Court File and Parties

COURT FILE NO.: FC-16-1903 DATE: 2019/06/07 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Kevin Pryce Applicant – and – Nicole Pryce Respondent

COUNSEL: Linda Hanson for the Applicant Self-represented for the Respondent

HEARD: May 13, 14, 15, 16, 17, 21, and 22, 2019 (at Ottawa)

REASONS FOR JUDGMENT

SHELSTON J.

[1] The parties married on March 10, 2007. They had two children: Daveney, born in 2011, and Keziah, born in 2013. The parties separated on July 14, 2016.

[2] The issues for this trial are as follows:

(a) divorce (b) custody of the children (c) access to the children (d) table child support and section 7 expenses (e) spousal support (f) equalization of the net family property (g) extended health coverage (h) security for support (i) prejudgment interest, and (j) costs

[3] The applicant, his parents, his sister and friends, and ex-clients testified on his behalf.

[4] The respondent testified and, according to the Trial Schedule Endorsement form, she proposed four additional witnesses including counsellors and a teacher. None of these witnesses were called to testify. Instead, the respondent requested, and I granted her leave, to allow two witnesses who were not on the Trial Schedule Endorsement Form, being her youngest sister and a personal friend, to testify.

[5] Further, the applicant filed five books of documents while the respondent filed no documentary evidence save two documents.

Litigation history

[6] Proceedings were commenced by the applicant on September 2, 2016. On February 9, 2017, the parties attended a case conference where the parties agreed to various relief, including the following:

(a) the parties agreed to list the matrimonial home for sale by April 3, 2017 (b) the applicant was to deliver his sworn financial statement and business tax returns for the years 2013, 2014 and 2015 by March 31, 2017 (c) each party was to produce the supporting documentation for the value set out in their financial statement and net family property statements within 60 days of the case conference (i.e., February 9, 2017) (d) leave was granted for questioning, and (e) the parties were granted leave to proceed with motions for temporary relief and to schedule a settlement conference

[7] On August 22, 2017, Doyle J. ordered the appointment of the Office of the Children’s Lawyer.

[8] On November 2, 2017, the parties attended a motion for temporary relief where the parties consented to various relief. The relief consented to included that, on a temporary and without prejudice basis pending the release of the report of the Office of the Children’s Lawyer (at which time, this matter may be brought back to court by either party upon reasonable notice to the other):

(a) the children shall reside primarily with the respondent (b) the applicant shall have access to the children each Wednesday from 4:30 p.m. until 6:30 p.m. (c) the applicant shall have access to the children every second weekend from Friday at 4:30 p.m. until Sunday at 6 p.m. subject to the following: i. in order for the children to be more comfortable with the introduction of overnight access, a graduated access schedule shall be implemented. For the first two weekends the applicant exercises access, such access shall be from Friday at 4:30 p.m. until Saturday at 6 p.m. ii. thereafter, during the applicant’s access weekends, the children shall be with him from 4:30 p.m. on Friday until 8:30 a.m. on Sunday (at which time they will be transitioned to the respondent’s care in order that they may attend church with her) and then shall be under the applicant’s care from 1 p.m. until 6 p.m. iii. for so long as Keziah is registered in piano lessons on Saturday morning, the applicant shall return Keziah to the respondent’s care on Saturday morning at 11 a.m. and the respondent shall return her to the applicant’s care following her lesson at 12:30 p.m. The respondent shall make all reasonable efforts to reschedule Keziah’s piano lesson to another time in the week during her own parenting time (d) the applicant shall have access to the children on alternate Fridays from 4:30 p.m. until 6:30 p.m. (e) the applicant shall have access to the children from 1 p.m. on Sunday, December 24 until 1 p.m. on Monday, December 25 (f) transitions in care shall continue to take place at the parking lot near Starbucks on Greenbank Road; (g) neither parent shall register the children in any extra-curricular activities scheduled to occur on the other parent’s parenting time, absent the other parent’s written consent; (h) both parties shall be entitled to full information and documentation regarding the children, including but not limited to: school report cards, notices of school-related events, extracurricular activity schedules, medical reports and details of any church-related events in which the children will be participating (i) commencing November 1, 2017, and on the first day of each month thereafter, the applicant shall pay the respondent $300 per month in child support for the children without prejudice to the date of commencement and the quantum of child support, and any possible set off for a potential spousal support payable to the applicant, pending an agreement or determination of custody and access arrangements and/or an agreement or determination on the issues of child and spousal support. Either party shall be at liberty to return this matter back to court upon reasonable notice to the other party (j) the parties shall contribute to the children’s special and extraordinary expenses, as agreed upon in advance by them in writing, on the basis of the applicant contributing 25% and the respondent contributing 75% (k) the net proceeds of sale of the matrimonial home shall continue to be held in trust pending further agreement or court order (l) the applicant shall be permitted to amend his pleading to claim an equalization of net family property and to clarify that his claim is for joint custody and not sole custody, and (m) costs shall be reserved to the judge hearing the motion and cross motion, in the event the matter is returned to court following the release of the report of the Office of the Children’s Lawyer or otherwise to the trial judge

