodic Child Support
208Section 3(1) of the Guidelines reads:
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7.
209For the calculation of child support, I find the mother’s annual income to be $199.127 and the father income to be $70.000.
210The mother has been employed outside the home since the date of marriage. While historically the mother had greater income, since 2016 she has earned $199,126.84 from her employment as in-house counsel at BMO.
211Commencing September 1, 2017, the father shall pay to the mother $1,037 each month for the support of two children based on an imputed income of $70,000 a year.
Children’s Extra-ordinary Expenses
212The children have extraordinary expenses. The mother has made all the payments in the extraordinary expenses since separation. She makes a claim for ongoing and retroactive extra-ordinary expenses.
213The mother testified that the extra expenses of the children are in the range of $50,000 to $60,000 a year. The most significant of these expenses is for the private parochial school tuition. While the father has expressed that the activities are excessive and too costly, neither at trial nor in his submission did he suggest any of these should be curtailed. The father acknowledged that the children have been enrolled in these activities progressively since they were infants. He does not deny the costs.
214The extra-ordinary expenses of the children include:
(1) the Bialik School;
(2) summer camps;
(3) dance;
(4) passover camp;
(5) day drama;
(6) gymnastics;
(7) skiing;
(8) singing;
(9) dental:
(10) orthodontic;
(11) optical; and
(12) medications not covered by plans.
215To his credit, the father is willing to contribute to certain expenses both retroactively and then on a go forward basis. The father acknowledged an obligation to contribute to the expenses the mother paid for from February 1, 2015 to May 1, 2017, but disagrees with the level of contribution.
216The father is of the view the claim by the mother is not only excessive, but unreasonable or, not proportionate to the parties' abilities to pay. He also disagrees with some decisions for these expenses made by the mother. For example, he is of the view the children’s summer camps should not be changed. In his testimony, the father modified his position stating that he would now support overnight camp and day camp. He is also of the view that given the parties understanding, early in the marriage, that it would not have been unreasonable for the children to be enrolled in the public school system once they reach Grade 6. He now seems to accept that they will continue in the private school until completing Grade 8.
217At trial, the father provided a chart of expenses he was willing to support.
218In assessing the appropriate s. 7 expenses, I bear in mind the guidance offer by this court and affirmed by the Court of Appeal in Clark v. Clark, 2014 ONCA 175. I also refer to MacKinnon v. MacKinnon 2005 CanLII 13191 (ON CA), [2005] O.J. No. 1552 (C.A.).
219The extra-expenses claimed by the mother fit the definition followed by our court and are, I find, both necessary and reasonable with the meaning of the section. The expenses claimed by the mother, I find, are consistent with the activities and expenses that the children has incurred for many years. I am also mindful of the fact that until in or about 2014 the father, who managed the family’s accounts, arranged payments to be made for these expenses. In 2014, the mother opened her own account and then assumed making the payments.
220Based on the parties' actual income for 2015 and 2016, the father's proportionate share of the s. 7 expenses for 2015, I find, is 27%. For 2016 it is 21%. Based on the income I impute to him, I find, the father ongoing obligation to s.7 expenses is 26%.
221On my findings of income of the parties, as set out above, for the period commencing February 2015, the father owes the mother $29,526 for the s. 7 expenses paid by the mother since separation.
Spousal Support
222The father makes a claim for spousal support. He claims periodic support in the amount of $1,500 a month for fixed period of 10 years.
223In determining whether his is a case for spousal support, I bear in mind the provisions of s. 15.2(4) of the Divorce Act and as such look at the “condition, means, needs, and other circumstances of each spouse”. The condition of a spouse includes such factors as their age, health, needs, obligations, dependents, and their station in life. A spouse’s means “encompasses all financial resources, capital assets, income from employment, and any other source from which the spouse derives gains or benefits.” See Smith v. Smith, 2012 ONSC 1116 (at para. 69).
224The father relies on the Supreme Court decision in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R.813 and submits that as a result of the roles the parties agreed to, he was disadvantaged by an arrangement where his role was focused on the children and the mother's on her career. The mother disagrees and takes the position that it was neither agreed to nor intended that the father would not pursue his career and contribute economically to the marriage. The mother does not disagree that throughout the relationship she earned more than the father. While the mother does not dispute the father’s role in attending and participating in the children’s school, medical appointments and activities, if he was available during the day, it is her view the father greatly exaggerated his role and involvement with the children and in management of the household. The mother's evidence was supported by the nanny and the grandmother. I recall the nanny evidence that she took charge of the children under the direction of the mother. Both the mother and the nanny testified that the cleaning of the household was done by a housekeeper/cleaning lady, hired by the mother. While the father says he prepared dinners, the evening meal, according to the nanny, was prepared by her before the end of her day.
