COURT FILE NO.: FS-16-0219
DATE: 20180912
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
EMUESIRI TEJIRI MEDU
Applicant
– and –
ERERE OHWOFASA MEDU
Respondent
Hannah Kazman, for the Applicant
Self-represented
HEARD: January 12-17, 2018
REASONS FOR JUDGMENT
Contents
BACKGROUND.. 2
ISSUES.. 4
LITIGATION HISTORY.. 6
POSITION OF THE PARTIES.. 13
REVIEW OF THE EVIDENCE.. 15
A. Parenting. 15
i. Applicant’s Evidence. 17
ii. Ghia Townsend. 22
iii. Reverend Garth Rowe. 25
iv. Vellonic Brown. 26
v. Norman Townsend. 27
vi. The Respondent’s Evidence. 28
vii. Beverly Deguire. 32
viii. Andrew Nesbitt 32
ix. Alexandra Galoucci 32
B. Support and Imputing Income. 33
i. The Applicant’s Evidence. 33
ii. The Respondent’s Evidence. 38
- ISSUE ONE: CUSTODY AND ACCESS.. 40
a) The Law.. 40
b) Analysis. 45
Custody. 45
Access. 51
ISSUE TWO: SPOUSAL SUPPORT. 52
a) The Law.. 52
b) Analysis. 54
ISSUE THREE: IMPUTATION OF INCOME.. 56
a) The Law.. 56
b) Analysis. 58
ISSUE FOUR: RETROACTIVE SUPPORT. 60
a) The Law.. 60
b) Analysis. 62
ISSUE FIVE: CHILD SUPPORT. 63
TERMS OF THE ORDER TO ISSUE.. 64
Custody. 64
Access Schedule: 66
Child Support 70
Spousal Support 71
Equalization of Net Family Property. 72
Costs. 72
Shaw J.
1. BACKGROUND
1The parties were married on May 3, 2008, in Nigeria and separated on January 5, 2015, while living in Brampton, Ontario. There are three children of the marriage, namely AM, born […], 2010; EM, born […], 2011; and OM, born […], 2014. AM will be entering Grade 3 in September and EM will be in Grade 2. They both attend a public school in Brampton. OM has been in daycare and presumably, given his age, will be entering the school system in September 2018.
2The Applicant was born in Nigeria on November 11, 1982, and is currently 35 years of age. The Respondent was born in Nigeria on February 16, 1976, and is currently 42 years of age. Shortly after their marriage in Nigeria, the Applicant moved to Scotland in September 2008 to continue her education at Robert Gordon University. She graduated with a Master of Information and Engineering degree. The Respondent moved to Scotland in February 2009 where he obtained his PhD in Pharmaceutical Microbiology. Prior to that, he had worked as a pharmacist in Nigeria. Since moving to Canada, the Respondent has been employed at various jobs and has been working towards being certified to practice as a pharmacist in Canada. The Applicant did not work between 2010 and September 2016 when she began working part time as a Grocery Flow Operations Clerk with Loblaws. She is also currently enrolled part-time in school.
3The Applicant and Respondent moved to Brampton, Ontario, in September 2012 with their two oldest sons. The Respondent returned to Scotland one month later to complete his PhD thesis. He returned to Brampton approximately seven months later in May 2013. During that time, the Applicant lived with the children in Brampton. The Respondent then returned to Nigeria between December 2013 and March 2014. Since his return in March 2014, he has lived continuously in Brampton, Ontario.
4For each child’s birth, the Applicant travelled to the United States. There is conflicting evidence with respect to how much time the Respondent spent with the Applicant while she was in the United States waiting for her children to be born. In resolving the issues in dispute in this litigation, nothing turns on how long the Respondent was with the Applicant before or after the children were born in the United States.
2. ISSUES
5The issues in dispute are the following:
Should there be an order for sole or joint custody of the three children?
What should be the parenting or access arrangements for the children?
What is the quantum of child support that the Respondent should be paying?
Is the Applicant entitled to spousal support and if so, what is the quantum of spousal support?
Should income be imputed to either or both parties?
Should there be an order for retroactive child and spousal support?
6Both parties had initially claimed an equalization of net family property. At the commencement of trial, the Applicant informed the court that she would not be pursuing that claim if the Respondent also agreed that he would not be pursuing an equalization of net family property. During his opening, the Respondent informed the court that he was still seeking an equalization of net family property. It was not until his closing submissions that the Respondent agreed with the Applicant that there was no issue regarding the equalization of net family property. As a result, the court heard evidence regarding property issues that was not necessary.
7The court heard evidence from the parties and a number of witnesses on behalf of each party dealing with parenting issues. The witnesses gave evidence-in-chief through affidavits, and the parties cross-examined and re-examined each witness at trial. In these reasons, I review the history of the litigation, set out the positions of the parties, and review the evidence. I then provide an overview of the law, my analysis, and my decision regarding each of the outstanding issues.
8For the reasons that follow, I conclude that it is in the children’s best interest that the Applicant be granted sole custody. The Respondent shall have access every second weekend from Friday after school to Monday morning, and alternate weeks from Tuesday after school until Thursday morning. Further particulars and details regarding access are set out at the end of these reasons.
9I conclude that income will not be imputed to either the Applicant or Respondent from the date of separation to the date of these reasons. As the Respondent is nearing the end of, or may have now completed, the certification process to be licensed as a pharmacist in Ontario, further evidence is required regarding his current employment and earnings in order to determine the appropriate quantum of child and spousal support once he has completed the certification process. The parties are to schedule an additional one-day hearing before me to deal with this issue. Prior to that hearing, the Respondent shall serve and file an updated affidavit by October 8, 2018, providing details of that status of the certification process and details of his current employment and income and/or efforts to secure work as a pharmacist.
10Pending that hearing, the Respondent shall pay child support based on minimum wage rates retroactive to June 1, 2016. Based on the minimum wage rate resulting in an income of $22,000 per annum, his child support obligation was $459 per month. As the minimum wage rate has increased to $14 per hour, or $29,000 per annum, he shall pay child support of $576 per month effective January 1, 2018. He shall also continue to pay $100 per month towards the arrears of child support which have accrued since June 1, 2016.
11The Applicant is entitled to spousal support. The quantum of spousal support shall be determined once updated evidence is provided from the Respondent regarding his current employment and income and/or efforts to complete the certification process and seek employment.
3. LITIGATION HISTORY
12This action was commenced on September 20, 2016, 20 months after the parties had separated. Prior to that, there were criminal and family law proceedings in the Ontario Court of Justice.
a) Criminal Proceedings
13The parties separated when the Applicant was charged with assaulting the Respondent on January 4, 2015.
14The Applicant was released on bail on January 5, 2015, with the following conditions:
reside with surety and abide by the rules and discipline of the home;
do not contact or communicate in any way either directly or indirectly the following: Erere Medu
Except
in the presence of or through legal counsel
the presence of your surety for supervised contact with Erere Medu
for household finance and access to children
- contact with your child/children to be arranged through your surety or mutually agreed upon third party or valid family court order dated after today’s date.
15The Applicant is a member of the Solid Rock Christian Assembly Church. Reverend Dr. Garth Rowe is the pastor of the church. He, and a number of other members of the church, were called as witnesses by the Applicant. One of those witnesses was Ms. Ghia Townsend. She agreed to be the Applicant’s surety, although she had only spoken with the Applicant and Respondent on two occasions prior to January 2015. After being released on bail, the Applicant and her three children moved into Ms. Townsend’s home with her husband, Norman Townsend, and their two children and remained living there for two years. Since January 2017, the Applicant and the children have been sharing living accommodations with Ms. Vellonic Brown and her two children. Ms. Brown is Ms. Townsend’s sister.
16The assault trial commenced on September 23, 2016. The Applicant filed a transcript from the trial as evidence. After the Respondent was questioned and cross-examination had commenced, the Crown informed the court that it could not meet its burden of proof beyond a reasonable doubt with the evidence that was heard. At page 46 of the transcript, the Crown stated the following regarding the Respondent:
I have concerns with regards to his credibility. I have concerns with regards to his reliability as a witness. I have concerns that he was overly aggressive while testifying. I have concerns that he was exaggerating at times.
17The Crown added “… obviously this isn’t a reflection of what did or did not happen”.
18Twenty months after being charged, the Crown withdrew the charges against the Applicant.
b) Breach of Bail Conditions
19On January 7, 2015, Reverend Rowe texted the Respondent asking to make arrangements for the Applicant and Reverend Rowe to attend at the Respondent’s home to pick up the children’s winter clothes. A date and time was agreed upon and the Applicant and Reverend Rowe attended at the Respondent’s home, with his permission to do so.
20In April 2016, over one year later, the Respondent contacted the Peel police about this attendance and the Applicant was charged with being in breach of her bail conditions. The Crown subsequently withdrew the charges.
21The Respondent’s evidence on cross-examination was that he was upset that the Applicant had also taken the children’s passports and personal belongings, not just their winter clothes when she attended at his home in January 2015. It was also his evidence that he had attempted to secure the passports’ return from the Applicant but as he could not do so, he went to the police in April 2016 to ask for their assistance. When he told the police what had transpired, the police informed him that the Applicant was in breach of her bail conditions as she had attended at his home with someone who was not her surety, and that she would be charged.
