NEWMARKET COURT FILE NO.: FC-14-46139-00

DATE: 20180813

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MARCIA MUNIZ de AQUINO Applicant

– and –

LEONARDO SALES HENRIQUE de ARAUJO Respondent

Applicant, Self-Represented

Respondent, Self-Represented

HEARD: November 27, 28, 29, 30, December 1, 4, 6, 8, 11, 12, 13, 14, 15, 2017, January 2, 3, 4, 31, and July 26, 2018

JUDGMENT

F. GRAHAM J.

Introduction and Issues

[1] The parties married on January 14, 2000 when Ms. de Aquino was 24 and Mr. de Araujo was 28 (Mr. de Araujo asked the court to address him as Mr. Araujo). The parties separated 13 years and 7 ½ months later, on August 29, 2013. There are two children of the marriage, their son LA and their daughter, IA. On the date of separation LA was 10 and IA was 7. Ms. de Aquino is now 42, Mr. Araujo is 47, LA is 15 and IA is 12.

[2] The parties resolved many issues arising from their separation and divorce, but require the court to decide five issues: IA’s parenting schedule, who should decide the children’s extra-curricular activities, and, starting September 1, 2015: child support, spousal support, and special and extraordinary child expenses.

Assessment of Witnesses’ Credibility and Reliability

Ms. de Aquino

[3] Ms. de Aquino is a party to the proceeding and, for that reason, likely has at least some bias, whether conscious or not, in favour of her position on the issues.

[4] Her testimony was externally inconsistent when she testified during examination-in-chief that she did not have a personal bank account prior to 2010. During cross-examination, she admitted that a 2003 bank statement (Exhibit 113) was likely for her personal bank account.

[5] Her testimony was also externally inconsistent when she testified in chief that her 2017 employment income was about $70,000. During cross-examination, she admitted that a letter from her employer, dated October 24, 2017 (Exhibit 119), accurately stated her annual income as $77,181.

[6] Her testimony was also externally inconsistent when she testified during examination-in-chief that she did not agree to LA having the use of a cell phone before he was 13 years old, because he was too young. In response to an October 2015 email from Mr. Araujo (Exhibit 123), asking whether she had any concern about him allowing LA to use a cell phone, she replied, “I do not have any concerns however this will not be a shared expense.” LA was then 12 years old.

[7] Her testimony was internally inconsistent when she testified during examination-in-chief that one reason she reduced her working hours in April 2013 was to be able to take LA to weekday hockey practices at 4 p.m. During cross-examination, she admitted that when she started working reduced hours in April 2013, LA did not have 4 p.m. weekday hockey practices and she did not know that he would have 4 p.m. hockey practices in the future.

[8] Her testimony was also internally inconsistent when she testified that the children gained no benefit from Mr. Araujo renting a townhouse in Richmond Hill. She admitted later that the rental allowed LA to stay with his hockey team.

[9] Overall, the court finds that significant caution should be exercised in relation to her testimony.

Mr. Araujo

[10] Mr. Araujo is a party to the proceeding and, for that reason, likely has at least some bias, whether conscious or not, in favour of his position on the issues.

[11] His testimony was externally and internally inconsistent when he testified that he went to all of IA’s dance competitions except for Niagara Falls. In a 2015 email (Exhibit 157), and elsewhere during his testimony, he mentioned that he also missed a competition in Orillia.

[12] His testimony was internally inconsistent when he stated that he did not purchase life insurance through a person named “Tim”. At that point, Ms. de Aquino asked the court for guidance, on the basis that she knew Mr. Araujo was lying. The court reminded her that she could apply to call “Tim” as a reply witness. When Ms. de Aquino indicated that she would be applying to call “Tim” as a reply witness, Mr. Araujo immediately admitted that he had applied for life insurance through “Tim”, but added that he was not sure whether the policy remained in force. Later, he admitted that he made premium payments on the life insurance he bought through “Tim”.

[13] His testimony was also internally inconsistent when he testified that he did not recall making any business trips during the period of April 2009 to April 2010. He later admitted that in late 2009 he went to Amsterdam on business for four or five days, and to Brazil on business for three or four days.

[14] His testimony was also internally inconsistent when he said that he had not traveled for work during the past two or three years, but stated later that he might have traveled for work in 2017, but he did not recall.

[15] His testimony was internally inconsistent and evasive when he said that he had paid his share of IA’s dance expenses since September 1, 2015. When asked when he had paid, he replied that his financial statement showed the amount he owed. When asked to clarify, he admitted that he had not actually paid anything, and that his financial statement only set out the amount he proposed to pay.

[16] His testimony was evasive when he was asked whether Ms. de Aquino had taken a big risk when she changed jobs to earn more income. He replied, “Any new job is a risk.” When directed to answer the question, his answer was, “Yes.”

[17] His testimony was inherently unbelievable when he said that when Ms. de Aquino asked him to contribute to the cost of piano lessons and recreational dance for IA in the fall of 2017, his reply that he did not have enough money was not a refusal to contribute to those expenses, but merely a statement that he did not have enough money on that particular day.

[18] Overall, the court finds that significant caution should be exercised in relation to his testimony.

Dina Iriotakif

[19] Ms. Iriotakif is a close friend of a party to the proceeding and, for that reason, likely has at least some bias, whether conscious or not, in favour of her friend’s position on the issues. Her testimony was not significantly inconsistent, evasive, or inherently unbelievable. Overall, some caution should be exercised in relation to her testimony.

Mireile Paveloski

[20] Ms. Paveloski is a close friend of a party to the proceeding and, for that reason, likely has at least some bias, whether conscious or not, in favour of her friend’s position on the issues. Her testimony was not significantly inconsistent, evasive, or inherently unbelievable. Overall, some caution should be exercised in relation to her testimony.

Riccardo Barra

[21] Mr. Barra is a close friend of a party to the proceeding and, for that reason, likely has at least some bias, whether conscious or not, in favour of his friend’s position on the issues. He was evasive when asked about LA’s soccer team photographs. Overall, significant caution should be exercised in relation to his testimony.

Glenn Falconer

[22] Mr. Falconer is a close friend of a party to the proceeding and, for that reason, likely has at least some bias, whether conscious or not, in favour of his friend’s position on the issues. His testimony was not significantly inconsistent, evasive, or inherently unbelievable. Overall, some caution should be exercised in relation to his testimony.

Ligaya Sabarre

[23] Ms. Sabarre is a former employee of a party to the proceeding and, for that reason, may have at least some bias, whether conscious or not, in favour of her former employer’s position on the issues. Her testimony was internally inconsistent about whether Mr. Araujo cut his neighbour’s lawn. Overall, significant caution should be exercised in relation to her testimony.

Marcy Urbas

[24] Ms. Urbas has no relationship with either party. Her testimony was not significantly inconsistent, evasive, or inherently unbelievable. The court must bear in mind, however, that she only spent a short amount of time with the children, and her report was a Voice of the Child Report (VOCR) rather than a full assessment. As a result, she did not fully analyze the children’s needs nor did she express an opinion about their best interests. Her testimony should be given less weight than a full assessment.

Detailed Background – Prior to Separation

[25] The court has carefully reviewed and considered all of the evidence. The parties raised many issues that may seem significant when considered in isolation, but lose significance when considered in the context of all of the evidence. It would serve no useful purpose to repeat all of the evidence. Instead, the court will set out the most salient aspects of the evidence that provide a factual context for the court’s analysis.

[26] The parties were born and raised in Brazil.

[27] Mr. Araujo graduated with a bachelor’s degree in computer science from a university in Brazil that was affiliated with York University in Toronto. From 1992 to 1997, he was self-employed in Brazil in the field of software development, and computer installation and training, for health care clinics. In 1997, he decided to move to Canada. He applied for Canadian permanent residency and was accepted in late 1997 or early 1998. Pending his move, which was scheduled for June 1999, he sold his business, his condominium, and his other assets.

[28] In the summer of 1997, Ms. de Aquino graduated with a four-year bachelor’s degree in business administration from a university in Brazil. For the rest of 1997, while living with her parents, she worked at a plastic surgery clinic ordering supplies, purchasing food for the kitchen, and organizing the payroll. During the first half of 1998, she took an English course in Philadelphia. During the rest of 1998, she lived at her parents’ home to help her ailing mother.

[29] In late 1998, the parties, who had dated previously, started dating again. Mr. Araujo told Ms. de Aquino that he would be moving to Canada in 1999. She said she wanted to go with him.

[30] In early 1999, Ms. de Aquino started working for her father’s company, which assisted private sector projects apply for bank financing. The company was comprised of Ms. de Aquino, her father, and three other people. Ms. de Aquino’s role was to monitor the projects to ensure that they were on track. Her father made all final decisions. She did not have a supervisory role in relation to the other employees. She next worked briefly for a similar company assisting public sector projects apply for bank financing, before returning to her father’s company. She continued to live with her parents.

[31] The parties became engaged in April 1999.

[32] In June 1999, Mr. Araujo moved to Canada where he took an English as a Second Language (ESL) course at York University for three months. He also obtained a part-time job at the York library for $7.50 per hour. In December 1999, Mr. Araujo obtained a full-time job as a web developer with his current employer, Leith, which later became Imagine.

[33] The parties were married in Canada on January 14, 2000. Ms. de Aquino returned to Brazil briefly to dispose of her car and her other assets. She also applied for Canadian permanent residency, sponsored by Mr. Araujo. She returned to Canada on a Visitor’s Visa that prohibited her from being employed or going to school.

[34] The parties shared an apartment with a co-worker of Mr. Araujo’s who was also from Brazil. Mr. Araujo biked to work and Ms. de Aquino cooked, cleaned, and did the laundry for herself and Mr. Araujo. In September 2000, the parties purchased a car with money received as a wedding gift. At that point, Ms. de Aquino started a full-time volunteer position at an elementary school. She drove Mr. Araujo to his work on days that the weather was poor for biking.

[35] Upon obtaining permanent residency, Ms. de Aquino attended a co-op programme designed for university educated immigrants who wanted help getting a job. Over a period of several months, she learned how to prepare for and how to behave during a job interview in Canada. Because she felt that she did not speak English well and she lacked self-confidence, she decided to look for a position that she considered entry level so that she could gain experience and network. In late 2001, she obtained a four-month, unpaid, full-time placement as an administrative assistant at a Scarborough Hospital satellite campus. At the end of the four months, her position converted to a full-time paid contract that was then extended month to month. In June 2002, she obtained a full-time permanent position as an administrative assistant.

[36] During 2001 and 2002, Mr. Araujo’s focus at work shifted from web development to software development for the broadcasting industry.

[37] In late 2002, Ms. de Aquino became pregnant with LA. In December, the parties purchased the matrimonial home in Richmond Hill. Ms. de Aquino continued to do the cooking, cleaning, and laundry. Mr. Araujo was responsible for maintenance at the home.

[38] In early 2003, Ms. de Aquino took a one-night-per-week course in medical terminology. She took a maternity leave from July 16, 2003, when LA was born, to July 2004. Upon returning to work she was transferred to the main Scarborough Hospital campus. She took LA to and from daycare near her work.

[39] In 2005, Mr. Araujo obtained a professional management designation from the Project Management Institute.

[40] Between 2004 and 2005, Ms. de Aquino almost lost her union position a couple of times due to her low seniority. As a result, her supervisor arranged for her position to be converted into a higher non-union administrative assistant position. Ms. de Aquino became pregnant again in late 2005. At that point, the parties bought a second vehicle. Ms. de Aquino took a maternity leave from May 18, 2006, when IA was born, to May 2007. When she returned to work, she took LA and IA to and from daycare.

[41] In April 2007, Mr. Araujo was promoted to a management position. As a result, he was required to travel occasionally.

[42] In July 2007, when LA was 4 years old and IA was 1 year old, the parties decided to hire a nanny to care for the children in the home on weekdays before and after school/daycare. The nanny’s duties included bathing the children, and all of the cooking, cleaning, dish-washing, and laundry in the home. Mr. Araujo hired, supervised and paid the nannies (until early 2013). Ms. de Aquino left for work early, so Mr. Araujo was involved in getting the children up and ready to leave the house and he took LA to before-school daycare and IA to daycare. When IA became older, he took her to part-time and then full-time before-school daycare. Ms. de Aquino picked up LA from after-school daycare (which ended at 6 p.m.) and IA from daycare. When IA became older, Ms. de Aquino picked up both children from after-school daycare, and took them to and from extracurricular activities, or she asked a friend to help out if she and Mr. Araujo were not available. Either parent or both parents put the children to bed. Mr. Araujo did the grocery shopping for the family.

[43] From 2007 to 2009, Mr. Araujo took a part-time M.B.A. programme. He studied during weekday evenings and on weekends. During that period he also completed a number of management courses: Leadership Training, Business Leadership and Development, Developing Foundations for Growth, Managing Inclusion, and Galvanizing the Organization: To Transfer Ideas into Results. He traveled for work about four or five times during that period.