[9] On June 26, 2018, Master Fortier granted the applicant leave to bring a motion on July 5, 2018, to address summer access and which school the children will attend as of September 2018. The respondent did not attend that motion.

[10] On July 5, 2018, the parties appeared before Corthorn J. who granted, at the request of the respondent, an adjournment of the motion to July 18, 2018. The terms of the adjournment were as follows:

(a) the applicant’s summer access with the children shall include the weekdays and overnight during the week July 23-27, 2018 (b) the parties shall, prior to the week of July 23, 2018, determine whether the children will attend the swimming lessons in which they are currently registered by the respondent or an activity in which they are or will be registered by the applicant (for example, CrossFit for the older of the two children) (c) the parties shall take the necessary steps to facilitate the children’s participation, during the week of July 23-27, 2018, in swimming lessons or in alternate activities as agreed between the parties, and (d) the costs of the appearance to be reserved to the judge hearing the motion on July 18, 2018

[11] On July 18, 2018, MacEachern J. ordered that the applicant was to have additional summer access from August 13-19, 2018, ordered that effective September 2018, the children would attend Jockvale Public School and that both parties are permitted to pick up and drop off the children as required. In addition, the applicant was awarded costs of $500, payable within 30 days.

[12] On September 20, 2018, the parties appeared before me and on consent agreed, inter alia, that the applicant would no longer be obliged to let the respondent take the children to her church on Sundays and shall be permitted to take children to his church during his access weekend. Further, the respondent was ordered to provide to the applicant the name, address and telephone numbers of any counsellors or other medical professionals who were seeing the children. No costs were awarded for that proceeding.

[13] This matter was set to proceed on the January 2019 trial sittings. On January 28, 2019, the respondent requested the adjournment of the trial which was opposed by the applicant. MacEachern J. granted the adjournment to the May 2019 trial sittings on a peremptory basis and ordered, inter alia, with the consent of the respondent, that the applicant could pick the children up from school on Wednesday and Friday access and that the alternate weekend access be extended to include Sunday overnights with the applicant delivering the children to school Monday morning. This access to be extended to Tuesday morning if Monday is a school holiday.

Divorce

[14] I find that the parties have been living separate and apart since July 14, 2016, and that there is no chance of reconciliation. I grant a divorce order.

Custody

[15] At my request, subsequent to the completion of the trial, the parties provided a very detailed draft order dealing with custody, access, holidays, communication, and other relevant issues regarding the children that should be submitted as part of the final order.

Applicant’s position

[16] On the issue of custody and a parenting arrangement, the applicant seeks sole custody of the children. He seeks an equal timesharing parenting arrangement with the children residing with the applicant on Monday and Tuesday, the respondent on Wednesday and Thursday and alternating weekends.

Respondent’s position

[17] The respondent seeks joint custody with the applicant with the two children residing with the applicant as follows:

(a) each Wednesday from 3 p.m. until 6:30 p.m. (b) on alternate weekends from Friday at 3 p.m. until Monday morning at 8:30 a.m., and (c) on alternate Fridays (immediately preceding the respondent’s weekend with the children) from 3 p.m. until 6:30 p.m.

