Court File and Parties

COURT FILE NO.: 51925-16 DATE: 2018-10-09 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JENNIFER BUSKO Applicant – and – BLAIR ISRAEL Respondent

Counsel: Applicant appearing in person Glenda D. McLeod, Counsel for the Respondent

HEARD: September 10, 11, 12, 13 and 14, 2018

BEFORE: The Honourable Mr. Justice D.J. Gordon

Reasons for Decision

[1] The issues addressed in this trial pertain to:

(a) parenting; (b) child support and extraordinary expenses; (c) spousal support; (d) equalization of net family properties; and (e) occupation rent.

[2] Life insurance coverage and health and dental benefits were matters resolved during the trial, as addressed in the terms of the order herein granted at the conclusion of these reasons.

[3] The respondent also made a claim for a divorce in his answer. The applicant was not opposed to the request. The evidence tendered satisfied the requirements under the Divorce Act. A divorce is granted.

Factual Background

[4] Jennifer Busko is presently 38 years of age. Blair Israel is 45. The parties met in 2005. Cohabitation commenced in May, 2007. They married on August 24, 2009. Separation occurred on June 1, 2015 although the parties continued to reside in the matrimonial home until September 23, 2016. On that date, Ms. Busko and the children moved to another residence. Mr. Israel remained in the matrimonial home.

[5] The parties previously separated for approximately six months in 2013. Litigation followed. Pleadings were exchanged. Motions were scheduled but reconciliation occurred prior to the hearing. The action was thereafter dismissed.

[6] There are three children of the marriage: Madison, age 15; Tyson, age 10; and Makenzie, age 7. Mr. Israel is not the biological father of Madison. There is no dispute that he stood in place of a parent, there being a close father/daughter relationship.

[7] Mr. Israel has always been employed during the relationship. He had a sales position with Air Liquide for 10 years, recently moving to similar employment with Kodelco. His 2017 income was $83,875, presently approximately $80,000.

[8] Ms. Busko was a stay at home mother following the birth of Tyson in 2007 until 2013, save for a brief period of part-time employment. She obtained part-time employment at Jack Astor’s as a server in 2013. In 2016, Ms. Busko commenced working at Canada Post as a letter carrier. This is a full-time position. Ms. Busko’s employment income in 2017 was $49,800. As a result of a work related injury earlier in 2018, she is presently receiving WSIB benefits equal to 75 per cent of her salary, but not taxable. Ms. Busko’s current income is said to be about $33,500 but should be grossed up for income tax regarding support obligations.

[9] During cohabitation, the parties co-parented. Given Mr. Israel’s employment obligations and with Ms. Busko primarily a stay at home mother, Ms. Busko was more involved with the children. The children have always participated in extracurricular activities, particularly sports, encouraged to do so by the parties. Both Ms. Busko and Mr. Israel have been involved in these activities.

[10] By 2015, the parties’ relationship began to deteriorate. There were many arguments. In December of that year, Ms. Busko contacted Family and Children’s Services of Waterloo Region for assistance. Social workers from this agency were extensively involved with the family until May 2016. While protection concerns were not identified, these social workers were interested in reducing the children’s exposure to parental conflict.

[11] With the assistance of the social workers, the parties reached a temporary oral agreement regarding the parenting of their children. In May 2016, a “nesting” arrangement was put in place. The parties had an equal but separate time sharing parenting regime, each moving in and out of the matrimonial home for this purpose.

[12] This arrangement continued until September 23, 2016. On this date, Ms. Busko and the children moved to another residence in the same community, approximately 800 metres from the matrimonial home. Ms. Busko then delivered an email to Mr. Israel informing him as to his future access schedule with the children, namely every second weekend from Friday after school to Monday morning at school and every Wednesday after school to Thursday morning at school. Mr. Israel never agreed to this regime. He has always sought an equal shared parenting arrangement, having retained counsel in early 2016 in this regard.

Discussion and Analysis

A. Parenting

[13] At the commencement of trial, and in response to my inquiry, Ms. McLeod reported the Children’s Lawyer declined the court’s prior request to provide services for the children in this case. Unfortunately, the parties did not retain another service provider to ascertain the views and preferences of the children, or to conduct an investigation in a manner comparable to that of the Children’s Lawyer.

[14] In result, there was limited evidence presented at trial from the children’s perspective, almost none being independant.

[15] The best interests of the children test, as described in section 24, Children’s Law Reform Act, directs the court to consider all of the children’s needs and circumstances, including the children’s views and preferences, if they can reasonably be ascertained. Such could have been accomplished in this case, without difficulty. Children have the right to be heard, as set out in the United Nations Convention on the Rights of the Child, in all matters affecting them, including custody cases. See, for example: Baker v. Canada, [1999] 2 S.C.R. 817; S.G.B. v. S.J.L. (2010), 102 O.R. (3d) 796 (Ont. C.A.); and B.J.G. v. D.L.G., [2010] Y.J. No. 119, 324 D.L.R. (4th) 367 (Yuk. S.C.). The children’s right to be heard has been denied by the parties. No other approach was suggested. I am left to decide this important issue on an incomplete evidentiary record.

[16] While there has been some conflict between the parties, primarily argumentative in nature, this is not a high conflict case. The parties did co-parent during cohabitation and they put in place an equal time sharing arrangement for four months during separation. The evidence indicates both parties have close, loving relationships with each of the children. Both are competent parents, well able to provide all aspects of child care.

[17] Ms. Busko seeks a final order for sole custody, with Mr. Israel to have access in a manner as he has had since September 2016. Mr. Israel requests shared joint custody with a week-about parenting schedule for Tyson and Makenzie, inviting Madison to likewise alternate between residences in accordance with her wishes.