[44] Starting in 2008, Ms. de Aquino took LA to soccer for 6:30 p.m. or 7 p.m. games on weekdays. Mr. Araujo would usually attend later to watch. Starting in 2009, she took IA to dance classes. Mr. Araujo would usually attend later to watch. In 2010, she took LA and IA to karate at 6:30 p.m. Mr. Araujo would usually attend later to watch. Starting in 2011, Mr. Araujo helped with coaching LA’s soccer team and took LA to hockey practices and games on weekends, as well as to out-of-town tournaments. Ms. de Aquino went to some of the practices, the games, and at least some of the tournaments.

[45] In 2008, Ms. de Aquino took a three-day project management course. In 2009, she took a one-day business writing course. In 2010, she took a weekly conversational French course for three months, a one-day Leading Management (Level 1) course, a four-day project management course at Scarborough Hospital, and a one day course in principles and application of health law. In 2011, she completed a three-day Lean Health Care Yellow Belt Certification (with the Ontario Health Association). She also obtained a Master Certification in Project Management (through York University) over about 16 days, on weekdays and weekends. Her employer paid $1,000 towards the $10,678 fee for the latter; Mr. Araujo paid the balance.

[46] Mr. Araujo traveled for work about four times in 2010 – for two to four days on each occasion. In 2011, he traveled about seven times – for about three days on each occasion. After that, he traveled about four times per annum until 2016 – for about three days on each occasion.

[47] LA started playing select hockey in the fall of 2012. From October 2012 until April 2013, the children took guitar and piano lessons after school.

[48] In late 2012, Ms. de Aquino applied to voluntarily reduce her hours of work by 25 percent for a period of one year, renewable annually, pursuant to her employer’s cost-reduction programme. Mr. Araujo told her that they would have to terminate the nanny’s employment if Ms. de Aquino reduced her hours. The nanny’s wages were about $15,000 per annum. The parties also spent about $7,000 to $9,000 per annum on the before and after school daycare programme for the children. Ms. de Aquino’s application was accepted. In February 2013, Mr. Araujo terminated the nanny’s employment. In April 2013, Ms. de Aquino started working reduced hours at the hospital. She also did laundry, light cleaning, and prepared meals for the family, at their home.

[49] Mr. Araujo spent five days in Brazil for work in June 2013.

[50] The parties separated on August 29, 2013, but continued to live, separate and apart, in the matrimonial home for a year.

Detailed Background – After Separation

[51] In the fall of 2013, LA started playing rep hockey.

[52] Ms. de Aquino’s line 150 income for 2013 was $51,525 (with reduced hours from April to December) (Exhibit 19).

[53] Mr. Araujo’s line 150 income for 2013 was $162,777 (Exhibit 23).

[54] Ms. de Aquino renewed her reduced hours at the hospital for another year, but in May 2014, she obtained full-time employment as an administrative assistant with a new employer, Mackenzie Health.

[55] The sale of the matrimonial home closed in late August 2014. As a result of equalization, Ms. de Aquino received about $257,000, and Mr. Araujo received about $167,000, from the house proceeds.

[56] Neither of the parties felt that they could afford to buy their own home in Richmond Hill. Ms. de Aquino elected to buy a semi-detached house for $495,000 in Aurora. Her monthly mortgage payment was $1,255, and her monthly tax payment was $350. Mr. Araujo elected to rent a townhouse in Richmond Hill which permitted LA to remain with his hockey team. His rent was about $1,820 per month.

[57] The parties agreed to a parenting schedule effective upon the house sale closing.

[58] The children resided with their father each week from Sunday evening until Tuesday evening, with their mother each week from Tuesday evening until Friday evening, and with each parent on alternate weekends from Friday evening until Sunday evening. The weekends were scheduled so that the following schedule repeated on a bi-weekly basis: the children were with their father from Friday evening to Tuesday evening (4 days), then they were with their mother from Tuesday evening to Sunday evening (5 days), then they were with their father from Sunday evening to Tuesday evening (2 days), then they were with their mother from Tuesday evening until Friday evening (3 days).

[59] Thus, the children were with their father 6 days out of 14, and with their mother 8 days out of 14, while school was in session. That translates to about 42.6 percent of the time with their father, and about 57.4 percent of the time with their mother, while school was in session. The percentage varied slightly from year to year, however, because each parent willingly cared for the children for additional time when requested by the other parent.

[60] March break was split evenly. PA or PD days were split. Family Day, Victoria Day, Canada Day, Civic Holiday, Labour Day and Thanksgiving Day were split evenly and alternated annually. Easter was split evenly and alternated annually. Christmas was split evenly and alternated annually on a week-about basis if the parents traveled with the children or, if the parents did not travel with the children, exchanges were to occur on December 24, Christmas Day, Boxing Day, December 31, New Year’s Day, and January 2. During the summer vacation, each parent could have the children for two or three consecutive weeks and the remaining weeks followed the regular schedule. The parent’s birthdays, Mother’s Day, and Father’s Day were exceptions to the usual schedule.

[61] As a result, over an entire year, depending upon when each parent has the children during summer and the timing of PA and PD days, the parents’ birthdays, Mother’s Day, and Father’s Day, the children were with their father around 44 percent of the time, and they were with their mother between about 56 percent of the time. These amounts varied slightly from year to year, as stated above, however, because each parent willingly cared for the children for additional time when requested by the other parent.

[62] Ms. de Aquino agreed to the schedule although she says IA told her at the time that she wanted to live with her mother and visit her father. IA was 8 years old at that point.

[63] In 2014, IA was invited to participate in competitive dance. Ms. de Aquino signed her up even though Mr. Araujo expressed significant concern about the cost. IA took two types of competitive dance that year. Ms. de Aquino took IA to the out-of-town competitions. On one or two occasions, Mr. Araujo failed to get IA to dance class on time. In competitive dance, timely attendance is mandatory.

[64] When there was a conflict between the children’s dance and hockey commitments, Ms. de Aquino would take IA to dance and Mr. Araujo would take LA to hockey.

[65] Ms. de Aquino’s line 150 income for 2014 was $55,327 (with reduced hours from January to April) (Exhibit 20).

[66] Mr. Araujo’s line 150 income for 2014 was $152,261 (Exhibit 24) (including a bonus for 2013). He testified that if his employer pays a bonus, it is usually paid during the first or second quarter of the following calendar year.

[67] In 2015, Ms. de Aquino signed IA up for competitive dance again, although Mr. Araujo was still quite concerned about the cost. IA participated in five types of dance that year. Ms. de Aquino took IA to the out-of-town competitions.

[68] Mr. Araujo arranged for the children to go to summer camp with their friends that summer. The parties’ extended families paid the airfare for the family to visit Brazil in 2015.

[69] On August 21, 2015, on consent, on a without prejudice and temporary basis, Mr. Araujo was ordered to pay Ms. de Aquino, effective September 1, 2015:

a. $1,216 per month in base child support, based on a set-off;

b. $1,630 per month in spousal support; and

c. 64 percent of special or extraordinary expenses.

[70] He was also ordered to pay $13,692 in spousal support arrears within 7 days. The order acknowledged that Mr. Araujo had paid $9,592 in base child support arrears that day. The order also required annual income disclosure and annual adjustments of base child support based on that disclosure.

[71] In the fourth quarter of 2015, Mr. Araujo’s job title was changed from Manager to Director. He testified that all of the managers’ job titles were changed, without any change in remuneration.

[72] Ms. de Aquino’s line 150 income for 2015, without spousal support, was $55,833 (Exhibit 21).

[73] Mr. Araujo’s line 150 income for 2015 was $161,126 (Exhibit 25) (including a bonus for 2014).

[74] In February 2016, Ms. de Aquino was promoted to instructional designer at Mackenzie Health. She took training in the United States to be certified for this position with the orders team. She trained physicians in the use of the orders application, received and considered feedback, created instruction sheets, and updated the learning dashboard. She would require further certification to work with a different team.

[75] She testified that she paid premiums of about $162 per month for extended health and dental benefits at Mackenzie Health because she believed that Mr. Araujo had removed her from his employer’s plan. She said that it was not until 2017 that he informed her that she was still covered by his plan. As a result, she maintained that she had needlessly paid the monthly premium to her employer. A review of the email she relied upon to support her testimony (Exhibit 34), however, shows that Mr. Araujo told her that he did not know whether she was covered under his plan – he did not say that she was not covered.

[76] It was likely around this time, although possibly some months earlier or later, when IA was about 10 years old, that IA resisted going to her father’s home one Sunday evening. Ms. de Aquino told Mr. Araujo on that occasion that for IA’s sake, he was required to comply with her wishes. Mr. Araujo negotiated with IA that she would spend the following Tuesday overnight with Mr. Araujo in exchange for that Sunday overnight.

[77] At some point after that, Ms. de Aquino started picking up IA from Mr. Araujo’s home whenever IA asked her to come and get her. Ms. de Aquino would drive to Mr. Araujo’s home and wait on his doorstep, without ringing the doorbell, for IA to come out, and then take her away. It was Ms. de Aquino’s view, at that time and during the trial, that she was doing the right thing by complying with IA’s wishes. The court explained to her during the trial, however, that she was not doing the right thing, and, in fact, she was doing the wrong thing by allowing IA to become the decision-maker about the parenting schedule, and by undermining Mr. Araujo’s role as a parent.

[78] The parties’ extended families paid the airfare for the family to visit Brazil in the summer of 2016.

[79] In 2016, IA decided to return to recreational dance.

[80] Ms. de Aquino’s line 150 income for 2016, without spousal support, was $69,456 (Exhibit 22).

[81] Mr. Araujo’s line 150 income for 2016 was $145,069 (Exhibit 26) (no bonus was paid for 2015).

[82] In early 2017, Ms. Urbas, M.S.W., R.S.W., an experienced social worker and counsellor, interviewed the children in order to prepare a VOCR (Exhibit 39).

[83] LA, then 13 years old, told Ms. Urbas that his father understood him better than his mother, but he missed each parent when he was with the other parent. He said that both parents took him to soccer and hockey. He had more friends at his mother’s home because his mother talked with his friend’s parents more than his father did. He was content with the agreed schedule. He believed that his sister might like to be with their mother one more day per week. He did not like his mother or his sister asking him to pass on messages to his father.

[84] IA, then 10 years old (almost 11), told Ms. Urbas that that her mother’s home felt like her “home”. She felt more comfortable there than at her father’s home which was newer. She said that at her mother’s home she had more friends, there was a pet cat and there was more to do. She said that she goes to her mother if she is hurt or upset. She said that she misses each parent when she is with the other parent, but she misses her mother more. She mentioned that her father was angry with her at Toys “R” Us one time (years earlier) when he left her alone on a couch for a while and she started to cry because he did not return quickly. She also mentioned that he was angry with her because she told her mother. She said that he once refused to go to her father’s home because she did not want to go. She said that he wasn’t as mean to her after that. She indicated that she would like to spend an extra day per week with her mother because she connects better with her.

[85] Ms. Urbas testified that she believed the children’s views were independent. She was concerned about LA being used as a messenger. She believed that IA wanted a bit more time with her mother because she had a closer relationship with her mother and she was more comfortable at her mother’s home. She suggested that both children might benefit from counselling because they both became tearful at times during the interviews.

[86] Mr. Araujo denied that he yelled or became angry at IA at Toys “R” Us, or when IA told her mother what had happened.

[87] Mr. Araujo testified that he believes that IA’s bond with her mother is too close. He said that IA has been her mother’s confidant since separation, which is not an appropriate role for a child.

[88] In the spring of 2017, Mr. Araujo, who had been paying the full up-front cost for LA’s hockey, unilaterally decided to pay only one-half of the up-front cost.

[89] In July 2017, Mr. Araujo bought a townhouse in Aurora for $675,000.

[90] In the fall of 2017, when asked about IA participating in recreational dance and piano, Mr. Araujo replied that he did not have money to pay for those activities. Ms. de Aquino signed IA up for recreational dance anyway, but decided that she could not afford to front the cost of piano lessons, so IA did not continue with piano lessons. Ms. de Aquino did not consult with Mr. Araujo when she enrolled IA in piano lessons.

[91] Mr. Araujo testified that he never discussed finances with the children, but he admitted that he told them he helps Ms. de Aquino financially and when they ask him to pay for something he tells them that he does not have enough money. He denied that he told them to ask their mother for money because he gives her a lot of money every month. This is very close to what he admitted saying to the children, however, and based on all of the evidence, the court finds that he likely made the latter statement to them.

[92] At that point, IA, then age 11, refused to spend any more time with Mr. Araujo on weekdays or Sunday evenings when she was with her mother for the weekend. She only agreed to be with her father on alternate weekends. Ms. de Aquino did not press her to follow the agreed schedule.

[93] Ms. de Aquino testified that she supported IA’s decision not to follow the schedule. She said that IA was a mature 11 year old. She testified that she encouraged IA to follow the schedule, but as IA was not willing, IA’s wishes should be respected. She testified that IA should be with her father on alternate weekends, except during school holidays, Father’s Day, and Mr. Araujo’s birthday.

[94] Mr. Araujo opined that Ms. de Aquino’s conduct with IA indicated that she may be alienating IA from him.