22It was also the Respondent’s evidence on cross-examination that he was aware that Reverend Rowe was holding the two oldest children’s passports when he went to the police in April 2016.
c) Family Law Proceedings in the Ontario Court of Justice
23Following this incident, the Applicant retained counsel to deal with issues arising from her separation from the Respondent. The Applicant’s lawyer wrote to the Respondent on May 17, 2016. In that correspondence, her lawyer informed the Respondent that the Applicant wanted to make arrangements for ongoing access as her surety was no longer comfortable with the Respondent attending at her home to pick up the children due to a number of incidents that had occurred during previous exchanges. The Applicant’s lawyer proposed that the Respondent pick up the children at the YMCA on Saturday mornings and then drive them to school or daycare each Monday morning. The Applicant’s lawyer also requested financial disclosure so that arrangements could be put in place for child and spousal support. The Applicant’s lawyer sent a follow up letter to the Respondent on May 24, 2016, requesting a response to the initial correspondence.
24On May 20, 2016, three days after receiving the initial letter, rather than respond to the Applicant’s lawyer, the Respondent commenced an action in the Ontario Court of Justice on an urgent basis, without notice to the Applicant. The Respondent sought custody and support of the children and a restraining order against the Applicant. In his material, he stated that he intended to move to Alberta in five days and was planning on living in Calgary, Edmonton, or some other city in Alberta, and wanted an order so that he could take the children with him.
25During cross-examination, the Respondent testified that when he received the initial letter from the Applicant’s lawyer, he was confused. His evidence was that he did not have means to hire his own lawyer and he did not know what to do. He acknowledged receiving a second letter two weeks later saying a court application would be commenced. On cross-examination he testified that he went to legal aid with those letters, had a “robust discussion”, and commenced an application in the Ontario Court of Justice based on advice from legal aid. I note, however, that the date stamp of filing on the application was May 20, 2016, before the Respondent had received the second letter.
26The Respondent’s materials filed with the Ontario Court of Justice included a motion, also without notice to the Applicant, seeking interim custody and a restraining order against the Applicant. In his affidavit filed in support, the Respondent deposed that he planned to move to Alberta in five days to work as an intern pharmacist. He deposed that the Applicant was facing two criminal charges and had mental health issues. He also alleged that she had slashed one of the tires on his car. He claimed that the Applicant physically assaulted him and he had to seek medical treatment, including X-rays, for injuries he sustained in these assaults.
27The Respondent presented no medical evidence during this trial, nor in the Ontario Court of Justice proceedings, regarding these injuries or the medical treatment he received for those injuries. Furthermore, in his material, the Respondent did not inform the court that the Applicant had retained a lawyer who had written to him only three days earlier seeking to engage in settlement discussions to resolve the custody, access, and support issues.
28On May 20, 2016, the Ontario Court of Justice issued an Order that the residence of the children would remain within Peel and that neither party could move the children without a further Order. The court ordered that the children would continue to share their time between the parties’ homes as arranged through a mutual third party. The matter was then adjourned to June 2, 2016. The proceeding was eventually withdrawn when the Application in this Court was commenced by the Applicant.
29During cross-examination it was the Respondent’s evidence that he had an offer for a paid internship to work as a pharmacist in Edmonton, Alberta, and that he had discussed this with the Applicant on a number of occasions in December 2015 and January 2016. The Applicant denied discussing this with the Respondent. The Respondent’s evidence was that he wanted to move to Alberta as he could begin practicing as a pharmacist sooner and the certification process was not as expensive as in Ontario. His evidence was that he commenced the Application in the Ontario Court of Justice as he wanted to move, given this job opportunity, and he did not feel it was in the children’s best interest that they be left with the Applicant as she regularly assaulted him.
30During cross-examination, the Respondent testified that he did not intend to bring the motion without notice to the Applicant. His evidence was that he was self-represented and that he did not know what “without notice” meant. It was also his evidence that he did not mean to ask for sole custody of the children but rather joint custody.
d) Superior Court of Justice Proceedings
31The Applicant commenced these proceedings on September 20, 2016. The first and only interim access Order was dated October 25, 2016. Pursuant to that Order, the Respondent has access to the children every Saturday at 9:45 am until Monday morning when they go to school or day care. The pick-up is at the Brampton location of the Social Enterprise for Canada. That organization provides supervised access exchange locations for a fee. This arrangement has been in place since October 2016.
4. POSITION OF THE PARTIES
32One of the main issues before me is whether or not there should be a sole or joint custody order.
33The Applicant’s position is that cooperation and an ability to communicate are essential to a joint custody order and that since the parties separated, over 3.5 years ago, there has been ongoing conflict between the parties and an inability to communicate. Her position is that it is the best interest of the children that she be granted sole custody.
34The Applicant’s position is that the children should spend alternate weekends with her; currently they are with the Respondent every weekend. She proposes that the Respondent have alternate weekend access from Friday after school to Monday morning, and then alternate weeks from Tuesday after school to Wednesday morning.
35The Respondent’s position is that the parties can communicate regarding the children and points to text messages exchanged since July 2017 which support his position. His position is that a joint custody would be in the children’s best interest. He proposes that the children live alternate weeks with each parent, or, in the alternative, that they be with him every weekend from Friday after school to Monday morning. In the further alternative, he proposes that the children be with him every other weekend from Friday after school to Monday morning and then alternate weeks from Tuesday after school to Thursday morning.
36On the support issue, the Applicant’s position is that an income of $50,000 ought to be imputed to the Respondent as he has failed to become certified as a pharmacist in a timely fashion and is underemployed. Based on that income, he should pay the table amount of child support of $977.00 and his share of s. 7 expenses. Her position is that she is entitled to spousal support and that both child and spousal support should be paid retroactive to June 1, 2016.
37The Respondent’s position is that he has pursued the certification process to become licensed as a pharmacist in Ontario in a timely fashion and that his child support obligations ought to be calculated on the income he has actually earned. His position is that an income ought to be imputed to the Applicant who should be working full-time in a job for which she is qualified. His position is that she is not entitled to spousal support.
5. REVIEW OF THE EVIDENCE
A. Parenting
38The parties separated when the Applicant was charged with assaulting the Respondent. The Applicant denies the assault. According to the Respondent, he and the Applicant had good and difficult moments during their marriage. His evidence was that the difficult moments were due to the “Applicant’s extreme sensitivity and emotional outbursts to normal spousal discussions resulting on occasional verbal and physical assaults on me.” The Respondent gave no evidence regarding the events leading to the Applicant being charged with assault or particulars of any other assaults. In turn, the Applicant alleges that she was subject to emotional and verbal abuse throughout the marriage.
39At the time the Applicant was charged, she and the Respondent were living together with their three children. The children were 4 years old, 3 years old, and 9 months old. On January 5, 2015, the day after the Applicant was charged, the Respondent met with Reverend Rowe, Ms. Townsend, and her husband, Norman Townsend. At that meeting, the parties agreed that the Applicant and the three children would live with the Townsends and their two children. It was the Respondent’s evidence that given the children’s ages, it was best that they stay with the Applicant at Ms. Townsend’s home on the understanding that he would have “liberal and unfettered” access to the children. Unfortunately, at the time, no one discussed what that meant.
40According to the Applicant, during the marriage, she was the primary care-giver for the children and did not work between 2010 and 2016. All of the evidence presented was that she is a good parent. The Respondent did not dispute this. His only concern was the Applicant’s abusive behaviour towards him. He did not give any evidence to suggest that the Applicant was not a good and loving parent.
41Likewise, I did not hear any evidence to suggest that the Respondent was not a good, competent and loving parent. I heard no evidence that the children are not doing well. The only evidence I heard of any concern regarding the Respondent’s competency as a parent was from a period of time shortly after the separation when the children returned after time with the Respondent appearing to be hungry, dirty and with dirty clothes. There was no evidence of any ongoing issues and I therefore place no reliance on that evidence in assessing what is in the children’s best interests.
42As the custody issue in dispute is a determination of sole or joint custody, these reasons will focus on the evidence dealing with the relationship between the Applicant and Respondent and whether they have an ability to communicate and cooperate in a manner that is necessary for a joint custody arrangement so that that children can be parented in a loving and effective manner. A bald allegation of an inability to cooperate is not sufficient. Rather, it is necessary to review the source of the conflict and consider the nature of the relationship between the parties to determine if a joint custody order would be in the children’s best interests.
i. Applicant’s Evidence
43Both parties have made allegations that each other was abusive towards the other during the marriage. The Applicant’s evidence was that she endured verbal and emotional abuse. For example, according to the Applicant the Respondent would always need details about who she saw when she attended bible study in Scotland, questioned her about phone calls, called her shameless, made allegations that she was having affairs with various men, made her and the three children share a bedroom, and directed her not to talk to people outside of the marriage. Her description of him was that he was very controlling.
44It was the Applicant’s evidence that she has always been the children’s primary caregiver. Prior to the separation, the Respondent would leave home early in the morning and not return until 11:00 p.m. or midnight. The Applicant was responsible for taking the children to the bus stop in the morning and the youngest to daycare two days a week. When she went grocery shopping, she would take all the children with her. She took the children to swimming every Saturday and also to bible study. She enrolled the two older children in school and made the arrangements for daycare for the children.
45The Applicant’s evidence was that the children are doing well. The two oldest have won awards at school for things such as responsibility, being an empowering leader, and consistency. The Applicant filed as evidence text messages exchanged with their teachers, copies of the certificates for the awards, and the children’s reports cards. EM’s Grade 1 report card from June 2017 was positive, as was AM’s Grade 2 report card. EM was awarded the first “student of the month” prize in Grade 1.