225The father also relies on the principles as set out by the Supreme Court in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420 (S.C.C.). The father claims entitlement to spousal support based on the breakdown of the marriage: In Bracklow, the court set out three routes to support: (1) compensatory support; (2) non-compensatory support; and (3) contractual support. The same factors that go to entitlement have an impact on quantum.
226The father argues the principles established by Lang J.A. in Fisher v. Fisher, 2008 ONCA 11. As the lower income spouse, he relies on the long duration of the marriage and circumstances he finds himself in on the breakdown of the relationship. He submits that he will not be able to enjoy the lifestyle that he had prior to the breakdown. In this case, I find that the father has always had the ability and the tools to be financially independent. First of all, the lifestyle the parties enjoy was, by all accounts modest. Secondly, the higher earner here, the mother, will continue to bear the more significant financial responsibility of caring for the children. Thirdly, both parties find themselves in a position where they will have to adjust their respective standard of living.
227The father’s position is that he should be compensated by support for the loss he suffered as a result of the marriage and his role in the relationship. In the Alberta case of Fisher v. Fisher, 2009 ABQB 85, the court held that entitlement must be detrmined first. If that threshold issue is not met, the fact that the guidelines would have yielded a significant support amount due to disparity in income is not relevant to the exercise.
228The father maintains he has suffered an economic disadvantage as a result of the separation and is therefore entitled to spousal support. In this case, the father argues that early in the relationship the parties determined their roles which now puts his in a disadvantaged position. In Firth v. Allerton, 2013 ONSC 2960, where the husband testified that he was entitled to compensatory support because he assumed the role of a “stay at home dad”. Broad J. found at paras. 45-47 that:
[i]n order for the marriage to have had a detrimental effect on the economic prospects of a party seeking a support order, there must have been an explicit or implicit agreement, understanding or arrangement that one party would sacrifice or set aside, in whole or in part, his or her career prospects, educational advancement or opportunities for economic self-sufficiency in order to permit the other to pursue hers or his …
Given that the focus is on the effect of the marriage on impairing or improving each party’s economic prospects, a deliberate individual choice by one party not to pursue or develop career opportunities, without the express or implied agreement or acquiescence of the other party, or even against the wishes of the other party, may not support a compensatory claim for support.
In that case, the Court found that the situation was far from one which the husband assumed the lion’s share of childcare and household duties. While there was no entitlement based on the compensatory model, Broad J. ordered time-limited support for a three-and-a-half year period based on finding of need.
229In the case before me, as in the Firth case, while the mother earned more money, I find there was no agreement, understanding, or arrangement between the mother and father that he would set aside his career aspirations. Contrary to what the father would like me to believe, the evidence in this case does not convince me that the father sacrificed, or was asked by the mother to forego, his employment or career. I am also not convinced by the evidence that the father assumed the lion`s share of child care and household duties to permit the mother to pursue her career. The wife and her family members testified that the mother was not content with the father's unemployment and his lack of interest in developing his career. The father lack of ambition was, I find, one of the major causes for the breakdown of this relationship.
230In Lamothe v. Lamothe, 2006 CarswellOnt 8150, a husband sought spousal support, asserting a large discrepancy in the parties’ respective incomes. He argued that his wife benefited from the fact that he was able to be at home and not employed. As in the case before me, the wife in Lamothe testified that she always encouraged her husband to go back to work, and would search for possible jobs for him. She testified that although her husband did some household chores and meal preparation, she assisted as well. Additionally, the child was in school and did not require the husband to baby-sit her. In that case, the wife testified that she grew tired of being the only source of income for the family.
231Gauthier J., in Lamothe, found that the wife was not content for the husband to remain at home, and that he did not discharge his obligation to provide support for himself and the family. As in this case, the husband in Lamothe had work experience with no physical limitations on him with regard to employment. In Lamothe, the husband did not suffer any economic disadvantage as a result of the marriage; his decision to stay home was found to be his own, and not a result of any childcare or household duties he assumed by him. Therefore, there was no compensatory support. With respect to his non-compensatory claim, the court found that the wife bore most of the expenses associated with the child and that although there was a significant discrepancy in the parties’ respective incomes that was not a case where one spouse was living at a significantly higher standard of living than the other. The court in Lamothe found the spouse was not deprived of the ability to become self-sufficient. In that case, the court ordered no spousal support.