[95] As a result of the court expressing concern about Ms. de Aquino placing IA in the role of decision-maker, Ms. de Aquino later testified, after speaking with others and upon reflection, that she now understood that she had been enabling IA to be the decision-maker and that that role was not appropriate for a child of her age. Ms. de Aquino said that, as a result, she told IA that she should work on her relationship with her father. Ms. de Aquino said, nevertheless, that she was concerned about IA’s emotional state as a result of being required to comply with the agreed schedule. She said that the agreed schedule was bad for IA and was making IA sad. She filed a text exchange with IA (Exhibit 101) that occurred after she started requiring IA to comply with the schedule. In the exchange, IA begged her mother to pick her up from her father’s home, but Ms. de Aquino replied that she could not because it was IA’s weekend with her father. Eventually, IA replied, “Fine.” Ms. de Aquino responded, “Please try to understand. I love you always.” IA replied, “I love you too.” Ms. de Aquino then asked if IA was going to watch LA’s game and IA replied, “Maybe.” Her mother responded, “Okay, if you go, I’ll see you there. Will give you lots of kisses.” IA replied, “Okay. Love you, bye.”

[96] Mr. Araujo testified that IA does not want to go to all of LA’s hockey games anymore. He said that she is now old enough to stay behind alone.

[97] On December 15, 2017, the court ordered, on a temporary basis, a return to the original agreed parenting schedule, including the schedule set out therein for the Christmas school vacation. As mentioned earlier, the agreement stipulated a week-about arrangement if the parents intended to travel with the children or, if they did not travel, exchanges on December 24, Christmas Day, Boxing Day, New Year’s Eve Day, New Year’s Day, and January 2.

[98] Ms. de Aquino’s line 150 income for 2017, without spousal support, was $72,790 (Exhibit 176).

[99] Mr. Araujo’s line 150 income for 2017 was $158,739 (Exhibit 177) including his base salary, which increased to $153,000 per annum in August 2017, and a bonus of $10,500 for 2016.

[100] Both parents testified that they took some unpaid time off from work for the trial.

[101] When the trial resumed in January 2018, Ms. de Aquino testified that the Christmas vacation schedule had been very confusing and disruptive for her and the children because they stayed in the GTA. She said that the children told her that they did not like going back and forth frequently between their parents and that they would prefer alternate weeks, and she agreed. She added that the children should be with one parent on Christmas Eve and with the other parent on New Year’s Eve.

[102] Mr. Araujo testified that he liked the Christmas schedule because the children were with each parent on Christmas Day and on New Year’s Eve Day.

[103] Mr. Araujo’s expected income for 2018 is his $153,000 base salary, plus any bonus paid for 2017. Based on past history, he likely will receive a bonus of about $10,000. Thus, his income likely will be around $163,000.

[104] Ms. de Aquino lost her job as a result of a restructuring on May 9, 2018, and she has been seeking re-employment since. She received 4 weeks’ pay in lieu of notice, and an additional lump sum payment of 13 weeks’ pay, with benefits extended until the end of the total 17 week period, on September 5, 2018. Given that she has paid Employment Insurance (EI) premiums, if she is not re-employed by then, she likely will qualify for the current maximum EI payment of $547 per week, which is about $2,352 per month, until beyond the end of 2018.

Parenting Schedule and Extra-Curricular Activities

Law in Relation to the Parenting Schedule and Extra-Curricular Activities

[105] Section 16(8) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), stipulates that a court deciding custody or access must consider only the best interests of the child, as determined by reference to the conditions, means, needs and other circumstances of the child. Decision-making about extra-curricular activities is an aspect of custody.

[106] Section 16(9) of the Divorce Act stipulates that the court shall not consider the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent.

[107] Section 16(10) of the Divorce Act stipulates that a court must give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child, and the court shall consider, for that purpose, the willingness of each parent for whom custody is sought to facilitate such contact.

[108] Section 16(5) of the Divorce Act stipulates that a parent who is granted access to a child has the right to make inquiries and to be given information, as to the health, education and welfare of the child, unless the court orders otherwise.

[109] Provincial legislation provides additional guidance about determining the best interests of a child.

[110] Section 24(1) of the Ontario Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA), requires that applications in respect of custody and access to a child shall be determined on the basis of the best interests of the child in accordance with the balance of section 24.

[111] Section 24(2) of the CLRA stipulates that the court shall consider all the child’s needs and circumstances, including, relevant to this case:

• the love, affection and emotional ties between the child and each person entitled to or claiming custody of or access to the child;

• the child’s views and preferences, if they can be reasonably ascertained;

• the length of time the child has lived in a stable home environment;

• 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;

• the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; and

• the ability of each person applying for custody of or access to the child to act as a parent.

[112] Section 24(3) of the CLRA stipulates that a person’s past conduct shall be considered only if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

[113] Section 21(1) of the CLRA stipulates that except as provided otherwise in Part III of the CLRA, the father and mother of a child are equally entitled to custody of the child.

[114] Some additional guidance is provided by section 37(3) of the Ontario Child and Family Services Act, R.S.O. 1990, c. C.11 (CFSA), which stipulates that when a person is directed under that legislation to make a determination in the best interests of a child, the person shall take into consideration the following circumstances which are relevant to this case:

• the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;

• the child’s physical, mental and emotional level of development;

• the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family;

• the child’s relationships and emotional ties to a parent, relative, other member of the child’s extended family or member of the child’s community;

• the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity;

• the child’s views and wishes, if they can be reasonably ascertained;

• the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent; and

• any other relevant circumstance.

[115] Custody has evolved to mean final decision-making authority about serious matters affecting a child. The usual major areas of decision-making authority have been distilled to religion, health, and education, although there may be other areas in a specific case, such as extra-curricular activities or surname.

[116] Generally, joint custody may be appropriate where it is in a child’s best interests for more than one person to have custody, and all persons with custody are able to communicate appropriately with each other and make decisions together, based on the best interests of the child.

[117] The court’s role in a custody and access case is to decide what is in the child’s best interests at that time. While historical information may be of assistance, it is the present time that matters, with an eye to the future, but keeping in mind that the future cannot be predicted with certainty. If circumstances change in a material way over time, then a motion to change is available to bring the issue of the child’s best interests back before the court.

Positions of the Parties in Relation to the Parenting Schedule

[118] Ms. de Aquino sought to change IA’s time with Mr. Araujo, during the regular parenting schedule, to alternate weekends, from Friday at 6 p.m. until Monday at 6 p.m., and on the intervening Mondays, from the end of school until 6 p.m.

[119] Mr. Araujo sought to maintain the current schedule for both children, except he suggested that, after a weekend with their mother during the regular parenting schedule, the children’s time with their father should begin at the start of school on Monday and run until the start of school on Wednesday, instead of from Sunday at 6 p.m. until Tuesday at 6 p.m. He suggested that this change would address IA’s reluctance to leave her mother’s home on Sunday evenings without affecting the amount of time she spent with each parent.

[120] In his written Responding Submissions, Mr. Araujo sought to stipulate that the parenting schedule would be followed even if a child is sick, unless the child’s physician determines that a child is too ill to travel to the other parent’s home, but even then, if the parent with the child is unable to care for the child, the other parent has the right of first refusal. He also sought to add a term that each parent would have a right of first refusal if the parent caring for a child was unavailable for more than 4 hours, in which case the unavailable parent must notify the other parent in writing of the upcoming unavailability at least 72 hours in advance.

[121] In her written Reply Submissions, Ms. de Aquino interpreted Mr. Araujo’s proposal in relation to a sick child as requiring a written note from the child’s physician and said that she did not understand the reason for such a requirement. She opposed a 72 hour advance written notice requirement with respect to the right of first refusal on the basis that her schedule might change less than 72 hours in advance. She also sought, for the first time, to remove of the right of first refusal altogether, on the basis that the children might prefer to stay with a friend rather than with the other parent.

[122] In her written Reply Submissions, Ms. de Aquino also sought, for the first time, to change the March break, Christmas, and summer vacation schedules, to the regular schedule, unless both parents were traveling with the children, in which case the vacation would be split, and to change PD and PA days to the regular schedule.

[123] Both parties were clear from the start of the trial that the only parenting schedule at issue was IA’s regular schedule. In January 2018, both parents testified about the Christmas schedule they had just experienced. The court will consider the parties’ positions on both these issues because both parties were on notice that these were live issues and they both had a full opportunity to lead, and did lead, evidence about these two issues.

[124] The court will not consider other proposals that were made for the first time during written submissions, however, because the other parent had no notice and, accordingly, had no opportunity to decide whether to present evidence about those proposals. It would be unfair for the court to consider proposals made for the first time after the completion of the evidence, particularly since the existing terms are not inherently contrary to the best interests of the children.

[125] In any event, it is not necessary to stipulate that a parenting schedule does not change simply because a child is ill, as long as the child is not too ill to travel, because all parents are responsible for caring for ill children. Thus, for example, a cold or even a light fever, usually does not, taken alone, provide a reasonable basis for a parent to disregard a parenting schedule.

[126] Further, the current schedule already contains a reasonably worded right of first refusal, and reasonable provisions for March break, summer, and PD and PA days. If the parties both wish to change any of those terms of the schedule, they may do so, on consent, at any time, or by bringing a motion to change, but not by raising them as issues at trial after the evidence is complete.

[127] With respect to her submission that IA’s regular schedule should be changed, Ms. de Aquino argued that IA has a stronger bond with her, has continuously sought more time with her, prefers spending time with her and at her home, feels that she is at “home” with her, will be happier if she has more time with her, and will be unhappy if she does not have more time with her. She submitted that the VOCR supports her position. She emphasized that she is IA’s trusted confidant. She noted that she has attended almost all of IA’s extra-curricular activities, but submitted that Mr. Araujo often did not attend or was late. She supported Ms. Urbas’ comments in the VOCR that IA’s gender and stage of development contribute to her strong alignment with her. She underlined IA’s comment to Ms. Urbas that Mr. Araujo is sometimes angry with her for acting normally, for example, some time ago, when she cried because she felt alone at Toys R Us, and when she told her mother what happened. She emphasized IA’s comment to Ms. Urbas that Mr. Araujo stopped being mean to her after IA refused to go with him the first time. She mentioned that Mr. Araujo left her and the children with limited resources for a couple of weeks prior to the sale of the matrimonial home. Ms. de Aquino also noted that Mr. Araujo sent the children to school with mouldy cheese sandwiches a couple of times some years ago. She argued that he sends IA away on too many play dates. She also suggested that Mr. Araujo’s true motivation about the parenting schedule is to avoid any increase in child support.

[128] Mr. Araujo argued that IA’s relationship with her mother may be too close, because Ms. de Aquino has treated IA as a confidant since the parties separated. He also submitted that Ms. de Aquino could be in the process of alienating IA from him. He noted that Ms. de Aquino allowed IA to stop seeing him on weekdays from September to early December 2017 and she repeatedly came to his home and removed IA during his parenting time, without his consent. He suggested that Ms. de Aquino is motivated by the possibility of increased child support and referenced the fact that she sought increased support for the three months leading up to the trial when IA did not see him during the week. He submitted that the current schedule should be continued to ensure that IA’s relationship with him is not marginalized. Mr. Araujo maintained that he is a good parent and that IA benefits from her time with him. Mr. Araujo suggested that Ms. de Aquino’s testimony that she asks him to care for IA when she is not available is inconsistent with her testimony that IA does not look forward to or enjoy being with him. Mr. Araujo suggested that the VOCR should be given limited weight because Ms. Urbas did not express an opinion about the best interests of IA, but he noted that the VOCR confirmed that the children do lots of activities with him.

[129] In relation to the Christmas schedule, Ms. de Aquino testified that the frequent exchanges stipulated if the children were in the GTA were confusing and disruptive. She said that a week-about type arrangement was better for the children and herself.

[130] Mr. Araujo testified that he liked the frequent exchanges because the children had time with both parents on Christmas Day and New Year’s Eve Day.

Analysis - Parenting Schedule

[131] Ms. de Aquino’s proposal would mean that IA would spend less time with her father.

[132] Given that IA already spends more time with her mother while school is in session (about 57.4 percent) and more time with her mother during the entire year (about 56 percent), the maximum contact principle mandates that increasing the imbalance of time spent with each parent should not occur unless such a change is in IA’s best interests.

[133] Ms. de Aquino’s proposal would mean that IA would be in her mother’s care about 77.8 percent of the time while school is in session and about 74 percent of the entire year. Conversely, IA would be in her father’s care about 22.2 percent of the time while school is in session and about 26 percent of the entire year.

[134] IA has a significant emotional tie with both parents, but her emotional tie with her mother is stronger. The evidence does not support a finding, as suggested by Mr. Araujo, that the mother-daughter relationship is unhealthy. While he is correct that it would be inappropriate for IA to be her mother’s confidant while IA is a child, the evidence does not support a finding that IA is her mother’s confidant.

[135] The evidence is clear that IA, independently, wishes to spend more time with her mother.