46The Applicant’s evidence was that the Respondent’s post-separation conduct demonstrates that he has not focused on the children’s best interests. For example, after the parties separated, the Respondent unilaterally cancelled the car insurance for the van the Applicant drove, forcing her to return the van to the Respondent. The Respondent’s evidence was that this was a mutual decision made on consent of both parties.
47The Applicant described the Respondent’s access as inconsistent in the early months after they separated. At times, he would take only one child, normally EM. On other occasions, he would arrive very late or drop them off early. Her evidence was that the children would come home unwashed and with dirty clothes. Prior to May 2016, the Respondent would attend at Ms. Townsend’s house to pick up the children. According to the Applicant, the Respondent caused too many disturbances at the home, leading Ms. Townsend to no longer permit the Respondent to attend at her home after May 2016.
48It was the Applicant’s evidence that on one occasion in the first few months after they separated, the Respondent attended at Ms. Townsend’s home and started to berate and insult her in front of the their three children and Ms. Townsend’s eldest son.
49The Respondent was not to go upstairs in Ms. Townsend’s home. On one occasion when he attended to pick up the children, he went upstairs to get the children’s health cards from the Applicant’s bedroom. The Applicant locked herself in the bedroom. Ms. Townsend called the police as the Respondent was physically trying to get into the Applicant’s bedroom. The Applicant’s evidence was that she did not want the police involved as she was worried it could affect the Respondent’s ability to get his pharmacy accreditation.
50The Applicant gave evidence that when the Respondent was no longer permitted to attend at Ms. Townsend’s home, in May 2016, the parties agreed that Mr. Townsend would drop the children off at the YMCA at 9:45 am every Saturday to be picked up by the Respondent and he was to bring them to school or daycare on Monday mornings.
51The Applicant stated that in May and June 2016, there were times when the Respondent did not drop the children off at school or daycare, and did not inform the Applicant. She had to go through her lawyer to contact the Respondent’s lawyer to get information on her children’s whereabouts. (By this time, both parties had retained lawyers.)
52It was the Applicant’s evidence that between July and September 2016, the Respondent did not exercise access or communicate with her. Mr. Townsend continued to bring the children to the YMCA every Saturday morning but the Respondent did not attend to pick them up.
53The children’s passports and health cards generated much questioning at trial. Those documents appear to have become a central concern to both parties since they separated. They have not been able to reach an agreement regarding who is to have possession of those documents or where they are to be stored. Both parties gave evidence that they believe the other wants the children’s passports in order to move with the children to Nigeria. Both deny that they have any intention to move to Nigeria.
54The Applicant’s evidence was that she needs to renew the children’s permanent resident cards and passports but the Respondent will not let her do so as he will not let her have possession of the children’s passports. Her evidence was that the Respondent has OM’s passport and permanent resident card and EM’s birth certificate, and refuses to give her those documents. Reverend Rowe has the two older children’s expired passports. As their permanent residence cards expired on November 16, 2017 if they were to leave the country, the children would not be allowed to return to Canada.
55According to the Applicant, the Respondent will not allow Reverend Rowe to release the passports to her. She has paid for a safety deposit box as they had agreed that the passports would be held in a safety deposit box. The passports have not yet been deposited there as the Respondent does not agree that Reverend Rowe can give the Applicant the passports to put in the box. The matter remains at an impasse at this time.
56It was the Applicant’s evidence that at some point the Respondent reported to Service Canada that the children’s health cards were stolen even though he knew that she had them in her possession. As a result, she paid for some medical expenses directly until she was able to secure new cards.
57The Applicant’s evidence is that although there has been an access Order in place for almost two years, the Respondent continues to be uncooperative. For example, in October 2017, she asked for a change to access as the children had a concert. As the Respondent did not respond to her request by text, her lawyer had to send a letter. She also encountered problems scheduling access during the Christmas holidays in 2017. Again, she needed the assistance of her lawyer to send a letter to the Respondent.
58On cross-examination, the Applicant admitted that she did not give the Respondent the health cards when he asked because when she gave him EM’s birth certificate, for example, he did not return it. She admitted that on one occasion the Respondent wanted to travel with OM but she would not consent.
59The Respondent questioned the Applicant about texts and letters exchanged in November and December 2017 discussing access arrangements. The Applicant admitted that there have been some instances where she and the Respondent have been able to discuss issues about the children and reach an agreement.
60The Respondent questioned the Applicant about EM’s report card dated February 6, 2017, which stated that at the beginning of the year, he played quietly on his own but by February, it was rare to see him playing independently. It also stated that his self-confidence had grown throughout the year. The Respondent suggested to the Applicant that this was indicative of EM’s morale dropping when he did not see the children in the summer of 2016. The Applicant did not agree and said EM had to get used to his classmates.
ii. Ghia Townsend
61I found Ms. Townsend to be a credible witness who responded to questions on cross-examination in a forthright and candid manner.
62Ms. Townsend’s evidence was that on January 5, 2015, her pastor, Reverend Rowe, called her to attend at the Ontario Court of Justice to help the parties. Following a meeting that included the Respondent, she agreed to be the Applicant’s surety and also agreed that the Applicant and her three children could live with at her home with her family.
63Her evidence was that initially the Respondent saw the children on Friday evenings and from Saturday night to Monday morning. It was her evidence that the time he spent with the children became inconsistent and at times he would not show up on Friday or would arrive very late. She observed that the children would typically return home hungry, unwashed and their clothes were dirty. She described seeing feces in their clothing and being so concerned that at one point she suggested to the Applicant that she should contact the Children’s Aid Society.
64It was Ms. Townsend’s evidence that she initially gave the Respondent unrestricted access to her home but as a result of a series of incidents, she no longer permitted him to come to her home. On one occasion shortly after the separation, she saw and heard the Respondent berating and insulting the Applicant and the Applicant’s parents. She spoke with the Respondent and told him that his behaviour was inappropriate in front of the children and she would not tolerate exposing her children to that. Her evidence was that the Respondent lost his temper on other occasions.
65On another occasion, the Respondent went upstairs in their house even though he had been told he was not allowed to do so. He was insistent that the Applicant give him the children’s health cards. The Applicant had locked herself in her bedroom and the Respondent was trying to enter. Ms. Townsend’s evidence was that her husband was also trying to prevent the Respondent from entering the Applicant’s bedroom. She called the police and when they arrived, the Applicant pleaded with Ms. Townsend not to press charges. The officers spoke to the Respondent and left.
66Ms. Townsend’s evidence was that she eventually decided the Respondent could not come to her home due to his ongoing behaviour when picking up the children. It was agreed that her husband would drop the children off at the YMCA on Saturday mornings at 9:45 am. Her evidence was that between July and September 2016 the Respondent did not show up at the YMCA to pick up the children although her husband continued to drive the children to the YMCA every Saturday throughout that period.
67The Respondent’s cross-examination of Ms. Townsend focused on the children’s health cards and the initial meeting with Reverend Rowe following the Applicant’s arrest. Ms. Townsend agreed that at the meeting the parties discussed that the Respondent would have “unfettered” access to the children. It was her evidence that the Respondent had been given copies of the health cards but not the originals.
68Ms. Townsend was unaware of any concerns with access after October 2016.
iii. Reverend Garth Rowe
69Reverend Rowe is the minister at Solid Rock Christian Assembly. His evidence was that he has known both the Applicant and Respondent for five years. The Applicant continues to be a member of the church. He presented as an articulate and thoughtful witness who answered questions on cross-examination in a non-defensive and candid fashion.
70His evidence was that he had extensive interactions and involvement with both the Applicant and Respondent on various matters including meeting them for marriage counseling and conflict resolution after they separated. His evidence was that the parties accomplished little primarily due to the inconsistent tendencies and unreasonable attitude of the Respondent.
71His evidence was that he heard the Respondent insult the Applicant calling her uneducated, incapable, and lazy. He belittled her as a mother.
72Reverend Rowe confirmed that he attended with the Applicant on various court appearances for the criminal proceedings. His evidence was that he saw the Respondent videotaping and taking pictures of the Applicant and himself but he did not know why.
73Reverend Rowe’s evidence was that in January 2015 he went with the Applicant to the Respondent’s apartment to pick up the children’s belongings. He texted the Respondent who agreed that he and the Applicant could attend at his apartment.
74On cross-examination, Reverend Rowe admitted that the Applicant made financial contributions to the church. He did not agree that he and other church members gave evidence on behalf of the Applicant as a result of these donations.
iv. Vellonic Brown
75Ms. Brown has known the Applicant since July, 2015. Ms. Brown moved in with her sister, Ms. Townsend, when she immigrated to Canada in December 2015. Since January 2017, she and the Applicant and their children have been sharing accommodations.
76Ms. Brown’s evidence was that the Respondent’s attendances at Ms. Townsend’s home were always loud and uncomfortable. Her evidence was that the Respondent would berate the Applicant by calling her lazy and stupid. He would also make comments that she didn’t want to work.
77It was Ms. Brown’s evidence that the Respondent’s access to the children was inconsistent as he would either pick up the children up late or return them early or sometimes not take all of them.
78Ms. Brown’s evidence was that she accompanied the Applicant to drop the children off at school each day after the Respondent alleged that the Applicant slashed his tires. Her evidence was that after that occurred, the Applicant was afraid to go anywhere without someone accompanying her.
79On cross-examination, Ms. Brown’s evidence was that since the October 2016 Order, there have only been two or three occasions where the Respondent may have been late for access.
v. Norman Townsend
80Mr. Townsend has known the parties since 2014, when they began to attend Solid Rock Christian Assembly. He initially knew the Respondent as he attended the men’s group at the church. He described the Applicant as a very quiet and reserved woman.
