Court File and Parties

COURT FILE NO.: FS-17-417086 DATE: 2018/07/31

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Douglas Robert McKenzie Applicant – and – Malgorzata Anna McKenzie Respondent

COUNSEL: Harold Niman/Richard Niman, for the Applicant Lorna Yates/Dana Cohen, for the Respondent

HEARD: May 14-18, 22-25 and 29, 2018

Reasons for Decisions

MOORE J.

[1] To their credit, the parties resolved many issues before trial but several remain to be determined in these reasons. They include: the appropriate parenting arrangements for the children Lena Anna McKenzie (“Lena”), born January 20, 2010, and Alastair Robert McKenzie (“Alastair”), born June 7, 2011; whether the respondent Malgorzata Anna McKenzie (“Malgorzata”) should be permitted to relocate with the children to Brussels, Belgium; child support arrangements for the children and payment of special and/or extraordinary expenses; the amount and duration of spousal support for Malgorzata; the parties’ valuation/separation date; the equalization payment owing to Malgorzata; and Malgorzata’s claims for prejudgment interest.

Background

[2] Douglas Robert McKenzie (“Doug”) is 47 years of age. He holds an undergraduate degree from Queens University, an MBA from the University of Manitoba and an MA from St. Andrews University in Scotland.

[3] For the past 20 years he has worked in the field of commercial finance services where he specializes in financing of equipment acquisitions. He is currently employed at CIT Bank in Toronto as a finance leader.

[4] Malgorzata is 45 years old. She obtained an honours undergraduate degree in economics in Poland. She then studied for a master’s degree in international economics at the University of Sussex. She followed that with a PhD in international economics.

[5] She worked at the Centre for Social and Economic Research, a think tank, in Warsaw. She developed an expertise in free trade within the European Union.

[6] She later took a position in Brussels with the European Commission, the executive arm of the European Union. She worked in the Chief Economist’s Unit formulating future trade policies for the European Union and dealing with trade disputes. She was responsible for coordinating research and development.

[7] The parties met in Brussels in 2009 and were married on August 11, 2009. Doug lived in Toronto at the time of the marriage and has continued to reside here ever since. The children were born in Brussels but moved to Toronto with Malgorzata in August of 2011 and have lived here since that time.

[8] Malgorzata applied for and received leaves of absence from her permanent position with the European Commission; she now wishes to return to that position and relocate to Brussels. She has done some contract work for the Commission but has been otherwise out of the workforce during her years of residence in Toronto.

[9] The parties both testified at trial and were extensively cross examined. I find that they are each presentable, articulate and, for the most part, impressive witnesses. As is to be expected in cases such as this, they harbour differing recollections on events and challenges faced during their years together and following their separation. That said, however, they are ad idem on their feelings for their two children.

[10] The parties each adore the children and have managed to provide Lena and Alastair with a stable, nurturing home life in Toronto in which the children are happy, healthy and thriving. The children return their parents’ love and affection and are closely bonded with each parent.

[11] The parties each have much to lament of their post-separation communications with one another but the children have survived what their parents described as “toxic communications”. All of the witnesses who know the children spoke in glowing terms of them and applauded the parties for their success in raising them. They are interested and engaged parents and have been involved in all aspects of the children’s lives.

[12] The parties consented to orders made in 2017 for a parental nesting arrangement that provided that the children remain in the matrimonial home with the parents rotating in to live with the children. Each parent enjoyed almost equal time with the children.

[13] The parties have succeeded so far in parenting their children without need of a custody order. Despite their difficulties with civil, productive communications, they have managed to make all important decisions regarding the safety and well-being of the children in matters ranging from medical and dental care, education, religion, travel and extra-curricular activities.

Parenting Arrangements Going Forward

[14] Doug seeks an order that the parties have shared decision making authority in a parallel parenting mode. He requests that Malgorzata shall have final decision making authority regarding the children’s education and religious activities and Doug shall have final decision making authority regarding the children’s extra-curricular activities and major medical decisions.

[15] In the event that Malgorzata is not permitted to relocate the children to Brussels, she seeks a parenting plan very like the status quo with somewhat less parenting time for Doug than for her.

[16] In my view, the parties do not need a custody order going forward. In M. v. F., 2015 ONCA 277, a case involving a claim for custody of a six-year-old boy in the context of an extremely acrimonious parental relationship, at paras. 38-40, Benotto J.A. stated:

The Ontario legislation does not require the trial judge to make an order for custody. Section 28(1)(a) of the Children's Law Reform Act is permissive, not mandatory: the court… By order may grant the custody of or access to the child to one or more persons (emphasis added).

For over 20 years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.

It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody.” It was also in keeping with the well-recognized view that the word “custody” connotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.

[17] I also note that section 16(1) of the Divorce Act uses the word “may” in relation to an order that the court may make respecting the custody of or access to children of a marriage.

[18] I agree with the analysis and conclusion reached by Chiappetta J. in Knop v. Nezanu, 2016 ONSC 3179, at para. 214 as follows:

As will be set out below, in Gordon v. Goertz, [1996] 2 S.C.R. 27, the Supreme Court of Canada laid out the principles a court must apply when a parent seeks to move with the child. The language incorporates the term “custodial parent.” In Bjornson, at para 19, the Ontario Court of Appeal described deciding that the question of mobility first and the question of custody second as putting “the cart before the horse”. In my view, however, this is not a direction to render a finding of custody in all mobility cases. McLachlin J. (as she then was) stated at para. 48 of Gordon, that it is the views of the parent “who lives with the child and is charged with making decisions in its interest on a day-to-day basis,” that are entitled to great respect and the most serious consideration. McLachlin J. refers to this parent as the custodial parent but if the facts of the case mitigate against such a finding for the reasons expressed in M. v. F., in my view, the court should properly deny making a decision on custody and proceed to decide the issue of decision making prior to deciding the issue of mobility. In other words, it is the structure of the parenting relationship that is significant when considering the test in Gordon and not necessarily which parent wears the “C” badge upon the assessment.

[19] In the instant case, neither party wears a “C” badge. Both parents have been intimately involved in parenting these children. The parties agree that parenting arrangements going forward reflect consideration of s. 16(8) of the Divorce Act, factors relating to the best interests of the child by reference to the condition, means, needs and other circumstances of the child and the maximum contact principle stated in s. 16(10).

[20] They further agree that the factors set out in s. 24 of the Children’s Law Reform Act relating to consideration of the best interests of the child are relevant.

[21] As the at-home parent, Malgorzata has made the vast majority of daily decisions for the children. She has been active as a volunteer in their daycare and school settings. She walks the children to and from school. She arranged and attended upon most of their extra-curricular activities. She arranged and attended with the children on medical and dental appointments. She has also made all of the decisions for the children regarding religion. She has consulted with Doug before making major decisions in all of these areas.

[22] Doug acknowledged that Malgorzata has not made a poor decision about the health of the children and he has no reason to believe that she would make a poor medical decision for them in the future. Generally, he agreed that she has made good choices for the children in terms of their extracurricular activities.

[23] If she remains living in Toronto, Malgorzata will be well able to continue making decisions for the children in all areas, in consultation with Doug.

[24] The current status quo entails Doug having overnight access to the children on 6 of every 14 nights. In her proposed parenting plan for relocation to Brussels, assuming that Doug will also move to Brussels, Malgorzata offers to move from this arrangement to a shared parenting arrangement where the children will reside with the parents equally on a week-about schedule. In my view, the best interests of the children will be furthered, in the event that they and Malgorzata remain in Toronto, by moving to precisely that shared parenting plan in Toronto.

[25] Doug seeks an order requiring the parties to retain a parenting coordinator. His draft order provides that the parenting coordinator will be empowered to engage the parties in an arbitration process. The parenting coordinator will make an arbitration award in the children’s best interests to which both parents would be bound, pursuant to the Arbitration Act, 1991, Family Law Act and Family Statute Law Amendment Act, 2006.