[136] The court is satisfied that both parents are capable and willing to provide IA with guidance, education, the necessaries of life, and meet her special needs, but Ms. de Aquino has a closer bond with IA and she is better suited to address some of IA’s needs such as self-image as a result of IA’s gender and stage of development. Further, Ms. de Aquino’s home is more welcoming to IA. More of her friends go there, rather than to her father’s home. Her mother’s home feels like “home” to IA. Although Mr. Araujo makes a diligent effort to make IA feel comfortable with him and in his home and he engages her in activities that are similar to her activities at her mother’s home, there is a qualitative difference.

[137] While neither parent specifically addressed plans for IA’s care and upbringing in the future, the evidence about her care and upbringing to date establishes that both parents are capable of providing appropriate plans. Ms. de Aquino, however, likely is more understanding and empathetic to IA’s stage of development.

[138] Both parties are capable to act as parents to IA. Although it was evident during the trial that they have quite different personalities and different approaches to parenting, IA will benefit from the influence of both of them. Although Ms. de Aquino took IA to most of her extra-curricular activities, the court finds that Mr. Araujo attended most of those activities. Although he questioned the cost of competitive dance, for example, nevertheless he supported IA’s involvement by taking her to classes and by attending most of her competitions. He was not as involved as Ms. de Aquino, but he was involved.

[139] IA’s physical, mental, and emotional needs and level of development, and the appropriate care to meet those needs at her level of development, are better met by her mother with whom she has a stronger bond at present. Although both parents are sensitive to IA’s needs, the court finds that her mother has a greater awareness of her needs and how to meet those needs at present.

[140] With respect to continuity of care, as noted above, the current schedule has been the status quo for over three years, with one brief inappropriate three-month hiatus. Any reduction of time spent with her father would be a change for IA, but not necessarily a disruption, as long as IA maintains meaningful regular contact with her father which can allow their relationship to continue to develop.

[141] The incident at Toys “R” Us has some relevance, even though significant time has passed, because IA became upset when she told Ms. Urbas about the incident. The court finds that Mr. Araujo likely was angry with IA at the time, perhaps because he was embarrassed, and she perceived his anger, probably as a result of his demeanour. Rather than being angry, Mr. Araujo should have realized that IA was too young to be left alone while he was elsewhere in the store, he should have admitted his mistake to IA, he should have told her mother about the incident and he should have expected that IA would tell her mother.

[142] The court finds that the evidence about circumstances around the time of the house sale closing and mouldy sandwiches is too remote in time and too limited in significance to be relevant to the issues to be determined. The court also finds that the evidence does not support a conclusion that Mr. Araujo sends IA away on play dates too often. That having been said, it likely would be beneficial to IA and her relationship with father if he facilitated play dates at his home. Finally, the evidence does not support a conclusion that Mr. Araujo’s true or main motivation on this issue is to avoid an increase in child support, although it may be that both parents have been influenced, at least to some degree, consciously or not, by this consideration.

[143] Upon consideration of all of the circumstances, the court finds that, on a balance of probabilities, it would be in IA’s best interests to spend some additional time with her mother as long as she continues to spend significant time with her father. The court also finds that Mr. Araujo’s proposal to change Sunday evening exchanges to Monday morning at school is in IA’s best interests, for the reasons he stated.

[144] The new regular parenting schedule for IA will continue to be on a two week cycle as follows:

a. each week, IA will be in the care of her father from Monday, when school starts, until Tuesday, when school starts;

b. each week, IA will be in the care of her mother from Tuesday, when school starts, until Friday at 6 p.m.;

c. on the first weekend of this schedule, IA will be in the care of her mother from Friday at 6 p.m. until Monday, when school starts; and,

d. on the second weekend of this schedule IA will be in the care of her father from Friday at 6 p.m. until Monday when school starts.

[145] One effect of the new regular parenting schedule for IA will be that IA’s weekends with her mother will end on Monday when school starts instead of Sunday at 6 p.m., whereas LA’s weekends with his mother will continue to end on Sunday at 6 p.m. As a result, IA will have some time alone with her mother and LA will have some time alone with his father which the courts finds is in the best interests of both children. Another change will be that IA’s weekends with her father will effectively end on Tuesday when school starts whereas LA’s weekends with his father will effectively end on Tuesday evening.

[146] The new regular parenting schedule for IA shall commence on the first weekend in September 2018 that IA is scheduled to be with her mother in accordance with the regular parenting schedule set out in the temporary order of December 15, 2017.

[147] The new regular parenting schedule shall repeat every two weeks, unless overridden during school vacation, a statutory holiday, PA or PD day, a parent’s birthday, Mother’s Day or Father’s Day, in accordance with the temporary order of December 15, 2017.

[148] This schedule means that IA will be in the care of her mother about 67 percent of the time while school is in session and about 64.5 percent of the time during the entire year. Conversely, she will be in the care of her father about 33 percent of the time while school is in session and about 35.5 percent of the entire year.

[149] The parent with whom a child will reside on a given night shall pick up the child, unless the parents agree otherwise.

[150] Finally, the court is not persuaded by the evidence that a change to the existing Christmas schedule would be in the best interests of the children.

Positions of the Parties in Relation to Extra-Curricular Activities

[151] The parties agreed to joint custody of the children, except they each sought sole decision-making authority regarding the children’s extra-curricular activities.

[152] Ms. de Aquino argued that Mr. Araujo is too concerned about the cost of extra-curricular activities, particularly with respect to IA. She also submitted that Mr. Araujo is biased in favour of LA participating in extra-curricular activities, and biased against IA participating in extra-curricular activities. She suggested that IA’s mental and physical health depend on her participating in her chosen activities. She submitted that Mr. Araujo was wrong not to support IA continuing in recreational dance and piano lessons in the fall of 2017.

[153] Mr. Araujo argued that the parties must set reasonable limits on how much they spend on the children’s extra-curricular activities and that Ms. de Aquino is not willing to do so. He emphasized Ms. de Aquino’s history of improperly enrolling the children into activities without consulting him. He noted that he attended IA’s dance classes and competitions, and took IA to classes during his parenting time, despite not agreeing to enrol her in dance. He suggested that a more workable arrangement would be for him to pay all special and extraordinary expenses for the children in lieu of paying base child support. Mr. Araujo underlined that Ms. de Aquino has not been willing to recalculate the parties’ proportionate share for special and extraordinary expenses even though her income has increased substantially since the consent order on August 21, 2015. He submitted that he has been forced into a position where he could not afford to continue paying the up-front costs for LA’s activities pending a reconciliation of expenses. Mr. Araujo suggested that Ms. de Aquino did not have to withdraw IA from piano lessons in the fall of 2017, given her increase in income since separation.

Analysis - Extra-Curricular Activities

[154] The combined income of the parties in 2017 was about $230,000. Their combined income in 2018 likely will be about the same or possibly higher. The court agrees with Mr. Araujo that reasonable limits should be set on how much the parties spend on the children’s extra-curricular activities. The parties’ combined and separate incomes, however, permit them to afford more extra-curricular activities for their children than most other parents.

[155] The children are old enough to have meaningful views and preferences about what extra-curricular activities they would like to do. IA, for example, wishes to take dance and piano lessons. If the activities are beneficial for the children, and reasonable in all of the circumstances, including cost, separately and combined, they should be permitted.

[156] Both parents are able and willing to provide the children with guidance, education, the necessaries of life, and provide for any special needs, and to act as parents. Ms. de Aquino, however, is more likely to allow the children to participate in reasonable and beneficial extra-curricular activities. Ms. de Aquino is also more likely to meet IA’s physical, mental, and emotional needs, in consideration of IA’s physical, mental and emotional development. Mr. Araujo is more likely to feel unduly constrained by cost considerations.

[157] In these circumstances, the court finds that it is in the best interests of the children for Ms. de Aquino to decide the children’s extra-curricular activities. However, before she makes such decisions she must allow Mr. Araujo a reasonable opportunity to express his views about the activities and she must give his views serious consideration.

[158] At the conclusion of the support analyses, the court will consider whether a ceiling should be imposed on the annual cost of the children’s extra-curricular activities.

Base Child Support (Sections 3 and 9 CSG)

Law in Relation to Base Child Support

[159] From September 1, 2015 to present, with the exception of three months at the end of 2017 for IA, the children have been in the care of each parent for more than 40 percent of the time. As a result, determination of child support during this period is governed by Section 9 of the Child Support Guidelines, O. Reg. 391/97 (CSG). The court will not carve out an exception for the three month hiatus in late 2017 because it was temporary, brief, and, as discussed earlier, inappropriate.

[160] In Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, the Supreme Court of Canada articulated that the underlying principle of the CSG is that spouses have a joint financial obligation to maintain their children in accordance with their relative abilities, which is reflected in the four objectives of the CSG, in section 1:

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c) to improve efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlements; and,

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

[161] At para. 33, the Supreme Court stated that this approach requires the objectives of predictability, consistency and efficiency to be balanced with the objectives of fairness, flexibility and recognition of the actual conditions, means, needs and other circumstances of the children.

[162] Section 9 of the CSG reads,

Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements, and the conditions, means, needs, and other circumstances of each spouse and of any child for whom support is sought. [Emphasis added]

[163] The Supreme Court found, at para. 33, that Parliament chose, in drafting section 9, to emphasize the objectives of fairness, flexibility and recognition of the actual conditions, means, needs and other circumstances of children in shared parenting, even if to the detriment of the other three objectives, because there is a wide range of shared custody situations and the reality of different families must be recognized.

[164] The Supreme Court determined, at para. 3, that cases falling within the ambit of section 9 are not to be analyzed in the same manner as cases falling within the ambit of other sections because section 9 sets out a complete system of analysis that differs from the rest of the CSG.

[165] The Supreme Court elucidated that the section 9 analysis has two parts. First, a determination whether the 40 percent threshold is met – as it is in this case. Second, a flexible and fair exercise of a broad discretion that acknowledges the overall situation of the parents (conditions and means) and the needs of the children. The court found that the weight of each of the three conjunctive factors set out in section 9 varies with the particular facts – i.e. a contextual analysis is required.

[166] The Supreme Court specifically noted that a section 9 analysis is not to be approached in the same manner as a section 3 (sole custody), section 4 (high income) or section 8 (split custody) analysis.

[167] Whereas, for example, the CSG table amounts are presumptive under sections 3, 4, and 8, they are not presumptively applicable under section 9. In fact, section 9 is imperative that the court “must” determine the amount of child support in accordance with the three conjunctive factors listed in section 9. That approach allows for flexibility and consideration of the economic reality and particular circumstances of each family in order to ensure a fair level of support. Pursuant to section 9, child support may be less than, equal to, or more than the table amount, depending on the evidence.

[168] The Supreme Court determined that the section 9 analysis commences, pursuant to subsection 9(a), with a determination of the parties’ incomes for child support purposes, and is followed by a determination of a set-off of the table amounts which is a useful starting place, particularly in cases involving limited financial information and where incomes of the parties are not widely divergent (which is obviously not the case here). Nevertheless, in any situation, the court will depart from the set-off or make adjustments if the set-off is “inappropriate” in light of the factors in subsections 9(b) and/or 9(c).

[169] The set-off has no presumptive value in the section 9 analysis. Its value is in causing the court to focus on the principle that both parents must contribute to the support of the children and the requirement that the variable and fixed costs of both parents have to be measured before making adjustments to take into account any increased costs attributable to shared custody, and to ensure that the final outcome is fair in light of the conditions, means, needs and other circumstances of each parent and child (per subsections 9(b) and 9(c)). The court must bear in mind that the table amounts are an estimate of the amount notionally paid by a non-custodial parent to a single custodial parent, so when both parents make an effective contribution, it is necessary to verify how their actual contribution compares to the table amount for each of them - which will provide the court with better insight when deciding whether adjustments to the set-off are based on actual sharing of child-related expenses. The set-off does not take into consideration actual spending patterns as they relate to variable and fixed costs or the fact that fixed costs of the recipient parent are not reduced by increased spending by the payor parent.

[170] Subsections 9(b) and 9(c) indicate that the court has discretion to modify the set-off amount where, considering the financial realities of the parents, the set-off would lead to a significant variation in the standard of living experienced by the children as they move from one house to another. One of the overall objectives of the CSG is, to the extent possible, to avoid great disparities between the standards of living at the parents’ respective households. It is also necessary to compare the situation of the parents while living under one roof with the situation that avails for each of them when the order pursuant to section 9 is sought. As far as possible, the child should not suffer a noticeable decline in his or her standard of living. Still, it is not a discretion that is meant to set aside all rules and predictability.

[171] Subsection 9(b) recognizes that the total cost of raising children in shared custody may be greater than in sole custody situations because of the duplication of costs. Therefore, it is necessary to examine all of the parents’ costs (fixed and variable) in addressing the needs of the children. To that end, it is necessary to consider actual costs and child budgets, and to realize that not all costs relate to the percentage of time the child spends with each parent (e.g. one parent might pay a greater percentage of certain expenses), and to apportion the expenses between the parents in accordance with their incomes.

