COURT FILE NO: 451/16
DATE: 2019-04-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Allan John Lundrigan
Kirsten Hughes and Mackenzie Dean for the Applicant
Applicant
- and -
Irene Martina Friesen
Paul A. MacLeod for the Respondent
Respondent
HEARD in Welland and St. Catharines: January 22-25, 28-31, 2019
REASONS FOR JUDGMENT
M. J. Donohue, J.
Overview
[1] This family law trial initially began with numerous financial issues as well as child-related issues regarding the parties’ eight-and-a-half-year old daughter, S.L. To the parties’ credit ,they significantly reduced the disputed issues to the following:
A) joint or sole decision-making for their daughter;
B) the parenting schedule for time-sharing with S.L.;
C) imputed income to Ms. Friesen and duration of spousal support; and
D) some financial adjustments.
Background
[2] The parties married in 2002. Eight years later their only child, S.L., was born.
[3] On March 13, 2015, when S.L. was not quite five years old the parties agreed to separate. Mr. Lundrigan continued to reside in the matrimonial home for a year. He moved out from pressure by Ms. Friesen and her family on June 16, 2016.
[4] Initially, Mr. Lundrigan moved in with his father in Hamilton. By December 2016 he had moved into a Burlington condo with his current spouse, Ms. Whiteman. In August 2017, Mr. Lundrigan and Ms. Whiteman purchased a house in Grimsby to be closer to S.L.
Access History
[5] Following separation in March 2015, Mr. Lundrigan remained in the home and had plenty of time with five-year-old S.L. Ms. Friesen insisted that he leave the home in June 2016, and once he did so she offered very limited access, being midweek for a few hours and an alternate Saturday.
[6] Mr. Lundrigan had to bring a motion in December 2016 to get Ms. Friesen to consent to a day-access on Christmas Eve, a half day on Christmas Day and a half day on New Year’s Day. This was a total of two and a half days over the Christmas break.
[7] Mr. Lundrigan had to bring a motion on February 2, 2017 to get access on Tuesday and Thursday evenings from 5:30 p.m. to 8:30 p.m. and an alternating Saturday overnight access from 9 a.m. to Sunday evening at 8:30 p.m.
[8] A further motion was required, on October 5, 2017 so that seven-year old S.L. would have the whole weekend (two overnights, every two weeks) with her father.
[9] The evidence shows that Mr. Lundrigan politely requested two extra days for a cottage weekend in July 2017 which Ms. Friesen refused.
[10] Although recommended by the Office of the Children’s Lawyer (the “OCL”) and requested by Mr. Lundrigan, Ms. Friesen has never allowed him to begin his access by picking S.L. up from school.
[11] All the driving for pick-ups and drop-offs have been done by Mr. Lundrigan, or Ms. Whiteman, on his behalf.
[12] In January 2018 Ms. Friesen told the OCL that she was seeking to terminate the overnight visits, but time appears to have softened her position over the last year. Although she refused to allow her daughter to be taken out of school to attend a wedding in Mexico, she did consent to S.L. going with her father and Ms. Whiteman to the Dominican Republic for a week in August 2018. Ms. Friesen also gave evidence of at least six occasions when she switched access days to accommodate Mr. Lundrigan’s work schedule.
[13] At trial in January 2019, Ms. Friesen consented to much more generous access time; with two weeks in summer; divided Christmas vacation; divided March break; and Father’s Day.
Was there Domestic Violence?
[14] The recommendations of the OCL counsellor, Ms. Young, regarding both custody and parenting time, were influenced by the allegations of domestic violence in the home. She stated in her report, “Ms. Friesen has made consistent allegations in the past to police, the family physician and F&CS. S.L. described, in fairly vivid detail, witnessing her father physically assaulting her mother.”
[15] This refers to one event, the “lamp” incident which occurred in February 2013 at a time when S.L. was two and a half years old.
[16] Mr. Lundrigan testified that during an argument about his parents not giving them money, it came up that Ms. Friesen did not like the bedroom lamps his parents had bought for them. Mr. Lundrigan picked up the lamp to store it in the basement and when Ms. Friesen grabbed the lamp from him, the two of them fell onto the bed with him on top of her. He states that their daughter was not in the house that night as they had planned to go out to the casino that evening. After the argument he stated, “The casino is off.”
[17] Ms. Friesen testified that they were not arguing about his parents not giving them money. She also said it was not accurate to say she did not like the lamps as she shopped with her mother-in-law to buy them. She recalls Mr. Lundrigan yanking the lamp out of the socket and holding it against her neck. She says their daughter saw this and ran crying to her bedroom. Ms. Friesen says she does not recall words spoken and said she was shocked and terrified.
[18] Contrary to the OCL report, this incident was not told to police. Ms. Friesen contacted police in May and June 2016 but there was no mention of the “lamp” incident. Rather, “she confirmed that Mr. Lundrigan had never become physical with her, but advised she did not feel safe in the home.”
[19] The first mention of the “lamp” incident is in Ms. Friesen’s answer filed September 1, 2016, where it is written “he took a lamp from the parties’ bedroom and held it across the Respondent’s neck telling her he could kill her.”
[20] A year later in October 2017, S.L. is alleged to have had a panic attack and difficulty breathing. Records from the actual hospital visit on that day were not produced. A number of medical visits followed, not seeking treatment for S.L., but for documentation to use in this litigation. On October 10, 2017, there are nurse’s interview notes but no mention of the “lamp” incident. On October 11, 2017, there is a detailed social work assessment of both the child and Ms. Friesen where there was no mention of the “lamp” incident. On October 16, 2017 Dr. Yu-Siao did an in-depth interview and assessment of the child and Ms. Friesen. There was no mention of the lamp incident, rather, Ms. Friesen described verbal and emotional abuse.
[21] The first mention of the “lamp” incident to any professional is October 17, 2017 when Ms. Friesen took her daughter to the family doctor, Dr. Suk, regarding the earlier panic attack. Her notes state the mother disclosed that “father put a lamp pole over Mom’s neck” and that the child had witnessed the abuse. The doctor noted some caution in her notes saying, “I myself have not witnessed any abuse from either party” but she had no reason to disbelieve Ms. Friesen.
[22] The first description by S.L. of the “lamp” incident is in January 2018 to the OCL. At the age of seven and a half she gives a remarkably detailed description of the event she said she saw when she was two-and-a-half years old.