232In the case before me, the father bases his claim on need given the income disparity and the historic circumstances of his dependency. In Smith v. Smith, 2012 ONSC 1116, Chapel J. found the husband did not establish an entitlement to spousal support based on need for financial assistance. As in this case, the parties in the Smith case did not have an extravagant lifestyle during the relationship. In the Smith case, the husband also had a significant asset. That is not the case here.
233In the case of Daffner v. Sparkes, 2006 BCSC 1061, the court found that the husband chose to leave his work as a lifestyle choice. While he did have primary childcare responsibilities 4 days out of every two weeks, the wife still had the primary responsibility for the day-to-day care of the children during the marriage. In that case, the trial judge held: “This is not a case where Mr. Sparkes forewent career opportunities or was prevented from ensuring his future financial security due to childrearing or household obligations.” I have already determined that the father, in this case, did not assume child care or management of the household. In the case before me, one of the issues was that the father was not gainfully employed and made no effort to find work.
234In Lee v. Lee, 2013 BCSC 1227, modified on appeal in 2014 BCCA 383, the court found that the husband had not seriously explored the possibility of applying for and trying other occupations. In the Lee case, the court imputed income to the husband and, in the end, found that the husband was not entitled to spousal support.
235I find that the father in the case before me is not entitled to periodic spousal support based on the compensatory model for the following reasons:
The father worked throughout the marriage in various capacities. He re-trained during the marriage to become a real estate agent/broker, and there are no physical or health limitations preventing him from pursuing employment. Furthermore, he has substantial experience as a mortgage underwriter and can also work as real estate agent.
The father has an obligation to provide for the support of himself and the family, and has not discharged his obligation to support himself and provide for the family.
In the early part of the marriage, the parties had a full-time live-in nanny and then a nanny who was engaged while both parties worked outside the home. The live-in arrangement ended when both children started attending school full-time. The nanny was re-employed and then lived out. The parties stopped employing a nanny full-time, in late 2011, well after the mother changed her employment to in-house counsel.
In 2006, the father pursued a career in real estate. While he worked from home, the decision to work from home as a real estate agent had nothing to do with childcare or management of the household. The mother not only encouraged him in this endeavor, but believed that being a real estate agent would be a good career path for the father that he could excel in it and earn a larger income.
If the father made a decision not to pursue or develop the career opportunities in banking, real estate or financial management, it was not with the express or implied agreement or acquiescence of the mother.
This is not a case in which one spouse assumed the lion’s share of childcare and household duties.
Prior to the marriage, the father was financially independent, had a university education, and a secure job.
Perhaps most importantly, the marriage did not cause the father any economic disadvantage.
236In the case before me, I find the father is not entitled to periodic spousal support based on the compensatory support model where the family lived a modest middle-class lifestyle. They did live in an affluent neighbourhood and in an expensive house, but, to a large extent this was due to the financial support of the grandparents and the income of the mother. They never went on luxury vacations. The only evidence of vacations were to Florida where they stayed with the mother’s parents at no cost. The mother testified that both parties drove the same inexpensive cars for over 10 years, and that when they ate meals out during the marriage, it was never at expensive restaurants. They did not live an extravagant lifestyle.
237The evidence at trial also supports that post-separation, the mother’s income has not enabled her to have a much higher standard of living than the father. Since separation, the mother has paid for almost all of the expenses associated with the children. The burden of the children’s expenses will be largely upon her going forward.
238The parties spent their household income on the children, acquiring the equity in their home and on their investments. The latter they will share. Prior to the commencement of the trial, they parties sold the matrimonial home for $2,660,000. Each party will benefit equally from the net proceeds from the home once the loans are paid.
239With respect to the investments, I find that the father managed those. There the parties did not fare well, but he cannot be expected to solely shoulder the blame. As a result of the losses suffered through the Kaptor investments, the parties acquired and share considerable debt.
240While I cannot find that the situation of the father will now be compromised now that the parties are separated, like the mother, he will have some adjustments to make to bring himself to the level of financial security he enjoyed while married.
241I bear in mind that the husband is still young enough to have a long career ahead of him. By his own testimony, he expects to get a job and should be in a position where he is able to support himself and his children.