[172] Subsection 9(c) recognizes that not every dollar spent by the payor parent will lead to savings by the recipient parent because fixed costs do not change and variable costs may be reduced only modestly as a result of children being with the payor parent at least 40 percent of the time. Therefore, it is possible to presume, in the absence of evidence to the contrary, that little change has occurred for the recipient and the court should recognize the status quo when no evidence is adduced. It is important to keep in mind the objective of a fair standard of support for the children and a fair contribution from both parents. The court will be particularly concerned with the standard of living of the children in each household and the ability of each parent to absorb the costs required to maintain the appropriate standard of living. The analysis must be focused on the particular facts of each case (a contextual analysis). The court should require adequate financial information by means of financial statements and budgets to be able to analyze the resources and needs of the parents and children. Given the broad discretion conferred by subsection 9(c), a claim under section 7 for extraordinary expenses can be examined as part of the subsection 9(c) analysis with consideration of all of the other factors because 9(c) is broader than section 7.

[173] In short, section 9 requires: a determination of each parent’s income, a determination of each parent’s monthly expenditures attributable to the children (taking into account the possibility of duplication with regard to fixed or variable costs), a determination of the ratio of incomes between the parents, consideration of the net worth of each parent and their ability to absorb any increased costs of shared parenting, and consideration of any variation in the standard of living of the children since separation and between households.

[174] As a result of the new regular parenting schedule commencing in September 2018, IA will be in her father’s care less than 40 percent of the time, while LA will continue to be in his father’s care more than 40 percent of the time. In other words, IA will be in the primary care of her mother, whereas LA will be in a shared parenting arrangement.

[175] As noted in, for example, in Gauthier v. Hart 2011 ONSC 815, [2011] O.J. No. 1169 (SCJ) and Thompson v. Thompson 2013 ONSC 5500, [2013] O.J. No. 4001 (SCJ), a childcare arrangement such as this requires a hybrid support analysis which recognizes that the CSG table is based on economies of scale. The CSG table amount for two children is less than double the table amount for one child, and the table amount for three children is less than triple the table amount for one child and is also less than a 50 percent increase over the table amount for two children, and so on, because the table amounts are based on the assumption that the additional costs associated with caring for an incremental number of children are generally less per additional child.

[176] In the circumstances of the current case, a hybrid analysis mirrors a section 9 analysis except that the initial set-off amount is based on the CSG table amount notionally payable by each parent based on the total number of children in the other parent’s primary and/or shared care.

[177] Accordingly, to establish the set-off amount, because Ms. de Aquino has primary care of one child and shared care of a second child, the table amount notionally payable by Mr. Araujo is the table amount for two children. And, because Mr. Araujo has shared care of one child, the table amount notionally payable by Ms. de Aquino is the table amount for one child.

Positions of the Parties with Respect to Base Child Support

[178] Ms. de Aquino submitted that Mr. Araujo should have been paying the full table amount for both children since September 2015. She cited the disparity between the parties’ incomes and the fact that the children spent more time with her and, as a result, she paid for most of their usual expenses. She submitted he should have paid $2,138 per month in 2015, $1,961 per month in 2016, and $1,981 per month in 2017.

[179] Mr. Araujo submitted that he should not have to pay more than the set-off as a result of: the children spending almost equal time with each parent outside of school; the increased costs of shared parenting; the significant cost of section 7 CSG expenses; and, the fact that he had more debt, and fewer assets overall, than Ms. de Aquino.

[180] He suggested that he overpaid base child support by $7,116 from January 2016 to December 2017.

[181] He submitted that Ms. de Aquino’s annual income should be increased by $5,782 for support purposes due to her entitlement to sick days, vacation days, and statutory holidays.

[182] He suggested that, in order to avoid conflict between the parties, he should pay for all section 7 CSG expenses instead of paying base child support.

Analysis - 2015 (September to December)

[183] Ms. de Aquino’s line 150 income in 2015 was $55,833. The table amount for her income for two children was $829 per month.

[184] Mr. Araujo’s line 150 income in 2015 was $161,126. The table amount for his income for two children was $2,139 per month.

[185] The set-off amount was $1,310 per month.

[186] The combined incomes of the parties were $216,959. Ms. de Aquino’s share was about 25.7 percent. Mr. Araujo’s share was about 74.3 percent.

[187] Because Mr. Araujo’s income did not exceed the $150,000 threshold for section 9 by a great deal and because of the difficulties the parties have had with extra-curricular expenses, the court will consider section 7 expenses separately.

[188] The court finds that Ms. de Aquino spent a total of about $192 for solely child-related expenses, not including section 7 expenses, from September 1, 2015 to December 31, 2015 (based on Exhibits 63 and 162), or an average of about $50 per month.

[189] The evidence concerning Ms. de Aquino’s indirect child-related expenses during that period was deficient. The parties did not file any 2015 financial statements into evidence. Ms. de Aquino’s evidence about the parties’ “fixed” expenses in 2015 (found in Exhibit 62) cannot be relied upon given that her mortgage payment was inexplicably stated to be $2,044.53 instead of $1,255.76. Further, no sources were cited for any of the 2015 data in Exhibit 62.

[190] Given, however, that there was no evidence that her expenses changed significantly between 2015 and March, 2017, the court finds that the best evidence of her indirect child-related expenses for that period is the data in Ms. de Aquino’s sworn financial statement dated March 8, 2017 (Exhibit 124).

[191] Based on a detailed examination of Exhibit 124, the court finds that her indirect child-related expenses were about $5,800 per month. None of the expenses were unreasonable. Given that the children were residing with her about 56 percent of the time, the court finds that it is reasonable to allocate 60 percent of the indirect child-related expenses as solely child-related, which amounts to about $3,480 per month.

[192] Therefore, the court finds that her total solely child-related expenses in 2015, not including section 7 expenses, were about $3,530 per month.

[193] The court finds that Mr. Araujo spent a total of about $115 for solely child-related expenses, not including section 7 expenses, from September 1, 2015 to December 31, 2015 (based on Exhibit 63), or an average of $30 per month.

[194] It is unclear how much he spent for indirect child-related expenses during that period for the reasons noted above. Given that there was no evidence that his expenses changed significantly between 2015 and May 2017, the court finds that the best evidence is the data in Mr. Araujo’s May 30, 2017 sworn financial statement (Exhibit 161).

[195] Based on a detailed examination of Exhibit 161, the court finds that his indirect child-related expenses were about $5,180 per month. None of his expenses were unreasonable. Given that the children were residing with him about 44 percent of the time, the court finds that it is reasonable to allocate 50 percent of the indirect child-related expenses as solely child-related, which amounts to $2,590 per month.

[196] Therefore the court finds that his total solely child-related expenses, not including section 7 expenses, were about $2,620 per month.

[197] The total of child-related expenses paid by both parents was, therefore, about $6,150 per month, not including section 7 expenses. The evidence indicated little duplication of costs.

[198] Given the ratio of incomes, Ms. de Aquino should have spent about 25.7 percent of that amount or about $1,570 per month on child-related expenses. Given that she reasonably spent about $3,530 per month, a transfer to her of $1,960 per month would make up the difference, not including section 7 expenses.

[199] Ms. de Aquino was 39 years old during that time. She owned the semi-detached house in Aurora that she purchased around a year earlier for $495,000. It likely had increased in value. She had earned a pension asset, but it is unlikely that she had significant cash or equivalent on hand. Her mortgage payment was $1,255 per month and her property taxes were $350 per month.

[200] Mr. Araujo was 44 years old during that time. He had been renting the townhouse in Richmond Hill for about a year. He had no pension. He likely had significant funds in registered savings plans. He likely had more cash or equivalent on hand than Ms. de Aquino. His rent was $1,820 per month.

[201] Having considered all of the evidence, the court finds that the appropriate level of base child support for September to December 2015 was $1,700 per month, which is between the set-off amount of $1,310 and the differential transfer amount of $1,960.

Analysis – 2016

[202] Ms. de Aquino’s line 150 income in 2016 was $69,456. The table amount for her income for two children was $1,028 per month.

[203] Mr. Araujo’s line 150 income in 2016 was $145,069. The table amount for his income for two children was $1,954 per month.

[204] The set-off amount was $926 per month.

[205] The combined incomes of the parties were $214,525. Ms. de Aquino’s share was about 32.4 percent. Mr. Araujo’s share was about 67.6 percent.

[206] The court finds that Ms. de Aquino spent a total of about $1,160 for solely child-related expenses, not including section 7 expenses, during 2016 (based on Exhibits 63 and 162), or an average of about $100 per month.

[207] It is unclear how much she spent for indirect child-related expenses during that period, because the parties did not file any 2016 financial statements into evidence.

[208] Once again, however, given that there was no evidence that her expenses changed significantly between 2016 and March 2017, the best evidence is the data in Ms. de Aquino’s sworn financial statement dated March 8, 2017 (Exhibit 124).

[209] Based on Exhibit 124, the court finds that her indirect child-related expenses were about $5,800 per month. None of her expenses were unreasonable. Given that the children were residing with her about 56 percent of the time, the court finds that it is reasonable to allocate 60 percent of the indirect child-related expenses as solely child-related, which amounts to about $3,480 per month.

[210] Therefore, the court finds that her total solely child-related expenses, not including section 7 expenses, were about $3,580 per month in 2016.

[211] The court finds that Mr. Araujo spent a total of about $565 for solely child-related expenses, not including section 7 expenses, during 2016 (based on Exhibit 63), or an average of $50 per month.

[212] Again, given that there was no evidence that his expenses changed significantly between 2016 and May 2017, the finds that the best evidence is the data in his May 30, 2017 sworn financial statement (Exhibit 161).

[213] Based on Exhibit 161, the court finds that his indirect child-related expenses were about $5,180 per month. None of his expenses were unreasonable. Given that the children were residing with him about 44 percent of the time, the courts finds that it is reasonable to allocate 50 percent of the indirect child-related expenses as solely child-related, which amounts to $2,590 per month.

[214] Therefore the court finds that his total solely child-related expenses, not including section 7 expenses, were about $2,640 per month in 2016.

[215] The total of child-related expenses paid by both parents was, therefore, about $6,220 per month, not including section 7 expenses. The evidence indicated little duplication of costs.

[216] Given the ratio of incomes, Ms. de Aquino should have spent about 32.4 percent of that amount or about $2,015 per month on child-related expenses. Given that she reasonably spent about $3,580 per month, a transfer to her of $1,565 per month should make up the difference, not including section 7 expenses.

[217] Ms. de Aquino was 40 years old during that time. She owned the semi-detached house in Aurora that she purchased around August 2014 for $495,000. It likely had increased in value. She had a pension asset. It is unlikely that she had significant cash or equivalent on hand. Her mortgage payment was $1,255 per month and her property taxes were $350 per month.

[218] Mr. Araujo turned 45 years old during that time. He was renting the townhouse in Richmond Hill. He had no pension. He likely still had significant registered investment plans and more cash or equivalent than Ms. de Aquino. His rent was $1,820 per month.

[219] Having considered all of the evidence, the court finds that the appropriate level of base child support for 2016 was $1,250 per month, which is between the set-off of $926 and the differential transfer amount of $1,565.

Analysis - 2017 (January to July)

[220] The court does not accept Mr. Araujo’s submission that $5,782 should be added to Ms. de Aquino’s line 150 income in 2017 because she was entitled to sick days, vacation days, and statutory holidays, because these paid benefits are accounted for in line 150 income for a T4 employee.

[221] Ms. de Aquino’s line 150 income in 2017 was $72,790. The table amount for her income for two children was $1,074 per month.

[222] Mr. Araujo’s line 150 income in 2017 was $158,739. The table amount for his income for two children was $2,112 per month.

[223] The set-off amount was $1,038 per month.

[224] The combined incomes of the parties were $231,529. Ms. de Aquino’s share was about 31.4 percent. Mr. Araujo’s share was about 68.6 percent.

[225] Because Mr. Araujo’s income did not exceed the $150,000 threshold for section 9 by a great deal and because of the difficulties the parties have had with extra-curricular expenses, the court will consider section 7 expenses separately.

[226] The court finds that Ms. de Aquino spent a total of about $427 for solely child-related expenses, not including section 7 expenses, until the commencement of the trial (based on Exhibits 63 and 162), or an average of about $40 per month.

[227] Ms. de Aquino’s sworn financial statement dated October 6, 2017 (Exhibit 66) provides a reasonable account of her indirect child-related expenses.

[228] Based on a detailed examination of Exhibit 66, the court finds that her indirect child-related expenses were about $5,800 per month. Given that the children were residing with her about 56 percent of the time, the court finds that it is reasonable to allocate 60 percent of the indirect child-related expenses as solely child-related, which amounts to about $3,480 per month.

[229] Therefore, the court finds that her total solely child-related expenses, not including section 7 expenses, were about $3,520 per month during this period.

[230] The court finds that Mr. Araujo spent a total of about $480 for solely child-related expenses, not including section 7 expenses, until the commencement of the trial (based on Exhibit 63), or an average of $40 per month.

[231] Mr. Araujo’s October 13, 2017 sworn financial statement (Exhibit 67) provides a reasonable account of his indirect child-related expenses.