[26] In addition, Doug’s draft order provides that the parenting coordinator should have the discretion to include the children in the process and to consider their views and preferences in a manner commensurate with their ages and stages of maturity. The costs of parenting coordination will be shared between the parties equally, subject to an award of costs should an issue proceed to arbitration. The parenting coordinator will have the ability to impose costs consequences in the event that a parent abuses/over-uses the process.

[27] He adds that the parenting coordinator will be appointed for a minimum term of 12 months after the date that the second party signs the parenting coordination agreement. Either party may opt out of parenting coordination with the chosen parenting coordinator after the 12-month period. However, the parties will be obliged to appoint a new parenting coordinator promptly after any such opting out or termination. If they are unable to agree on the new parenting coordinator, the issue shall be summarily arbitrated.

[28] In support of his position regarding the terms and conditions applicable to parenting coordination, Doug points out that Malgorzata agreed to the wisdom of involving a parenting coordinator during cross-examination at trial. She did indeed agree to the concept but she did not agree and was not asked to consider all of the terms and conditions respecting parenting coordination called for in Doug’s draft order.

[29] In any event, I do not have the authority to order a parenting coordinator be appointed nor to arbitrarily impose terms and conditions for a parenting coordination process.

Relocation to Brussels

[30] Malgorzata supports her request for an order permitting her and the children to relocate to Brussels by pointing out that she will then resume her work at the European Commission. This employment is a full-time, well paying, high profile, and intellectually rewarding position leading to a pension after about six more years of service.

[31] She testified that the parties spoke of Doug obtaining employment in Brussels and that they agreed that she would return to live and work in Brussels when Lena entered grade 1. They later changed the timeline to coincide with Alastair entering grade 1.

[32] She testified that whether Doug relocates or not, she is committed to a parenting plan that will maximize his contact with the children.

[33] She swears that if she remains in Toronto, she will be unable to financially support the children.

[34] She submits that she acknowledged in her evidence that it would be disruptive and challenging for the children to leave Canada, their school and their father. However, she would seek to limit such disruption and to maintain the children’s ties with Toronto and to their father, friends and family here.

[35] Doug disputes the wisdom of Malgorzata’s proposed move with the children to Brussels.

[36] While visiting Malgorzata immediately prior to Lena’s birth, Doug explored work opportunities in the financial sector in Brussels and in Paris. He was unable to find employment. He is a unilingual English speaker but the commercial private sector in Brussels operates in French and Dutch.

[37] While he can do some of his current employer’s work at home, he cannot work from a home located in Brussels, so relocation is not an option for him.

[38] The children have not been in Brussels since 2011 and they spent a total of 141 days in Europe before moving to Toronto. They are settled in the High Park area of Toronto and their friends and school are nearby. They are closely bonded with their paternal grandmother who lives in Toronto and who sees them regularly.

[39] In Doug’s view, Toronto is the children’s emotional and psychological base.

[40] Doug has four weeks of vacation yearly and would not be able to be physically present to bond with the children regularly if they move to Brussels. He testified that he could not afford to fly over to see them regularly.

[41] He has participated with the children in their extra-curricular activities such as soccer, drama, skating, music and swimming lessons. Whatever activities they might pursue in Brussels, he would not be a part of. Nor would he be able to attend school events, medical or dental appointments with them.

[42] He submits that it will take years for the children to adapt to this proposed relocation and the damage it would do to his relationship will be enormous and lasting.

[43] In Gordon v. Goertz, at paras. 49-50, the Supreme Court enumerated a list of principles to apply to a request of a custodial parent to relocate with a child:

The law can be summarized as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
3. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
4. Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.
5. The focus is on the best interests of the child, not the interests and rights of the parents.
6. More particularly the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; the views of the child; (d) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (e) disruption to the child of a change in custody; (f) disruption to the child consequent on removal from family, schools and the community he or she has come to know.

In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

[44] I cannot find that the parties agreed to relocate to Brussels. There is no independent evidence confirming such an agreement. Malgorzata’s Form 35.1 makes no mention of relocating to Brussels. In any event, by choosing to live with the children in Toronto for virtually all of the children’s lives, the parties must establish that this contested relocation application is in the best interests of the children.

[45] Lena and Alastair have no friends or extended family waiting for them in Brussels. They do not speak French or Dutch. They have a maternal grandmother and two uncles but they and their families all live in Poland.

[46] There is no evidence of whether or how a move to Brussels would advance their best interests or the ability of either parent to better parent these children. There is no evidence that their schools or living accommodations will be better for them than those they have experienced in their lives in Toronto.

[47] There is no evidence that Malgorzata resuming full-time work at the European Commission will inure to the benefit of the children. Quite the opposite, in that she will have less time with the children and will be hiring a nanny to assist in caring for them.

[48] On the issue of relocation, the analysis of Chiappetta J. in Knop, at para. 244 is apt:

If the court were to grant the applicant’s request, Marianna would necessarily lose the benefit of her father’s presence during those regular occasions that a child ought properly to expect her parent to attend. While technology has advanced to such an extent that FaceTime or Skype may assist to connect a parent with a child outside of scheduled parenting time, it cannot replace the physical presence of that parent during the irreplaceable and fleeting moments of a child’s life: events such as school plays or concerts, parent-teacher interviews, lessons, or sporting games. The respondent will not be there to consistently take Marianna to the doctor or the dentist or take her to the hospital upon an unexpected but inevitable accident or fever. Rather, he will be five hours away by plane, victim to the schedule of the airlines and demands of his employment. I appreciate that the applicant has offered generous access to the respondent… But there will be large gaps between the father/daughter time that, even with today’s technology, cannot replace the consistency and the frequency that Marianna currently enjoys with her father, considering the existing parenting time arrangement.

[49] Lena and Alastair enjoy their close, nurturing bonds with their two parents and a grandmother in Toronto. Their friends, school and activities are all in Toronto. Relocation to Brussels will dramatically and, in my view, irreparably change all of this.

[50] In all of the circumstances, it is in the best interests of these children to maintain their relationships with both parents in Toronto. It is not in their best interests to relocate with their mother to Brussels.

Child Support and Section 7 Expenses

[51] Malgorzata seeks child support from March 1, 2017, if her date of separation is accepted. She delivered her Answer on June 12, 2017 and that was the first pleading and effective notice to Doug of a claim for child support.

[52] As is confirmed by Stevenson J. in Hemond v. Galano, 2013 ONSC 6929, at para. 38, retroactive child support relates to claims for support for the period predating the commencement date of the pleading in which support is claimed. A claim for support within the pleading is properly characterized as prospective support. As such, Malgorzata’s claim for retroactive support runs from March 1, 2017 to June 12, 2017.

[53] A claim for retroactive support is to be determined according to a discretionary approach adopted by the Supreme Court in S. (D.B.) v. G. (S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231, 270 D.L.R. (4th) 297. The following factors are to be considered and no one factor is decisive:

(a) Reasonable excuse for why support was not sought earlier; (b) Conduct of the payor parent; (c) Circumstances of the child; and (d) Hardship occasioned by a retroactive award.

[54] There is no evidence before me of a reasonable excuse for why support was not sought before it was pleaded in the Answer. Doug continued to pay for substantially all of the family’s expenses and the circumstances of the children did not change as they continued to live in the family home. Moreover, Doug incurred significant debt following upon the separation. Given these findings, I am not prepared to award retroactive support.

[55] At Tab A to her Closing Submissions, Malgorzata appended a chart basing her child support claim upon the parties’ respective incomes for 2018 at $5,642 per month. For the 3.5 months of retroactive support claimed, her claim must be reduced by $20,797.

[56] Malgorzata claims one half of $5,717.56 for Section 7 expenses that she incurred and that were not contributed to by Doug. The parties had consented to an order for equal sharing of such expenses in November, 2017. Doug’s share should be $2,858.78.

[57] She testified and I accept that she paid for food for herself and the children when she nested with them in the matrimonial home. In addition, she pays for utilities for the apartment that Doug rents for her during times when she is not nesting with the children. She also pays for her cellular telephone expenses incurred since December 2017.

[58] The claim for child support is grounded in section 15.1 of the Divorce Act and the quantum sought is based upon the Child Support Guidelines, including sections 2(3), 3 and 16.