[18] Ms. Busko has raised the issue of status quo, saying in evidence and submissions that the present regime has been in place for two years, has worked well and should continue. But, Mr. Israel not only disagreed with the unilateral imposition of that schedule by Ms. Busko, he constantly requested equal parenting. Parents are presumed to have equal status and neither has the right to make unilateral changes absent special circumstances, agreement or court order: See: Rifai v. Green, 2014 ONSC 1377, at paras. 16-25. Further, status quo is not a short term living arrangement. Rather, it is a way of life that existed prior to when the current parenting issue arose. See: Moggey v. Moggey (1990), 28 R.F.L. (3d) 416 (Sask. Q.B.) and the annotation by Professor James G. McLeod.

[19] The status quo is but one component in the best interests of the children analysis. It assists the court by examining how parenting has worked in the past and the benefit or detriment for the children. Allowing one party to gain a litigation advantage by unilateral action must be discouraged.

[20] No reference was made to motions for temporary parenting orders. It appears Mr. Israel adhered to the regime created by Ms. Busko, but clearly stated his opposition to same, and leaving the issue to be determined at trial. It is the court’s policy to schedule trials within six months of the commencement of the case. Such rarely occurs, in part due to the procedural requirements in the Family Law Rules, the availability of counsel and lack of sufficient judicial resources. The trial in this case ought to have taken place by the Spring of 2017. A year and a half delay has occurred. I remain of the view, as stated in White v. Richardson (2005), 18 R.F.L. (6th) 229 (Ont. S.C.J.), at paras. 33-35, that the status quo cannot be manufactured by delay in the court process, absent agreement of the parties.

[21] As previously stated, the parties did co-parent prior to their separation. Thereafter, they put in place an equal parenting regime by way of a nesting arrangement. That changed on September 23, 2016 when Ms. Busko and the children moved out of the matrimonial home. There was no evidence to suggest a triggering event for the move. While the nesting arrangement was a temporary resolution, it appears Ms. Busko was frustrated in not receiving a separation agreement as she had been demanding for some time. Yet Ms. McLeod had been regularly delivering correspondence to Ms. Busko, inviting her to negotiations for such an agreement and suggesting she retain counsel for that purpose. Ms. Busko did not respond.

[22] Mr. Israel next caused an application to be issued on October 20, 2016 (Court File 16-51822) seeking joint custody and shared parenting, and other relief. The application was served on Ms. Busko. She retained a lawyer. Ms. Busko did not instruct this lawyer to contact Ms. McLeod for the purpose of negotiating a resolution. Rather, for reasons that are not clear, the within application was issued on her behalf on November 1, 2016. Subsequently, the lawyers agreed the case would proceed on Ms. Busko’s application, Mr. Israel withdrawing his application in the other court file.

[23] To the extent the status quo is relevant to this case, and I conclude it is one factor to consider. I find it was the regime of co-parenting before separation and shared parenting thereafter. I reject Ms. Busko’s assertion it was the arrangement she put in place in September 2016.

[24] In support of her claim for sole custody, Ms. Busko identified her concerns regarding communication, conflict, abuse, alcohol and Madison’s status. Mr. Israel addressed these matters, offering a different perspective, suggesting shared parenting is a realistic solution.

[25] Ms. Busko’s evidence regarding communication was inconsistent. She said there was an inability to communicate yet acknowledged that discussions “sometimes” occurred regarding decisions pertaining to the children. The whole of the evidence reveals a strained relationship but, at least, a level of communication and co-operation that allowed for making decisions. For example, Ms. Busko was responsible for arranging medical appointments for the children, Mr. Israel handling dental, and each reporting the results to the other. Further, both were involved with Tyson’s teacher, and each other, in developing a plan to improve the child’s performance in mathematics. The parties also encourage the children’s participation in extracurricular activities, particularly sports. The resultant busy, sometimes conflicting, schedules necessitated co-operation in transportation for these events.

[26] I am satisfied there is a level of communication at present that results in decisions being made. There is some disagreement, as hereafter addressed. I would expect communication to improve once the stress caused by litigation ends.

[27] There has been conflict in the relationship. There were prior separations in 2005 and 2013, followed by reconciliation. Arguments were many, particularly near the end of the marriage in 2015. Often these conversations took place in front of the children, causing them unnecessary turmoil. But the parties were able to resolve that conflict, accepting advice from Family and Children’s Services workers, and putting in place the shared parenting regime. Subsequently, Tyson reported to the social worker the arrangement worked well.

[28] Ms. Busko, while reporting the conflict to be primarily argumentative, also spoke of verbal abuse and physical contact. Mr. Israel denied such occurring. Ms. Busko also made similar allegations when speaking to the social workers at Family and Children’s Services. Indeed, that was the stated reason for contacting this agency. The children were interviewed. They made reference to their parents arguing. Tyson denied seeing physical conflict or bearing fearful. Madison was more supportive of her mother’s position. But, there are concerns regarding Madison’s statements as addressed later in these reasons.

[29] The parties acknowledge disagreement and argument during their relationship. I am not persuaded such rose to the level of verbal abuse or that there was any physical contact. The relationship was strained for some time. The parties have worked through many problems. This is not a high conflict case.

[30] Ms. Busko also complains of alcohol consumption by Mr. Israel. The evidence was not historical. Rather, it pertained to comments from Madison and one incident said to have occurred in the Spring of 2018.

[31] As to the incident, Ms. Busko said she had to pick up Tyson and Makenzie during an access visit with Mr. Israel as Mr. Israel and other adults at a party were all drunk. Mr. Israel denied the suggestion, saying Ms. Busko inappropriately retrieved the children without reason. Ms. Busko did not report this event to Family and Children’s Services. There is no evidence from the children. Ms. Busko was not at the party and her evidence regarding alcohol consumption is speculative at best. If alcohol consumption was a real issue, I would have expected more detailed evidence of events during cohabitation. I conclude alcohol is not a concern.