[232] Based on a detailed examination of Exhibit 67, the court finds that his indirect child-related expenses were about $5,180 per month. None of his expenses were unreasonable. Given that the children were residing with him about 44 percent of the time, the courts finds that it is reasonable to allocate 50 percent of the indirect child-related expenses as solely child-related, which amounts to $2,590 per month.

[233] Therefore the court finds that his total solely child-related expenses, not including section 7 expenses, were about $2,630 per month during this period.

[234] The total of child-related expenses paid by both parents was, therefore, about $6,150 per month, not including section 7 expenses. The evidence indicated that there was very little duplication of costs.

[235] Given the ratio of incomes, Ms. de Aquino should have spent about 31.4 percent of that amount or about $1,931 per month on child-related expenses. Given that she reasonably spent about $3,520 per month, a transfer to her of $1,589 per month should make up the difference, not including section 7 expenses.

[236] Ms. de Aquino was 41 years old during that time. She owned the semi-detached house in Aurora that she purchased around August 2014 for $495,000. It likely had increased in value. Her mortgage payment was $1,255 and her property taxes were $350 per month. She had a pension asset. It is unlikely that she had significant cash or equivalent on hand.

[237] Mr. Araujo turned 46 years old during that time. He was renting a townhouse in Richmond Hill. He did not have a pension. He likely still had significant registered investment plans and more cash or equivalent on hand than Ms. de Aquino. His rent was $1,820 per month.

[238] Having considered all of the evidence, the court finds that $1,220 per month was the appropriate amount for base child support from January to July 2017, which is between the set-off of $1,038 and the differential transfer amount of $1,589.

Analysis - 2017 (August to December)

[239] This period is analyzed separately from January to July 2017, because Mr. Araujo purchased a house in July 2017, which changed his financial circumstances.

[240] Because Ms. de Aquino unilaterally changed to the status quo of the parenting schedule with respect to IA, from September 2017 until the court restored the status quo in December 2017, the court will determine base child support for this period without considering the unapproved temporary change in the parenting schedule.

[241] Ms. de Aquino’s line 150 income in 2017 was $72,790. The table amount for her income for two children was $1,074 per month, until November 22, 2017, when the table amount changed to $1,105 per month.

[242] Mr. Araujo’s line 150 income in 2017 was $158,739. The table amount for his income for two children was $2,112 per month, until November 22, 2017, when the table amount changed to $2,182 per month.

[243] The set-off amount was $1,038 per month, until November 22, 2017, when the set-off amount changed to $1,077 per month.

[244] The combined incomes of the parties were $231,529. Ms. de Aquino’s share was about 31.4 percent. Mr. Araujo’s share was about 68.6 percent.

[245] Because Mr. Araujo’s income did not exceed the $150,000 threshold for section 9 by a great deal and because of the difficulties the parties have had with extra-curricular expenses, the court will consider section 7 expenses separately.

[246] The court finds that Ms. de Aquino spent a total of about $427 for solely child-related expenses, not including section 7 expenses, until the commencement of the trial (based on Exhibits 63 and 162), or an average of about $40 per month.

[247] Ms. de Aquino’s sworn financial statement dated October 6, 2017 (Exhibit 66) provides a reasonable account of her indirect child-related expenses.

[248] Based on Exhibit 66, the court finds that her indirect child-related expenses were about $5,800 per month. Given that the children were residing with her about 56 percent of the time, the court finds that it is reasonable to allocate 60 percent of the indirect child-related expenses as solely child-related, which amounts to about $3,480 per month.

[249] Therefore, the court finds that her total solely child-related expenses, not including section 7 expenses, were about $3,520 per month during this period.

[250] The court finds that Mr. Araujo spent a total of about $480 for solely child-related expenses, not including section 7 expenses, until the commencement of the trial (based on Exhibit 63), or an average of $40 per month.

[251] Mr. Araujo’s October 13, 2017 sworn financial statement (Exhibit 67) provides a reasonable account of his indirect child-related expenses.

[252] Based on Exhibit 67, the court finds that his indirect child-related expenses were about $5,920 per month. None of his expenses were unreasonable. Given that the children were residing with him about 44 percent of the time, the courts finds that it is reasonable to allocate 50 percent of the indirect child-related expenses as solely child-related, which amounts to $2,960 per month.

[253] Therefore the court finds that his total solely child-related expenses, not including section 7 expenses, were about $3,000 per month during this period.

[254] The total of child-related expenses paid by both parents was, therefore, about $6,520 per month, not including section 7 expenses. The evidence indicated that there was very little duplication of costs.

[255] Given the ratio of incomes, Ms. de Aquino should have spent about 31.4 percent of that amount or about $2,047 per month on child-related expenses. Given that she reasonably spent about $3,520 per month, a transfer to her of $1,473 per month should make up the difference, not including section 7 expenses.

[256] Ms. de Aquino was 41 years old during that time. She owned the semi-detached house in Aurora that she purchased around August 2014 for $495,000. It likely had increased in value. Her mortgage debt was about $274,000. Her mortgage payment was $1,255 per month. She had a pension asset. It is unlikely that she had significant cash or equivalent on hand. She had significant personal debt.

[257] Mr. Araujo turned 46 years old during that time. He purchased a townhouse in Aurora for $675,000 in July 2017. His mortgage debt was about $540,000. His mortgage payment was $2,437 per month. He did not have a pension, but it is likely that he still had significant registered investment plans and he likely had more cash and equivalent than Ms. de Aquino. He did not have significant personal debt.

[258] Having considered all of the evidence, the court finds that $1,150 per month was the appropriate amount for base child support from August to December, 2017, which is between the set-off of $1,038 or $1,077 and the differential transfer amount of $1,473.

Analysis - 2018 (January to August)

[259] During this period, Ms. de Aquino’s weekly line 150 income, including her severance pay, has been $1,554 (Exhibit 175), or $80,800 annualized. The table amount for this income for two children is $1,223 per month.

[260] Mr. Araujo’s line 150 income in 2018 likely will be about $163,000. The table amount for this income for two children is $2,233 per month.

[261] The set-off amount is $1,010 per month.

[262] The combined annualized incomes of the parties during this period is $243,800. Ms. de Aquino’s share was about 33.1 percent. Mr. Araujo’s share was about 66.9 percent.

[263] Because Mr. Araujo’s annual income has not exceeded the $150,000 threshold for section 9 by a great deal and because of the difficulties the parties have had with extra-curricular expenses, the court will consider section 7 expenses separately.

[264] Based on Ms. de Aquino’s financial history since 2015, and a detailed examination of her budget for 2018 (Exhibit 171), she has likely spent about $300 per month for direct child-related expenses, not including section 7 expenses, but including hair care and allowance, during this period.

[265] Based on the same evidence, her indirect child-related expenses likely have been about $6,000 per month at during this period. Given that the children have been residing with her about 56 percent of the time, the court finds that it is reasonable to allocate 60 percent of the indirect child-related expenses as solely child-related, which amounts to about $3,600 per month during this period.

[266] Therefore, the court finds that her total solely child-related expenses, not including section 7 expenses, have been about $3,900 per month for direct child-related expenses, during this period.

[267] Based on Mr. Araujo’s financial history since 2015, and a detailed examination of his budget for 2018 (Exhibit 172), he likely has spent about $100 per month for direct child-related expenses, not including section 7 expenses, during this period.

[268] Based on the same evidence, his indirect child-related expenses likely have been about $6,600 per month during this period. Given that the children were residing with him about 44 percent of the time, the courts finds that it is reasonable to allocate 50 percent of the indirect child-related expenses as solely child-related, which amounts to $3,300 per month.

[269] Therefore the court finds that his total solely child-related expenses, not including section 7 expenses, have been about $3,400 per month during this period.

[270] The total of child-related expenses paid by both parents, therefore, likely has been about $7,300 per month during this period. The budgets indicate some duplication of costs. The court finds that Ms. de Aquino likely has paid for hair care for children and provided them with an allowance.

[271] Given the ratio of incomes, Ms. de Aquino should have spent about 33.1 percent of that amount or about $2,416 per month on child-related expenses. Given that she likely reasonably spent about $3,680 per month, a transfer to her of $1,264 per month should make up the difference, not including section 7 expenses.

[272] Ms. de Aquino was 42 years old during this time. She owned the semi-detached house in Aurora that she purchased around August 2014 for $495,000. It likely had increased in value. Her mortgage debt was about $274,000. Her mortgage payment was $1,255 per month. She had a pension asset, but it is unlikely that she had significant cash or equivalent on hand. She has significant personal debt.

[273] Mr. Araujo turned 47 years old during this time. He owned a townhouse in Aurora that he purchased in July 2017 for $675,000. His mortgage debt was about $540,000. His mortgage payment was $2,437 per month. He did not have a pension, but he likely still had significant registered investment plans and he likely had more cash and equivalent than Ms. de Aquino. He likely did not have significant debt.

[274] Having considered all of the evidence, the court finds that $1,150 per month is the appropriate amount for base child support from January to August 2018, which is between the set-off of $1,010 and the differential transfer amount of $1,264.

Analysis – September 1, 2018 and Forward

[275] As a result of the new regular parenting schedule commencing in September 2018, IA will be in her father’s care less than 40 percent of the time, while LA will continue to be in his father’s care more than 40 percent of the time. In other words, IA will be in the primary care of her mother, whereas LA will be in a shared parenting arrangement.

[276] As noted earlier, in the circumstances of this case, the required hybrid analysis mirrors a section 9 analysis except that the initial set-off amount is based on the CSG table amount notionally payable by each parent based on the total number of children in the other parent’s primary and/or shared care.

[277] Accordingly, to establish the set-off amount, because Ms. de Aquino has primary care of one child and shared care of a second child, the table amount notionally payable by Mr. Araujo is the table amount for two children. And, because Mr. Araujo has shared care of one child, the table amount notionally payable by Ms. de Aquino is the table amount for one child.

[278] Mr. Araujo’s line 150 income in 2018 likely will be about $163,000. The table amount for this income for two children is $2,233 per month.

[279] Ms. de Aquino’s income after her severance pay period ends on September 5, 2018 is uncertain. She might be receiving the maximum EI benefit of $547 per week (about $28,224 annualized), or, according to Ms. de Aquino’s testimony, if she obtains an administrative assistant position, she might be earning an annual income between $52,000 and $60,000, or, if she obtains a position similar to, or better than, her former position as an instructional designer at Mackenzie Health, she might be earning an annual income in the vicinity of $80,000.

[280] Ms. de Aquino is young, well-educated, and she has considerable experience as an administrative assistant. She earned $55,833 as an administrative assistant in 2015.

[281] The court finds, on a temporary without prejudice basis, that Ms. de Aquino likely should be able to obtain re-employment earning at least $55,000 per annum by September 5, 2018, which will be 4 months after she was laid off.

[282] The table amount for one child based on an annual income of $55,000 is $507 per month.

[283] Accordingly, the set-off amount is $1,726 per month.

[284] The combined annualized income of the parties likely will be about $218,000. Ms. de Aquino’s share likely will be about 25.2 percent and Mr. Araujo’s share likely will be about 74.8 percent.

[285] Because Mr. Araujo’s income likely will not exceed the $150,000 threshold for section 9 by a great deal and because of the difficulties the parties have had with extra-curricular expenses, the court will consider section 7 expenses separately.

[286] Based on Ms. de Aquino’s financial history since 2015, and her budget for 2018 (Exhibit 171), the court finds that she likely will spend about $400 per month for direct child-related expenses, not including section 7 expenses, but including hair care and allowance.

[287] Based on her financial history since 2015 and her budget, the court finds that her indirect child-related expenses likely will continue to be about $6,000 per month. Given that IA will reside with her about 67 percent of the time and LA will reside with her about 56 percent of the time, the court finds that it is reasonable to allocate 65 percent of her indirect child-related expenses as solely child-related, which amounts to about $3,900 per month.

[288] Therefore, the court finds that her total solely child-related expenses, not including section 7 expenses, likely will be about $4,300 per month.

[289] Based on Mr. Araujo’s financial history since 2015, and his budget for 2018 (Exhibit 172), the court finds that he likely will spend about $100 per month for direct child-related expenses, not including section 7 expenses.

[290] Based on his financial history since 2015 and his budget, the court finds that his indirect child-related expenses likely will be about $6,400 per month. Given that IA will reside with him about 33 percent of the time and LA will reside with him about 44 percent of the time, the courts finds that it is reasonable to allocate 40 percent of the indirect child-related expenses as solely child-related, which amounts to $2,560 per month.

[291] Therefore, the court finds that his total solely child-related expenses, not including section 7 expenses, likely will be about $2,660 per month.

[292] The total of child-related expenses paid by both parents, therefore, likely will be about $6,960 per month. The budgets indicate some duplication of costs. The court finds that Ms. de Aquino likely will pay for hair care and allowance.

[293] Given the ratio of incomes, Ms. de Aquino should spend about 25.2 percent of that amount or $1,754 per month on child-related expenses. Given that she likely will and reasonably spend about $4,300 per month, a transfer to her of $2,546 per month would make up the difference, not including section 7 expenses.