[59] Malgorzata seeks a finding that Doug’s income for support purposes is $350,000 per year, effective January 1, 2018.

[60] Doug’s gross income from January 1, 2018 to April 10, 2018 was $148,559.66. He testified that he hoped to reach an income in 2018 of $300,000. He confirmed that his income in 2017 was substantially higher than it will be this year due to receipt of a retention bonus of $80,000 that will not be repeated going forward. Malgorzata takes no issue with this explanation.

[61] He explained that his bonuses are based on meeting employer mandated sales targets and those targets have doubled in each of the last two years. He is not optimistic therefore that his yearly bonuses going forward will align in size with those earned in previous years.

[62] Nevertheless, he has earned bonuses in the first quarter of 2018 of $67,993 and RSUs of $20,956.75. His base salary for 2018 is $175,000. As such, his income from all sources, including projected rental income from the basement apartment in the matrimonial home, may be about $290,000. This does not include bonuses to be received from April 10, 2018 through to December 31, 2018.

[63] Projecting bonus income for the remainder of 2018 based upon bonus income received in the first quarter, Malgorzata submits that he is on track to earn $364,594 in 2018. This is a figure consistent with his income in 2016 and it is reasonable therefore to base his child support obligation on an income of $350,000. Table support for that income is $4,477 per month. She adds that his cash flow challenges, if they exist, ought not to be visited upon the children.

[64] Doug submits that there should be no award for child support. He points out, quite correctly, that the parties agreed to a consent order dated August 23, 2017 that required him to maintain the then current financial status quo. Malgorzata could have brought on a motion to change the financial status quo and require Doug to pay interim child support; she chose not to do so.

[65] Doug prepared a chart, Exhibit 27, which sets out the details of the money he transferred to Malgorzata. He was not cross-examined on the chart. For most of 2016, he transferred $3,000 per month to her account. For all of 2017, he transferred at least that amount every month and eventually transferred $1,500 every two weeks, an average of $3,250 per month. The consent order also referred to the fact that the parties intended to secure a secondary residence for the non-residential parent. The basement apartment in the matrimonial home was not a permanent solution.

[66] Malgorzata agreed that Doug provided $1,500 every two weeks tax-free and paid for expenses of the matrimonial home. In addition, Doug paid for an apartment for Malgorzata to occupy when not nesting with the children in the matrimonial home, a one-bedroom apartment in a tower building. The rent is $1,910 per month.

[67] Doug submits and I accept that he has honoured the order requiring him to maintain the financial status quo and ordered his financial affairs accordingly. He paid for all family expenses except for some section 7 expenses. The financial circumstances of the children and their standard of living did not change following separation. Furthermore, given Doug’s current financial circumstances, including his level of debt, the payment of the amounts claimed by Malgorzata for child support will create a significant hardship for Doug.

[68] No order shall issue for the payment of child support in respect of any time prior to trial.

[69] On a going forward basis, Doug is content to pay child support to Malgorzata in a set-off amount pursuant to section 9 of the Federal Child Support Guidelines. The set-off amount is the starting point for calculation of the appropriate amount for child support generated from the applicable tables for each party.

[70] The set-off amount may be varied upon evidence of increased costs of shared custody arrangements; there is no such evidence in this case. The set-off amount may also be varied upon evidence of the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought; there is no evidence upon which to vary the set-off amount on these bases either.

[71] Doug calculates a set-off net quantum of child support he will owe Malgorzata to be $3,120 per month. He submits that his income for Table support purposes should be fixed at $300,000 per year based on a three-year average and his evidence about his income being projected to be lower in 2018 as a result of change in targets by his employer. It is also based upon an imputed income of $50,000 to Malgorzata. The Table amount of child support for two children with an income of $50,000 is $755 per month. The Table amount of child support for two children with an income of $300,000 is $3,877 per month. The set-off amount is the difference between those two numbers rounded to $3,120 per month.

[72] I find Doug’s proposed approach to set-off and his figure for income estimated for 2018 to be reasonable, provided that he be ordered to top up his calculated support owing to reflect any income he may earn in 2018 above the estimated income of $300,000. This will address Malgorzata’s concern that the children not be underpaid on account of Doug’s cash flow problem arising from staggered payments of bonus income through the year.

[73] Malgorzata prefers to fix her income for 2018 in the amount of $8,342. This a number that tracks her income in 2017 and does not include imputed income arising from a finding that she has been underemployed for support purposes since separation.

[74] Section 19(1)(a) of the Federal Child Support Guidelines permits the court to impute additional income where a spouse is intentionally underemployed. It states:

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

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

[75] There was a time when Alastair was suffering from separation anxiety when Malgorzata left him in daycare. He had great difficulty adjusting and had to be returned home on many occasions early in the day and he was taken out entirely for several months. These are circumstances requiring relief under s. 19(1)(a). Otherwise from and after the time Alastair entered grade one on a full-time basis, Malgorzata should have sought and obtained employment.

[76] In Lavie v. Lavie, 2018 ONCA 10, at paras. 24-26, the court considered the above quoted portions of section 19(1)(a) and stated:

This section was discussed by the Court of Appeal in Drygala v. Pauli (2002), 61 O.R. (3d) 434 (Ont. C.A.). The trial judge referred to Drygala v. Pauli and correctly observed that in order to find intentional underemployment and impute income to a parent, there is no need to find a specific intent to evade child support obligations. He also noted that in order for parents to meet the legal obligation to support their children, they must earn what they are capable of earning.

Where the trial judge erred, in my view, was in concluding that Tanya was not intentionally underemployed. He based this conclusion on the fact that opening BOF was a joint decision and “was really for the purpose of improving their family life.”

There is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment: Drygala v. Pauli, at paras.24-37. The reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed. From the time she chose to start BOF and to earn $15,000 per year rather than the over $70,000 per year, Tanya would have earned returning to teaching, she was intentionally underemployed. There was also no basis on the record to find that Tanya could not resume her teaching career at the time of separation or at the time of trial. In fact, the trial judge found that her teaching career had not been compromised by her marriage or assumption of household responsibilities.

[77] The court went on, at para. 32, to point out that when imputing income based on intentional underemployment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent.

[78] By the time of trial, the circumstances of the parties included that they were sharing parenting responsibilities equally such that the children could only directly benefit from Tanya’s extra time at home while staying with her.

[79] In the instant case, Malgorzata invested some time and effort in around 2012 and 2013 investigating job opportunities in Toronto commensurate with her background, training and experience as an economist in the field of international trade. She determined that there were no such opportunities available to her. She did not, then or since, make reasonable efforts to find work outside of her field of expertise. She did not retain head hunters or expand her job search to include other fields of endeavour. When cross-examined on this issue at trial, she glibly stated that she supposed she might be able to deliver pizzas.

[80] Malgorzata holds three university degrees, has at least 10 years of work experience as an economist, speaks four languages and is presentable, articulate and obviously very intelligent. She is 45 years old and in good health. She is fit and has no physical disabilities restricting her ability to work. She seems to believe that if she cannot find a job precisely like the one she left at the European Commission, she need not find any job at all in Toronto. I reject the notion that she is unemployable and find that separation brought with it a positive duty upon her to maximize her income earning potential for the benefit of her children.

[81] She testified that at least part of the reason why she has not vigorously pursued work opportunities in Toronto is because she hoped to be able to relocate with the children to Brussels. Asked whether she would renew her hunt for work in Toronto if she is not permitted to relocate the children, she said that she has not made a decision on what she will do in that event.

[82] In fact, during her evidence at trial, she allowed that she had not yet decided if she would stay in Toronto or return alone to Brussels if her request to relocate the children to Brussels is turned down.

[83] In any event, Malgorzata has not met the onus upon her to put her children’s right to reasonable child support foremost in her mind and ahead of her own self-interest and her focus on returning to Brussels.

[84] In the context of her submissions on spousal support, Malgorzata appears to have contemplated that she could/would re-enter the Toronto work force and, in time, earn a significant annual income. In her draft order, she suggests that her employment income in excess of $50,000 per year shall be a material change of circumstances requiring the parties to review the spousal support payments.