[32] The situation with Madison is unusual. The parties agree that Madison and Mr. Israel had a close relationship, at least until the separation. Madison’s biological father was never a factor in her life. She considers Mr. Israel to be her father. Madison’s surname was changed to Israel, although adoption was not pursued.

[33] The parties also agree this relationship became strained after the separation. Madison expressed concerns to Family and Children’s Services about being treated differently than her siblings. She also complained about the lack of financial support for her involvement in hockey. Madison also advised the social workers that Mr. Israel gets drunk and hides beer bottles in his closet. Ms. Busko relies on these various comments by Madison. Mr. Israel says they are not accurate save to acknowledge he has treated Madison somewhat differently as he was reluctant to be decisive as he is not her biological father.

[34] Madison’s statements must be considered in context. First, she has only stayed overnight at Mr. Israel’s residence on two occasions since September 2016. More importantly, despite Ms. Busko’s denial, it is clear that Madison has been informed of adult issues by her mother. Madison, it appears, has been protective of her mother, yet clearly influenced by her. This is not appropriate conduct for a parent.

[35] Of great significance are recent events. Madison has reached out to Mr. Israel. They spent time together and are working on improving their relationship. At her age, Madison has more control of her situation and will decide the extent and nature of her relationship with Mr. Israel. The situation appears promising.

[36] The children are very active in sports, particularly hockey and baseball. To their credit, the parties encourage their participation. Children benefit in terms of health and learning social skills. Mr. Israel has coached Tyson and Makenzie’s teams. Madison plays hockey at an elite level. Mr. Israel does not have the coaching qualifications to be involved in her team. Ms. Busko has also assisted coaching teams in the past.

[37] A problem arose with respect to Tyson’s involvement recently. Ms. Busko has a conflict with a parent of one of Tyson’s teammates, namely Mr. Israel’s current girlfriend. The basis for the conflict is unclear. This conflict impacted team selection. Adult conflict should not be allowed to interfere with children’s teams. Children on local teams should participate with friends and peers. Parents should have no involvement other than to support the child’s participation. Coaches are solely responsible for the children during games and practices. Adult conflict should be left at the door of the hockey arena or entrance to the baseball diamond. Allowing this adult conflict to interfere with team selection will penalize the child.

[38] Two witnesses were also called at trial: Michael Busko, father of Ms. Busko, and Scott Kuntz, a neighbour of Mr. Israel. Their evidence, although limited, assisted in understanding some of the parenting of the children.

[39] Mr. Busko is clearly supportive of his daughter and her position in this case. Yet, he recognized the involvement of both parties in the children’s lives during cohabitation although suggesting Ms. Busko was the main caregiver. Mr. Busko has not been involved with Mr. Israel since the separation.

[40] Mr. Kuntz has observed Mr. Israel with his children. His children are friends of Tyson, one playing on the same hockey team. Mr. Kuntz reports Mr. Israel being a well-respected coach and being actively involved with his children, both at home and in their sports activities. Of some interest, Mr. Kuntz advised that Mr. Israel has never spoken negatively about Ms. Busko.

[41] The parenting issue requires the consideration and application of the best interests of the children test and the principle of maximum contact as set out in section 16(8) and (1) of the Divorce Act.

[42] The best interests of the children is the only test, parenting rights no longer playing a role in deciding parenting issues. See: Gordon v. Goertz, [1996] S.C.J. No. 52 (S.C.C.); and Young v. Young, [1993] S.C.J. No. 112 (S.C.C.). The children’s needs and circumstances, identified in section 24(2), Children’s Law Reform Act are helpful in cases under the Divorce Act.

[43] I pause to again identify what each party seeks. Ms. Busko wants to continue the present regime, saying that results in Tyson and Makenzie being with Mr. Israel on five of every fourteen nights. Mr. Israel asks for a shared week about schedule. There are also requests from Mr. Israel to limit communication and also allow him to be the final decision maker regarding the extracurricular activities of Tyson and Makenzie. If granted sole custody, Ms. Busko would decide all matters pertaining to the children.

[44] As previously stated, there is no direct evidence as to the view and preferences of the children. Testimony of others was anecdotal at best. I take some comfort with Madison’s recent approach of Mr. Israel. Despite Ms. Busko involving Madison in adult issues, she has not interfered with her daughter’s contact with Mr. Israel. Indeed, Ms. Busko is supportive. Madison, with parental support, will decide the nature and extent of her relationship with Mr. Israel.

[45] But what of Tyson and Makenzie? Their views are unknown, other than to say they love both of their parents and enjoy time with each of them.

[46] Having regard to the children’s needs and circumstances, as defined in section 24(2), Children’s Law Reform Act, I do not hesitate to conclude that each party alone is well able to be a custodial parent. The evidence established the following:

(a) love, affection and emotional ties between each child and each parent are strong, the parents being involved in all aspects of the children’s lives, the resultant child/parent bond being self-evident; (b) both homes have provided a stable environment for the children since September 2016; (c) conflict between the parents prior to that date was personal as between them, not pertaining to the children, and although the children were exposed to adult issues, the parents were able to achieve a resolution so as to stabilize the home environment; (d) each parent is well able and willing and has provided each child with guidance, education and necessaries of life and beyond, being actively involved in school matters and extracurricular activities; (e) although there are differences in their proposed parenting plans, the parents are united in their proposals for care and upbringing of the children as to education, community involvement and sports, discipline and expectations for the children’s future development; (f) each family unit is stable; (g) each parent is well able to act as a parent; (h) despite their differences, each parent respects the other as a parent; (i) each parent has a support network, including the other parent, family members and friends; (j) the children have strong peer relationships in the community; and (k) there are no significant behavioural issues and the children are doing well in school.