[294] Ms. de Aquino is 42 years old. She owns the semi-detached house in Aurora that she purchased around August 2014 for $495,000. It likely has increased in value. Her mortgage debt is around $274,000. Her mortgage payment is $1,255 per month. She has a pension asset. It is unlikely that she has significant cash or equivalent on hand. She has significant personal debt.

[295] Mr. Araujo is 47 years old. He owns the townhouse in Aurora that he purchased in July 2017 for $675,000. His mortgage debt is about $540,000. His mortgage payment is $2,437 per month. He does not have a pension, but he likely still has significant funds in registered investment plans, and he likely has more cash and equivalent than Ms. de Aquino. He does not have significant personal debt.

[296] The court bears in mind that the full table amount for two children based on an income of $163,000 is $2,233 per month. The court also bears in mind that the full table amount for one child based on an income of $163,000 is $1,393 per month.

[297] The court also bears in mind that a section 9 child support analysis can result in a child support payment that is less than, the same as, or exceeds, the table amount.

[298] Having considered all of the evidence, the court finds that $2,000 per month is the appropriate amount for base child support commencing September 1, 2018, which is between the set-off of $1,726 per month and the differential transfer amount of $2,546 per month. It is also between the set-off amount of $1,726 and the table amount for two children of $2,233 per month.

[299] Because there is uncertainty about Ms. de Aquino’s income after July 26, 2018, the on-going child support order shall be a temporary without prejudice order until December 31, 2018, when it shall become of final order unless either party serves (by email) and files, on or before November 15, 2018, a Notice of Motion with a supporting Affidavit, requesting to lead additional evidence about Ms. de Aquino’s income and/or her effort to earn income since July 26, 2018 and/or seeking to make submissions about the amount of income that should be attributed or imputed to Ms. de Aquino on an on-going basis. A copy of any such motion and affidavit shall be sent by email to my judicial secretary upon filing.

Arrears

[300] Payment of child support in accordance with the temporary order was up to date on July 26, 2018. Based on the final child support orders from September 2015 to July 2018, both months inclusive, Mr. Araujo owed Ms. de Aquino $1,488 for child support arrears as at that date.

Spousal Support

Law in relation to Spousal Support

[301] The court is guided by section 15.2 of the Divorce Act with respect to spousal support. Subsections 15.2 (4), (5), and (6) provide:

(4) FACTORS – In making an order [for spousal support] 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 the support of either spouse.

(5) SPOUSAL MISCONDUCT – In making an order [for spousal support] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

(6) OBJECTIVES OF SPOUSAL SUPPORT ORDER – An order that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion 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 period of time.

[302] These provisions speak to three different types of entitlement to spousal support: compensatory, contractual, and non-compensatory, as elucidated by the Supreme Court in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420.

Positions of the Parties with respect to Spousal Support

[303] Ms. de Aquino emphasized that Mr. Araujo has always earned considerably more than her before and after separation. She underlined that she will never be able achieve the same earning level as Mr. Araujo even though she has taken steps to increase her income and become more self-sufficient since separation. She noted that Mr. Araujo has not done the same – in fact, his income decreased since separation.

[304] Ms. de Aquino submitted that she should receive support in the high range of the Spousal Support Advisory Guidelines, (Ottawa: Department of Justice, 2008) (SSAG) because she pays for everyday expenses such as the children’s clothing, and because she sacrificed advancement of her career to care for the children and take them to extra-curricular activities, while Mr. Araujo advanced his career.

[305] She submitted that the court should find that Mr. Araujo underpaid spousal support by $2,230 during the period of September to December 2015, and he overpaid spousal support by $7,788 in 2016, and he overpaid spousal support by $5,192 during the period of January to August 2017. She suggested that he should pay $1,150 per month in spousal support commencing September 1, 2017.

[306] She submitted that she is entitled to spousal support for 13.5 years on a compensatory and non-compensatory basis. She suggested that the duration should be lengthy because of her career sacrifices to care for the children, which allowed Mr. Araujo’s career to advance.

[307] Mr. Araujo emphasized that he and Ms. de Aquino shared responsibilities for the children and the home throughout their marriage. He underlined that they had a full-time nanny during the week to care for the children so that he and Ms. de Aquino could focus on their careers. He noted that the children were always enrolled in daycare, before and after school daycare, and summer camps during the marriage. He submitted that neither party had foregone any career, training, or educational opportunities. He maintained that there was no valid reason for Ms. de Aquino to reduce her working hours for about a year commencing in April 2013. He underlined that their marriage was not a “traditional” marriage.

[308] Mr. Araujo submitted that Ms. de Aquino can continue to increase her income, as she has done since separation, because she is young, healthy, well-educated, experienced, and intelligent. He underlined that he funded almost all of the fee for her Master Certification in Project Management. He suggested that by paying spousal support since separation he has already provided Ms. de Aquino with a full opportunity to transition to self-sufficiency.

[309] Mr. Araujo submitted that Ms. de Aquino owes him $22,884 for overpayment of spousal support from September 2015 to December 2017. He suggested that he should pay $570 per month in spousal from January 1, 2018 until December 31, 2020 when spousal support should terminate.

Analysis – Spousal Support

[310] Ms. de Aquino’s claim for entitlement on a compensatory basis is not strong, but the court finds that she has, nevertheless, established compensatory entitlement. The court finds that she did not have a managerial position in Brazil. Her duties at the plastic surgery company, including buying groceries, were not managerial. Nor were her duties at her father’s company, where she made no final decisions and did not manage any of the three other employees. Her employment in Canada as an administrative assistant was commensurate with her experience in Brazil. Her position as an instructional designer was an advancement. Based on the evidence, the court is unable to find that she was prevented from advancing sooner by her contributions to the family. Nevertheless, she was unable to work for about 18 months after she came to Canada and she missed two years of employment due to two maternity leaves. During all three periods, she provided unpaid domestic services which benefitted Mr. Araujo who could focus on his career. Further, even when Ms. de Aquino was working full-time and the parties had a full-time nanny, she made a significant domestic contribution by picking up the children from daycare and taking them to extra-curricular activities, which allowed Mr. Araujo to work later in the day to the benefit of his career. The court recognizes that Mr. Araujo also contributed to Ms. de Aquino’s career by taking the children to daycare in the morning, which permitted Ms. de Aquino to go to work early to the benefit of her career, but his contribution to her career does not nullify her contribution to his. With the exception of the period of about a year, extending from about five months before separation until about seven months after separation, during which she worked reduced hours, Ms. de Aquino has been hard-working and focused on advancing her career as much as her contributions to the family would permit. Since separation, she changed jobs and reduced her vacation entitlement in order to earn more income.

[311] The court is also satisfied that Ms. de Aquino has a non-compensatory entitlement to spousal support. Her income has always been considerably less than Mr. Araujo’s income. She has suffered an economic disadvantage as a result of the breakdown of the marriage. She is need of spousal support, and he is in a position to pay spousal support.

[312] In 2015, her income was $55,833, and his income was $161,126. They were in a shared parenting situation and he was obliged to pay her child support for two children in the amount of $1,700 per month.

[313] She owned a semi-detached house in Aurora which likely had increased in value since being purchased the previous year. Her mortgage payment was $1,255 per month. She did not have significant cash or equivalent. She had a pension asset. He was renting a townhouse in Richmond Hill for $1,820 per month. He did not have a pension asset, but he had significant registered savings plans, and likely more cash or equivalent than her.

[314] Having considered all the means, needs, and other circumstances of the parties, the court finds that Mr. Araujo shall pay Ms. de Aquino spousal support in the amount of $1,575 per month for the period of September to December, 2015. This means that Mr. Araujo had about 48.5 percent of net disposable income (NDI) and about 57 percent of individual net disposable income (INDI). This amount is about the mid-point of the SSAG.

[315] In 2016, Ms. de Aquino’s income was $69,456, and Mr. Araujo’s income was $145,069. They were still in a shared parenting situation and he was obliged to pay her child support for two children in the amount of $1,250 per month. Their individual financial circumstances were similar to 2015, except that Ms. de Aquino’s home likely had increased more in value.

[316] Having considered all the means, needs, and other circumstances of the parties, the court finds that Mr. Araujo shall pay Ms. de Aquino spousal support in the amount of $750 per month during 2016. This means that Mr. Araujo had about 50.1 percent of NDI and about 57 percent of INDI. This amount is slightly higher than the mid-point of the SSAG.

[317] In 2017, Ms. de Aquino’s income was $72,790 and Mr. Araujo’s income was $158,739. They were still in a shared parenting situation, and he was obliged to pay her child support for two children in the amount of $1,220 per month during the period of January to July, and $1,150 per month during the period of August to December. Mr. Araujo purchased a townhouse in Aurora in July. His mortgage debt was about $540,000. His mortgage payment was $2,437 per month. Ms. de Aquino’s mortgage was about $274,000. Her mortgage payment was $1,255 per month. She had significant personal debt and he did not.

[318] Having considered all the means, needs, and other circumstances of the parties, the court finds that Mr. Araujo shall pay Ms. de Aquino spousal support in the amount of $1,100 per month for the period of January to July, 2017, and $1,200 per month for the period of August to September, 2017. This means that Mr. Araujo had about 51 percent of NDI and about 57 percent of INDI. This amount is about the mid-point of the SSAG.

[319] During the period of January to August, 2018, Ms. de Aquino’s annualized income has been $80,800 and Mr. Araujo’s annual income likely will be about $163,000. They have been in a shared parenting situation from January until August and he was obliged to pay her child support in the amount of $1,150 per month.

[320] Commencing in early September 2018, IA will be residing primarily with her mother, and LA will remain in a shared parenting arrangement. On a without prejudice basis, the court has found that Ms. de Aquino likely should be able to obtain re-employment by early September with an annual income of least $55,000. As a result, Mr. Araujo will be obliged to pay child support in the amount of $2,000 per month. The parties’ other financial circumstances are likely similar to 2017.

[321] Having considered all the means, needs, and other circumstances of the parties, the court finds that Mr. Araujo shall pay Ms. de Aquino spousal support in the amount of $800 per month for the period of January to August 2018. This means that Mr. Araujo would have about 51.1 percent of NDI and about 56 percent of INDI. This amount is slightly above the mid-point of the SSAG.

[322] Payment of spousal support in accordance with the temporary order was up to date on July 26, 2018. Based on the final spousal support orders from September 2015 to July 2018, both months inclusive, Ms. de Aquino owed Mr. Araujo $22,458 for overpayment of spousal support as at that date.

[323] Having considered all the means, needs, and other circumstances of the parties, the court finds that Mr. Araujo is obliged to pay Ms. de Aquino on-going spousal support in the amount of $1,500 per month commencing September 1, 2018. This means that Mr. Araujo likely will have about 46.4 percent of NDI and about 57 percent of INDI. This amount is about the mid-point of the SSAG.

[324] Because there is uncertainty about Ms. de Aquino’s income after July 26, 2018, the on-going spousal support order shall be temporary and without prejudice until December 31, 2018, when it will become of final order unless either party serves (by email) and files, on or before November 15, 2018, a Notice of Motion with a supporting Affidavit, requesting to lead additional evidence about Ms. de Aquino’s income and/or her effort to earn income since July 26, 2018 and/or make submissions about the amount of income to attribute or impute to Ms. de Aquino on an on-going basis. A copy of any such motion and affidavit shall be sent by email to my judicial secretary upon filing.

[325] The amount of spousal support may be reviewed at any time if there is a significant change to the amount of child support payable.

[326] Based on all of the considerations canvassed above, the court finds that payment of spousal support shall terminate on August 29, 2026, which is 13 years from the date of separation. That period of support will provide Ms. de Aquino with a reasonable timeframe within which to advance her career and to become fully self-sufficient.

Special and Extraordinary Child Expenses (Section 7 CSG)

Positions of the Parties

[327] Ms. de Aquino submitted that Mr. Araujo underpaid section 7 expenses by $9,301 from September 2015 to December 2017.

[328] Mr. Araujo submitted that he overpaid section 7 expenses by $7,248 from September 2015 to December 2017. He suggested that he should pay all section 7 expenses on an on-going basis instead of paying base child support. He suggested that section 7 expenses should total about $16,650 per year.

Analysis – Section 7 Expenses

[329] The court finds that in the particular circumstances of the parties, taking into account the necessity of expenses in relation to the children’s best interests and the reasonableness of expenses in relation to the means of the parties and to their spending pattern prior to separation: childcare expenses; extraordinary expenses for extra-curricular activities and education; and, health-related expenses that exceed insurance reimbursement by at least $100 annually, shall be paid proportionately by the parties as set out below.

[330] In addition, subject to a contribution by a child that is reasonable in all of the child’s circumstances at the time, the parties shall pay their proportionate share of reasonable post-secondary expenses for each child, including, without limiting the foregoing, tuition, books, computers, educational and other supplies, residence fees, accommodation, food, transportation, and clothing.

[331] The court finds that the section 7 expense summaries, and the section 7 expense amounts entered in the DivorceMate calculations filed by parties, are inexplicably divergent and unreliable. The court has, therefore, relied upon copies of the actual receipts filed in Exhibits 150, 164, and 165.