[85] In my view, the evidence requires a finding that Malgorzata is intentionally unemployed. For purposes of an award of child support, going forward an income of $50,000 shall be imputed to her.

[86] Subject to there being any top-up support payments owing by Doug in the event that his 2018 income exceeds $300,000, the set-off award of child support Doug is ordered to pay is $3,120 per month.

[87] Doug agreed at trial to fund his 50% share of the section 7 expenses that Malgorzata has paid to date. Going forward, section 7 expenses will be apportioned rateably between the parties according to their respective incomes imputed above. Going forward their rateable proportions become 86% payable by Doug and 14% by Malgorzata.

Spousal Support

[88] I turn now to consider the amount and duration of spousal support for Malgorzata; Doug having agreed that she is entitled to an award of such support. Her claim is based on section 15.2 of the Divorce Act which provides that:

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump-sum or periodic psalms, or such lump-sum and periodic psalms, as the court thanks reasonable for the support of the other spouse.

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

a) the length of time the spouses cohabited; b) the functions performed by each spouse during cohabitation; and c) any order, agreement or arrangement relating to support of either spouse.

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

a) recognize any economic advantages or disadvantages to the spouss arising from the marriage or its breakdown; b) apportioned between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and d) In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable time.

[89] It is common ground that all four of the objectives defined in the Act must be taken into account in considering a spousal support claim and no single objective is paramount. The purpose of spousal support is to relieve the economic hardship that results from marriage or its breakdown. See Moge v. Moge, [1992] 3 S.C.R. 813, 81 Man. R. (2d) 161 (S.C.C.), at paras. 44 & 53; and Goyal v. Goyal, 2014 ONSC 3026, (2014) O.J. No. 2350, at para. 69.

[90] In Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 169 D.L.R. (4th) 577 (S.C.C), the court confirmed again that no single objective in the Divorce Act is paramount. A judge must look at all of the factors in light of the stipulated objectives of support. A judge must also exercise discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown and strikes a balance that best achieves justice in the particular case.

[91] From Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, at paras. 46-51 and 86-88, it is clear that self-sufficiency is not achieved simply because a former spouse can meet basic expenses on a particular amount of income. Rather, it relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership parties enjoyed and could sustain during cohabitation that they can reasonably anticipate after separation. Thus, a determination of self-sufficiency requires consideration of the parties’ present and potential incomes, their standard of living during marriage, the efficacy of any suggested steps to increase a parties’ means, the parties’ likely post-separation circumstances, the duration of their cohabitation and other relevant factors. In addition, it is an error in law not to consider the Spousal Support Advisory Guidelines when determining a claim for spousal support.

[92] Malgorzata submits that there can be no dispute that she put her career on hold to be the primary parent to the parties’ young children. Clearly she was a stay-at-home mother while the children were infants. However, as is noted above, by about 2012 she expressed interest in returning to the workforce in Toronto. This was at a time before the parties separated. She insists that, at all times, she planned to return to the European Commission. She further states that she has not failed to make reasonable efforts to become self-sufficient in Toronto but there is nothing for her in Toronto in her specialization or even her training and experience.

[93] Doug did not insist that Malgorzata return to work prior to separation. However, as I stated above, separation is a game changer in terms of the duty on each party to make reasonable efforts to mute any financial disadvantages and economic hardship arising from the marriage or its breakdown. Malgorzata has failed to seek employment of any kind since separation, let alone employment to which she may be suited by education, training and experience.

[94] Malgorzata seeks spousal support from January 1, 2018 ongoing in the amount of $7,297 per month based on the parties’ incomes and the mid-range of the Spousal Support Advisory Guidelines.

[95] Doug relies on Bergeron v. Bergeron, [1999] O.J. No. 3167, at paras. 9 and 16 in support of the proposition that limits on the quantum or duration of spousal support are sometimes an appropriate way to address the situation of a dependent spouse who may not make reasonable efforts toward self-sufficiency without such limits. Such a spouse may require an incentive to become self-sufficient and such limits may be an effective way of emphasizing the support recipient’s obligation under section 15.2 (6) (d) of the Divorce Act. The court will not disentitle the spouse from support for failure to make reasonable efforts to re-enter the paid workforce but rather will attribute to her income that she would have earned had she made those efforts.

[96] Doug further adopts the views of Professors Carol Rogerson and Rollie Thompson as described on page 19 of their co-authored Spousal Support Advisory Guidelines: the Revised User’s Guide (Ottawa: Department of Justice, 2016):

In many cases, it will be difficult to prove how much a spouse ought to be able to earn. It may be easier to just argue location within the range for the amount, to go lower in the range if the recipient’s income is in issue or to go higher in the range if it is the payor’s income.

[97] For the reasons given above as to why no order for child support shall be made for the period prior to trial, that order shall apply as well to prevent Malgorzata from recovering spousal support from January 1, 2018 to the present. From this point forward, she shall recover spousal support based on the Spousal Support Advisory Guidelines and the applicable considerations noted above.

[98] Malgorzata’s income for spousal support purposes is fixed at $50,000 per year and Doug’s at $300,000 per year. This results in a range for spousal support of $4,008 – $5,974 per month for an indefinite (unspecified) duration, subject to variation and possibly review, with a minimum duration of four years and a maximum duration of 13 years from the date of separation. As with child support ordered for 2018, so I direct that if Doug’s 2018 income exceeds $300,000, he must top up spousal support with reference to income above that level.

[99] In order that Malgorzata be incentivized to become self-sufficient and because she may be able to find employment paying her more than $50,000 per year, as the Canadian dollar equivalent of her income at the European Commission would be, it is appropriate to fix her monthly child support at $4,500. I also order a review to be conducted during the 6th year following the parties’ separation date, by which time Malgorzata’s return-to-work efforts are anticipated to have borne fruit and her career and income paths will appear in sharper focus.

Separation/Valuation Date

[100] Doug seeks an order fixing the parties’ separation date at September 1, 2016 while Malgorzata urges that it be fixed as February 26, 2017.

[101] Doug testified that 100%, unequivocally, he initiated the parties’ separation. He testified that he told Malgorzata on September 1, 2016 that the conflict within their marriage had gone on too long, he identified his lawyer as Ms. McCarthy and told Malgorzata to get a lawyer as well. He had consulted Ms. McCarthy in June 2015 and again in July 2016.

[102] He said that in response, Malgorzata said, “Fine, if you want a divorce you can have a divorce”. He appreciated that it would take some time to initiate the process but said that they had talked about the relationship heading toward a divorce as early as February 2015, so this was not news to Malgorzata.

[103] By November, she wanted to go to Poland for Christmas and so he dropped the subject for the time being. In an email dated February 26, 2017, he told her that he had asked her since September 2016 to get a lawyer.

[104] This email followed upon a parent-teacher night at the school on February 16, 2017. In the car and then at home they spoke again about getting a divorce. He asserts that her claimed lack of knowledge of his intent to divorce her should resolve into a matter of credibility.

[105] On February 26, 2017 he handed her a February 10, 2017 letter from Ms. McCarthy. Malgorzata said again that she was fine with getting a divorce but she did nothing about it.

[106] He wrote Malgorzata an email on February 26, 2017 in which he said “I’ve asked you since Sept ’16 to get a lawyer.” Although Malgorzata responded to aspects of that email, she did not respond to the statement quoted here. Doug relies on that fact to support his position on his proposed date of separation.

[107] He initiated the Application because he wanted to get things moving.

[108] He filed a 2016 Income Tax Return in which he listed his status as “married” as of December 31, 2016. He has not re-filed to amend that position.

[109] In cross-examination, Doug was taken to his Reply, dated September 1, 2017, in which he pleaded in paras. 138 and 139 that:

There had been dozens of references between the parties to possible separation for years. What is accurate, however, in Gosia’s [his nickname for Malgorzata] statement is that no detailed separation discussion took place on September 1st, 2016.