[23] In July 2018 S.L. reiterated the story to Dr. Shukla, a psychiatrist, when he assessed her. “She once witnessed the father holding a lamp against her mother’s throat during an argument.” The doctor added a caution that if his report was used for legal purposes “it is important to note that the father was not present during this interview and was not given an opportunity to respond to any of the mother’s or patient’s statements.”
[24] The OCL suggested in her conclusion that Ms. Friesen had made “consistent allegations in the past to …. F&CS.” The notes of the Society are of only one contact, made in October 2017 in the context noted above, where it was said that Ms. Friesen reported “physical and emotional abuse” prior to separation. This was not a situation where the Society had protection concerns.
Analysis of the Physical Assault
[25] In analysing the significance of the “lamp” incident to decide the issues before the court, a number of considerations arise. The matter was never reported for a concern of safety, but for a concern of litigation. Each time it was raised when S.L. was at a medical visit, she was considered to be “stable”, “happy”, “calm and collected”, “in no acute distress.”
[26] In the course of the litigation the incident is initially not mentioned but then once discussed has expanded in detail, and in the danger factor.
[27] The detail with which the child first described something that occurred when she was two and a half speaks more of her mother’s recounting as family lore rather than the child’s own recollections.
[28] When Ms. Friesen tells professionals of violence in the home this is the only assault described in a 14-year period, the details of which are very much disputed by Mr. Lundrigan. There is also not a single incident of assault described between the parties since the parties resided separately that would suggest danger to either mother or child. All of Mr. Lundrigan’s correspondence and texts read politely and, at times, tenderly.
Threatened Violence
[29] Ms. Friesen testified to another incident which occurred in May 2015, the day after their daughter’s birthday, a few months after their date of separation. They were arguing in the kitchen about a man Ms. Friesen had begun to be involved with. She asked Mr. Lundrigan to take a walk and when he went outside she locked the doors behind him. He told her to open the door. She saw him pick up a heavy table to break the door and it frightened her. She opened the door.
[30] Mr. Lundrigan testified that it occurred a year earlier, in early 2014. He agrees that their daughter was there in the kitchen. He said he was trying to get away from his wife’s belittling comments and so he went outside to the backyard. She then locked the door behind him. He said he waited awhile but it was cold outside. He said he moved a patio table and asked her if he had to break the door down. He testified that he said it facetiously as he never had any intention of breaking the door down.
[31] This “table” incident was similarly never mentioned to police or child services. The first mention was noted in October 2017, at least two and a half years later. S.L. had had the panic attack several days before and on October 11, 2017 she was questioned by a social worker. A court order had added a second night to her alternate weekend visits with her father. The notes state, “Pt. reports that she does not like sleeping at dad’s as she is scared of dad. This writer asked why pt. was scared of dad and she stated because he threatened to throw a table through their glass doors when she was little.”
[32] Five days later, on October 16, 2017, there is no mention of the “table” incident by the child or Ms. Friesen, to the psychiatrist, Dr. Yu-Siao in a detailed interview. The following day Ms. Friesen tells the family doctor that “several years ago father put lamp pole over mom’s neck and tried to throw a table.”
[33] In January 2018 S.L. tells the OCL that she is scared of her father, “cos’ of when he was going to throw the table.”
[34] In July 2018 S.L. tells the psychiatrist, Dr. Shukla, that she witnessed her father, “allegedly lifting a table and threatening to throw it through a glass window.”
Significance of the “Table” Incident
[35] Similar to the “lamp” incident, this was never reported to police, child protection, or any professional until Ms. Friesen was attending medical persons seeking documentation for this litigation. The OCL specifically noted that S.L. was relaxed and comfortable with her father, they smiled and joked, she encircled his neck with her arms, and their communication was relaxed and direct. Her behaviour contradicted her statement that she was scared of her father.
[36] There is evidence that Ms. Friesen and her family, particularly her mother, have discussed these negative stories of Mr. Lundrigan in front of the child. Again, it appears much more likely to have become family lore rather than a true factor in the child’s anxiety.
Death Threats
[37] Ms. Friesen said that on two occasions in May 2015 Mr. Lundrigan threatened to kill her. Mr. Lundrigan denied these threats.
[38] The reporting of these threats to police was made a year later in May 2016. Police interviewed both parties and no charges were laid.
[39] The timing of the reporting to police was linked to this litigation as the parties had just had a four-way meeting with their counsel.
[40] Ms. Friesen was Facebook messaging a friend. Following the four-way meeting, she wrote, her husband wanted “50/50 custody”. She wanted Mr. Lundrigan out of the house. She messaged that she was waiting for police to come to her parents to discuss her situation, saying “he threatened my life” “last year twice”. Her friend messaged, “he has the right to stay in the house”. Her reply was “I want him out. Hopefully the police can help.” Her friend replies, “If you want him out tell the police you fear for your life and you want a restraining order on him. He will have to leave.” Ms. Friesen replied, “The police recommended a restraining order.” Her friend messaged back, “Perfect do it. That will force him out of the house.” Ms. Friesen did not deny any of these messages.
[41] The significance of this exchange was that it was not her safety that was the focus. Ms. Friesen did not seek a restraining order at any time.
[42] Ms. Friesen told the social worker a year later in October 2017 that she felt “she needed a safety plan in place as she does still feel threatened by S.L.’s father and states he still has access to their home.”
[43] Such a remark is contradicted by the three years during which Ms. Friesen has allowed Mr. Lundrigan to come by her house several times a week to pick up S.L. and drop her off. Mr. Lundrigan testified that Ms. Friesen has never objected to him coming in the house. The court can infer she never felt the need to change the locks.
[44] Ms. Friesen gave no evidence or examples of Mr. Lundrigan demonstrating any violence, threats, controlling behaviour, rudeness or lack of respect since 2015. Although their communications were by text and phone she gave no examples of unreasonable behaviour, lack of cooperation or impoliteness.
[45] Ms. Friesen’s demeanour in testifying and on videotape show her to be a confident, even spunky, woman who is not cowed or fearful. Her texts and messages read in the same manner. She does not claim any injury, either physical or mental. She has not required any treatment.
Analysis of the Domestic Violence Allegations
[46] Both parties describe significant verbal abuse suffered, one from the other.
[47] Allegations of physical violence and threats of violence are considered very seriously by the court but nonetheless require a critical analysis.