[332] During the period of September to December 2015, based on their incomes after the payment of spousal support, the court finds that Mr. Araujo was responsible for 66 percent and Ms. de Aquino was responsible for 33 percent of section 7 expenses.

[333] The court finds that Ms. de Aquino paid about $3,433 and Mr. Araujo paid about $5,891 for section 7 expenses during that period. The total paid was about $9,324. Ms. de Aquino’s share was $3,076. As a result, Mr. Araujo owes her $357 for section 7 expenses in 2015.

[334] In 2016, based on their incomes after the payment of spousal support, the court finds that Mr. Araujo was responsible for 63 percent and Ms. de Aquino was responsible for 37 percent of section 7 expenses.

[335] The court finds that Ms. de Aquino paid about $3,638 and Mr. Araujo paid about $8,470 for section 7 expenses in 2016. The total paid was about $12,108. Ms. de Aquino’s share was $4,479. As a result, Ms. de Aquino owes Mr. Araujo $841 for section 7 expenses in 2016.

[336] In 2017, based on their incomes after the payment of spousal support, the court finds that Mr. Araujo was responsible for 63 percent and Ms. de Aquino was responsible for 37 percent of section 7 expenses.

[337] The court finds that during the period of January to October 2017, Ms. de Aquino paid about $7,097 and Mr. Araujo paid about $3,120 for section 7 expenses. The total paid was about $10,217. Ms. de Aquino’s share was $3,780. As a result, Mr. Araujo owes her $3,317 for section 7 expenses from January to October, 2017.

[338] In summary, Mr. Araujo owes Ms. de Aquino $2,833 in arrears for section 7 expenses for the period of September 2015 to October 2017, both dates inclusive.

[339] The parties shall immediately reimburse each other for their percentage share of section 7 expenses incurred since October 2017.

[340] As indicated above, for the period of November and December 2017, Mr. Araujo’s share was 63 percent and Ms. de Aquino’s share was 37 percent.

[341] For the period of January to August, 2018, based on their annualized incomes, after the payment of spousal support, the court finds Mr. Araujo is responsible for 63 percent and Ms. de Aquino is responsible for 37 percent of section 7 expenses.

[342] Commencing September 1, 2018, based on their estimated incomes after the payment of spousal support, the court finds that Mr. Araujo is responsible for 67 percent and Ms. de Aquino is responsible for 33 percent of section 7 expenses.

[343] Because there is uncertainty about Ms. de Aquino’s income after July 26, 2018, the on-going section 7 expenses order shall be a temporary without prejudice order until December 31, 2018, when it shall become of final order unless either party serves (by email) and files, on or before November 15, 2018, a Notice of Motion with a supporting Affidavit, requesting to lead additional evidence about Ms. de Aquino’s income and/or her effort to earn income since July 26, 2018 and/or seeking to make submissions about the amount of income that should be attributed or imputed to Ms. de Aquino on an on-going basis. A copy of any such motion and affidavit shall be sent by email to my judicial secretary upon filing.

[344] In order to avoid possible future disagreement between the parties about the reasonable total amount of section 7 extra-curricular activities for which each parent is proportionately responsible, the court finds that it is appropriate in this case to set an annual maximum per calendar year. Because the parties’ combined income is significant, the maximum total annual proportionately shared section 7 expenses for extra-curricular activities shall be $7,500 for each child. If Ms. de Aquino enrolls a child in section 7 extra-curricular activities that exceed a total cost of $7,500 per calendar year, she shall be solely responsible for the cost above $7,500 for that child for that calendar year.

[345] For the same reason, the court will provide the parties with some guidance about what constitutes a section 7 expense in their circumstances. Commencing November 1, 2017, reimbursable section 7 expenses shall include daycare for IA (until IA is 13 years old), extra-curricular physical, musical, artistic, and cultural activities, school uniform expenses (except footwear), school-related activity fees of $20 or more (including pizza day amounts), public transit passes, reasonable regular monthly cell phone fees, and electronic devices recommended by the child’s school. This list is not intended to be exhaustive.

[346] Expenses that will not qualify as section 7 expenses include clothing that is not part of a school uniform, regular school supplies, regular backpacks for school, school-related activity fees less than $20 each, and school agendas. This list is not intended to be exhaustive.

Costs

[347] If the parties are unable to agree on the issue of costs, either party may serve and file brief written submissions on costs, including any offers to settle, within 30 days from the date that all orders in this matter become final. Upon service, the other party shall have 30 days to serve and file brief written responding submissions. Upon service of responding materials, the first party shall have 15 days to serve and file a very brief written reply.

Orders

[348] Orders to go as follows:

1. On a final basis, Ms. de Aquino and Mr. de Araujo shall have joint custody of LA and IA, except that Ms. de Aquino shall determine each child’s extra-curricular activities, after giving Mr. de Araujo a reasonable opportunity to express his views in writing and giving his written views serious consideration.

2. The regular parenting schedule terms set out in paragraphs 1 and 2 of the temporary order dated December 15, 2017 are final for LA.

3. The regular parenting schedule terms set out in paragraphs 1 and 2 of the temporary order dated December 15, 2017 are final for IA, except that commencing the first Saturday in September 2018 that IA is scheduled to be in the care of her mother in accordance with the regular parenting schedule, the regular parenting schedule shall be varied as follows:

a. IA shall be with her father every week from Monday, when school starts, until Tuesday, when school starts;

b. IA shall be in the care of her mother every week from Tuesday, when school starts, until Friday at 6 p.m.;

c. On the first weekend of this schedule, IA will be in the care of her mother from Friday at 6 p.m. until Monday, when school starts;

d. On the second weekend of this schedule, IA will be in the care of her father from Friday at 6 p.m. until Monday, when school starts; and,

e. The parenting schedule for IA will repeat every two weeks unless overridden by the holiday and vacation schedule set out in paragraph 3 of the temporary order dated December 15, 2017.

4. The holiday and vacation parenting schedule terms set out in paragraph 3 of the temporary order dated December 15, 2015 are final for LA and IA.

5. Paragraphs 4 (Right of First Refusal) and 5 (Emergency Medical Care) set out in the temporary order dated December 15, 2017 are final.

6. The temporary travel terms set out in paragraphs 6, 7, and 8 of the temporary order dated December 15, 2015 are final, except that Ms. de Aquino shall keep in her possession important documents such as birth certificates and passports for both children, and the cost of passport renewals for the children shall be deemed to be a section 7 expense.

7. The communication terms set out in paragraphs 9, 10, and 11 of the temporary order dated December 15, 2015 are final, except that the reference to “(3.2)” is deleted.

8. On a final basis, Mr. de Araujo shall pay Ms. de Aquino child support in the amount of $1,700 per month for the period of September to December 2015 (both months inclusive).

9. On a final basis, Mr. de Araujo shall pay Ms. de Aquino child support in the amount of $1,250 per month for 2016.

10. On a final basis, Mr. de Araujo shall pay Ms. de Aquino child support in the amount of $1,220 per month for the period of January to July 2017 (both months inclusive).

11. On a final basis, Mr. de Araujo shall pay Ms. de Aquino child support in the amount of $1,150 per month for the period of August to December 2017 (both months inclusive).

12. On a final basis, Mr. de Araujo shall pay Ms. de Aquino child support in the amount of $1,150 per month for the period of January to August 2018 (both months inclusive).

13. On a final basis, arrears of child support are fixed at $1,488 as at July 26, 2018. Mr. de Araujo shall pay these arrears to Ms. de Aquino at the rate of $100 per month commencing September 1, 2018 until paid in full.

14. On a temporary without prejudice basis, Mr. de Araujo shall pay Ms. de Aquino child support in the amount of $2,000 per month commencing September 1, 2018. This on-going child support order shall become final on December 31, 2018, unless either Mr. Araujo or Ms. de Aquino serves (by email) and files, on or before November 15, 2018, a Notice of Motion with a supporting Affidavit, requesting to lead additional evidence about Ms. de Aquino’s income and/or her effort to earn income since July 26, 2018, and/or seeking to make submissions about the amount of income that should be attributed or imputed to Ms. de Aquino on an on-going basis. A copy of any such motion and affidavit shall be sent by email to Graham J.’s judicial secretary upon filing.

15. On a final basis, Mr. de Araujo shall pay Ms. de Aquino spousal support in the amount of $1,575 per month for the period of September to December 2015 (both months inclusive).

16. On a final basis, Mr. de Araujo shall pay Ms. de Aquino spousal support in the amount of $750 per month for 2016.

17. On a final basis, Mr. de Araujo shall pay Ms. de Aquino spousal support in the amount of $1,100 per month for the period of January to July 2017 (both months inclusive).

18. On a final basis, Mr. de Araujo shall pay Ms. de Aquino spousal support in the amount of $1,200 per month for the period of August to December 2017 (both months inclusive).

19. On a final basis, Mr. de Araujo shall pay Ms. de Aquino spousal support in the amount of $800 per month for the period of January to August 2018 (both months inclusive).

20. On a final basis, arrears for overpayment of spousal support are fixed at $22,458 as at July 26, 2018. Ms. de Aquino shall reimburse Mr. de Araujo for this overpayment at the rate of $300 per month commencing September 1, 2018 until repaid in full.

21. On a temporary without prejudice basis, Mr. de Araujo shall pay Ms. de Aquino spousal support in the amount of $1,500 per month commencing September 1, 2018. This on-going spousal support order shall become final on December 31, 2018, unless either Mr. Araujo or Ms. de Aquino serves (by email) and files, on or before November 15, 2018, a Notice of Motion with a supporting Affidavit, requesting to lead additional evidence about Ms. de Aquino’s income and/or her effort to earn income since July 26, 2018, and/or seeking to make submissions about the amount of income that should be attributed or imputed to Ms. de Aquino on an on-going basis. A copy of any such motion and affidavit shall be sent by email to Graham J.’s judicial secretary upon filing.

22. The amount of spousal support payable may be reviewed if there is a material change to the amount of child support payable.

23. Spousal support payable by Mr. de Araujo to Ms. de Aquino shall terminate on August 29, 2026.

24. On a final basis, Mr. de Araujo shall pay Ms. de Aquino $357 for his share of section 7 CSG expenses incurred during 2015.

25. On a final basis, Ms. de Aquino shall pay Mr. de Araujo $841 for her share of section 7 CSG expenses incurred during 2016.

26. On a final basis, Mr. de Araujo shall pay Ms. de Aquino $3,196 for his share section 7 CSG expenses incurred during the period of January to October, 2017 (both months inclusive).

27. On a final basis, arrears of section 7 CSG expenses are fixed at $2,954 as at October 31, 2017. Mr. de Araujo shall pay Ms. de Aquino these arrears at the rate of $100 per month commencing September 1, 2018 until paid in full.

28. On a final basis, Mr. de Araujo shall pay 63 percent and Ms. de Aquino shall pay 33 percent, of section 7 CSG expenses incurred during November and December 2017.

29. On a final basis, Mr. de Araujo shall pay 63 percent and Ms. de Aquino shall pay 37 percent, of section 7 CSG expenses incurred during the period of January to August 2018 (both months inclusive).

30. On a temporary and without prejudice basis, commencing September 1, 2018, Mr. de Araujo shall pay 67 percent and Ms. de Aquino shall pay 33 percent of section 7 CSG expenses incurred on or after September 1, 2018. This on-going section 7 CSG expense order shall become final on December 31, 2018, unless either Mr. Araujo or Ms. de Aquino serves (by email) and files, on or before November 15, 2018, a Notice of Motion with a supporting Affidavit, requesting to lead additional evidence about Ms. de Aquino’s income and/or her effort to earn income since July 26, 2018, and/or seeking to make submissions about the amount of income that should be attributed or imputed to Ms. de Aquino on an on-going basis. A copy of any such motion and affidavit shall be sent by email to Graham J.’s judicial secretary upon filing.

31. A party who wishes to be proportionately reimbursed by the other party for a section 7 CSG expense incurred after October 31, 2017, shall provide the other party with a copy of the receipt, invoice, or similar document showing the date, amount, and nature of the expense. The other party shall reimburse their proportionate share to the party who incurred the expense within 30 days of being provided with such a document.

32. If Ms. de Aquino enrolls a child in extra-curricular activities that cost, in total, more than $7,500 per calendar year, she shall be solely responsible for the cost of extra-curricular activities that is above $7,500 for that child for that calendar year.

33. On a final and on-going basis, each party shall immediately inform the other party in writing of any change to their income after July 26, 2018.

34. On a final and on-going basis, each party shall provide the other party with a copy of their complete income tax return with all attachments for each calendar year on or before May 31 of the following calendar year. This annual disclosure shall commence in 2019 with respect to 2018.

35. On a final and on-going basis, each party shall provide the other party with a copy of all Notices of Assessment and Notices of Re-assessment received from the Canada Revenue Agency (CRA) after July 26, 2018, within 21 days of receipt from the CRA.

36. A support deduction order shall issue.

F. GRAHAM J.

Released: August 13, 2018