81It was his evidence that he and his wife agreed that the Applicant and children could live with them after she was charged with assault. His evidence was that when the Respondent picked up the children at their home the Applicant would stay upstairs and the Respondent agreed to stay downstairs. This worked for a few months but then the Respondent started missing pickup times and then coming to the house unannounced. His evidence was that the Respondent would also try to speak with the Applicant which contravened the bail conditions. There were times he heard the Respondent speaking to the Applicant, in a language that he did not understand and the Applicant appeared to be visibly upset.
82His evidence was that at some point the Respondent came to the house and requested the children’s passports. The Applicant did not give them to him and locked herself in her bedroom. Mr. Townsend’s evidence was that he had to physically restrain the Respondent from trying to get into her bedroom. After that incident, he and his wife decided that the Respondent could only come into the foyer of their home.
83His evidence was that in May 2016 it was decided that the access exchange should no longer be at their home and he agreed to bring the children to the YMCA on Saturday mornings. His evidence was that this arrangement worked for a while but there was a 2.5-month period where the Respondent did not show up to pick up the children even though he continued to drive the children to the YMCA every Saturday.
vi. The Respondent’s Evidence
84The Respondent’s evidence was that when he and the Applicant first moved to Ontario, he had not yet completed his PhD studies in Scotland and they agreed that he would travel back to Scotland so that he could obtain his degree. He then moved to Ontario permanently in March 2013 when he completed his studies.
85His evidence was that before he returned to Scotland he made arrangements with some mutual friends who took the Applicant and the children to church every Sunday in Toronto.
86The Respondent’s evidence was that he has a strong bond with the children and has served equally as their caregiver. He testified that that before they separated they made important decisions about the children jointly. He did not provide any particulars.
87The Respondent now lives within a 5-minute drive of the children’s school and daycare. They attend the Bramalea Baptist Church every Sunday.
88The Respondent’s evidence was that the children lived with him every weekend from Friday evening to Monday morning after he and the Applicant separated until the Applicant retained counsel in May 2016. He also saw the children during the week.
89The Respondent’s evidence was that when the Applicant lived with Ms. Townsend, when he would attend to pick-up the children, there were occasions that the Applicant or Ms. Townsend would not open the door and he would be left outside waiting for an extended period of time. His evidence was that on other occasions the Applicant denied him access or only let him see one child at a time.
90His evidence was that he did not agree to the change to access in May 2016 whereby he was to pick up the children Saturday mornings. His evidence was that he was to pick them up at the YMCA on Friday evenings, as had been agreed.
91It was the Respondent’s evidence that the children’s academic performance and sociability suffered, especially EM’s, when the Applicant denied him access commencing in May 2016 and has since greatly improved. In support of that, he referred to the comments in EM’s February 2017 report card.
92His evidence was that since October 2016, he and the Applicant have been able to communicate, by way of text messages and emails, on issues affecting the children. The Respondent filed as evidence some text messages exchanged between the parties since July 2017 demonstrating that they can communicate and cooperate on issues dealing with the children.
93His evidence was that it is the Applicant who chose not to cooperate in order to bolster her claim for sole custody. For example, she did not agree to attend a parent-teacher interview with him regarding their son AM on October 16, 2016 but chose to attend the interview on her own. On cross-examination, he agreed that he could have scheduled his own meeting with the teacher but his evidence was that he did not want to see the teacher without his son as that would send the wrong signal to the teacher. He also testified that he did not ask the school for copies of his children’s report cards as he did not want the school to know that he was in a dispute with the Applicant.
94His evidence was that another example of the Applicant’s lack of cooperation was when she did not agree that the children would attend a summer camp arranged through his church in 2016. The Respondent’s evidence was that he assumed that the children were going to spend alternate weeks with each parent that summer and so he enrolled them in camp. There was no evidence that he first discussed this with the Applicant.
95In August 2017 he learned that OM was attending an alternate daycare but the Applicant refused to provide him particulars of the daycare.
96On cross-examination his evidence was that he currently works evenings driving a taxi and as an unpaid intern pharmacist during the day as part of the accreditation process. His evidence was that his employer will accommodate him if he has the children and has to work different shifts.
On cross-examination, the Respondent agreed that the children are happy and cheerful, in good health and doing well. His evidence was that they would like to spend more time with him and that he would like to spend more time with them.
vii. Beverly Deguire
97Ms. Deguire was called as a witness by the Respondent. She is the children’s ministry pastor at Bramalea Baptist Church in Brampton. Her evidence was that the three boys have been attending Sunday services at the church for the last few years. They have participated in preschool and kindergarten programs and the two oldest were involved in the children’s choir. Her evidence was that the boys are well dressed when they arrive for church on Sunday mornings.
viii. Andrew Nesbitt
98Mr. Nesbitt has known the Respondent for eight months when they began to live together as roommates. His evidence was that the children appear happy and excited on the weekends. He has observed the Respondent making meals and doing homework with the children.
ix. Alexandra Galoucci
99Ms. Galoucci is Mr. Nesbitt’s girlfriend and stays with him on weekends. She has observed the Respondent and his three children. Her evidence was that the Respondent cooks meals for the children and there are toys and games that the children can play with when they are with the Respondent.
B. Support and Imputing Income
i. The Applicant’s Evidence
100The Applicant currently works overnight shifts at Loblaws from 11:00 p.m. to 7:00 a.m. pm on a part-time basis on weekends and on Mondays. She earns $1,000 per month. She is also enrolled in a part-time certificate program at Ryerson University in Data Analytics, Big Data and Predictive Analytics. The program is to be completed in six years, although the Applicant hopes to finish it sooner.
101The Applicant’s evidence was that the Respondent had worked during the marriage and after separation, and was most recently working as a self-employed taxi driver through his company called Best Trade Company Ltd. He did not provide financial information to the Applicant until December 21, 2016, despite requests from the Applicant and her lawyer. The Applicant formally requested child support and spousal support from the Respondent in May, 2016. She had not made the request earlier as she was focused on her criminal trial.
102The Applicant’s evidence was that she has made attempts to become self-sufficient by applying for employment positions and educational opportunities, but requires assistance from the Respondent to financially support herself and the children.
103The Applicant’s evidence was that the Respondent refused to pay any child support to the Applicant until March 2017. As of March 2017, the Respondent started paying $459/month in child support to the Applicant on a without prejudice basis. Due to the Respondent’s lack of financial disclosure, this agreement was reached using an imputed income to the Respondent of $22,000 based upon the minimum wage rates in Ontario. In June 2017, he began to pay an additional $100 per month towards arrears.
104Prior to March 2017, the Applicant’s evidence was that she only had the Child Tax Benefit/Canada Child Benefit to support the children.
105The Applicant’s evidence was that she had paid s. 7 expenses, which included $50 per week for OM’s daycare during the school year and $150 per week for all children during the summer. She also had paid $350 per month for OM for a half-day, learning based daycare. She has paid for summer camp programs for the two oldest children ($611.22) and music lessons ($46 per week).
106The Respondent has not paid any spousal support to the Applicant.
107The Applicant’s evidence was that during the marriage, the parties agreed the Applicant would focus her time and efforts on providing care for the children and the home. The Applicant primarily stayed at home while the Respondent focused on his career.
108While living in Scotland, between 2009 and 2010, the Applicant had two jobs. She worked part-time as casual catering staff and as a customer service assistant in a retail job. She also worked part-time developing websites and doing other IT work for a company. She filed as evidence copies of job applications sent by email from 2009 to 2013, and listed ten jobs she had applied for during that time.
109When she moved to Canada, she participated in various newcomer programs to make employment connections. In 2013, she applied to an e-Health research program at McMaster University but was not accepted. She also enrolled in a Business Analyst training program at Sheridan College. In December 2014, she applied to nursing at Humber College but was not accepted. A copy of her application was filed as evidence. From September 2013 to 2015, she worked for an employment agency and worked at five different business. In 2016, she started an online printing website called Siri Posters but she has not earned an income from that business.
110According to the Applicant’s 2014 summary from Revenue Canada her T4 earnings in 2014 were $3,916. She received E.I. benefits of $11,464 for a total income in 2014 of $15,380. In 2015 her total income was $10,756. In 2016 her employment income was $3,628. The child care benefit was $3,580 for a total income of $7,208. According to a statement of earnings from Loblaws, as of September 30, 2017, her year-to-date earnings were $8,583.98.
111The Applicant’s evidence was that her parents, who reside in Nigeria, have been providing her with financial assistance to support herself and the children and paying her legal fees for the criminal and matrimonial proceedings. On cross-examination, she acknowledged that her uncle was a king in Nigeria but she was not a member of any royal family. Her evidence was that her mother was a senior civil servant and was involved with an international school.
112The Respondent filed copies of the Applicant’s bank accounts which he testified revealed deposits of approximately $210,000 between August 2015 and July 2016. The Applicant did not dispute that her family gave her money but she did not agree that the total was $210,000 as some of the deposits were simply transfers from one account to another. It was also the Applicant’s evidence that some of these payments were loans that she was expected to repay to family members.
113The Applicant’s evidence was that the Respondent owned his own pharmacy and worked as a pharmacist in Nigeria. Since moving to Canada, he has been working to complete accreditation process to allow him to practices as a pharmacist.