[48] The court does not condone violence or threats of violence. The record here falls short of establishing that Mr. Lundrigan intended to harm Ms. Friesen on a balance of probabilities. The record supports that Ms. Friesen has raised these incidents years after the fact and has made more of them than they really were, to support her litigation strategy.
[49] As noted above, the OCL determined that S.L. was not fearful of her father, despite her statement. Photographs of the child over the years during access visits show her to be cheerful and relaxed.
[50] The allegations of violence are, accordingly, not a factor in the decisions for the court as made below.
Joint or Sole Decision Making
[51] The focus on considering whom should have decision-making authority is the “best interests of the child”: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 16.
[52] Ms. Friesen sought an order that she be the sole decision-maker regarding S.L. Mr. Lundrigan sought an order for joint decision-making throughout the trial but changed his position to sole-decision making in his final submissions. He did so on the basis of Ms. Friesen’s actions of continuing to emphasize the “lamp” incident and the “table” incident, particularly at the appointment with Dr. Shukla in July 2018. Mr. Lundrigan had wanted to attend this appointment and Ms. Friesen had refused. She threatened to cancel the appointment if he insisted. Mr. Lundrigan considered that Ms. Friesen was not acting in their daughter’s best interests by demonizing him in this fashion.
[53] Ms. Friesen did not give any examples of any poor decision-making by Mr. Lundrigan regarding S.L.’s care. Similarly, Mr. Lundrigan did not give any examples of poor decision-making by Ms. Friesen, with the exception of the excessive negative talking about the father in front of the child.
[54] Ms. Friesen has been the primary caregiver of S.L. since the child’s birth. It appears excessive to deny her decision-making in the child’s life although she does not appear to appreciate the harm she does to the child by speaking so negatively of the father in front of the child. Despite these disparagements, the child has developed a strong and healthy relationship with both her father and his spouse.
[55] To give sole decision-making authority to Ms. Friesen, however, would risk her continuing to make efforts to exclude the child’s father in her life, to the child’s detriment. The court notes that three motions were required to obtain the basic access time.
[56] Mr. Lundrigan has demonstrated his sensitivity and ability to regularly put his daughter’s needs first. When Ms. Friesen threatened to cancel the psychiatric assessment because Mr. Lundrigan wanted to attend, he promptly cooperated and simply dropped his daughter off for the appointment. He sought professional advice on how to introduce his new spouse, Ms. Whiteman, to his daughter and followed that advice. S.L. has thereby developed a happy relationship with her. Mr. Lundrigan has limited his attendance at his daughter’s extracurricular activities, where Ms. Friesen’s family regularly attend, with a view to reducing exposing his daughter to conflict. He has willingly done the driving to and from access exchanges. There was not a single example of any acrimony or ugliness occurring at the access exchanges over the last three years.
[57] The parties have communicated regularly by text. There was simply no evidence that one parent ignored the requests of the other. There was one unpleasant exchange in July 2017 when Ms. Friesen asked for a travel letter to take S.L. to Florida. Mr. Lundrigan said he would do so only if he was allowed two extra cottage days. He backed down, but Ms. Friesen decided against going and said that he would have to explain this to S.L.
[58] In another text, Mr. Lundrigan failed to return a consent to travel so Ms. Friesen could take their daughter to a hockey game in New York State. It showed lack of care on his part, but he did apologize.
[59] In all other communications, the two parties have shown their ability to communicate to discuss child-related issues of access changes, extracurricular activities and even a change of school, without incident. They met together at the family doctor to discuss counselling for their daughter in the spring of 2018. At trial, they were able to consent to dozens of orders relating to their daughter as well as other financial matters. They have demonstrated a maturity over time to move forward, with less strife.
[60] The OCL discussed decision-making as follows:
“With regard to the issue of custody, children generally benefit if both parents, despite not being able to get along as partners are still able to get along as co-parents and discuss and agree upon issues that affect the upbringing and care of their children. The ability of the parents to communicate and make decisions jointly are generally the pivotal issues in determining if there should be an order of sole or joint custody.”
[61] The OCL recommended sole custody to Ms. Friesen because she determined that communication between the parents was strained and limited, and there was an allegation of domestic violence. This court however finds that the record of communication and ability to jointly decide matters has been very good. Furthermore, this court finds that the allegations of domestic violence have been overstated and are not material to issues of decision-making.
[62] This child will benefit from the involvement of both parents in the decision-making. The parents have demonstrated the ability to co-parent despite their differences. As stated by Quinn J. in Brook v. Brook, 2006 CanLII 12294 (ON SC), [2006] O.J. No. 1514, at para. 66, “the cooperation needed is workable, not blissful; adequate, not perfect.”
[63] Although the court does not see the need for making Mr. Lundrigan the sole decision-maker for S.L. at this time, should the negative messaging by Ms. Friesen in front of the child continue, this issue may be revisited. Ms. Friesen must start to appreciate the importance of fostering the father-daughter relationship. As stated by the OCL, “Ms. Friesen should look for opportunities to actively encourage and promote S’s relationship with Mr. Lundrigan and Ms. Whiteman, and the time S spends with them.”
[64] As a joint decision-maker, Mr. Lundrigan will be able to discuss S.L’s progress with the Pathstone counsellor and be involved. Consideration should be given to having some of the appointments occur during his access/parenting time. As a joint decision-maker, Mr. Lundrigan is to be included in future specialist appointments involving S.L.’s medical care.
[65] Ms. Friesen was seeking an order to allow her to apply for Slovenian citizenship on behalf of S.L. Her evidence was that the child could benefit from EU citizenship and potentially attend university there. This is a decision that is some ten years off. As joint decision-makers the court leaves it in the hands of the parents to consider this in the future.
Access/Parenting Time
Easter Weekend
[66] The parties consented to all holiday parenting time except for the four-day Easter weekend. For each of their traditions Mr. Lundrigan proposed dividing the four days and switching each year as to who had S.L. on the Sunday.
[67] Mr. Lundrigan did not give evidence of religious observance on the Sunday but it can be inferred that he was considering the traditional Easter egg hunt on Sunday mornings.
[68] Ms. Friesen testified to the strength of her Catholic faith, regular Sunday church attendance, and her annual Easter Sunday dinner with extended family.