The discussion took place in late August and Doug picked September 1st simply as a more convenient date for record-keeping purposes.

[110] He told cross-examining counsel that he was 95% confident that the date of the discussion was September 1, 2017 despite the inconsistency between his evidence and his pleading.

[111] Malgorzata testified that nothing happened on his date of separation, September 1, 2016, and thereafter the family routine continued as usual. She does not recall any specific discussion in August or on September 1, 2016 about separating. There had been no discussions or arguments about her getting a lawyer. She testified that he would often say that she was a loser and should go get herself a lawyer but there was no specific reference to separation.

[112] In October 2016, the parties remained mainly in Toronto, although they went for a weekend trip to Long Point on Lake Erie and a day hike on the way back to Toronto. As well, they had house guests from Warsaw stay with them for a few nights.

[113] In November and December 2016, the parties were both travelling. She had gone to Warsaw for a conference and then to Brussels and to London.

[114] In December 2016, the parties travelled to Poland with the children for Christmas. She went ahead with the children and stayed longer than he did but they were together from Christmas Eve onward for about a week. She said that Christmas is very important to her as she has a large family and friends get together to celebrate.

[115] He came for five days and they slept together for four of those in one bed. On Christmas Eve she and the children slept around the Christmas tree, a family tradition.

[116] While in Poland, they travelled together with the children from Warsaw to Kraków for two or three nights. He flew home while she and the children went on to Slovakia for a ski holiday.

[117] She did not advise family or friends that the parties were separated because in her view, they were not. She did not notice anything in his behaviour that indicated that he thought that the parties were already separated.

[118] In January and early February 2017, family life involved the usual routine. Also, the parties and the children took a trip to Florida. He went ahead with the children and she joined them at Disney World. They then did a family swim with the manatees and traveled to an ocean resort for two or three nights and they travelled home together to Toronto.

[119] On this Florida trip, the parties slept in one bed and it was the last time that they had sexual relations. They had had sexual relations between September 1, 2016 and the time of this February 2017 trip to Florida also. In February 2017, they made plans together to go to a resort in Québec for March break with the children.

[120] Her 2016 tax return showed her as “married”.

[121] She was asked about February 25, 2017, the day before separation. The parties had been out that evening while Lorrie McKenzie, his mother, babysat. They did not discuss separation, she said.

[122] On February 26, 2017, a Sunday morning, she was in bed reading the newspaper when he came in and handed her an envelope with a letter from Ms. McCarthy, dated February 10, 2017, saying that he wants a divorce.

[123] Witnesses testified to the apparent normalcy of the parties’ relationship during the interval between the two proposed separation dates and that the parties held themselves out as a couple throughout that time.

[124] The relevant legislation on this issue is the Family Law Act; section 4 defines “valuation date” as:

1. The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.
2. The date a divorce is granted
3. The date the marriage is declared a nullity.
4. The date one of the spouses commences an application based on subsection 5(3) (improvident depletion) that is subsequently granted.
5. The date before the date on which one of the spouses dies leaving the other spouse surviving.

[125] Malgorzata correctly points out that a leading case on the date of separation/valuation date remains the decision in Oswell v. Oswell (1990), 74 O.R. (2d) 15, [1990] O.J. No. 1117 where at para. 6 the court listed indicia the court must consider in determining whether spouses are living separate and apart as:

1. There must be a physical separation. Often this is indicated by the spouses occupying separate bedrooms. Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart;

2. There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the marital relationship;

3. The absence of sexual relations is not conclusive but is a factor to be considered;

4. Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern;

5. Although the performance of household tasks is also a factor, help may be hired for these tasks and greater weight should be given to those matters which are peculiar to the husband and wife relationship outlined above. [Citations omitted.]

[126] With respect to physical separation, the houseguest witness observed the parties sharing the same bedroom in October 2016. Doug admitted that he and Malgorzata slept together in Poland and in Florida.

[127] Withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the marital relationship is an important factor. Malgorzata insists, and I agree, that the couple continued to function as an intact unit between September 2016 and February 26, 2017. They planned and went on vacations together. They held themselves out to friends and family and to the Canadian tax authorities as a married couple. They spent weekend time together and with the children. They ate together. There was no change in the division of household labour. They communicated as normal with respect to family matters.

[128] Although the absence of sexual relations is not conclusive, the parties both testified that they did have sexual relations in the interval between their proposed separation dates.

[129] With respect to discussion of family problems and other matters, in addition to the above, the family routines in the home and in all aspects of the children’s lives did not change in that interval. In addition, there was no change in the performance of household tasks.

[130] It is notable that although the parties exchanged numerous email communications, often when conflict arose, Doug did not send any written communication or email to Malgorzata in the interval between the two proposed separation dates regarding separation, divorce or stating that Malgorzata should retain a lawyer.

[131] In my view, this issue falls to be determined not as a simple credibility issue between the parties. Looking at the whole of the evidence, there is insufficient evidence to warrant a conclusion that Doug wished to and did separate from Malgorzata on September 1, 2016 with the intent of destroying the matrimonial consortium or of repudiating the marital relationship. The weight of evidence supports an ongoing, albeit imperfect, marital relationship between September 1, 2016 and February 26, 2017. It was only on this latter date, Malgorzata’s proposed separation/valuation date, with Doug’s presentation to Malgorzata of his lawyer’s letter of February 10, 2017, that Doug’s repudiation of the marital relationship became clear.

[132] As such, I fix the separation/valuation date in this matter as February 26, 2017.

Equalization Owing to Malgorzata

[133] Doug agrees that he owes an equalization payment to Malgorzata. Based on his proposed valuation date and the expert valuation evidence he presented at trial, Doug submits that the appropriate amount for his equalization payment is $617,551 less the amounts he has advanced to her against equalization, being:

a) $28,546 to Epstein Cole LLP b) $100,000 to Cohen Peeters Yates LLP c) $3,590 to AP Valuations Limited

[134] The net amount Doug offers to pay therefore is $485,415. He seeks an order that his equalization payment be paid in two equal installments, the first within 120 days and the second to be made two years from the date of the first payment.

[135] Malgorzata agrees that Doug is owed a credit for the three advances he gave her against equalization but contests the gross number Doug uses. Applying her proposed valuation date and the opinions of the expert property valuator she retained, she submits the appropriate gross equalization amount is $827,199.03.

[136] In order to obtain independent accommodations for herself and the children while they reside with her in Toronto, Malgorzata requires an equalization payment. She has consented to the sale of the matrimonial home. However, Doug hopes to be able to afford to keep the home and allow the children to live there with him during his parenting time. He chooses not to sell the home and prefers to deal with it as a valued asset in the equalization process.

[137] In order to value the home, Doug retained Mr. Craig Laine. The parties agreed that Mr. Laine is an expert qualified to give opinion evidence.

[138] He has been appraising commercial and residential properties since 1986. He is a member of the Canadian National Association of Real Estate Appraisers; he is one of 900 active members and is designated to appraise commercial and residential properties and certified as an appraisal reviewer.

[139] Approximately 80% of his work involves retainers from the five major Canadian banks; the remainder of his work involves retainers from lawyers, other people and foreign governments.

[140] He performed in excess of 100 appraisals last year and has performed many hundreds over the years in family law cases. This was his first time giving evidence in a family law trial.

[141] He performed two valuations on the matrimonial home, one assuming a valuation date of September 1, 2016 and the other assuming a date of February 1, 2017 [1]. Using the February 1, 2017 valuation date, his opinion is that the home is valued at $1,600,000 as at the latter date.

[142] He testified that his Association recognizes three methods of valuation: sales comparison, cost approach and income approach. He used both a sales comparison approach [using three comparable sales in the neighbourhood] and a cost approach [what it would cost to build the home on the given property].

[143] In cross-examination, he agreed that house prices rose rapidly in the interval between the two proposed separation dates. He reviewed pictures of the comparable properties and agreed that the 5 Algonquin property, the matrimonial home, had been substantially renovated [Mr. McKenzie stated he paid between $250,000 and $300,000 in renovations] whereas the comparables had not been.