Legislative and jurisprudential framework

[18] 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, any or all children of the marriage (*Divorce Act*, R.S.C. 1985, c. 3, s. 16(1)).

[19] The court may make an order under this section granting custody of, or access to, any and all children of the marriage to any one or more persons (*Divorce Act*, s. 16(4)).

[20] In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child (*Divorce Act*, s. 16(9)).

[21] In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with the other spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such conduct (*Divorce Act*, s. 16(10)).

[22] The only relevant issue in custody and access matters is the best interests of the child (*Gordon v. Goertz*, [1996] 2 S.C.R. 27).

[23] The jurisprudence provides guidelines for the court in considering a joint custodial regime as follows:

(a) the parties need not consent to an order for joint custody but before ordering joint custody, the court must have some evidence that the parties are able to communicate effectively with each other (*Kaplanis v. Kaplanis* (2005), 249 D.L.R. (4th) 620 (C.A.)); (b) simply relying on allegations of conflict will be insufficient to preclude a joint custody order. The analysis must focus on the nature, extent and frequency of conflict and how such conflicts are likely to impact on the well-being of the child. If the evidence is that the parties have been able to shelter the child from the conflict reasonably well and put the child’s interests ahead of their own, an order for joint custody may be appropriate (*Ladisa v. Ladisa* (2005), 193 O.A.C. 336 (C.A.)); (c) one parent cannot create problems with the other parent then claim custody on the basis of a lack of cooperation (*Lawson v. Lawson* (2006), 81 O.R. (3d) 321 (C.A.), at para. 15); (d) where it is necessary to preserve the balance of power between the parties, particularly cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict, joint custody versus sole custody may be appropriate (*Khairzad v. Macfarlane*, 2015 ONSC 7148, 72 R.F.L. (7th) 436, at para. 32 and *Fraser v. Fraser*, 2016 ONSC 4720, at para. 47), and (e) in determining whether a reasonable measure of communication and cooperation is in place and is achievable in the future, the court must consider the source of the conflict, whether one parent is creating the conflict by engaging in unreasonable conduct, impeding access, marginalizing the other parent or by any other means, and whether that parent then attempts to claim sole custody on the basis of lack of cooperation or communication (*Khairzad* at para. 31).

[24] In *Andrade v. Kennelly* (2006), 33 R.F.L. (6th) 125 (Ont. S.C.), the court discussed the best interests and the maximum contact principles and their importance in determining custody:

76. In *Young v. Young*, [1993] 4 S.C.R. 3 (S.C.C.) at pp. 117-18, McLachlin J. also emphasized the importance of "maximum contact" between the child and both parents in assessing the best interests of the child.

Both ss. 16(10) and 17(9) of the Act require that "the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child". The sections go on to say that for this purpose, the court "shall take into consideration the willingness of [the applicant] to facilitate" the child's contact with the non-custodial parent. The "maximum contact principle", as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact.

77. In *Rogerson v. Tessaro* (2006), 147 A.C.W.S. (3d) 821 (Ont. C.A.) [2006] CarswellOnt 2777 (Ont. C.A.)], the Court of Appeal upheld the trial judge's decision awarding custody of the parties' children to the father. The facts in Rogerson bear a remarkable similarity to those in this case. There, the mother, while insisting that she supported the children's relationship with their father, had actively thwarted it, and ultimately made a unilateral decision to move. At trial, Lafreniere J. changed custody to the father on the basis of the maximum contact principle. It was true there, as in this case, that the children were more closely bonded with their mother than their father. Lafreniere J. held that this was hardly surprising in light of the mother's diligent efforts to exclude the father from their lives. She held, on the facts that the father would support the children's relationship with the mother while the mother would not support the children's relationship with the father. Accordingly, she found that by awarding custody to the father, the children would enjoy maximum contact with both parents, which was in their best interests. The trial judge found that the mother was unable to consider the best interests of the children as far as their relationship with their father was concerned.