[69] To accommodate the importance of Easter Sunday for S.L.’s upbringing the daughter will benefit from each parent’s traditions by sharing the weekend every year. Beginning Friday at 9:00 a.m., S.L. is to have the Friday and Saturday nights until Sunday morning at 9:00 a.m. with her father. She is then to be picked up by her mother and observe the rest of the High Holiday with her mother.
[70] Her best interests are served by preserving traditions with both parents.
Regular Parenting Schedule
[71] For a year and a half S.L. has spent alternating weekends as well as Tuesday and Thursday evenings; 5:30 p.m. to 8:30 p.m. with her father. Ms. Friesen proposes that this continue.
[72] Mr. Lundrigan asks the court to order an equal timesharing schedule of 2:2:3. On Week One S.L. would spend Monday and Tuesday night with him, Wednesday and Thursday nights with her mother followed by Friday, Saturday and Sunday nights with him. On Week Two S.L. would spend Monday Tuesday nights with her mother, Wednesday and Thursday nights with her father and then Friday, Saturday and Sunday nights with her mother.
[73] Section 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 provides that the court 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.
[74] Most of these factors were well covered by the OCL assessment.
[75] The discussion by the OCL was as follows:
“S.L. is a delightful, engaging and self-assured child. She is progressing well in school and is involved in various extra-curricular activities. There is evidence of a particularly close bond between S.L. and Ms. Friesen, who is a stay-at-home mother and has been S.L.’s primary caregiver since birth. Ms. Friesen is clearly devoted to S.L., is protective of her and has provided an excellent level of care. Since overnight access with Mr. Lundrigan was introduced last year, S.L. has shown signs of missing her mother at bedtime during weekend access with her father. Mr. Lundrigan is sensitive to S.L.’s need for comfort and reassurance and encourages telephone or text contact with Ms. Friesen in order for her to settle at night. However, Ms. Friesen has difficulty dealing with S.L.’s distress. Ms. Friesen’s instinct is to “rescue” S.L., rather than support S.L. manage these normal emotions. Effective parenting includes supporting and encouraging children as they experience new and challenging situations, in order that they have the opportunity to build self-esteem, confidence and resilience.
Mr. Lundrigan has demonstrated a commitment to an ongoing relationship with S.L. He has exercised access consistently and seeks more time with his daughter. He and Ms. Whiteman have relocated to Grimsby in order to facilitate this. With regard to S.L.’s relationship with Mr. Lundrigan, S.L. has consistently articulated to this clinician that she does not enjoy visits with her father in his home, that she feels more comfortable in Ms. Friesen’s home and that she would prefer that access occur there. S.L. stated clearly that she does not want increased access with her father. She stated that she does not like Ms. Whiteman, describing her as a “stranger” to her because her mother does not know her. She articulated that she has difficulty witnessing physical displays of affection between Mr. Lundrigan and Ms. Whiteman, stating that her mother “used to love Dad a lot”. These comments contrast with those S.L. made during her interview by F&CS, when she reported no concerns with regard to her access with Mr. Lundrigan or her relationship with Ms. Whiteman. Also, throughout the observation visit with her father, S.L. presented as relaxed, happy and physically affectionate towards him. Her interactions with Ms. Whiteman were positive. It is a concern that S.L. expressed an awareness that the purpose of her interviews with this clinician was to determine custody and access arrangements. This awareness may have influenced S.L.’s responses. Concerns have been raised by the family physician and S.L.’s school principal with regard to Ms. Friesen’s tendency to share information, and express her emotions, very freely. Ms. Friesen and S.L. have frequent contact with Ms. Friesen’s parents and brother, who share Ms. Friesen’s negative feelings towards Mr. Lundrigan. It may be that S.L. has been exposed to inappropriate adult conversations regarding her father and the ongoing dispute over custody and access.
S.L. appears to be experiencing divided loyalties. She has been exposed to negative opinions regarding her father. There is evidence that she enjoys the time she spends with her father. S.L. does not feel that she can express positive sentiments regarding her father or Ms. Whiteman, without being disloyal to her mother and hurting her. There is evidence that S.L. does not feel able to “own” her emotions, tending to adopt those of her mother’s instead. This can create significant stress for a child and impede their emotional development. S.L. needs to be given the opportunity to recognise her separateness from her mother and to experience her own opinions and emotions. Ms. Friesen should recognize that, whatever Mr. Lundrigan’s shortcomings were as a husband, S.L. has a right to a positive relationship with her father.”
[76] The OCL’s recommendations in April 2018 were to keep the access/parenting schedule essentially unchanged but allow Mr. Lundrigan to pick S.L. up directly from school one night of the week. She stated that consideration should be given to increasing Mr. Lundrigan’s access “when S is emotionally ready.”
[77] In May 2018 the parents were notified by the school that S.L. was talking about self-injury and thinking about killing herself. She told the teacher that “she just wants her life to be normal and to not go back and forth between mom and dad.” The parents followed up to arrange counselling with Pathstone and the referral to Dr. Shukla, psychiatrist. The doctor’s diagnostic impression was “adjustment disorder with mixed anxiety and depressed mood”.
[78] The court must consider this child’s physical and emotional security, from her perspective, when assessing her best interests.
[79] In light of the OCL’s recommendations and the sensitive nature which S.L. has displayed, the complicated exact sharing of parenting time proposed by Mr. Lundrigan would not be in the child’s best interests. His request for equal timesharing with S.L is denied.
[80] The quality of her time, however, with Mr. Lundrigan and Ms. Whiteman appears to be working well at present and a modest and gentle increase in parenting time is indicated.
[81] Section 16(10) of the Divorce Act, sets out the maximum contact principle. The court is to give effect “to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”: Gordon v Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.
[82] Mr. Lundrigan and Ms. Whiteman have jointly purchased a home some 20 minutes’ drive from the child’s school and Ms. Friesen’s home. This was a child-focused decision for them to make which entailed Ms. Whiteman selling her Burlington property and both of them moving further away from their work.
[83] They have a stable, loving and welcoming relationship in which to help raise S.L. It is clear that the child would benefit from greater contact than the current schedule. The expanded consent holiday schedule will assist with this.
[84] There has been no issue with overnights since October 2017 as they have continued every two weeks for over a year and even included a week’s vacation away with her father and Ms. Whiteman in August 2018.
Increased Access/Parenting Time
[85] In accordance with the suggestion by the OCL, and to assist with Mr. Lundrigan’s greater involvement with the school as a custodial/decision-making parent, the Tuesday access will begin at the end of the school day. Mr. Lundrigan is to pick up S.L. from school every Tuesday.