114The Applicant gave evidence regarding the certification process in Canada which she obtained from the Ontario College of Pharmacists website. It described the process as follows:
I. Enroll in the Pharmacist’s Gateway Canada for international pharmacists;
II. Complete the Pharmacy Examining Board of Canada (“PEBC”) Document Evaluation & Evaluating Exam;
III. Complete the International Pharmacy Graduate (“IPG”) Program;
IV. Register as a student and complete Structured Practical Training (“SPT”) – SPT Studentship;
V. Register as an intern and complete Structured Practical Training-SPT Internship;
VI. Pass the Jurisprudence Exam;
VII. Pass the PEBC Qualifying Exam; and
VIII. Apply for a Certificate of Registration as a Pharmacist
115According to information from The Government of Canada Job Market Report filed by the Applicant, the estimated wages for pharmacists range between $42,270 and $139,998, with a median of $93,136.
116A letter from the Pharmacy Examining Board of Canada addressed to the Respondent dated December 15, 2015, was filed by the Applicant. That letter stated that the Respondent had passed part two of the Pharmacist Qualifying Examination of the Pharmacy Examining Board of Canada. He was informed that his name would be recorded in the Entry-to-Practice Registrar of Pharmacists. The letter stated that he did not have the right to practice pharmacy as such approval could only be granted by a provincial or territorial regulatory authority.
117A letter was also filed from the University of Toronto addressed to the Respondent dated October 11, 2016, confirming his enrollment in the Canadian Pharmacy Skills One Program. The full-day classes were to commence October 17, 2016, and conclude in December 2016.
118It is not in dispute that once the Respondent is accredited, he will be able to apply to work as a pharmacist. The Applicant’s position is that the Respondent has deliberating delayed being certified in Ontario, presumably to defeat his support obligations.
ii. The Respondent’s Evidence
119The Respondent’s evidence was that he has been paying child support since April 2017 together with arrears effective from September 2016.
120The Respondent’s evidence was that since moving to Canada, he has had to work full-time to support the family and that this has contributed to the delay in completing the pharmacist certification process.
121According to the Respondent, between 2013 and 2015, he worked on the federal requirements to become certified as a pharmacist and wrote a federal exam in 2015. His evidence was that at that time he wanted to move to Alberta. When he was denied an order allowing him to move with the children to Alberta in May 2016, he then worked on being accredited as a pharmacist in Ontario.
122According to records from the Canada Revenue Agency, the Respondent earned $13,421 in 2014, $33,254 in 2015, and $17,719 in 2016. According to his Financial Statement sworn November 3, 2017, his monthly self-employment income is $1,476.64, or $17,719 yearly, the same as in 2016. His evidence was that he drives a taxi at night which he operates through a business called Best Trade Ltd. It was his evidence that since August 2016 he has been working as an unpaid intern pharmacist at Shopper’s Drug Mart during the day as part of the certification process.
123His explanation about why his income dropped by $15,000 between 2015 and 2016 was that he had to attend 40 hours per week of classes at the University of Toronto and could not work the same number of hours as he had prior to May 2016. He attended school in the morning and then worked at Shopper’s in the afternoon. He also gave evidence about taking courses on-line as well. This all transpired, coincidentally, at the same time that he received the first letter from the Applicant’s lawyer seeking child support.
124The Respondent denied that he deliberately changed his work to reduce his income in response to a request for child support. He referred to the letter from the University of Toronto dated October 11, 2016, that confirmed his enrolment in the Canadian Pharmacy Skills Program between October 17, 2016, and December 16, 2016. His evidence was that he was also enrolled in a course prior to October 2016 but filed no evidence regarding that course.
125Documents were filed from the University of Toronto Faculty of Pharmacy, International Pharmacy Graduate Program dated October 5, 2017, stating that the Respondent had completed 5/5 courses and had passed the CPS program. According to the Respondent, before passing, he had failed some courses due to the stress in his marriage and having to work to pay high child support. This delayed the certification process, as did working full-time before the parties separated.
126According to the Respondent, he anticipated being able to work unsupervised as a pharmacist by July or August of 2018.
127The Respondent was questioned about bank statements from Scotiabank for the period from January 2015 to July 2017. On cross-examination he agreed that there were deposits into the accounts (there may have been two different accounts but the account number was blacked out on one of the accounts) from unidentified sources that total $73,031 over three years. His evidence was that some of that money was from student loans.
6. ISSUE ONE: CUSTODY AND ACCESS
a) The Law
128The Applicant has advanced claims for custody and access in a divorce proceeding and as such the applicable legislation is the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.). Section 16(1) of the Act provides as follows:
Order for Custody
16(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
129Section 16(8) of the Act sets out the general test for determining custody and access issues. According to that section, the court is consider “only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.” According to s. 16(9), past conduct of a person is not to be considered unless the conduct is relevant to the ability of that person to act as a parent of the child. Section 16(10) refers to the maximum contact principle that a child should have as much contact with each spouse as is consistent with the best interests of the child.
130The Divorce Act does not provide any specific factors for the court to consider in assessing the best interests of the child. Guidance can be found in s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12 (“CLRA”), which provides as follows:
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
131According to subsection (4), in assessing a person’s ability to act as a parent, the court shall consider whether the person has committed violence or abuse against his or her spouse.
132One of the main issues in dispute is decision-making for the three children. Neither the CLRA nor the Divorce Act provides any guidance with respect to determining the appropriate decision-making order. Typically, an order for sole custody means that decision-making rights are granted to the custodial parent. Joint custody describes a situation where both parents are given full decision-making authority and responsibility to be exercised jointly. Neither sole nor joint custody determines the actual living arrangements for the children.
133As Chappel J. states at para. 54 of Roloson v. Clyde, 2017 ONSC 3642, the goal of the court is to resolve custody and access disputes in a manner that will provide for the healthy growth, development, and education of the child so that they will be equipped to face the problems of life as a mature adult. At para. 57, she held that the child’s best interests must underscore any decision-making framework. This means that if a court chooses to impose a decision-making framework, it must be child-focused and as free from conflict and stress as possible. When a court considers such a framework, it must look at all possibilities, not just those the parties have proposed.
134In Jackson v. Jackson, 2017 ONSC 1566, Chappel J. held, at para. 65, that the decision to grant an order for sole or joint custody based on the child’s best interests is ultimately a matter of judicial discretion. She provides a general overview of the principles that assist a trier of fact in considering joint custody, gathered from an extensive review of case law. Chappel J. explained that there is no default position in favour of joint custody and that each case is driven by the judge’s discretion. A judge should only consider joint custody if both parents pass the threshold fitness test, meaning they are able to meet the children’s general needs. The parents may agree that each other are “fit” parents, but this is not determinative. Rather, a judge must use discretion in considering the quality of past parenting decisions, as well as the presence of conflict between the parents.
135Conflict does not immediately preclude joint custody, but parents must demonstrate that they can communicate and cooperate reasonably in order to shield the child from conflict and pursue its best interests at all times. Joint custody is not appropriate when the parents have shown they are unable to communicate or cooperate, or that one party puts their own interests before those of the child. Furthermore, Chappel J. notes, this review must be objective. Mere desire that communication and cooperation will improve is not sufficient. The party seeking joint custody must show with evidence that joint custody is feasible. Evidence of the success or failure of interim custody and access orders is highly relevant to a judge’s analysis of a joint custody submission. Additionally, where the child is very young, courts must be especially insistent about the need for effective communication between parties, because “the child is unable to easily communicate their physical, emotional, developmental and other needs.”
141While both parties may be “competent and loving parents”, Chappel J. recognizes that one parent may be the “major source of the conflict”. At para. 66, she reiterates that all analysis must be rooted in the child’s best interests, and that joint custody arrangements can in some cases perpetuate communication problems between parents. Children are entitled to expect, among other things, stability and consistency in decision-making. If one party is incapable of cooperating to achieve those ends, joint custody is not appropriate.
b) Analysis
Custody
136There was no evidence regarding the children’s wishes, presumably due to their age. There was also no evidence that the children were not doing well in the current parenting arrangement. All evidence indicates they are healthy and happy.
137Between January 2015 and October 2016, there was no order in place regarding the parenting of the three children. This was a period of instability, uncertainty, and no doubt frustration for all parties involved, particularly given the Applicant’s bail conditions. Although the parties dispute the reason for the conflict while the Applicant lived with Ms. Townsend and that there was agreement to change the pick-up time and location to the YMCA in May 2016, the conflict has in fact decreased significantly since October 2016. However, the reduction of conflict does not mean a joint custody order is appropriate. In my view, the nature of the parties’ relationship is one that would prevent effective communication and joint decision-making in the children’s best interests
138The Applicant was fortunate to have supportive members of her church who opened their home on very short notice after she was charged with assault. Between January 2015 and October 2016, while the Applicant lived with Ms. Townsend, the parties operated essentially in a vacuum with respect to custody and access. In hindsight, it would have been in the best interests of all involved if an interim order had been in place sooner as the October 2016 had the effect of reducing the conflict and confusion regarding access times.
139While there is less conflict, the Respondent has always picked up the children at a supervised access facility which indicates that there continues to be a degree of conflict that would not be suitable for an effective joint custody order.
140I heard a great deal of evidence about the children’s passports and health cards. The situation so upset the Respondent that he went to the police in April 2016, resulting in the Applicant’s charge for breaching her bail conditions. At this time, the Applicant is paying for a safety deposit box for the documents, but the Respondent will not permit Reverend Rowe to release the documents to her as he believes she will leave Canada. While both parties believe the other will return to Nigeria if they have the passports, I heard no evidence to support this concern. Neither have lived in Nigeria since 2008 or 2009. The children were not born there. Both the Applicant and Respondent have been working and upgrading their education in Canada. There is an obvious lack of trust between the parties which would hinder effective communication and cooperation which is essential in a joint custody arrangement.