[25] In *Attia v. Garanna*, 2010 ONSC 1261, Ricchetti J., in granting custody to the father, emphasized the attempts by the mother to minimize the father’s role in the children’s lives:

251. The decision in Rogerson and Andrade are strikingly similar to this case. The Father is ready, willing and able to share his parental role with the Mother in a significant way. He has abided by the Court orders. He has always attempted to exercise access pursuant to the Court orders. There was no evidence that the Father tried to minimize the Mother's contact with the Children except through the suggestions and coercion both parents are guilty of. On the other hand, the Mother has sought to minimize the Father's role in the Children's lives and continues to propose a reduced role and access to the Father. She has done this by absconding with the children in Egypt and by failing to comply with court orders providing for access to the Father. In addition to the history of the Mother's conduct in doing her utmost to reduce or minimize the Father's access to the Children, it is clear that the Mother's proposed order in this case seeks to reduce the Father's access to the Children.

Factual Findings regarding custody

Background

[26] The applicant is 42 years of age. He has a university degree in Human Kinetics obtained in 2000. Currently, the applicant works from 8:30 a.m. to 2:30 p.m. Monday to Friday. He also works at CrossFit on Mondays at noon, Wednesdays from 6 a.m. to 8 a.m., Thursdays from either 2:30 p.m. or 4 p.m. until approximately 8-9 p.m. and every other weekend.

[27] The respondent is 42 years of age. She has a university degree in Early Childhood Education and graduated from teacher’s college in 2006. The respondent is an elementary school teacher with an annual income of approximately $98,000 per year. She is does not work during the summer and has break at Christmas and at March break.

[28] The parties met in 2003 and entered into a long-distance relationship. The parties started to live together in August 2006 at the applicant’s parents’ home. The parties rented their own apartment in March 2007 and married on March 10, 2007.

[29] At the date of marriage, the applicant was operating a fitness and wellness center earning approximately $38,000 per year. At that time, the respondent worked as a supply teacher and part-time at the Royal Bank of Canada.

[30] In 2009, the applicant left his position and started working at the YMCA with an annual income of $41,000.

[31] In September 2009, the parties jointly purchased the matrimonial home.

[32] The parties’ first child was born on January 17, 2011. The respondent went on maternity leave. In September 2011, the respondent was hired as a full-time teacher. The applicant took two months parental leave from his position with the YMCA and cared for the child.

[33] After the birth of the first child he helped with baths, changed diapers, was the main cook and would go to the park, church, shopping and doctor appointments with the child.

[34] In November 2011, the applicant was laid off from his position with the YMCA. After being laid off, the applicant worked part-time as a personal trainer and started taking courses to work for Primerica. With the support of the respondent, the applicant opened his own business, with two other partners, which he started in September 2013, known as CrossFit.

[35] I accept the evidence of the applicant that the marriage was good until after the birth of the first child in January 2011. After that time, for whatever reason, the respondent withdrew from the applicant. The respondent described the birth of her first child as a traumatic experience.

[36] Both parents cared for the children but the respondent attempted to dominate all aspects of the children’s lives and attempted to reduce the applicant to a spectator regarding his own daughters. However, when it suited the respondent’s needs, the applicant was enlisted to care for the youngest child.

[37] The parties attended counselling to deal with the isolation the applicant felt from his family and the strain in the relationship between the husband and wife. During this period of time, the respondent made all decisions regarding the child. She was responsible to deliver the child to daycare in the morning while the applicant was responsible to pick the child up at the end of the day.

[38] During this period of time, the parties were growing apart. This is confirmed by the evidence of the applicant that he was surprised that the respondent was pregnant with their second child because of the lack of intimacy. He was further upset that the respondent told him when she was 11 weeks pregnant and not before.

[39] The parties’ second child was born on October 25, 2013. The respondent was on maternity leave until September 2014. After her maternity leave ended, the respondent returned to work. The applicant proposed that the children be placed in the care of his parents during the day. The respondent rejected this request and placed both children in daycare. This was equally upsetting to the applicant because his time was flexible to care for the children.

[40] After the second child was born, the applicant wanted to start counselling or seek assistance from the pastor at their church. The respondent delayed in agreeing to any counselling while at the same time not allowing the applicant to be left alone with his own children.