[86] Every second Tuesday night S.L. is to also have overnight with her father. This overnight is to occur following the weekend when there has been no access. Mr. Lundrigan will then take her to school on Wednesday morning.
[87] In the best interests of the child, Ms. Friesen is to present this change to S.L. in a positive light and reassure S.L. that she will still be primarily resident with her mother. Ms. Friesen is to ensure in future that S.L. is not exposed to negative messaging about the child’s father or discussion of this litigation from either herself or Ms. Friesen’s family.
[88] Mr. Lundrigan requested an order that driving be shared with Ms. Friesen. This request was made in the context of his request for the equal 2:2:3 timesharing request. As this request was denied, the continuation of Mr. Lundrigan driving S.L. for pick-ups and drop-offs will give them more time together. In the child’s best interests the court orders Mr. Lundrigan to continue to be responsible for picking up and dropping off S.L. for his parenting time.
[89] Mr. Lundrigan requested an order that if one of them were unable to care for the child the other parent is to be given first opportunity to care for the child. Ms. Friesen made no submissions on this point. Given that the court has granted joint custody, this is an appropriate order.
[90] The court orders that in the event one of the parties is unable to care for the child during their time with S.L. for a period which exceeds 12 hours, they shall notify the other party and provide them with the first opportunity to care for the child.
Spousal and Child Support
Background
[91] The parties met at university. After graduating with a Bachelor of Science in chemistry, Ms. Friesen worked successfully in the pharmaceutical sales industry for over eight years. She earned as much or more than Mr. Lundrigan. His earnings had been in the area of $75,000 and one year she earned over $100,000.
[92] When S.L. was born, Ms. Friesen testified that she needed blood transfusions and took about six months to recover her energy. She said the stress in their marriage caused her to have sinus problems for which she had surgery in 2014. The court was not provided with any medical records to support this evidence. Since 2014 there is no evidence before the court of any health challenges which Ms. Friesen may have faced. She appeared healthy, articulate and bright throughout the trial. The court is satisfied that Ms. Friesen enjoys good health without any restrictions.
[93] Around the time of their daughter’s birth the couple were aware that the pharmaceutical sales industry was shrinking and for this reason Ms. Friesen decided to go into teaching. She had friends who were teachers and it seemed a “no-brainer” to take this opportunity. A year after the baby was born Ms. Friesen returned to school and obtained her teaching degree and practical requirements. Mr. Lundrigan supported this pursuit. Ms. Friesen agreed that she had looked at salary grids for teachers at the time. Contract incomes for first year teachers in 2014 ranged from $40,580 to $43,918 at the Niagara boards.
[94] The OCL report noted that Ms. Friesen is qualified to teach chemistry and physics, grades 7 to 12, and that she applied for some teaching positions without success. Ms. Friesen testified that there were no full-time positions open and so she remained home with S.L. as a full-time caregiver.
[95] Ms. Friesen testified that the plan between her and Mr. Lundrigan had always been that she would be a stay-at-home mother, because both she and Mr. Lundrigan had been raised by stay-at-home mothers. Mr. Lundrigan was not cross-examined on this point.
[96] This alleged intention is contradicted, however, by the evidence of both parties that after S.L.’s birth Ms. Friesen returned to school to get her teaching degree and practical training. As well, post-separation, in March 2015, Ms. Friesen applied and interviewed for a sales position at Purina, though not successful.
Statutory Framework
[97] The objectives of a spousal support order are set out in s.15.2(6) of the Divorce Act.
[98] A support order of a spouse should,
a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
d) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
Entitlement for Spousal Support
[99] It was not disputed that Ms. Friesen was entitled to spousal support. Mr. Lundrigan has made voluntary payments since he left the matrimonial home in June 2016. His position was that he should pay support that is transitional in nature.
[100] Mr. Lundrigan submitted that there was no basis for compensatory support.
[101] The evidence is that over the years Mr. Lundrigan has travelled for work and that at times his work schedule and work travel have interfered with his ability to exercise access. While Ms. Friesen was caregiving at home, Mr. Lundrigan’s income has steadily risen to over $150,000 annually.
[102] To this extent, he and his career have benefited from Ms. Friesen’s primary caregiving despite his sincere wish to take on a greater caregiving role since separation. He has nonetheless sustained a financial advantage with his career continuing to prosper while Ms. Friesen provided caregiving.
[103] There is a compensatory basis for spousal support on this evidence.
[104] There was no evidence of Ms. Friesen’s budget to establish a demonstrated “need” for support.
[105] Ms. Friesen referred to the Spousal Support Guidelines and sought mid-range support. Mr. Lundrigan also referred to the Guidelines but gave figures for under mid-range support. Neither counsel provided submissions on why the court should prefer one range over the other.
[106] As I find a strong compensatory basis for support, mid-range support is preferred.
Imputed Income
[107] Mr. Lundrigan asks the court to impute income of $30,000 from July 2016 when he had left the matrimonial home and began to pay support, up to the date of trial. Going forward he asks the court to impute income of $50,000.
[108] Ms. Friesen provided no evidence that she was unable to garner an income at close to minimum wage over the last two and a half years. Her submission was that no income be imputed to her.
[109] Ms. Friesen presented as an educated, bright, personable woman in her prime who is in good health, and who is caring for one child who attends school full-time. She was just 39 years’ old at the date of separation. Five years before separation she was able to earn over $75,000. She has two post-secondary degrees.
[110] It is reasonable to expect that she should have been able to provide for herself at a basic level of income: minimum wage at 40 hours a week. I impute income to her of $30,000 from July 2016 to the date of trial for the purposes of child and spousal support.
[111] For spousal support going forward I see no basis for imputing a higher amount than $30,000 taking into account her compensatory claim and the recognition that this is a transition back to the workforce. I impute income to Ms. Friesen of $30,000 going forward.
Duration of Spousal Support
[112] Ms. Friesen sought indefinite spousal support. Mr. Lundrigan sought a termination date of March 1, 2022 which would recognize a total of seven years support.