[144] He acknowledged a $20,000 error in the value of the comparable property, 207 Indian Rd, which would produce a $40,000 swing in the value of that property. He acknowledged that it was not evident in his reports how he arrived at the land value for the matrimonial home.

[145] He did not use the same construction cost factor for the matrimonial home as he used for the comparables.

[146] He stated that Comparable #1 at February 1, 2017 (26 Algonquin Ave.), had nine rooms above grade but in actuality it only had eight rooms above grade. He acknowledged that if the ninth room was not above grade, then his evidence would be in error.

[147] He did not adjust Comparable #1 at February 1, 2017 for the fact that there was one less room and one less washroom than the matrimonial home.

[148] He reduced Comparable #1 at February 1, 2017 by $47,775, thereby reducing the value of the subject property when both homes were fully renovated when they were around 100 years old.

[149] He rated Comparable #3 at February 1, 2017 (272 Wright Ave.), as “good”; that being the same condition as he rated the matrimonial home to be in. When presented with photographs for Comparable #3, Mr. Laine acknowledged that the property was inferior to the matrimonial home.

[150] When presented with pictures, he acknowledged Comparable #2 at September 1, 2016 (191 Parkside Dr.), was dated and in need of renovation and inferior to the matrimonial home.

[151] He acknowledged that he did not make any adjustments to Comparable #3 at September 1, 2016 (55 Fern Ave.), for the fact that it had three less rooms above grade than the matrimonial home. It also had 1.5 fewer washrooms and was substantially smaller. When presented with the pictures, he acknowledged that Comparable #3 at September 1, 2016 was in inferior condition to the matrimonial home.

[152] He would not acknowledge any impact that the discrepancies in errors, some listed above by way of example, may have on his appraised values for the matrimonial home.

[153] In re-examination, he said that notwithstanding his $20,000 error (see para. 144), he testified that his valuation of the matrimonial home remains the same.

[154] For her part, Malgorzata retained the services of Jim Parthenis as her expert property valuator. Mr. Parthenis is certified as a residential appraiser by the Appraisal Institute of Canada and has been so since 1987. He has been doing appraisals for 31 years and has done over 10,000 of them. He has given expert evidence in trials at least 20 times.

[155] He does not work for banks; rather, he works for lawyers and law firms. 90% of the work that he does involves matrimonial cases with 10% arising from estate work.

[156] At the outset, he undertook research and analysis involving sales in the area of the subject properties to determine which sales occurred at, under or over list price.

[157] He obtained information from the Toronto Real Estate Board database system for the subject areas. He said that not all properties are comparable but a general search of detached homes in the area showed that there were 29 sales between September 1, 2016 and March 1, 2017. 17 of the homes sold over list price, six sold at list and six sold under list. From that, he determined that this was a high demand neighbourhood.

[158] In his April 18, 2018 report dealing with 5 Algonquin Ave., he determined that the property was worth $1,880,000 as at February 26, 2017. He inspected the property on April 12, 2018 and took photographs which are date stamped for that date. He then conducted research of the sales in the subject area and picked out similar homes that could be considered comparables. He narrowed those down to the three best, most similar comparable properties. He then adjusted for various factors which he described in his evidence, considering the differences between the subject property and the comparables.

[159] He focused on page 3 of his report which he called his “grid page”. He produced his working papers which showed the various adjustments that he made and the values ascribed as a result.

[160] He reviewed in considerable detail the adjustments made and the reasons therefore for the three comparable properties. He found that the subject property was superior to the three comparables. He stated that the property was worth the average number of the adjusted comparables, being $1,880,000.

[161] He testified that while Mr. Laine included a cost approach analysis in his report, that approach is not used in the GTA and is typically used in rural areas where there can be large acreages surrounding a home. In Toronto, the house and the land are considered as one.

[162] In cross-examination, he agreed that the adjustments that he made are critical to his report. Some adjustments were judgment calls and reasonable people can disagree.

[163] Doug submits that Mr. Parthenis’ evidence should be accorded no weight as the central substance of his report, the adjustments seen in his working papers, were omitted from his reports. This is contrary to the requirements for expert reports in the Family Law Rules.

[164] He adds that without the adjustments particularized, Doug, his counsel and most importantly, Doug’s expert, were unable to determine how Mr. Parthenis arrived at the appraised values he testified to. When he was asked to comment on Mr. Parthenis’ report, Mr. Laine was not able to comment on the substance of the report – that being the adjustments made.

[165] Doug argues moreover that the prejudice that he faced as a result of the last-minute provision of the adjustments is material. They form the entire substance of the report. Mr. Laine gave a critique of the report while testifying but was at a clear disadvantage in doing so without the benefit of the working papers authored by Mr. Parthenis.

[166] I reject Doug’s criticisms of the form/content of Mr. Parthenis’ report. He did not move to prevent Mr. Parthenis from testifying on account of the form, substance or lack of substance of his report. He accepted Mr. Parthenis as an expert qualified to testify at trial. Doug led no evidence that he requested access to Mr. Parthenis’ file or working papers prior to trial. As it happened, Mr. Parthenis brought his file with him to court and copies of his working papers were made available to counsel.

[167] I specifically asked Doug’s counsel if he wished to ask for an adjournment to review and consider the working papers before cross examining Mr. Parthenis. He did not request that cross-examination be held over to another day so that he could obtain Mr. Laine’s input. He opted to proceed to cross-examine on Mr. Parthenis’ evidence in chief and on his working papers and cannot fairly now be heard to say that Doug has been prejudiced by the trial process or the content of Mr. Parthenis’ evidence.

[168] Mr. Parthenis’ evidence well withstood cross examination whereas Mr. Laine’s did not. As such, I accept and value Mr. Parthenis’ valuations.

[169] I refer to valuations in plural both because Mr. Parthenis provided values for the matrimonial home, 5 Algonquin Ave., as at the two proposed valuation dates, but he also provided a historical value of the home Doug owned at the date of marriage, 40 Tyrrel Avenue, as of the date of marriage, August 11, 2009.

[170] I accept Mr. Parthenis’ opinion of the marriage date value of the 40 Tyrrel Ave. property at $855,000 and prefer it as the best evidence in this trial of the marriage date value of the property. Doug provided no expert evidence to the contrary, only his personal estimate in his Financial Statement.

Other Equalization Issues

[171] Credit for three advance payments was factored into the net equalization payment Malgorzata seeks (see para. 133). However, at trial, Doug agreed to pay other professional fee accounts (AP Valuations and Lebow Carrington) which, once paid, must be credited against any equalization payment.

[172] Malgorzata seeks a gross equalization payment of $827,199.03. She points out that in arriving at this figure, she has assumed costs of disposition on Doug’s RRSPs and with respect to the matrimonial home. She submits that the court will have to determine whether these disposition costs are appropriate given the evidence at trial.

[173] Doug testified that he hopes to not have to sell the matrimonial home. He did not mention whether he will have to dispose of RRSPs to fund the equalization payment. Given Doug’s current financial situation, he may well have to sell the matrimonial home and some or all of his RRSPs to fund his equalization obligation sooner rather than later. As such, I view it appropriate to include these disposition costs in the equalization calculations.

[174] In any event, these costs have been factored into the Agreed Statement of Facts, as set out on Schedule A thereto.

Prejudgment Interest

[175] Malgorzata seeks an order for prejudgment interest on her award of an equalization payment. She relies on Vanasse v. Seguin, 2009 ONSC 483, [2009] O.J. No.483 (S.C.), a case in which there were three orders made for the payment of money: a monetary award for unjust enrichment, retroactive child support and lump-sum retroactive child support. In that case, both parties agreed that any calculation of prejudgment interest should commence on September 1, 2005, the date of the Application.

[176] In connection with her analysis on the issue, the trial judge in Vanasse referred to the Court of Appeal decision in Burgess v. Burgess (1995), 24 O.R. (3d) 547 (C.A.), at para. 18:

Prejudgment interest is within the discretion of the trial judge and, unless it can be shown that the judge did not consider the appropriate principles or did not act judicially, the exercise of his discretion will not be interfered with. [Citation omitted.]