141The conflict regarding the children’s passports has continued throughout the 3.5 year-separation. This inability to reach an agreement regarding the documents indicates a fundamental lack of trust between the parties and foreshadows what might occur if the parties had to discuss and agree on a medical or education issues involving the children. This conflict demonstrates an inability to meet the standard of cooperation that is necessary for decision-making that is required for a joint-custody arrangement.
142Additionally, witnesses described how they saw and heard the Respondent belittle, insult, and act aggressively toward the Applicant. I do not accept the Respondent’s suggestion that the witnesses were biased because the Applicant financially supports the church they attend. The witnesses for both parties answered questions on cross-examination in a non-defensive, straight-forward, and non-confrontational manner. I therefore accept the witnesses’ evidence of their observations of the Respondent’s conduct towards the Applicant.
143A joint-custody arrangement is not sustainable in a situation where one parents shows a lack of respect to the other, nor is it appropriate where one party seeks to assert control over the other. Based on the Respondent’s conduct post-separation and his treatment of the Applicant, it is my view that he would be unwilling or unable to act in a less controlling manner towards the Applicant.
144For example, it is not in dispute that there was a period of time between approximately July and September 2016 during which the Respondent did not see the children. At that time, the Applicant proposed that the Respondent pick up the children at the YMCA on Saturday mornings. The Respondent testified that he did not agree with that proposal. Therefore, rather than agree to the Applicant’s proposal, he chose not see the children for an extended period of time. There is no evidence that the Applicant denied him access during this time. Mr. Townsend brought the children to the YMCA every Saturday morning but the Respondent would not pick them up.
145There is no dispute that the Applicant and Respondent both love their children. The conduct of the Respondent, however, raises concern, not with respect to his ability to parent, but with respect to his ability to work with the Applicant to jointly make decisions for the children. An example is his reaction to receiving a letter from the Applicant’s lawyer in May 2016. I reject his evidence that he commenced the proceedings in the Ontario Court of Justice after receiving the second letter from the Applicant’s lawyer and that he did not intend to do it without notice to her. Based on the date-stamp on the material, the Respondent commenced the application three days after he received the first letter. His evidence on cross-examination was clearly untruthful with respect to when he commenced the application.
146In cross-examination it was the Respondent’s evidence that when he applied to the Ontario Court of Justice for custody of the children in order to move to Alberta, he did not yet have a residence. His evidence was that he had checked on Kijiji and was told he first had to travel to Alberta before he could find a place to live. It was also his evidence that he had checked online about schools but had not contacted any schools for the children. Nonetheless, the Respondent insisted that he commenced this application as he felt it was in the best interests of the children that they not be left their mother because she had regularly assaulted him.
147The Respondent’s action in applying to the Ontario Court Justice for an urgent order allowing him to leave with the children, without any thought about where they would live or go to school, demonstrates that he was not motivated by the children’s best interests. Rather, the Respondent received a letter from the Applicant’s lawyer and rushed to court, clearly intending to obtain an order without notice to the Applicant and leave with the children. I do not accept his evidence that he did not understand what “without notice” meant. He is a highly educated individual. Furthermore, when he attended in court, the Applicant was not present so he would be aware that she did not know of the proceedings.
148The Respondent’s evidence that he had a job in Edmonton was not credible as in his material filed with the court he stated that he wanted to live in any city in Alberta. His evidence that he brought the application because of his concern for the children’s best interests is also not credible. Based on the timing of the filing of the application and the lack of any arrangements for the children in Alberta, the Respondent applied to court as a reaction to the letter he received from the Applicant’s lawyer. This reaction to the letter demonstrates an unwillingness to act in a cooperative manner with the Applicant.
149The Respondent’s affidavit filed with the Ontario Court of Justice was misleading. The material stated that the children were at risk if they were left with the Applicant yet he did not disclose that he had agreed in January 2015 that the children would stay with the Applicant after she was charged with assaulting him. If he was concerned with their safety, he would not have agreed to that living arrangement.
150I heard no evidence during this trial of any concern for the children’s safety or the Applicant’s mental health. While the Applicant was charged with assault, those charges were withdrawn.
151There is no evidence that the Applicant is deliberately not cooperating with the Respondent to bolster her claim for sole custody. There is no evidence that the Applicant has engaged in unreasonable conduct. For example, it is not unreasonable that the Applicant would prefer to meet with her child’s teacher on her own for parent-teacher interviews. The Respondent may not agree, and may prefer to see the teacher with the Applicant, but the Applicant’s preference is not unreasonable and does not reflect an intention to be deliberately non-cooperative.
152The children need stability, protection, and consistency from their parents. While there is no dispute that each parent is a fit parent, there is no evidence that they have the ability to work together, even at an adequate level, to make decisions jointly for the children. The nature, extent and duration of the conflict that continues between the parties is such that a joint custody order is not in the children’s best interests. While there is some evidence that the parties have been able to exchange text messages in more recent months, that does not reflect a reasonable ability to communicate in an effective manner for ongoing decision-making purposes. I have also taken into account the young age of the children, and that they may not be able to communicate their physical, emotion, developmental, and other needs.
Access
153For close to two years, the Respondent has had access to the children every weekend from Saturday morning to Monday morning. The Respondent would like a parenting arrangement involving the children living with him every alternate week or every weekend from Friday to Monday. The Applicant would like a parenting arrangement that gives her alternate weekends with the children with the Respondent to then have some mid-week time with the children.
154The children are involved in a number of activities on the weekends such as swimming lessons on Saturday. They attend church on Sundays.
155In many parenting arrangements, it is common that the parents each have weekend time with the children. Weekends are often when families can spend time together away from the daily schedule that involves the hectic pace of school and homework on weekdays. It would be in the best interests of the children if they were able to spend some of that time with the Applicant.
156As the children are doing well at this time, there is no evidence that changing the schedule to alternate weeks with each parent would be in their best interest.
157Accordingly, effective October 1, 2018, the children shall be with the Respondent every second weekend from Friday after school until Monday morning when the Respondent shall return them to school or daycare. On alternate weeks, when the Respondent does not have access to the children that coming weekend, he shall have access to them Tuesday after school until Thursday morning, when they shall return to school or daycare. This Order is made effective for October so that the parties can adjust their work and schooling schedule, if necessary.
ISSUE TWO: SPOUSAL SUPPORT
a) The Law
158Section 30 of the Family Law Act, R.S.O. 1990, c. F.3, provides that “[e]very spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with the need, to the extent that he or she is capable of doing so.”
159In accordance with s. 33(8) of the Family Law Act, the purpose of an order for spousal support is to:
a. recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
b. share the economic burden of child support equitably;
c. make fair provision to assist the spouse to become able to contribute to his or her own support; and
d. relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
160In Shaikh v. Shaikh, 2016 ONSC 7400, Price J. summarized the following principles in relation to orders of spousal support pursuant to the Family Law Act:
51The Supreme Court of Canada, in Moge v. Moge, in 1992, commented on the last of the purposes listed above, relieving economic hardship resulting from the marriage or its breakdown. McLachlan J. stated:
…[T]he judge’s order should...grant relief from any economic hardship arising from the breakdown of the marriage. The focus here, it seems to me, is not on compensation for what the spouses have contributed to or gained from the marriage. The focus is rather post-marital need; if the breakdown of the marriage has created economic hardship for one or the other, the judge must attempt to grant relief from that hardship.
52The Supreme Court further held, in M. v. H., in 1999, that the spousal support provisions of the FLA help protect the economic interests of individuals in intimate relationships. When a relationship breaks down, the support provisions help ensure that a spouse who has contributed to the couple's welfare in intangible ways will not find himself or herself "utterly abandoned".
53As noted below, the circumstances to be considered when determining the amount of spousal support, in relation to need, include the spouse's capacity to contribute to his or her own support, the measures available for him or her to become able to provide for his or her own support, and the length of time and the cost involved to enable the dependent to take those measures.
54Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. Entitlement can be based on compensatory, non-compensatory or contractual grounds.
Compensatory Support
55Because marriage is a joint endeavour, spousal support orders are designed to be compensatory, to bring about an equitable sharing of the benefits and burdens of the relationship, having regard to all the circumstances, including the advantages each of the parties derived from their relationship. L'Heureux-Dubé, J. stated in Moge:
Essentially, compensatory support intends that both spouses profit from the joint venture of marriage. The question is not what the disadvantaged spouse would have achieved had he or she not entered into the marriage. Rather the question is what was that spouse's contribution to the marriage and was the other spouse advantaged by that contribution. If so, does equity demand a sharing of any advantage gained should the benefits of an advantaged spouse be apportioned. In practical terms, the issue will generally revolve around whether one spouse has gained an advantage in his or her ability to earn income or acquire assets that should be shared for at least some period of time.
Non-Compensatory Support
59Non-compensatory support is a residual basis for ordering support "where it is fit and just to do so."
[Emphasis original to Price J., footnotes omitted.]
b) Analysis
161At the time of their separation, the Applicant was the full-time caregiver for the three children. It is not in dispute that she did not work between 2010 and 2016. At the time of separation, she had to leave her home with her three very young children and move in with members of her church.
162The Applicant gave detailed evidence of the efforts she has made to seek employment since the date of separation. She has also sought to further her education. She is obviously an intelligent woman given her level of education. As of yet, the Applicant has not secured full-time employment that enables her to be financially self-sufficient.