[113] The court considers a number of factors in the circumstances of this couple;
• Ms. Friesen has both a university education and a teaching certificate,
• Ms. Friesen previously had the ability to earn income up to $100,000,
• Ms. Friesen is in good health,
• Ms. Friesen has provided years of full-time caregiving in the marriage,
• Ms. Friesen was 39 years of age at the date of separation,
• Ms. Friesen did not present any current plan to seek a career or employment,
• Mr. Lundrigan has voluntarily paid spousal support to the date of trial,
• Mr. Lundrigan and Ms. Whiteman have provided all access transportation to date and are willing to assist with pick up from school,
• S.L. is a good student in school, full-time, and is not a “special needs” child, and
• since separation Ms. Friesen was able to earn income as a tutor and as a consultant but has made no other efforts to become self-sufficient, despite receiving spousal support since separation.
[114] Considering these factors, a time-limited support is appropriate.
[115] A further three years of support at the mid-range based on an imputed income of $30,000 is appropriate in the circumstances.
[116] The court orders Mr. Lundrigan to pay Ms. Friesen fixed, non-variable spousal support in the amount of $3,363 commencing February 1, 2019, which amount is based on his 2018 employment income of $171,566, and an imputed income to Ms. Friesen of $30,000.
[117] Such payments shall be made on a bi-weekly basis in conjunction with Mr. Lundrigan’s pay periods.
[118] The spousal support payable by Mr. Lundrigan shall be terminated on a full and final basis on March 1, 2022.
Retroactive Spousal Support Claim
[119] Although Mr. Lundrigan consented if Ms. Friesen wished to amend her answer to include a claim for spousal support in July 2017, she never did so.
[120] As noted above, he had been voluntarily making payments in lieu of support without court order based on an imputed income of $30,000 at the low range of the Guidelines.
[121] In the middle of trial Ms. Friesen’s counsel presented a calculation for retroactive mid-range spousal support with no imputed income which resulted in a shortfall of $17,822.40. There had been no prior notice of this claim.
[122] Such a claim without notice may not be made. Retroactive spousal support is not granted as a matter of course and parties are expected to pursue an increase in support promptly. One of the considerations governing an award of retroactive child support is “notice of intention to seek support and negotiations to that end”: Bremer v. Bremer (2005), 2005 CanLII 3938 (ON CA), 13 R.F.L. (6th) 89, at para. 9. That has not occurred here. This claim was not pleaded properly and it would be unfair to hear this claim without proper notice to Mr. Lundrigan and without giving him an opportunity to respond.
Tax Relief on Spousal Support
[123] Mr. Lundrigan did not claim tax relief for the spousal support paid. At trial, Ms. Friesen acknowledged the figures he claimed to have paid were in fact paid.
[124] Ms. Friesen made no submissions contrary to the following order requested by Mr. Lundrigan.
[125] Accordingly, the court orders that Mr. Lundrigan shall re-file his 2017 Income Tax return and file his 2018 Income Tax return to claim the tax deduction for the spousal support paid to Ms. Friesen for the following periods:
a) January 1, 2017 to June 30, 2017: $2,644 per month;
b) July 1, 2017 to June 30, 2018: $2,606 per month; and
c) July 1, 2018 to January 31, 2019: $2,514 per month.
[126] Commencing February 1, 2019 all spousal support payments made by Mr. Lundrigan to Ms. Friesen shall be taxable in Ms. Friesen’s hands and deductible in Mr. Lundrigan’s hands.
Child Support
[127] The Applicant shall pay to the Respondent support for the child, S.L., born May 1, 2010, in the amount of $1,198 per month commencing on February 1, 2019, based on his income for support in 2018 of $171,566.00 and an imputed income to the Respondent in the amount of $30,000 in accordance with the Child Support Guidelines.
[128] Such payments shall be made on a bi-weekly basis in conjunction with Mr. Lundrigan’s pay periods.
[129] The parties shall share Section 7 expenses on behalf of the child in proportion to their incomes. The parties shall only be required to contribute to any additional Section 7 expenses if they consent to the expense in advance, in writing. Neither party shall unreasonably withhold consent. Neither party shall enroll the child in activities that occur while the other party is having time with the child unless they have obtained consent in writing.
[130] Unless the support deduction order is withdrawn from the Office of the Director, Family Responsibility Office, all amounts owing thereunder shall be paid to the Director, who shall in turn pay them to the party to whom they are owed.
[131] For so long as child support is paid, the payor must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this Order, in accordance with section 24.1 of the Child Support Guidelines.
Financial Adjustments
[132] The parties agreed on all the net family property numbers and the equalization payment to be made, subject to some adjustments claimed by Mr. Lundrigan, as follows:
Overpayment/Underpayment of Spousal Support from July 1, 2016
[133] Mr. Lundrigan sought a credit for an overpayment on spousal support based on the imputed income of $30,000 and at the low range of the spousal support guidelines. His calculation was $9,917 was overpaid.
[134] Ms. Friesen agreed the amounts set out had been paid but disputed the overpayment.
[135] The court has calculated the spousal and child support payments and the overpayment as follows:
July 1, 2016 – December 31, 2016 (2015 income)
Applicant paid to Respondent → $21,155.85
Guideline spousal amount (Mid) $1,997.00 x 6 mos → - $11,982.00
Guideline child support $1,148.00 x 6 mos → - $6,888.00
Overpayment by Applicant → $2,285.85
January 1, 2017 – June 30, 2017 (2016 income)
Applicant paid $1,750.15 bi-weekly x 6 months to Respondent → $22,752.00
Guideline spousal amount (Mid) $2,137.00 x 6 mos → - $12,822.00
Guideline child support $1,186.00 x 6 mos → - $7,116.00
Overpayment by Applicant → $2,814.00
July 1, 2017 – June 30, 2018 (2016 income + 2017 income)
Applicant paid $1,750.15 bi-weekly x 12 mos to Respondent → $45,504.00
(July – Dec) Guideline spousal amount (Mid) $2,137.00 x 6 mos → - $12,822.00
(Jan – June) Guideline spousal amount (Mid) $2,473.00 x 6 mos → - $14,838.00
(July – Dec) Guideline child support $1,186.00 x 6 mos → - $7,116.00
(Jan – June) Guideline child support $1,278.00 x 6 mos → - $7,668.00
Overpayment by Applicant → $3,060.00
July 1, 2018 – January 31, 2019 (2017 income)
Applicant paid $1,750.15 bi-weekly x 7 mos to Respondent → $26,544.00
Guideline spousal amount (Mid) $2,473.00 x 7 mos → - $17,311.00
Guideline child support $1,278.00 x 7 mos → - $8,946.00
Overpayment by Applicant → $287.00
Total Overpayment by Applicant to January 31, 2019 → $8,446.85
[136] Mr. Lundrigan is accordingly allowed an adjustment of $8,446.85 owing to him for overpayment on past spousal and child support.