[177] At para. 12, the trial judge observed that the court in Burgess held that as a general rule, the payor spouse is required to pay prejudgment interest on an equalization payment owing to the payee spouse. That is because this encourages the timely settlement of equalization claims and alleviates the financial pressure on the payee spouse when the equalization payment is withheld.

[178] She continued, at para. 15, to quote from the Burgess decision:

Specifically, the court’s discretion will be exercised under s. 130 of the Courts of Justice Act and prejudgment interest will not be awarded on an equalization payment where, for various reasons, the payor spouse cannot realize on the asset giving rise to the equalization payment until after the trial, does not have the use of it prior to trial, the asset generates no income and the payor spouse has not delayed the case being brought to trial… Most of these cases involve the matrimonial home but some also involve the pension.

[179] She founded her award of prejudgment interest on s. 130, the Burgess case and, at paras. 21 and 24, included findings that:

(a) Mr. Seguin had a net worth at the date of separation of $8,450,000, of which approximately $6 million were liquid assets; (b) He had the sole use of the liquid assets which were managed conservatively and generated income; (c) The holding company that he personally owned condominiums through could have been transferred to the applicant wife or sold and although it took time, some were in fact sold prior to trial; (d) Certain condos that he owned generated income; (e) The case was before the court for close to three years during which time Mr. Seguin made use of his millions in assets while depriving his wife from accessing and using funds predictably payable to her for either unjust enrichment or lump-sum spousal support.

[180] Doug correctly points out that the instant case moved very quickly forward from the time the Application was filed on May 5, 2017 to a trial commencing one year later on May 14, 2018. The parties scrambled in the interval to marshal the necessary evidence for trial. Neither party can be found to have delayed moving the case forward to trial.

[181] The central issue for trial was the separation date, something the parties could not agree upon. The parties could not resolve the equalization issue absent a determination of the date of separation.

[182] Further, the parties agreed in August 2017 to a consent order to maintain the financial status quo and to obtain rental accommodations for Malgorzata. Their major asset is the matrimonial home; they agreed to use it to house the children and to parent the children in a nesting arrangement there.

[183] Doug also correctly points out that Vanasse is clearly distinguishable upon its facts. Doug’s financial situation is vastly different from that of the payor spouse in Vanasse.

[184] In these circumstances, I decline to order prejudgment interest be awarded upon the equalization payment prior to the date of this final order. However, for the intervals between the date of this order and the dates ordered for payment of equalization, prejudgment interest is ordered payable.

[185] Both parties seek a Divorce Order. It is clear from the evidence that there is no prospect of their reconciliation.

[186] A final order shall issue that:

1. The parties shall be divorced;
2. The children of the marriage, Lena Anna McKenzie, born January 20, 2010 and Alastair Robert McKenzie, born June 7, 2011, shall remain living in Toronto, Ontario on a permanent basis, subject to any further court order or agreement between the parties and the respondent’s application for an order to permit her to relocate to Brussels with the children is dismissed;
3. The children shall live with each parent on an equal basis as follows: Week 1: The children shall reside with Doug from Monday after school (with pick-up at school) until the following Monday morning with drop-off at school. Week 2: The children shall reside with Malgorzata from Monday after school (with pick-up at school) until the following Monday morning with drop-off at school.
4. Either party may seek a variation of the parenting provisions of this order if there is a material change in the circumstances of the parties or the children that would affect the parenting provisions herein.
5. The parent residing with the children at the relevant time will make the daily decisions regarding their welfare but will follow the children’s normal and established routine to the extent possible.
6. The parents will provide each other with the names, addresses and telephone numbers of all physicians, dentists, orthodontists or other professionals providing care to the children.
7. The residential parent is responsible for making day-to-day medical decisions (such as giving over-the-counter medicines, keeping the children home from school due to illness, taking the children to see a doctor for minor illnesses etc.).
8. The parents will notify each other immediately of the child’s or children’s emergency visit to a physician, specialist and/or hospital. Both parents may attend.
9. Each parent will provide written permission to the children’s physicians/treating professionals to release information to the other parent.
10. The parents will directly request any relevant records/information from the children’s physicians/treating professionals and not expect the other parent to provide such records or updates.
11. Both parents will cooperate with any assessments or psychoeducational testing as recommended for Alastair by medical professionals.
12. If the children require emergency medical care while with one parent, that parent will promptly notify the other of the emergency.
13. The parties may make inquiries and be given information by the children’s teachers, school officials, doctors, dentists, healthcare providers, summer camp counsellors or others involved with the children.
14. Each parent may obtain his or her own school calendar from the school and request copies of the school notices directly.
15. Both parents may attend school-related functions, such as open houses, plays, concerts, fundraisers, etc.
16. Malgorzata shall have final decision making authority, following consultation with Doug, regarding the children’s medical and dental care, education, religious activities and extra-curricular activities.
17. Doug’s application for an order appointing a Parenting Coordinator and fixing specifics of that appointment is dismissed.
18. The children will call/Skype/FaceTime the parent with whom they are not residing while in the care of the other parent at some time between after school and before dinner during the school year and between 4:00 P.M. and dinner during the summer or holiday periods. The call shall be brief.
19. The parties shall communicate solely by Our Family Wizard subject to an emergency in which case text messages or telephone calling may be used. All communications on Our Family Wizard will solely be child-focussed and business-like.
20. The parties will share all school vacations and holidays pursuant to the following holiday schedule, which shall, where necessary, override the regular residential schedule.
21. The children shall reside with Malgorzata in even-numbered years for Family Day and with Doug for odd-numbered years and the children will be returned to school on Tuesday morning.
22. The parties will split the Easter weekend. The children will reside with Doug in even-numbered years for Good Friday, Saturday and Easter Sunday until 5:00 PM and with Malgorzata from 5:00 PM Easter Sunday until Easter Monday returning the children to school on Tuesday morning. The children will reside with Malgorzata in odd-numbered years for Good Friday, Saturday and Easter Sunday until 5:00 PM and with Doug from Easter Sunday and Easter Monday returning the children to school Tuesday morning.
23. The children will reside with Doug in odd-numbered years for March Break from Friday after school (or Thursday if Friday is a PD day) until their return to school Monday morning (or Tuesday if Monday is a PD day) and with Malgorzata in even-numbered years.
24. The children will reside with Malgorzata in odd-numbered years for Thanksgiving from the children leaving school on Friday (or Thursday if Friday is a PD day) until Thanksgiving Sunday at 6:00 PM. Then Malgorzata will drop off the children to Doug at 6:00 PM Thanksgiving Sunday until the children’s return to school on Tuesday morning. In even-numbered years, the opposite will take place.
25. The children will remain with the parent with whom they are already residing based on the regular parenting schedule during any other holiday weekends (Labor Day, Victoria Day and any other long weekend).
26. The children will spend Halloween night with Doug in even-numbered years from after school until their return to school the following morning. The same will occur with Malgorzata in odd-numbered years.
27. The children shall be with Malgorzata on Mother’s Day from 9:00 AM until they return to school Monday morning.
28. The children shall be with Doug on Father’s Day from 9:00 AM until their return to school Monday morning.
29. The children will spend their birthdays with Doug in odd-numbered years and with Malgorzata in even-numbered years from 9:00 AM until the following morning. Whoever does not have the child on their birthday shall be free to take the child for two hours during the day at a mutually agreeable time to celebrate the child’s birthday.
30. The parties will share equally the children’s school break and the Christmas holidays including New Year’s Eve as follows: In even-numbered years, the children shall be with Malgorzata from Christmas Eve at 7:00 PM until Christmas Day at noon and with Doug from noon on Christmas Day until 9:00 PM on Boxing Day. Doug will then have the children for the first half of the remaining days. Malgorzata shall have the children for the latter half of the remaining days. In odd-numbered years, the children shall be with Doug from Christmas Eve at 7:00 PM until Christmas Day at noon and with Malgorzata from noon on Christmas Day until 9:00 PM on Boxing Day. Malgorzata will then have the children for the first half of the remaining days. Doug shall have the children for the latter half of the remaining days. The Christmas school break will continue to be divided equally and planned by both parties on an annual basis.
31. The regular residential schedule shall continue in the summer subject to the following: each parent will have two non-consecutive weeks during the summer; which weeks shall be determined by January 31 of each year. In even-numbered years, Doug shall have first choice of his two weeks and in odd-numbered years, Malgorzata shall have her first choice.
32. Malgorzata shall be at liberty to take the children to Poland at her own expense twice per year during Christmas break or summer and if she requires more than the allotted time at Christmas or summer, makeup days equal to the additional days taken by Malgorzata will be given to Doug during a period at Doug’s choosing. No trip to Poland, however, shall be longer than three weeks at a time. If Malgorzata intends to take the children to Poland, she will give Doug no less than 60 days of notice in writing. Doug will then have 30 days from that notification to select his makeup time and advise Malgorzata in writing.
33. Either party may travel with the children during his/her parenting time.
34. If the parties require destination-specific travel consents, they will cooperate and provide these consents promptly upon request. The non-travelling party will promptly sign the travel consent provided by the travelling party and will return it to the other parent within seven days of receipt of the travel consent.
35. If either parent plans a vacation with the children, that parent will provide the other with a detailed itinerary, including the name of any flight carrier, the flight number and flight times, accommodation details, including address and telephone numbers, and how to contact the children during the trip. The children will contact the non-travelling parent within three hours of arrival if possible. For any extended travel by either parent (defined as more than five consecutive days), the parents will, in advance of the travel, set up a Skype schedule on Our Family Wizard for the duration of the trip, such that the non-travelling parent may have Skype/phone/FaceTime access with the children every two to three days. Once a trip is scheduled, either parent may propose a Skype schedule for such trip on Our Family Wizard and the other parent will respond to such proposal within three days of receipt of it.
36. Malgorzata will have the right to obtain EU (Polish) passports for the children and Doug will provide whatever consents are necessary to facilitate the issuing of the children’s EU passports.
37. If Malgorzata wishes to enrol both children in Polish school during her parenting time with the children, she may do so and she shall be solely responsible for the payment of school fees. Doug will not take the children to Polish school during his time but will instead retain a Polish tutor for both children once a week during his parenting weeks at his expense.
38. Polish school and Polish tutoring do not apply to the following section on extracurricular activities. Neither parent shall enrol either child in any extracurricular activities during the other parent’s time without that parent’s consent, such consent not to be unreasonably withheld. Upon obtaining the other parent’s consent, the cost of the activity will be paid as set out in the support section below. This includes activities scheduled during the regular summer and holiday schedules. The parents will inform each other of activities in which they have enrolled the children when those activities fall on the other parent’s time. The other parent will be free to attend and watch any/all activities that the children are enrolled in.
39. Malgorzata shall be the librarian of Lena’s birth certificate, Social Insurance number card and both passports. Doug shall be the librarian of Alastair’s birth certificate, Social Insurance number card and both passports. Each party shall have photocopies of each document.
40. Malgorzata will be the custodian of the children’s health cards, except when Doug requires them for a specific purpose (and Doug will return the cards promptly after the health appointment), but both parents will retain photocopies for their records in addition to keeping a digital picture on their respective mobile phones.
41. Doug shall pay Malgorzata monthly spousal support in the amount of $4,500. The payments shall be taxable to Malgorzata and tax-deductible for Doug. Doug shall pay the support on a monthly basis and then top up the payments by the end of each calendar year in the event that his income in that year exceeds $300,000.
42. Spousal support shall be reviewed within the year ending February 26, 2023.
43. No retroactive support shall be paid by either party.
44. Doug shall pay child support to Malgorzata based on the set-off amount of $3,120 per month and shall be topped up by the end of each calendar year in the event that Doug’s income exceeds $300,000 in that year.
45. The parties shall share all agreed-upon section 7 expenses with Doug paying for 86% and Malgorzata paying the other 14%.
46. The parent incurring the expense will upload the receipt or invoice to OurFamilyWizard.com with a request through Our Family Wizard for the other parent’s contribution. The parent from whom contribution is sought will pay his or her share of the expense within 14 days. Both parents may confirm expenses with third parties as needed.
47. Beginning on June 1, 2019 and on June 1 of each year, the parties shall reconcile the Table child support paid with their respective incomes for the previous calendar year. If Doug has underpaid Table child support for the previous calendar year, he will make a top up payment to Malgorzata within 30 days. If Doug has overpaid Table child support for the previous calendar year, he will receive a credit against ongoing Table child support obligations at the rate of $1,000 per month until the overpayment is fully credited.
48. Adjustments to support payments and/or section 7 expenses shall be effective as of January 1 each year. The parties shall exchange Income Tax Returns by May 15th of each year and Notices of Assessment as soon as they are received, in addition to any other documentation provided by section 21 of the Child Support Guidelines.
49. A Support Deduction Order shall issue. Unless the 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 the person to whom they are owed.
50. If the parties agree to opt out of the Family Responsibility Office at any time, they are both required to file with the Office of the Director of the Family Responsibility Office a separate written request consenting to the withdrawal of the Support Order and the Support Deduction Order.
51. For as long as child support is to be paid, the payor (and the recipient, if applicable) must provide updated income disclosure to the other party each year, within 30 days of the anniversary date of this order, in accordance with section 24.1 of the Child Support Guidelines.
52. Doug shall pay $2,858.75 for his share of section 7 expenses owing to date.
53. Doug shall retain exclusive possession of the matrimonial home upon payment of his first equalization obligation due 120 days from the date of this final order.
54. If Doug wishes to list and sell the matrimonial home at any time after the date of this final order, he may do so, but all payments owing to Malgorzata shall be paid by Doug or from the net proceeds from the sale of the matrimonial home prior to the balance of the net proceeds being released to Doug.
55. Both parties shall maintain the children on any extended health and dental plan available to them through employment for as long as the children remain dependent children of the marriage pursuant to the Divorce Act.
56. The parent who is reimbursed by his or her plan for an expense the other parent incurred for the children’s benefit shall pay the reimbursement to the other parent within 14 days. Any amount not reimbursed by the plan shall be shared pursuant to section 7 of the Child Support Guidelines.
57. Doug shall have no obligation to maintain Malgorzata on his extended health and dental plan as of the date of this order.
58. Doug owes Malgorzata an equalization payment of $827,199.03. He has thus far advanced to Malgorzata and is entitled to a credit against equalization of: $28,546 to Epstein Cole LLP; $100,000 to Cohen Peeters Yates LLP; $3,590.98 to AP Valuations.
59. Doug therefore owes Malgorzata a net equalization payment of $695,062.05. He shall be permitted to pay the equalization payment in two instalments. The first payment of $347,531.03 shall be made within 120 days of this final order in this proceeding. The second payment of $347,531.03 shall be made within 240 days from the date of the first payment.
60. Doug shall pay prejudgment interest on the equalization payments owing from the date of this final order until the earlier of the date of each payment or the due date of each payment.
61. If either of the parties proposes to change residences, he or she will immediately give his or her new telephone number and address to the other, as soon as the information is available.
62. A party seeking costs shall deliver written submissions of up to five pages in length to the trial coordinator addressed to my attention, together with a costs outline and any relevant offers to settle within 30 days of this final order. A party responding may deliver written submissions of up to three pages in length to the trial coordinator addressed to my attention, together with a costs outline and any relevant offers to settle within 15 days of the receipt of submissions seeking costs. Reply submissions, if any, of up to two pages in writing shall be delivered to the trial coordinator addressed to my attention within 5 days of receipt of responding submissions.

Moore J. Released: July 31, 2018

COURT FILE NO.: FS-17-417086 DATE: 2018/07/31

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Douglas Robert McKenzie Applicant – and – Malgorzata Anna McKenzie Respondent

Reasons for Judgment

Moore J. Released: July 31, 2018

[1] He did not explain why he valued the matrimonial home as of February 1, 2017 rather than February 26, 2017 or whether the values would be the same at both dates.