242There is a discrepancy in the incomes of the parties. Historically, the mother has been the greater earner. Despite the discrepancy in the parties’ incomes, this is not a case where one spouse has been living at a significantly higher standard of living than the other. Nor, given the obligations that the mother will bear with respect to the children, will her standard be significantly higher post-separation.
243I find this is not a case where one spouse, in this case the father, has been deprived of the ability to become self-sufficient or to earn greater income than he in the last few years. On the contrary, he has had proven ability. To her credit, the mother was the one primarily supporting the children throughout the marriage and since separation. Given the failure of the relationship, the father will have to make financial adjustments so as to become self-supporting.
244In the circumstances of this case, the mother should not also be expected to provide on-going support to the father and make periodic payments when he is fully capable of supporting himself and earning an above middle class income. The father's entitlement to support is non-compensatory and based on the need to give him the relief from financial dependency.
245The parties in this case need to move on. The father will need some financial adjustment but both parties would both benefit from a clean break financially. Although it is largely through the father's own choosing that he is unemployed or was under-employed during the marriage, the mother must bear some responsibility for perpetuating the father’s the financial dependence on her. He has therefore established modest entitlement of need so that he can now re-establish himself. If I made an order for periodic support, which I am not prepared to do, it would be bearing in mind the needs and means of both parties so that a modest monthly amount for a limited and fixed period of time would be appropriate.
246I agree with the submission of the mother that entitlement, if any, should be at the low end of the range and time limited in duration. Counsel for the mother refers me to three Spousal Support Advisory Guidelines Calculations in the mother’s submissions as the range of support payable by her to the father. If spousal support was periodic it would be, at highest range, approximately $700 a month and for a limited period. (The father’s claim is for a 10 year period). I do not propose to make such an order here.
247In the circumstances of this case, there are funds available to deal with spousal support by way of a lump sum. While a lump sum was not sought by the father, I am of the view that a lump sum would best serve the parties and their children. At the same time, it would fulfill what I find is the need of the father to reestablish himself in whatever career he chooses so that he is self-sufficient.
248Given the ranges of the Guidelines Calculations, as submitted, I conclude that a lump sum of $50,000 to the father should be paid by the mother for spousal support.
Conclusion
249Based on the evidence and after hearing and reviewing the evidence at trial, I make the following orders.
The Third Party Debt/Loan to the Applicants A.S. and A.S. (the grandfather and the grandmother)
250The mother and father shall equally bear the loans to the grandfather and grandmother which shall be paid to them from the proceeds of sale of the former matrimonial home.
251In full and final satisfaction of the father's indebtedness to the applicants, grandfather and grandmother, the father shall pay each applicant $25,000 together with interest calculated from the 22nd day of June, 2016, to the date of payment, from his share of the net proceeds from the sale of the matrimonial home.
252In full and final satisfaction of the mother’s indebtedness to the applicants, grandfather and grandmother, the mother shall pay each applicant $25,000 together with interest calculated from the 22nd day of June, 2016, to the date of payment, from the mother's share of the net proceeds from the sale of the matrimonial home.
253In full and final satisfaction of the mortgage loan to the grandmother, the father and the mother shall each pay her the sum of $175,000 plus interest at 3% calculated from October 1, 2011 (total interest to June 30, 2017 of $30,187.50; each additional day after June 30, 2017 is to be calculated at $28.77). The mother and the father shall pay these amounts from their share of the net proceeds from the sale of the matrimonial home.
254Counsel did not have an opportunity to address the issue of costs with respect to this claim. If unable to agree, they may address costs in writing on or before the October 15, 2017. There will be no reply.
The Family Law Divorce Issues.
255As between the applicant (the mother) and the respondent (the father), I order as follows:
Divorce
The applicant (the mother) and the respondent (the father) shall be divorced, dissolving their marriage.
The applicant (the mother) and the respondent (the father) will cooperate in obtaining a Jewish Get. The costs of the Get will be shared equally.
Parenting
- The mother shall have sole custody of the children of the marriage, namely, EMR1 born 2004 and EMR2 born 2007 ("the children"). The children shall reside with the mother. They shall reside with the father pursuant to the following two-week schedule:
a. Week 1: Wednesday at 4:00p.m. to Thursday at 9:00a.m.; and
b. Week 2:
i. Wednesday at 4:00 p.m. to Thursday at 9:00 a.m.; and
ii. Friday at 4:00 p.m. to Monday at 9:00 a.m., or if Monday is a holiday, then to Tuesday at 9:00 a.m.