163By virtue of the Applicant’s contributions and the role she assumed in caring for the children, the Respondent was able to better his employment prospects. Before the parties separated, the Respondent was able to work full-time and work towards being accredited as a pharmacist. The Applicant’s contributions resulted in an advantage to the Respondent. Those advantages will now enable him to work as a pharmacist in Ontario.
164The Applicant suffers financial hardship as a result of the breakdown of the relationship and is unable to support herself without financial assistance from the Respondent. She has demonstrated commendable efforts in securing employment given the numerous jobs and educational options she has applied for since the parties separated.
165Because of the Respondent’s advantages gained as a result of the Applicant’s contribution to the household and the financial hardship the Applicant has suffered as a result of the martial breakdown, the Applicant is entitled to spousal support.
166Having found she is entitled to support, the determination of quantum turns on my finding regarding income imputed to either the Applicant or Respondent. That finding will also have an impact on my finding regarding the quantum of child support.
167The Applicant has been fortunate to have received financial assistance from her family after the parties separated. That financial support, some of which has to be repaid, does not detract from her entitlement to support.
ISSUE THREE: IMPUTATION OF INCOME
a) The Law
168Pursuant to s. 19(1) of the Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”), the court may impute such an income as it considers appropriate in the circumstances, including situations where:
a. The spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse.
169In Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] 61 O.R. (3d) 711 (Ont. C.A.), the Court of Appeal considered the issue of imputing income. At para. 32, it found that in meeting the legal obligation to support their child, a parent must earn what he or she is capable of earning. This principle was affirmed by the Court of Appeal in Lavie v. Lavie, 2018 ONCA 10, where Rouleau J.A. found at para. 24 that in order to find intentional under-employment and impute income, there is no need to find a specific intent to evade child support obligations. Rouleau J.A. further underscored the principle in Drygala: to meet the legal obligation to support their child, a parent must earn what they are capable of earning.
170In Drygala, the Court of Appeal set out a three-part analysis to be used when assessing intentional unemployment or underemployment pursuant to the Guidelines, at para. 23:
Is the spouse intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
If the answer to question #2 is no, what income is appropriately imputed in the circumstances?
171In Pey v. Pey, 2016 ONSC 1909, at paras. 85-94, Shelston J. provided a detailed analysis of the factors or principles to be considered in applying the three-part test as articulated in the case law. First, when considering whether a spouse is intentionally under-employed, there is no requirement of bad faith. However, the onus is on the party seeking to impute income to show intentional under-employment. When a court considers a spouse’s income earning capacity, it should consider that spouses have a positive obligation to reasonably maximize their earning potential for their children’s benefit. Further a spouse’s earning capacity may be influenced by a number of factors, including age, education, health, work history, and the availability of appropriate work. A spouse cannot recklessly or selfishly quit, or otherwise reduce support obligations through intentional income reduction. If a spouse loses their job, the court may recognize a grace period, but will require the spouse to undertake a reasonable job search.
172Second, a court must determine whether the intentional unemployment or under-employment is reasonable. Shelston J. explains that though intentionally reducing one’s income is not presumptively unreasonable, a spouse must demonstrate that the choice to do so was the product of a thoughtful, reasoned and practical decision.
173Third, when making the decision to impute income, Shelston J. notes that courts have wide discretion, and should consider the spouse’s earning potential with regards to age, health, and work experience, and the number of hours at a particular rate that spouse can be expected to work. Previous income employment can be a factor in this calculation.
b) Analysis
174The Respondent has not presented any evidence that the Applicant is intentionally under-employed. In fact, she has presented ample evidence of her attempts to secure employment and update her education while caring for the children on weekdays.
175Likewise, the Applicant has not established an evidentiary basis that the Respondent is intentionally underemployed
176It is not in dispute that the Respondent has a PhD in Pharmaceutical Microbiology from Robert Gordon University in Scotland and was recognized as a pharmacist in Nigeria at the beginning of the parties’ relationship. Since moving to Canada in 2012, he began the process to have his degree recognized and become registered as a pharmacist in Canada, but has yet to obtain his designation. He is currently self employed as a taxi driver through his company Best Trade Company Ltd.
177There was no evidence presented regarding the standard or typical length of time it would time to complete the accreditation process in Ontario. The Respondent’s evidence was that he failed some courses. There was no evidence presented to dispute that, and as a result I accept that evidence. I also accept his evidence that during the time that he was working full-time he would not have the same time to devote to the accreditation process. I heard no evidence that the time it has taken the Respondent is unreasonable given these circumstances. The only evidence was a bald assertion made by the Applicant that he has delayed the process. That is an insufficient basis for a finding that the Respondent has deliberately delayed the accreditation process and that an income of $50,000 ought to be imputed to him.
178The reduction of his earnings in 2016 coincided with his enrolment in courses at the University of Toronto to complete the accreditation process. While it appears suspicious to the Applicant because it occurred after her lawyer sent the Respondent a letter, there are letters from the University of Toronto confirming his enrolment in October 2016.
179The Respondent has been working as an unpaid intern at a Shopper’s Drug Mart. His evidence was that by July or August, 2018, he would be able to work unsupervised. I presume that means he will be fully accredited and can apply to work as a pharmacist. Accordingly, while I am not prepared to impute an income to him for the period from January 2015 to August 2018, that does not preclude an income being imputed commencing September 2018. For that reason, the parties are to return before me as further evidence is required regarding the Respondent’s current employment and earnings and/or efforts to secure employment.
ISSUE FOUR: RETROACTIVE SUPPORT
a) The Law
180Prevost v. Prevost, 2017 ONSC 5825, at paras. 121-138 reviewed the case law in the area of retroactive child support awards. Courts must balance certainty with fairness and flexibility by considering the reasonableness in delay for seeking support, the payor’s conduct, the child’s circumstances, and the hardship of a retroactive reward. In determining decrease arrears, the conduct of the payor is highly relevant, especially “[b]ehaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue” (para. 122, emphasis added).
181As Desormeau J. outlines in Prevost, a court may order a retroactive award in three situations: (1) where a court order for child support already exists and needs to be readjusted; (2) where there is a previous agreement between the parents; and (3) where there has not been a court order for child support (para. 126). Once a court determines a retroactive award is due, a court must set the date to which the award should be retroactive. The court may choose the application date, the date of formal notice to the payor, the date of effective notice to the payor, or the date when the support amount should have been increased (para. 128). The award should generally be retroactive to the date of effective notice, which is when the recipient gave any indication to the payor that support should be paid (para. 130).
182In determining the amount of a retroactive child support award, Desormeau J. states that the Guidelines are the touch-stone, but a court retains discretion (para. 138).
183With respect to retroactive spousal support awards, in Bremer v. Bremer, 2005 CanLII 3938 (ON CA), [2005] OJ No 608, 13 R.F.L. (6th) 89 (Ont. C.A.), the Ontario Court of Appeal states the following considerations govern, at para. 9:
i. the extent to which the claimant established past need (including any requirement to encroach on capital) and the payor's ability to pay;
ii. the underlying basis for the ongoing support obligation;
iii. the requirement that there be a reason for awarding retroactive support;
iv. the impact of a retroactive award on the payor and, in particular, whether a retroactive order will create an undue burden on the payor or effect a redistribution of capital;
v. the presence of blameworthy conduct on the part of the payor such as incomplete or misleading financial disclosure;
vi. notice of an intention to seek support and negotiations to that end;
vii. delay in proceeding and any explanation for the delay; and
viii. the appropriateness of a retroactive order pre-dating the date on which the application for divorce was issued.
b) Analysis
184The Applicant formally requested child support, spousal support, and financial disclosure from the Respondent through her counsel on May 17, 2016. Prior to that date, she was dealing with her criminal matter and did not have sufficient income to pursue support from the Respondent. Despite multiple requests by the Applicant and her counsel after May 17, 2016, the Respondent failed to provide any financial disclosure to the Applicant until December 21, 2016. The Respondent also continually refused to pay spousal support and did not pay child support to the Applicant until March, 2017.
185The Applicant has established an ongoing need and entitlement for spousal and child support. The Respondent avoided his support obligations and failed to work cooperatively with the Applicant to address support.
186As of March 2017, the Respondent started paying $459 per month in child support to the Applicant on a without prejudice basis. Due to the Respondent’s lack of financial disclosure, this agreement was reached using an imputed income to the Respondent of $22,000 based upon the minimum wage in Ontario.
187The Respondent is not paying any spousal support.
188It is appropriate for the court to order retroactive child support to the Applicant. The Applicant does not have sufficient income to support herself and the children. She requires support. The Respondent’s conduct of failing to address support or provide financial disclosure for over two years after separation and a year since being given formal notice suggests that the presumptive date of retroactive support should be pushed back June 1, 2016, the month after she gave notice to the Respondent.
189Based on my findings regarding the Respondent’s income, while the Applicant is entitled to spousal support, the quantum is fixed at $1 per month until the hearing regarding the Respondent’s employment and income and attempts to find employment once certified as a pharmacist.
ISSUE FIVE: CHILD SUPPORT
190On March 23, 2017 Mr. Medu agreed to pay child support commencing September 2016 of $459 per month for three children based on an imputed minimum wage of $11 per hour or $22,880 annually. He also agreed to pay an additional $100 per month towards arrears. Mr. Medu had not paid any child support to Ms. Medu prior to March, 2017.
191As set out above, based on the current minimum wage rate, he shall pay monthly child support of $576 per month effective January 1, 2018 together with $100 per month towards arrears. His support obligation is retroactive to June 1, 2016.
192The quantum of ongoing child support and s. 7 expenses shall be reviewed upon hearing evidence of the Respondent’s employment and income once certified as a pharmacist, licensed to practice in Ontario.