[47] The focus of the parenting issue is with the purported conflict between the parents and the level of communication between them. No doubt, the parties’ relationship was strained with frequent arguments and conflict. Separation was inevitable and, on my review of the evidence, reduced the level of conflict and improved the parties’ ability to parent. The environment for the children stabilized. No real problems were identified with respect to the children moving back and forth between the parents’ homes.

[48] The case law has long recognized the necessity of effective communication between parents, despite their differences, to support a joint custody order. The fact one parent alleges an inability to communicate does not mean such an order cannot be considered. The evidence will be determinative. See: Kaplanis v. Kaplanis, [2005] O.J. No. 275 (Ont. C.A.). The standard of communication and ability to work together is not one of perfection. Rather, the court must determine whether there is a reasonable measure of communication and co-operation, a workable arrangement that is in the best interests of the children. See: Brook v. Brook, [2006] O.J. No. 1514 (Ont. S.C.J.); Warcop v. Warcop, 2009 CarswellOnt 782 (Ont. S.C.J.); Lambert v. Peachman, 2016 ONSC 7443; and Jackson v. Jackson, 2017 ONSC 1566.

[49] Despite Ms. Busko’s assertion communication and co-operation is absent in making decisions regarding the children, the evidence is to the contrary. They were involved together in addressing Tyson’s educational needs, co-operating on a plan with his teacher that improved his performance. They also support and agree on children’s activities, save for one problem regarding team selection. They developed a plan for medical and dental treatment.

[50] Communication is not perfect. It can be improved, perhaps by a greater use of electronic means if face to face discussion remains a concern. But this is a history of co-operation, similar beliefs and interests regarding the raising of their children. The children have adapted to the parents’ separation and I conclude they want both parents to be actively involved. There is no justifiable reason to exclude Mr. Israel from decision making going forward. Joint custody is workable in this case. I find it is in the children’s best interests to so order.

[51] Similarly, with the parenting schedule, there is no basis to continue the regime implemented by Ms. Busko. It ought return to the shared week about arrangement that existed for some months prior to September 2016. There was no evidence that that shared parenting schedule was not working. There was no triggering event for the move by Ms. Busko on September 23, 2016.

[52] Moving to a week about schedule is but a modest change to the existing system in terms of parental time. However, I conclude it would be in the best interests of the children in that it provides stability and extended time periods with each parent without interruption. It can only strengthen the bond between each parent and each child.

[53] While there have not been any major decisions regarding the children that have been problematic, given similar parenting philosophical views, it is always possible that disputes may occur in the years to come. Given the level of commitment each parent has for the children, resolving any such disputes ought be accomplished by use of a parenting co-ordinator.

[54] I am concerned with the adult dispute that occurred with respect to Tyson’s team. Adult conflict, spousal or otherwise, can develop for a variety of reasons. Such cannot, under any circumstances, impact a child’s participation in extracurricular activities. To avoid future problems, Mr. Israel must be given ultimate decision-making regarding these activities for Tyson and Makenzie, Ms. Busko for Madison. In this regard, it is expected the children will be allowed and encouraged to participate in the same activities, including sports, as now, hopefully more as they develop and mature. Further, to the extent there have been problems, parents must be reminded that team selection is the responsibility of the coach, not the parent.

[55] There was evidence concerning the issue of communication between the parents when the children were with the other parent. Specifically, Mr. Israel complained of an excessive number of phone calls from Ms. Busko.

[56] The parties agree the children should be permitted to contact the non-resident parent whenever they wish, without any conditions. I agree. As to the non-resident parent calling or communicating with the other parent, it is important to recognize such can interfere with the other’s parenting time and is not helpful in continuing a stable home environment. There must be limits. Two such phone calls, texts or emails daily are more than sufficient, save for emergency situations.

B. Child Support

[57] Mr. Israel has paid what was essentially guideline child support since September 2016. He also paid for the extracurricular activities of Tyson and Makenzie and contributed to those of Madison. There is no dispute regarding past support obligations.

[58] Future child support must take into account the parenting schedule, provided above. At present, Madison is spending most of her time with her mother, seeing her father as she wishes. Child support can only be addressed on the basis that regime continues. Should she decide to be involved in the week about schedule with her siblings, the parties will have to review this child support order that follows.

[59] Mr. Israel’s current income is said to be $80,000 per annum. Ms. Busko’s income is $33,596 annually. Although it ought be grossed up as most of her income is non-taxable, in fairness, Ms. McLeod reports Mr. Israel being content to use that amount for child support purposes.

[60] In result, with an equal parenting regime for Tyson and Makenzie, and with Madison being primarily with her mother, Mr. Israel’s guideline support obligation is $1,072 monthly. Such shall commence November 1, 2018.

[61] The parties agree section 7 extraordinary expenses for the children are to be shared in proportion to their incomes. In so doing, Mr. Israel will be responsible for 70 per cent, Ms. Busko 30 per cent, at the present time. There does not appear to be any dispute, at present, as to what qualifies as an extraordinary expense or how such are initially paid. They will be able to address reimbursement in future.

C. Spousal Support

[62] Ms. Busko seeks a spousal support award, in closing submissions limiting her claim to three years, from September 2016 to August 2019. Mr. Israel says entitlement was not established.

[63] The parties commenced cohabitation in 2007, married in 2009, separated for six months in 2013. The final separation occurred in 2015; however, the parties continued to reside in the matrimonial home until Ms. Busko and the children left in September 2016. The relationship period, relevant to this issue, is seven and one-half years. Two children were born in that period.

[64] Prior to the commencement of cohabitation, Ms. Busko had modest income from part-time employment, few financial resources and responsibility for one child. During cohabitation, she had brief periods of part-time employment, being primarily a stay at home mother. Since leaving the matrimonial home, Ms. Busko has obtained full-time employment, a position far superior to any prior job.

[65] Mr. Israel was always the primary income provider, paying almost all family and household expense.