[41] The applicant described the respondent as a “different person” after the birth of the children because of her possessiveness of the children and by her actions in shutting him out of their lives. The respondent limited the applicant and his family’s access to the children and would not allow the grandparents to hold the children or babysit them. The respondent’s control of the children to the exclusion of the applicant continued. If she went to a hair appointment, she took both children rather than leave them in the care of the applicant.

[42] By July 2016, the relationship between the parties was strained. The applicant was concerned about the lack of socialization and the lack of communication with his family and the lack of bonding with his own children. He was frustrated but continually sought to repair the relationship. He wrote a letter to the respondent setting out his most intimate feelings and requesting that she reply. She never did.

Separation

[43] On July 11, 2016, the applicant testified, as the parents were getting ready for bed, he approached the respondent to talk to her about communications and problems in the marriage. The respondent testified that the applicant complained that she was not listening to him, that she was disrespectful and that the marital strife was her fault. An argument ensued with both parties alleging that they were assaulted by the other. Both allege that they were grabbed around the neck by the other. Further the respondent alleges that the applicant said, “I will kill you” and “I will take you out”. The respondent was screaming. The altercation ended and the applicant returned to the master bedroom while the respondent went to sleep in one of the children’s rooms.

[44] The applicant stated that when he was attacked by the respondent, he told her in an attempt to have the respondent stop grabbing his neck that “I am bigger than you, I can kill you. Why are you attacking me”. He testified that he never attacked her and tried to stop her. He never made the comment as a real threat.

[45] Throughout this altercation, the children did not awake. The respondent did not call the police because the girls had just fallen asleep, she did not want to wake them and the applicant had left the room and “the immediate danger to her life had passed”.

[46] The respondent sought help from her pastor that Tuesday but stayed at the home on Tuesday and Wednesday. On Wednesday July 13, 2016, she went with the pastor and his wife to make a statement to the police. She returned home that day. The parties did not talk for the next few days. On July 13, 2016, the respondent went out for the evening with the two children to church. She did not come home until 1 a.m. accompanied by two police officers.

[47] The applicant advised the respondent that she was moving out and that he was arrested. He was held overnight. In the morning, he was interviewed by a detective who asked both parties to take a polygraph test. The applicant agreed while the respondent refused. He was released without charges. When the applicant returned home, neither the respondent nor the children were present. The applicant retrieved some clothing and moved to his parents’ home.

[48] The applicant contacted the police who were able to contact the respondent to ensure the children were safe. The first communication that the applicant received from the respondent after July 14, 2016 was the email from her counsel, Ms. Cochrane, dated July 18, 2016, where she advised that the respondent sought a separation and proposed interim terms. The applicant was shocked by the position being taken by the respondent regarding his access to his own children. The respondent proposed the following:

(a) she and the girls would have interim exclusive possession of the matrimonial home, and (b) the applicant would have access as follows: (i) every Wednesday from 4 p.m. until 7 p.m. (ii) every Saturday from noon until 7 p.m., and (iii) every Sunday from 1 p.m. until 7 p.m.

[49] On July 22, 2016, the applicant responded rejecting the proposal but wanting to enter into negotiations regarding child custody, division of property and any spousal/child support issues. In addition, because both parties are members of the community, he proposed that they retain a Christian mediator. Further, the applicant stated that because of, in his view, the baseless police report against him for abuse, he would not be staying in the home but would be residing at his parents’ home. He proposed having the girls over the remainder of the summer on Monday evenings to Tuesday mornings, Wednesday evenings to Thursday mornings and Friday evenings to Sunday mornings.

[50] On July 27, 2016, in a letter from her counsel, the respondent rejected this proposal and proposed that the applicant have the children from 4 p.m. to 6 p.m. on Monday and Wednesday as well as the proposed Saturday and Sunday access. The respondent was concerned about the girls spending overnights away from home and believed it could be a potential reason for the youngest child having a sleep disorder.

[51] The parties went to three or four marriage counselling sessions in late July/early August 2016. I accept that in August 2016, the parties met for breakfast one morning, went back to the matrimonial home and had sexual relations. Further, the parties spent time at the Nordic Spa. Despite the mixed messages, the respondent did not want the applicant to have overnight access with the girls because Keziah was suffering from an alleged sleep disorder.