- In addition to the two week schedule the following residence schedule will shall apply and will override the regular schedule:
a. Mother's Day - the children shall spend Mother's Day with the mother from 9:00 a.m. to 8:00 p.m.
b. Father's Day - the children shall spend Father's Day with the father from 9:00a.m. to 8:00p.m.
c. Summer Vacation - each parent shall have two one-week periods of uninterrupted vacation time with the children, provided that if there are less than four weeks in which both children are home, the parties will split this time equally. The parents shall advise each other by April 1 of their chosen weeks. The father shall have first choice in odd-numbered years and the mother shall have first choice in even-numbered years. In making plans, each party shall take into account the children's camp and other scheduled activities.
d. Winter School Break - the parties shall share equally all of the days of the children's school winter break, split into the first half and second half. The parents shall advise each other by September 1 of their chosen half, with the mother to have first choice in odd-numbered years and the father to have first choice in even-numbered years.
e. The Jewish holidays shall be divided and begin as follows and thereafter, alternating from year to year:
Rosh Hashanah: First night and first day until noon with the father. First day from noon until end of second day with the mother.
Yom Kippur: The night before Yom Kippur (Kol Nid re) until Yom Kippur morning completion of synagogue services with the father. From after synagogue services to 9:00 p.m. with the mother.
Passover: the first Seder with the father, the second Seder with the mother.
The parties shall make best efforts to be flexible and accommodate reasonable requests to changes in the schedule.
For all transitions, the children shall be picked up or dropped off directly at school or camp. If the children are not in school that day, the parent with the children will drop off the children at the other parent's home.
The parents may both make inquiries and be given information by the children's teachers, school officials, doctors, dentists, health care providers, summer camp counsellors, or others involved with the children. The parties will cooperate and execute any required authorization or direction necessary to enforce this.
Both parents may attend scheduled school or extracurricular activities, shows or events regardless of the residence schedule.
The parents shall alternate attending the children's visitor's days at camp, with the mother to attend on the regular visitor's day in odd-numbered years and father in even-numbered years. The parent who does not attend the regular visitor's day may make arrangements with the camp to visit on an alternate day.
While in the care of one parent, the children may communicate as often as they wish with the other parent by phone, Facetime, texting, emails and other means as they find convenient.
If either child needs emergency medical care while with one parent, that parent shall promptly notify the other of the emergency.
Neither party shall move the children's residence from the Greater Toronto Area without the other party's written consent or court order.
If either party plans a vacation with the children, that party shall give the other two months' notice of the plan together a detailed itinerary the latest of either 14 days before it begins, or as soon as one is available, including the name of any carrier, and flight times, accommodation, including address and telephone numbers, and details as to how to contact the children during the trip.
If either party plans a vacation outside Canada with the children, the travelling party shall provide the other party with a Travel Consent Form authorizing the children to travel. The other party shall execute and have the documents notarized as necessary.
The passports for the children shall be with the mother. If the father plans to travel with the children outside of Canada, the mother shall provide him with the children's passports.
The parties shall not discuss any aspect of the litigation with the children.
Neither parent shall denigrate the other, or the family of the other directly, or indirectly, by words or actions, to the children.
The parents may, on consent in writing, change the parenting schedule as they see fit.
Child Support and Special or Extraordinary Expenses
Commencing on the date of this Order, and on the first of each month thereafter, the father shall pay to the mother the sum of $1,037 for the children of the marriage pursuant to the Divorce Act and the Federal Child Support Guidelines, for two children based on an imputed income of $70,000.
The father and the mother shall contribute to the children's special and extraordinary expenses in proportion to their respective incomes retroactive to the date of separation. For the current 2017-2018 period the mother shall contribute 74% and father 26%
(a) The children's current special and/or extraordinary expenses for 2016-2017 are as follows:
a. Bialik School Tuition for both children is approximately $31,295;
b. Bialik school extra costs for both children is approximately $2,432.50;
c. Summer camps, Passover camps and day camps for both children are approximately $14,671.80;
d. Roland & Romaine dance courses is approximately $3,000;
e. Bravo Academy for EMR1 is approximately $1,796.50;
f. Gyros Gymnastics for EMR2 is approximately $1,039.40;
g. Skiing for both children is approximately $318.65;
h. Singing lessons for EMR1 are approximately $1,500;
i. Dentist fees for both children not covered by insurance is approximately $100;
j. Eyeglasses/contact lenses for EMR1 not covered by insurance is approximately $835;
k. Orthodontics for EMR1 not covered by insurance is approximately $2,857.14;
I. Medications for both children not covered by insurance is approximately $50; and
m. Cells for Life- Cord blood storage for both children is $220.35.