[66] Section 15.2, Divorce Act, permits a spousal support award. In this case, the factors and objectives identified in the legislation require consideration of compensatory and non-compensatory principles. See: Moge v. Moge, [1992] 3 S.C.R. 813 (S.C.C.); and Bracklow v. Bracklow, [1999] 1 S.C.R. 420 (S.C.C.).

[67] Ms. Busko’s financial position improved as a result of the relationship. She leaves the marriage with greater resources than she had in 2007. She now has respectable income. There is no issue regarding future support.

[68] There was clearly a need in September 2016. Ms. Busko had to borrow money from her father to establish a new residence and pay expenses. Mr. Israel contributed child support immediately. Later in 2016, Ms. Busko commenced her position at Canada Post, her total earnings that year being approximately $22,500. In 2017, employment income increased to $49,800. Such continues, currently by way of non-taxable benefits from W.S.I.B. Ms. Busko expects to return to work in due course.

[69] Since 2016, Mr. Israel’s income has been averaging $80,000 per annum.

[70] It is difficult to say there was a foregoing of career opportunities; however, Ms. Busko would have been able to pursue employment but for two more children being born. Being a stay at home mother also delayed opportunities.

[71] As hereafter discussed, Ms. Busko will receive an equalization payment. There has been a delay in this case, the responsibility for which lies with both parties. Spousal support cannot be used to redistribute family assets. See: Mannarino v. Mannarino (1992), 43 R.F.L. (3d) 309 (Ont. C.A.). Nor can it be used in this case to address the increase in value of the matrimonial home since separation.

[72] I conclude Ms. Busko has established entitlement to spousal support, primarily non-compensatory in nature but for a limited period of time as she is now well able to support herself. I limit the period of entitlement to twenty-four months, which involved more than just support for ongoing expense but also start up expense on her move.

[73] The spousal support advisory guideline calculation provided by Ms. McLeod during submissions suggests a range of $0 to $78 monthly, with a minimum duration of four years and a maximum duration of thirteen years from the date of separation. This calculation is based on current incomes. The advisory guideline amount is neither reasonable nor appropriate in this case for the reasons above.

[74] A reasonable award, in all of the circumstances, is $500 monthly for the time period as stated, namely twenty-four months. A lump sum is warranted, discounted primarily as the award is non-taxable and non-deductible. Spousal support is awarded to Ms. Busko, payable by Mr. Israel within 30 days of the release of this decision, in the amount of $9,000.

D. Property

[75] The property issue is restricted to the calculation of the equalization payment. No claims regarding ownership, constructive or resulting trust were raised in the pleadings. The focus of the dispute is the value of certain assets and debts. During submissions, the parties agreed as to the treatment of Mr. Israel’s pension with Air Liquide, transferring one-half of the family law value to a LIRA or LIF as directed by Ms. Busko, and as set out in the terms of the order hereafter granted. In result, this pension is removed from the calculation.

[76] The asset and debt values in dispute were identified by the Respondent’s Request to Admit and the Applicant’s Response, namely:

(i) value of the matrimonial home on the valuation date; (ii) Mr. Israel’s line of credit debt on the valuation date; (iii) Mr. Israel’s credit card debt on the valuation date; (iv) Ms. Busko’s vehicle on the valuation date; and (v) Mr. Israel’s ski doo on the date of marriage and the valuation date.

(i) Matrimonial Home

[77] Title to the matrimonial home has always been registered in the name of Mr. Israel. This home was purchased in 2012, following the sale of their prior matrimonial home, also registered to Mr. Israel and acquired by him prior to marriage. Mr. Israel has remained in possession of the home since separation. He wants to acquire Ms. Busko’s interest and retain ownership. Ms. Busko is content with that proposal, save for the value claimed by Mr. Israel.

[78] In December 2017, Ms. McLeod contacted Stuart Cochrane, a licensed appraiser, to provide a valuation report for the matrimonial home as at June 1, 2015, the date of separation. Mr. Cochrane accepted the assignment. He attended the property for an inspection, conducted a valuation analysis and thereafter delivered a report, dated January 3, 2018. Mr. Israel paid for this appraisal. A copy of the report was delivered to Ms. Busko.

[79] Ms. Busko had the opportunity to obtain another valuation report. The issue was addressed at the trial management conference on May 11, 2018. The order of Madsen J. included the following:

1. The Applicant, Jennifer Busko may, within 30 days, arrange to have an Appraisal conducted of the matrimonial home, at a mutually agreeable time. The Applicant shall be solely responsible for the cost. The Appraisal shall be as of June 1, 2015.

[80] At some point, Ms. Busko retained an appraiser and received a valuation report. Unfortunately, this report was only served on Ms. McLeod at the commencement of the trial on September 10, 2018. Ms. McLeod, quite properly, objected to the report being tendered in evidence on its own. I allowed Ms. Busko until September 13, 2018, to call her appraiser as a witness, indicating that admissibility would be addressed at that time. On September 12, 2018, Ms. Busko advised she would not be calling this appraiser. The trial continued.

[81] Mr. Cochrane has 39 years’ experience in appraising residential property. He has completed the required courses and received accreditation from the Appraisal Institute in 1981. Mr. Cochrane has prepared numerous current and retrospective residential appraisal reports in his career. He has previously presented opinion evidence in court. Mr. Cochrane signed an acknowledgement of expert’s duty, as required by Rule 20.1. I determined Mr. Cochrane was qualified to provide opinion evidence on residential appraisals in this case. Ms. Busko had no objection to such a ruling.

[82] Mr. Cochrane attended at the matrimonial home, conducting an inspection in the presence of Mr. Israel. He inquired as to improvements made to the property since June 1, 2015 and understood Mr. Israel to say the property was substantially in the same condition. Mr. Cochrane measured the rooms and took photographs, thereafter returning to his office to conduct an analysis.