Post-Separation Adjustments, Property Tax, and House Insurance
[137] Mr. Lundrigan seeks an adjustment of $5,831.10 in property tax and $770.03 in house insurance for the matrimonial home, a total of $6,601.13.
[138] Ms. Friesen achieved a consent order that title of the home be divided 70/30% in her favour.
[139] Mr. Lundrigan therefore seeks an adjustment to reflect that he pay 30% rather than 50% of the tax and insurance on this asset.
[140] Tax and insurance go to preserve the asset and as Ms. Friesen is a 70% owner she has unfairly benefited by Mr. Lundrigan’s payment of 50% of those expenses.
[141] Pro-rata sharing of the tax and insurance is appropriate and the court orders this adjustment in the amount of $6,601.13.
Funding of Ms. Friesen’s BMW X3
[142] It is not disputed that post separation Ms. Friesen purchased a new BMW X3 which had been ordered before separation. The purchase price was funded on April 1, 2015 by $36,500 taken from the parties’ joint line of credit and $13,000 taken from the parties’ joint bank account.
[143] Mr. Lundrigan seeks an order that he be paid $6,500, being half the $13,000 taken from the joint bank account and an order that Ms. Friesen pay the balance owing on the joint line of credit which had been used to purchase the car.
[144] Mr. Lundrigan testified that at the date of separation he wanted to cancel the car that was on order. He stated that Ms. Friesen wanted to have the car and that she agreed it would not form part of their property division.
[145] Ms. Friesen, in her testimony, did not dispute this.
[146] Mr. Lundrigan testified that the funds were transferred and paid out without his knowledge, although he was aware she was buying the car. Ms. Friesen testified that he was aware of the monies that were transferred and used. The submission was that this was a post-separation gift to her.
[147] Whether he knew about the use of the bank accounts or not, he should not be asked to shoulder the debt for an asset in Ms. Friesen’s sole name post-separation. However, in the agreed net family property statement the full value of the BMW X3, $53,798, was included as an asset to be divided. If in the equalization payment, which Ms. Friesen is paying to him, he is essentially getting half the value of that post-separation asset then there is a basis for why he should be responsible for half the cost of purchasing it.
[148] The argument above was not made at trial. I invite Mr. Lundrigan to file further submissions on this point within seven days of this judgment and Ms. Friesen to file responding submissions within 14 days of this judgment. Submissions are not to exceed two pages. Failing such submissions, this adjustment is denied.
Pre-judgment Interest on the Equalization Payment
[149] The parties agreed that Ms. Friesen owed an equalization payment of $90,953.65 subject to the adjustments claimed.
[150] Mr. Lundrigan sought an order for pre-judgment interest on the equalization payment which Ms. Friesen is to make.
[151] Ms. Friesen made no submission contrary to this request.
[152] In accordance with s. 128 of the Courts of Justice Act, R.S.O. 1980, c. C. 43 the court orders pre-judgment interest to be paid by Ms. Friesen on the equalization, as adjusted.
[153] On consent, upon payment of the equalization, as adjusted, with interest, the matrimonial home, located at 3468 Vinehaven Trail in Vineland, shall be transferred into the name of Ms. Friesen solely and she shall be responsible for all costs associated with the transfer.
Collateral Matters
[154] A number of other orders were sought.
2002 BMW 325
[155] Ms. Friesen consented on the net family property division that the 2002 BMW in Mr. Lundrigan’s possession was his asset, valued at $2,000. He has requested in the past that Mr. Friesen sign over the ownership for this vehicle which has been in his possession for over three years since separation. Ms. Friesen has not done so.
[156] The court orders Ms. Friesen to sign over the ownership on this vehicle. At trial Ms. Friesen mentioned that she may wish to purchase the vehicle. She was advised by the court that such a transaction is beyond the jurisdiction of this court.
Life Insurance
[157] Mr. Lundrigan requested in his draft order that Ms. Friesen shall designate the child as the irrevocable beneficiary of any policy of insurance on her life.
[158] No submissions were made by either party on this order. There was no evidence directed on this issue. This issue may be revisited in future if the need arises.
[159] The parties consented to an order regarding Mr. Lundrigan’s life insurance.
[160] On consent, Mr. Lundrigan shall maintain the child and Ms. Friesen on his Dofasco life insurance policy currently in effect, for the sole purpose of securing any ordered child or spousal support payments.
Consent Orders
[161] The parties consented to the following orders:
[162] The parties shall share all school vacations and holidays pursuant to the holiday residence schedule set out below, which will override the regular residence schedule:
(a) Each party shall have summer vacation with the child for two consecutive or non-consecutive weeks during the summer. In even numbered years, the Applicant shall provide the Respondent with written notice of his selected vacation weeks no later than May 1st. In odd numbered years, the Respondent shall provide the Applicant with written notice of her selected vacation weeks no later than May 1st.
(b) The parties shall share the Christmas holiday period, including the school holiday Christmas break as follows:
i. In even numbered years, the Applicant shall have the child from Christmas Eve at 11:00 a.m. until Christmas Day at 11:00 a.m. and in odd numbered years the Applicant shall have the child from Christmas Day at 11:00 a.m. until Boxing Day at 11:00 am.
ii. In odd numbered years, the Applicant shall have the child from New Year’s Eve at 11:00 a.m. until New Year’s Day at 11:00 a.m. and in even numbered years the Applicant shall have the child from New Year’s Day at 11:00 a.m. until January 2nd at 8:00 p.m.
iii. The balance of the school vacation shall be divided equally between the parties with the specific schedule to be agreed between the parties in each year.
(c) The child shall be with the Applicant every Father’s Day from 10:00 a.m. until 8:00 p.m. and the child shall be with the Respondent every Mother’s Day from 10:00 a.m. until 8:00 p.m. regardless of the regular weekend access schedule.
(d) The parties shall divide the March Break holiday equally between them with the exchange taking place on Wednesday at 6:00 p.m. If one of the parties wishes to take the child outside of the Province of Ontario for a vacation, they shall be permitted to do so, provided that they provide the other party with written intention to do so no later than February 1st in that year. For the purpose of the whole week holiday period, the Respondent shall have priority in odd numbered years and the Applicant shall have priority in even numbered years. Neither party shall be entitled to have the child for the entire March Break week in two consecutive years.