(b)The father shall pay to the mother the sum of $29,526.96 in full and final satisfaction of all arrears of special and extraordinary expenses. This shall be paid from his share of the net proceeds of sale of the parties' matrimonial home.
(c) The mother may claim the Canada Child Tax Benefit including the National Child Benefit Supplement for the first six months of each calendar year for the children and the father may claim the Canada Child Tax Benefit including the National Child Benefit Supplement for the latter six months of each year, provided that both parties receive the total eligible amount equally. The mother and the father may equally claim the eligible dependent credit (formerly, equivalent to spousal credit) for the children. If only one party receives the entire benefit for the year, he/she will give half of it to the other party. These benefits will not affect the child support.
(d) The mother shall claim 74% of the charitable tax deduction as it pertains to Bialik Hebrew Day School and the father shall claim 26% of the charitable tax deduction as it pertains to Bialik Hebrew Day School every year until both children have completed Grade 8.
(e) Both parties may contribute to the children's RESP accounts on an annual basis in proportion to their incomes. If the father chooses not to contribute, the mother may contribute the full $5,000 per year to take advantage of the full government contribution. When the time comes to use the RESPs for the children's post-secondary educations, each party's contributions to the RESP will be calculated in determining the amount owing for post-secondary expenses.
(f) Additional special or extraordinary expenses not listed will only be shared if the parties consent in writing to the expense in advance of it being incurred, or, if court ordered.
Spousal Support
The mother shall pay to the father a lump sum of $50,000 as complete settlement of his claim for spousal support. The amount shall be paid from the mother's portion of the sale proceeds of the former matrimonial home. The father's claim for periodic spousal support is dismissed.
Life Insurance
The father shall irrevocably designate the mother as beneficiary, in trust for the children, of a policy of insurance on his life, having a face value of no less than $200,000 to secure any support payments and maintain same in good standing pursuant to the Divorce Act.
Medical and Dental Benefits
The father and the mother shall maintain the children as beneficiaries of extended health insurance through their respective employment. The costs of insurance will be shared as a s. 7 expense. Any health expense not covered by insurance will be shared as a s. 7 expense.
Matrimonial Home
The proceeds of the matrimonial home shall be divided equally pursuant to the provisions of this order once the claims for costs are settled by them or decided by court order.
Pension Provision
50% of the Family Law Value of the mother's pension interest (half of $31,818.16, which is $15,909.08), plus interest from the family law valuation date of February 1, 2015 to the beginning of the month in which the transfer is made, shall be transferred to the father in a lump sum transfer. The plan administrator will make the lump sum transfer to father's LIRA account, the details of which will be provided to the mother by the father.
Equalization of Net Family Property
The father shall pay to the mother an equalization payment of $71,362.76 with credit for $50,000 already paid. This will be paid from his share of the net proceeds of sale of the parties' matrimonial home.
Further funds as may be recovered from the Kaptor litigation shall be split equally and distribute it to them by the law firm. The parties shall so direct the law firm Paliare Roland Rosenberg Rothstein LLP.
Additional Orders
The father shall provide the mother with electronic copies of all jointly-taken photographs of the children from the family camera taken prior to separation, and that are saved on a hard drive in his possession.
For as long as child support is to be paid, the mother and the father shall provide updated income disclosure to the other party no later than June 30th each year, in accordance with s. 24.1 of the Child Support Guidelines.
Unless this Order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Order shall be paid to the Director, who shall pay them to whom they are owed.
This Order bears interest effective from the date of this order pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43. Where there is a default in payment, the payment in default shall bear interest only from the date of default.
The mother and the father shall pay pre-judgment and post-judgment interest on all amounts found to be owing to any party pursuant to the Courts of Justice Act.
Costs
256Counsel did not have an opportunity to argue costs. If they are unable to settle costs, they may make submissions in writing no later than October 31, 2017 with no right of reply.
___________________________ Kruzick J.
Released: August 31, 2017
CITATION: M.S. v. A.R., 2017 ONSC 5182
COURT FILE NO.: FS-16-408903
DATE: 20170831
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
m.s., A.S. & A.S..
Applicants
– and –
A.R.
Respondent
REASONS FOR JUDGMENT
Kruzick J.
Released: August 31, 2017