[83] As an appraiser, Mr. Cochrane has access to listing information from the local real estate board, as well as registry office and municipal records. In reviewing these records, Mr. Cochrane came across a number of residential sales on or about June 1, 2015. He determined three of such sales in the same neighbourhood as the matrimonial home were suitable comparables. Mr. Cochrane reviewed the details of those homes, including house size, improvements and features and made adjustments to their sale prices by comparing the details to the matrimonial home. At the completion of his analysis, Mr. Cochrane concluded the value of the matrimonial home was $440,000 as at June 1, 2015.

[84] Ms. Busko raised a number of matters in cross-examination. Mr. Cochrane acknowledged that Ms. Busko was not present during the inspection but said the presence of both spouses was not necessary. The only information Mr. Cochrane needed was regarding improvements, if any. Mr. Israel, he said, was not thereafter involved as the analysis was conducted solely by himself.

[85] Mr. Cochrane also acknowledged the matrimonial home had four bedrooms while the comparables had three. The matrimonial home is somewhat smaller than the comparables in terms of square footage. Subsequently, Mr. Israel testified as to dividing one of the bedrooms, installing a wall and door, to create an office. Mr. Cochrane did not retreat from his valuation number due to bedrooms.

[86] Mr. Cochrane further reported in cross-examination that the comparable properties, unlike the matrimonial home, did not back on to a green space. He opined the difference did not impact on his conclusion.

[87] Ms. Busko is of the view the value of the matrimonial home was higher than appraised by Mr. Cochrane. Appraisers can have different opinions, as with any experts. The critical point in this case is that the only valuation evidence tendered was the opinion of Mr. Cochrane. Ms. Busko presented no other evidence.

[88] I am not persuaded Mr. Cochrane’s valuation opinion is incorrect. Indeed, I am satisfied he followed the customary procedure in appraising the matrimonial home. His evidence was straightforward and reasonable. In result, I conclude the value of the matrimonial home was $440,000 as at June 1, 2015. Of some interest, Mr. Israel will be retaining ownership of the property and, hence, there will be no reduction in the value for notional sales expense. Such could easily be in excess of $25,000.

[89] I also accept that the value of the matrimonial home has likely increased since June 1, 2025, as have most residential properties. Such, however, is not relevant to the calculation process. Only the value, as at the valuation date, is pertinent.

(ii) Line of Credit

[90] Mr. Israel claims a debt for a line of credit with TD Canada Trust in the amount of $20,590.10 as at June 1, 2015. He provided a bank statement as proof of same. Mr. Israel reported the line of credit being used for family expenses, assisting to cover the shortfall between his income and these expenses.

[91] The parties kept their finances separate. There were no joint assets or debts. Mr. Israel was employed throughout the marriage. Ms. Busko was a stay at home mother, with some periods of part-time employment.

[92] Ms. Busko said she was unaware of the line of credit until it was disclosed in this case. She also indicated Mr. Israel never informed her of various investments. He did not strenuously deny her evidence. Indeed, many of the regular reports from the various financial institutions were mailed to the address of Mr. Israel’s father. I accept Ms. Busko’s evidence as to lack of knowledge of the line of credit.

[93] Just because one spouse is unaware of a debt, or asset, does not mean it is to be ignored. The debt clearly exists, and I so find. There is no evidence to justify deleting it from the equalization calculation. It must be included in the amount of $25,590.10 as established by the bank records.

(iii) Credit Card

[94] Mr. Israel claims a debt for a CIBC VISA credit card in the amount of $8,936.40 as at June 1, 2015. He provided a bank statement as proof of same.

[95] The evidence is the same as with the line of credit. Mr. Israel made a payment of $5,000 on the credit card shortly after separation. This payment is not relevant, occurring after the valuation date. The debt clearly exists, and I so find. It must be included in the amount of $8,936.40, as established by bank records.

(iv) Ms. Busko’s Vehicle

[96] Ms. Busko owned a 2009 Kia Rondo on June 1, 2015. She said it was worth $1,000. Mr. Israel testified the appropriate value was $2,250, being the average black book retail amount. There was no appraisal report.

[97] Ms. Busko reported the vehicle to be in poor condition, requiring repairs on the valuation date. Mr. Israel understood the vehicle was in good condition, however, he acknowledged rarely driving the Rondo as he had a vehicle provided by his employer.

[98] On this limited evidence, I accept the evidence of Ms. Busko and find her vehicle had a value of $1,000 on June 1, 2015.

(v) Mr. Israel’s Ski Doo

[99] The ski doo was purchased in late 2006 as a 2007 model. The purchase price is unknown. Ownership was, and still is, registered in the name of Mr. Israel.

[100] Mr. Israel said the ski doo was worth $7,000 on the date of marriage and $2,000 on the date of separation. There was no appraisal report. Ms. Busko did not present evidence on valuation of the ski doo and did not cross-examine Mr. Israel on this item. In result, Mr. Israel’s evidence is not challenged.

[101] In these circumstances, I find the ski doo had a value of $7,000 on the date of marriage and $2,000 on June 1, 2015.

(vi) Notional Tax Rate on Mr. Israel’s Investments

[102] In his net family property statement, Mr. Israel claims a liability for future income tax with respect to his investments. Such is an appropriate claim. He also initially sought a notional income tax credit on his pension; however, with the pension now being divided by a payment to Ms. Busko, it would not be appropriate to allow reduction. Ms. Busko will also face future income tax on this asset, the funds being deposited to a LIRA or LIF.

[103] Mr. Israel reports the notional tax rate at twenty-five per cent. Ms. Busko did not challenge this percentage either in her Response to his Request to Admit or in her evidence at trial. Nevertheless, the court, in its gatekeeper role, must be satisfied the claim is reasonable.