TERMS OF THE ORDER TO ISSUE
193Based on the foregoing, a final order shall issue as follows:
Custody
194The Applicant shall be granted sole custody of the children.
195Both the Applicant and Respondent shall have access to and authorization to receive any records relating to health, education and welfare of the children. If required, either party shall sign any document required to provide the other with access to the records. The parties shall advise the other of issues relating to religious upbringing, education programs, significant changes in social environment and health care of the children.
196The children’s health cards and passports shall be in the Applicant’s possession. The children’s health cards shall travel with the children during access exchanges.
197The parties shall provide each other with at least 30 days’ notice if they wish to travel with the children outside of Canada. The written consent of both parties should be required to travel with the children outside of Canada. The non-travelling party shall not unreasonably withhold consent, and in the event that consent is given they shall execute and provide the notarized consent to travel or any other documents required to permit the other party to travel with the children. The travelling parent shall pay the cost of obtaining any such documents.
198A party planning a trip with the children shall provide the other party with details of the proposed trip including dates of travel, location of travel, airline, hotel names and any other contact information at least 7 days prior to departure.
199Neither party shall move the children’s residence from the Peel Region without the written consent of the other party or pursuant to a court order.
200The Applicant and Respondent shall keep each other apprised of their contact information including all telephone number sand email addresses.
201The Applicant shall be permitted to renew and or apply for the children’s passports or any other government documentation for the children without the Respondent’s consent. The Respondent shall return to the Applicant all of the children’s documentation which he has in his possession within 30 days so that the Applicant can properly commence the process to renew and or apply for the children’s documentation.
202Both parties may attend all parent/teacher meetings, school functions, extracurricular activities, clinical appointments and ceremonies considering the children even when the children are in the care of the other party.
203The parties shall be permitted to contact the children once per day and the children may contact each party whenever the children wish.
204If either parties needs to take any of the children for emergency treatment they shall immediately notify the other party of the address where treatment will occur and the details of the treatment. The party being notified shall have the right to see the children and attend with the children at the place where treatment is given.
205Unless the other party consents in writing, neither party shall schedule activities for the children on days in which the children are to be with the other party.
Access Schedule:
206The Respondent shall have access with the children as follows:
a. Every other weekend from Friday, pick-up from the children’s school or daycare or a location mutually agreeable between the parties at 3:15 p.m. and drop-off Monday at 8:00 a.m. to the children’s school, daycare or a location mutually agreeable between the parties;
b. During the week when the Respondent does not have access to the children that coming weekend, pick-up from the children’s school or daycare every Tuesday at 3:15 p.m. and drop-off at the children’s school or daycare Thursday at 8:00 a.m.
207The parties shall equally share all school vacations and holidays pursuant to the holiday residence schedule set out below, which will override the regular residence schedule set out above:
a. Thanksgiving Weekend - the Children shall spend alternate years in the care of each parent during the Thanksgiving Weekend from Friday, pick up from the Children's school, daycare, or location mutually agreeable between the parties at 3:15 p.m. until Tuesday at 8:00 a.m. to the Children's school, daycare, or location mutually agreeable between the parties. The Children shall reside with the Applicant/Mother in even numbered years and with the Respondent/Father in odd numbered years;
b. Christmas Break - The parties shall share equally the Children's school Christmas Break. The Children will reside with the Applicant/Mother for the first half of the Christmas Break in odd numbered years and the last half of the Christmas Break in even-numbered years, and with the Respondent/Father for the first half of the Christmas Break in even-numbered years and the last half of the Christmas Break in odd-numbered years. The first half will start after school on the Children's last day of school in December and end at noon on the date that is the halfway point of the Christmas Break. The second half will start at noon on the date that is the halfway point of the Christmas Break and end on the morning the Children return to school in January;
c. Family Day - the Children shall spend alternate years in the care of each parent on Family Day, pick up to be at a location mutually agreeable between the parties from 8:00 a.m. on Monday until Tuesday at 8:00 a.m. to the Children's school, daycare, or location mutually agreeable between the parties. The Children shall reside with the Applicant/Mother in odd numbered years and with the Respondent/Father in even numbered years;
d. Easter - the Children shall spend alternate years in the care of each parent on Easter, pick up to be at a location mutually agreeable between the parties from 8:00 a.m. on Monday until Tuesday at 8:00 a.m. to the Children's school, daycare, or location mutually agreeable between the parties. The Children shall reside with the Applicant/Mother in even numbered years and with the Respondent/Father in odd numbered years;
e. Mother's day- the Children shall reside with the Applicant/Mother , pick up to be at a location mutually agreeable between the parties from 8:00 a.m. on Sunday until Monday at 8:00 a.m. to the Children's school, daycare, or location mutually agreeable between the parties;
f. Father's day - the Children shall reside with the Respondent/Father, pick up to be at a location mutually agreeable between the parties from 8:00 a.m. on Sunday until Monday at 8:00 a.m. to the Children's school, daycare, or location mutually agreeable between the parties;
g. Victoria Day Weekend - the Children shall spend alternate years in the care of each parent during the Victoria Day Weekend from Friday, pick up from the Children's school, daycare, or location mutually agreeable between the parties at 3:15 p.m. until Tuesday at 8:00 a.m. to the Children's school, daycare, or location mutually agreeable between the parties. The Children shall reside with the Applicant/Mother in odd numbered years and with the Respondent/Father in even numbered years;
h. Children's birthday - Each child will spend his or her birthday in accordance with the regular schedule set out above in paragraph 2.
i. Spring Break - the Children shall spend alternate years in the care of each parent during Spring Break from Friday, pick up from the Children's school, daycare, or location mutually agreeable between the parties at 3:15 p.m. until the following Monday at 8:00 a.m. to the Children's school, daycare, or location mutually agreeable between the parties. The Children shall reside with the Applicant/Mother in odd numbered years and with the Respondent/Father in even numbered years;
j. Summer Vacation - the Children shall reside with each parent for two weeks during summer holidays from school. The Respondent/Father shall have first choice of his two weeks in even numbered years and the Applicant/Mother shall have first choice of her two weeks in odd numbered years. The parties shall communicate the dates for their commencement of the two weeks' vacation no later than April 1st each year;
k. Canada Day Weekend and August Civic Weekend:
Subject to summer vacation schedule above, which will take precedence:
(i) the Children shall spend alternate years in the care of each parent during the Canada Day Weekend, pick up from a location mutually agreeable between the parties at 5:00 p.m. until Monday at 9:00 p.m. to a location mutually agreeable between the parties. The Children shall reside with the Applicant/Mother in odd numbered years and with the Respondent/Father in even numbered years;
(ii) the Children shall spend alternate years in the care of each parent during the August Civic Weekend, pick up from a location mutually agreeable between the parties at 5:00 p.m. until Monday at 9:00 p.m. to a location mutually agreeable between the parties. The Children shall reside with the Applicant/Mother in even numbered years and with the Respondent/Father in odd numbered years.
l. Labour Day Weekend - the Children shall spend alternate years in the care of each parent during the Labour Day Weekend from Friday, pick up from the Children's school, daycare, or location mutually agreeable between the parties at 5:00 p.m. until Monday at 9:00 p.m. to a location mutually agreeable between the parties. The Children shall reside with the Applicant/Mother in odd numbered years and with the Respondent/Father in even numbered years;
m. Halloween - the Children will be with the Applicant/Mother in even-numbered years and with the Respondent/Father in odd-numbered years, from the end of school at 3:15 p.m. until 9:00 p.m. The party who has the Children for Halloween will be responsible for the children's costumes.
208The pick-up and drop-off for the children shall be at the children’s school or daycare. When the children are not in school, the children shall be picked-up and or dropped-off at the YMCA Downtown Brampton location or other public location mutually agreeable to the parties.
Child Support
209The father shall pay child support for the children in accordance with the Federal Child Support Guideline retroactive to June 1, 2016 in the monthly amount of $459. Effective January 1, 2018, the quantum for monthly child support shall be $ 576.
210The Respondent/Father shall pay his proportionate share of the Special and Extraordinary Expenses for the Children pursuant to Section 7 of the Child Support Guidelines, retroactive to June 1, 2016 utilizing an income based on minimum wage rates in Ontario.
211The parties shall only contribute to the children’s section 7 expenses provided the parties consent to the additional expense is obtained in advance through e-mail, or in writing, such consent to not unreasonably be withheld.
212The Respondent shall maintain dental, medical and extended health coverage for the children, if such coverage is available to him through his employment for so long as the Respondent is obligated to pay child support, or for so long as the children remain dependent children of the marriage.
213The Respondent shall obtain and maintain a life insurance policy in the amount of $150,000 as security for child support and designate the Applicant as the irrevocable beneficiary of his life insurance policy or policies.
214The Respondent shall provide to the Applicant annual financial disclosure, including but not limited to information required by section 21 of the Child Support Guidelines, not later than June 1st of each year, in order to determine the quantum of child support and section 7 expenses which is payable for the coming year.
Spousal Support
215The Respondent shall pay spousal support to the Applicant retroactive to June 1, 2016, and prospectively in the amount of $1.00 per month.
The quantum of spousal support shall be reviewed and determined at the hearing date set for further evidence regarding the Respondent’s employment and income and attempts to secure employment.
Equalization of Net Family Property
216Any claim for equalization of net family property shall be dismissed.
Costs
217The parties have provided written costs submissions. I will hear oral submissions on costs at the next hearing date.
Shaw J.
Released: September 12, 2018