(e) The regular access schedule shall prevail during the Thanksgiving weekend
(f) The Applicant shall be permitted to take the child to the ArcelorMittal Dofasco Christmas party in each year irrespective of the regular access schedule. In the event the child is in the Respondent’s care when the party is to take place, the Applicant shall be permitted to pick the child up on the day of the party at 11:00 a.m. and shall return the child to the Respondent’s care on the same day at 6:00 p.m.
[163] The parties shall provide each other with their email addresses, current addresses and phone numbers where they can be reached at all times.
[164] Both parties may attend the child’s extracurricular activities, religious and/or scheduled school events regardless of the access schedule. The parties shall promptly provide to each other copies of all notices or reports concerning the child’s special activities and promptly communicate to the other any verbal notice of any special activity.
[165] If the child is sick, the transition from one party’s care to the other party’s care shall proceed according to the schedule unless the child is too sick to travel between parties’ homes. The party claiming that the child is too sick to transition to the other’s home shall provide a confirming note from the child’s doctor.
[166] The child shall be permitted to take any personal item, toy, gift or article of clothing between the parties’ homes, without restriction. If the child does take an item with them to one party’s home, that party shall ensure the item is returned with the child.
[167] The child’s Health Card and Passport shall be in the possession of the Respondent and she will provide the Applicant with notarized copies.
[168] If the child needs emergency medical care while with the other party, that party shall promptly notify the other of the emergency. If either party learns of the child’s illness requiring medical attention or learns of any accident or other circumstances significantly affecting the child’s health and general welfare, that party shall promptly notify the other and the other party shall have the right of immediate access to the child.
[169] With respect to the child’s education:
(a) Both parties may attend all school function regardless of the schedule.
(b) The parties shall attend parent-teacher meetings individually.
(c) Each party shall obtain his or her own school calendar and school notices.
(d) With respect to school trips or classroom events, the parties shall alternate attendance. If one party is unable to attend, that party shall immediately notify the other party who may attend instead.
[170] If either party plans a vacation with the child, they shall give the other party a detailed itinerary at least seven days prior to the vacation, including the name of any flight carrier and flight times, accommodation particulars including address and telephone numbers and details as to how to contact the child during the trip. The travelling party shall provide a Travel Consent authorizing the child to travel, for the other party to execute and have notarized and such Consent shall not be unreasonably withheld. The Respondent shall ensure the child’s Passport is provided to the Applicant no later than seven days prior to the scheduled vacation. The Applicant shall ensure the Passport is returned to the Respondent no later than seven days after the return from vacation.
[171] The Respondent shall apply for a Canadian passport for the child and the Applicant shall execute any necessary documentation required. The Respondent shall retain possession of the passport and shall provide same to the Applicant when requested by him for travel and he shall return the passport to the Respondent upon completion of his vacation.
[172] If either party plans a vacation without the child, that party shall give the other a telephone number where he or she can be reached in case of emergency or if the child wishes to contact the vacationing party while they are away.
[173] Neither party shall attend at the other’s residence without invitation or on reasonable advance notice and only for the purpose of picking up or dropping off the child.
[174] Neither party shall harass, annoy, speak ill or in any way interfere with each other. Both parties shall refrain from making any disparaging comments to the child about the other party and shall ensure that extended family also refrain from making disparaging comments in the presence of the child.
[175] The parties shall ensure that the child is not involved in or exposed to any arguments between them or their respective parents and families. The parties shall encourage the child to have a good relationship with the other party.
[176] The parties shall have reasonable communications (i.e. by text, telephone, email etc.) with the child when she is not in their care.
[177] The Applicant shall be entitled to obtain information relating to the child’s health, education and general welfare and may obtain such information directly from the third-party provider, including but not limited to, teachers, doctors, dentists, or others involved in the child’s life. The Respondent shall execute whatever documentation necessary to allow the Applicant to deal directly with any third-party provider in relation to the child.
[178] The child’s name shall not be changed without written consent or Court Order.
[179] Neither party shall change the child’s permanent residence farther than 40 kilometres of the other party’s residence without written consent or Court Order. If either party seeks to change their home residence, they shall provide the other party with 90 days’ notice of the intent to move and provide particulars.
[180] The Applicant shall maintain health care coverage for the Respondent and the child for so long as he is able to do so through his place of employment at no extra charge.
[181] Within 30 days of this Order, the Respondent shall ensure that the Applicant’s name is removed from all joint bank accounts and she shall be entitled to retain any funds in the accounts at the time of closing. The Respondent shall provide the Applicant with written confirmation that he has been removed from all joint accounts.
[182] Within 30 days of the Order, the Respondent shall provide the Applicant with written confirmation that he has been removed from all liability with respect to household accounts (i.e. utilities, taxes, etc.).
[183] The Respondent shall retain all contents in the matrimonial home.
[184] The parties shall each retain ownership of any investments in their respective names.
[185] Each party shall be responsible for payment of their own debts and liabilities and shall indemnify the other from any expense or liability with respect to his or her sole debts.
[186] So long as the Applicant has child and/or spousal support obligations, the Applicant shall maintain the child and the Respondent on his Dofasco life insurance currently in effect, for the sole purpose of securing said support.
[187] The Applicant shall proceed with a divorce on an uncontested basis, by way of affidavit evidence.
Costs
[188] Costs submissions are deferred if the parties advise within seven days that they wish to file further submissions regarding the adjustment regarding the BMW X3.
[189] Otherwise, if the parties are unable to resolve costs, Mr. Lundrigan may file written submissions on costs within 21 days. Ms. Friesen may file responding written submissions within 14 days thereafter. Submissions are not to exceed three pages, plus costs outlines, case law and any applicable offers.
[190] Such written submissions are to be forwarded to my chambers in St. Catharines.
[191] Failing receipt of costs submissions within 40 days of this judgment, the issue of costs will be considered settled and the file closed.
M. J. Donohue, J.
Released: April 1, 2019
COURT FILE NO: 451/16
DATE: 2019-04-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
Allan John Lundrigan
Applicant
- and –
Irene Martina Friesen
Respondent
REASONS FOR JUDGMENT
M. J. Donohue, J.
Released: April 1, 2019