[104] Having regard to Mr. Israel’s present income and expenses and what his retirement income will likely be, namely OAS, CPP, pension and from these investments, I am not persuaded twenty-five per cent is a proper notional income tax rate. I am of the view, the rate ought be closer to twenty per cent but, in the circumstances, conclude the appropriate notional tax rate for the purpose of equalization calculation is twenty-two per cent.

(vii) Equalization Calculation

[105] The following chart sets out the equalization calculation, setting out assets and liabilities as agreed or determined above. I conclude Mr. Israel is required to make an equalization payment to Ms. Busko of $58,792.18 and so order. Mr. Israel shall also transfer $18,536.82 from his Air Liquide pension to a LIRA or LIF as directed by Ms. Busko.

Equalization Calculation:

	Applicant	Respondent
Assets on Valuation Date
Matrimonial Home		$440,000.00
Vehicle	$1,000.00
Ski Doo		$2,000.00
Bank Account – TD Canada Trust		$3,005.17
RSP – TD Canada Trust		$58,647.42
RSP – Edward Jones		$41,051.55
LIRA – Edward Jones		$70,105.85
RSP – Manulife		$1,924.95
Life Insurance – London Life		$4,299.51
TOTAL ASSETS:	$1,000.00	$621,034.45
Debts and Liabilities on Valuation Date
Mortgage – TD Canada Trust		$197,239.79
Line of Credit – TD Canada Trust		$20,590.10
Credit Card – CIBC VISA		$8,936.40
Notional tax – 22%
RSP - $58,647.42		$12,902.43
RSP - $41,051.55		$9,031.34
LIRA - $70,105.85		$15,423.29
RSP - $1,924.95		$423.49
Credit Card	$600.00
TOTAL DEBTS:	$600.00	$264,546.84
Property on Date of Marriage
Former matrimonial home		$300,000.00
Ski Doo		$7,000.00
Bank Account – TD Canada Trust		$3,047.08
Pension – Air Liquide		$2,500.00
RSP – Canada Trust		$33,378.76
RSP – Edward Jones		$29,350.98
LIRA – Edward Jones		$16,220.44
Life Insurance Policy		$1,650.00
TOTAL DATE OF MARRIAGE PROPERTY:	$0.00	$393,157.26
Debt and Liabilities on Date of Marriage
Mortgage		$154,654.00
TOTAL DATE OF MARRIAGE DEBTS:		$154,654.00
Net Family Property	$400.00	$117,984.35
Equalization Payment		($117,948.35 - $400 ÷ 2) = $58,792.18

E. Occupation Rent

[106] Ms. Busko seeks an award for occupation rent, payable by Mr. Israel from September 2016 to the present. Ms. Busko vacated the matrimonial home. Mr. Israel remained in possession.

[107] A claim for occupation rent may be presented pursuant to section 24(1)(c), Family Law Act, or section 122(2), Courts of Justice Act. Given the facts in this case, there is no jurisdiction to entertain the request as:

(a) no exclusive possession order was granted; (b) Ms. Burko voluntarily left the matrimonial home; (c) title to the matrimonial home was solely registered in the name of Mr. Israel; and (d) ownership was not in issue, there being neither a constructive trust or resulting trust claim.

See: Jones v. Jones (2000), 8 R.F.L. (5th) 107 (Ont. S.C.J.).

[108] In result, Ms. Busko’s claim for occupation rent must be dismissed.

[109] To the extent there has been delay in reaching trial and resolving the equalization of net family properties, the responsibility for such rests with both parties. Regardless, Ms. Busko’s remedy, if any, may have been prejudgment interest. That relief was not claimed in her application. I am not prepared to grant an order amending her application after completion of the trial and in the absence of a motion requesting same.

F. Summary

[110] For the foregoing reasons, a final order is granted on the following terms:

1. A divorce.
2. The Applicant and the Respondent shall share joint custody of the children, namely, Madison Israel (female), born July 4, 2003, Tyson Israel (male), born October 29, 2007, and Mackenzie Israel (female), both March 14, 2011.
3. The Applicant and the Respondent shall confer and consult with one another on all major decisions affecting the health and healthcare, education and general wellbeing of the children.
4. In the event of a disagreement regarding a major decision, the Applicant and the Respondent shall jointly retain a parenting coordinator to confer and consult with for the purposes of resolving the subject disagreement. The cost of the parenting coordinator shall be share by the parties in proportion to their income.
5. The Applicant and the Respondent will confer and consult regarding the extracurricular activities of the children, however in the event of a dispute, the Applicant shall have final decision-making authority with respect to Madison and the Respondent shall have find decision-making authority with respect to Tyson and Makenzie.
6. Day-to-day decisions respecting the children shall be made by the party with whom the children are residing on any given day.
7. The party with whom the children are residing on any given day shall be the primary contact for the children’s school, in the event that the school needs to reach a parent for any reasons, including emergencies.
8. A copy of the children’s residential schedule shall be provided to the school. If the school inadvertently contacts the wrong parent, the parent they contacted will advise them of same, and ask them to contact the other parent before they deal with the issue, if the issue is non-emergency in nature. Both parties shall be listed as contact persons on the school records.
9. Both the Applicant and the Respondent shall be permitted to make inquiries and to be given information as to the health and healthcare, education and welfare of the child, directly from the child’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with the child. The parties intend this clause to provide each of them with access to any information or documentation to which a parent of a child would otherwise have a right to access. The parties will cooperate and execute any required authorization or direction necessary to enforce the intent of this clause.
10. Neither party will speak ill of the other party to or in front of the children.
11. The child, Madison shall alternate between the parties’ respective homes in accordance with her wishes and preferences, and arrangements for same shall be made directly as between Madison and the party with whom she wishes to reside. The parties will encourage Madison to maximize her time with either parent in accordance with her wishes.
12. The children, Tyson and Makenzie shall reside with the Applicant and the Respondent on a week-about basis, the exchange for which shall take place on Friday afternoons after school, or 5:00 p.m. on those Fridays that the children are not required to attend at school. The children will have a mid-week visit with the non-resident parent, Wednesday from after school until 7:30 p.m. The Applicant will have the week of October 12-19 and each alternate week thereafter and the Respondent will have the children the week of October 19-26 and each alternate week thereafter.
13. Unless otherwise agreed, the Applicant and the Respondent shall exchange the children at school. In the event that the children are not in attendance at school, pick up shall occur at the home of the parent whose week is ending, by the parent whose week is commencing.
14. The children shall reside with the Applicant and the Respondent equally throughout their school holiday periods, which shall be deemed to include the following:

(a) Christmas holiday – the parties will alternate Christmas Eve and Christmas Day morning with the Applicant having the children in even years and the Respondent having the children in odd years; (b) March Break; (c) Easter; (d) Thanksgiving,

the schedule for which shall be determined directly as between the Applicant and the Respondent.

15. The children will reside with the Applicant on Mother’s Day each year from 10:00 a.m. to 7:00 pm. If they are not already in her care that day.
16. The children will reside with the Respondent on Father’s Day each year from 10:00 a.m. to 7:00 p.m. if they are not already his in care that day.
17. During the school summer break, the week about schedule will continue however each party is entitled to two (2) non-consecutive, uninterrupted weeks with the children.
18. Both the Applicant and the Respondent shall be permitted to exercise one (1) additional week of uninterrupted holiday access with the children each year, between September and June.
19. The Applicant and the Respondent shall both be permitted to attend at the children’s activities and events.
20. Communication as between the Applicant and the Respondent shall not exceed twice per day, if necessary (unless there is an emergency), via phone, short text or email exchange. The children are permitted to contact the non-residence parent unconditionally.
21. Neither the Applicant nor the Respondent shall move the child’s residence further than 30 kilometers from Baden, Ontario without first obtaining the express written consent of the other party, or an order of this Honourable Court.
22. The Applicant and the Respondent shall be permitted to travel internationally with the children, and shall cooperate with one another to ensure that any and all travel documentation is executed, notarized, and/or exchanged at least two (2) weeks prior to the party’s anticipated travel.
23. In the event of plans to travel with the children, internationally or otherwise, the party travelling with the children shall provide to the other a detailed written itinerary of the children’s travel, which will include a telephone number at which the children may be reached in the event of an emergency.
24. No reasonable request for travel with the children shall be refused by the Applicant and/or the Respondent.
25. The Applicant shall be the librarian of the children’s identification and shall provide the Respondent with a copy of the children’s birth certificate and passport, as requested. The children’s health cards will travel with them from home to home.
26. The Applicant and the Respondent will cooperate in obtaining and renewing the children’s passports and will pay the fees associated with same in proportion to their income, the Applicant will provide the Respondent with the passport(s) two (2) weeks prior to departure for international travel.
27. There shall be no retroactive child support payable by one party to the other.
28. Commencing October 1, 2018, the Respondent shall pay child support to the Applicant in the amount of $1,072.00 per month, for the children, Madison, Tyson and Makenzie, calculated in accordance with the Applicant’s income of $33,596.00 per annum and the Respondent’s income of $80,000.00 per annum, and pursuant to sections 3 and 9 of the Child Support Guidelines.
29. The parties shall exchange their Income Tax Return and Notice of Assessment or Reassessment in June, each calendar year, commencing in 2019, and the child support payable at paragraph 27 herein shall be adjusted commencing July 1st each year.
30. The Applicant and the respondent shall contribute to the children’s agreed upon section 7 special and extraordinary expenses, in proportion to their annual income, with the Applicant currently paying 30% and the Respondent currently paying 70%. The reimbursing party will provide their share of the payment within ten (10) days of receiving a receipt for same.
31. Both the Applicant and the Respondent shall maintain the children as beneficiaries to any supplemental health and dental benefits afforded to them by way of their employment, or otherwise, and for so long as they are permitted to do so.
32. The Applicant and the Respondent shall cooperate with one another to maximize the children’s coverage under their respective plans.
33. The Applicant and the Respondent shall each maintain policies of life insurance available through their employment, naming the one another as irrevocable beneficiary in trust for the children, for purposes of securing their respective child support obligations.
34. The Respondent shall pay to the Applicant lump sum spousal support in the amount of $9,000, within 30 days.
35. The Respondent shall pay the Applicant an equalization payment in the amount of $58,792.10 within 30 days and forthwith transfer from his pension the amount of $18,536.82 to a LIRA or LIF as directed by the Applicant. The Family Law Valuation Date for the pension transfer is June 1, 2015.
36. Following satisfaction of the subject payment and transfer at paragraph 35 herein, there shall be no further or equalization of net family property, or property division as between the parties for all time in the future.
37. The Respondent shall retain, free from any claim by the Applicant, his registered and non-registered investments, the balance of his employment pension, and the former matrimonial home, municipally known as 5 Honderich Place, Baden, Ontario.
38. All other claims in this proceeding are dismissed.
39. Unless the child support order is withdrawn from the office of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
40. Support deduction order to issue for the periodic child support.

G. Costs

[111] If the parties are unable to resolve the issue of costs, written submissions shall be delivered to my chambers in Kitchener within 30 days. Ms. Busko is also given the option to request a hearing for oral submissions regarding costs instead of written submissions and shall do so by contacting the trial co-ordinator within 30 days to request such be scheduled for a day convenient to both parties, counsel and the court.

D.J. Gordon J.

Released: October 9, 2018

COURT FILE NO.: 51925-16 DATE: 2018-10-09 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JENNIFER BUSKO Applicant – and – BLAIR ISRAEL Respondent REASONS FOR JUDGMENT D.J. Gordon J. Released: October 9, 2018