[52] Throughout the month of August, the parties attempted to negotiate a settlement. On August 26, 2016, counsel for the respondent proposed an interim separation agreement with, in the view of the applicant, very restricted access. The respondent proposed that the applicant have the children each Saturday and Sunday afternoon and that he attend the matrimonial home to assist with the children’s dinner and bedtime routine on Mondays, Wednesdays and Fridays.

[53] On August 27, 2016, the applicant sent an email rejecting the proposal and advising that he would be moving back into the matrimonial home within 24 hours, which he did on September 2, 2016. He moved into the basement and was advised by friends that he should record any interaction he had with the respondent to protect himself from any allegations made by the respondent.

[54] On September 2, 2016, the applicant, representing himself, commenced this proceeding. Once the respondent was served, the applicant offered to stop all proceedings if the parties could attempt reconciliation because he was very concerned of the negative effect on the girls of removing their father from their lives.

[55] The Children’s Aid Society was involved in investigating the allegation surrounding the events of the July 11, 2016. The Children’s Aid Society concluded that the children had been exposed to trauma by witnessing the arguments between the parents but could not confirm any allegations of physical abuse. Consequently, the Children’s Aid Society closed their file.

[56] From September 2016, until the matrimonial home was sold in July 2017, the applicant lived in the basement and helped to care for the children. The parties continued on with the litigation while at the same time seeking counselling between them.

[57] The parties attended a case conference in February 2017, where they agreed to sell the matrimonial home and that the applicant could put the girls to bed and pick them up from school on Mondays and Wednesdays. This continued until May 2017 when the respondent unilaterally terminated the applicant’s right to pick the children up at school based on allegations that she was afraid of him.

[58] In February and March 2017, the parties attended counselling without success.

[59] In May 2017, the respondent unilaterally terminated the applicant picking the children up at school. The respondent told the applicant the reason she was terminating pick up at the school was to ensure that all staff feel safe at work. The respondent advised the applicant that she would return the children to her home then deliver them to Starbucks to be picked up by the applicant.

[60] In July 2017, the matrimonial home was sold. The applicant considered removing the children prior to closing but did not believe it was in their best interest as it would expose them to that stress. He planned to negotiate an agreement. The respondent, on the day of closing, removed the children and did not advise the applicant as to where she was living.

[61] From the middle July 2017, to November 2, 2017, the respondent requested overnight access to his children but the respondent would not agree. The access was limited to specific hours as set out in the July 18, 2016, letter from the respondent’s counsel.

[62] In September 2017, the applicant requested the right to pick up the children for his access at school. The respondent refused.

Report of the Office of the Children’s Lawyer

[63] On October 18, 2017, the Office of the Children’s Lawyer accepted to provide services and Ms. Catherine Reid was appointed as the clinical investigator. She conducted interviews with the parents, observed interaction between the children, reviewed the pleadings, and had a disclosure meeting on December 22, 2017. The matter was not resolved and she completed her written report on January 18, 2018.

[64] Ms. Reid has been a social worker for over 24 years working for the Children’s Aid Society, the Children’s Hospital of Eastern Ontario and the Office of the Children’s Lawyer. She has testified in numerous proceedings and has completed over 30 reports. The clinical investigator testified in a calm and matter of fact manner. She explained the process that she undertook by requesting documentation, having initial interviews with the parents, observing the parents interact with the children, having a final interview with the parents and ending with a disclosure meeting.

[65] I find that the clinical investigator was very credible in how she performed her investigation. She indicated that she interviewed the eldest child as she was six years of age but that the youngest child was too young to interview. She met the applicant on two occasions and the respondent on three occasions. The investigator also had the opportunity to receive information from collateral parties such as records from the Ottawa Police Service, the applicant’s family doctor, one of the respondent’s counsellors at the Western Ottawa Community Centre, and with the principal of the school where the children attended and the respondent worked.

[66] The clinical investigator made the following observations:

(a) the children are happy, fun-loving and well-mannered children who were observed to be equally happy in each parent’s care (b) both parties provided good structure and routine during the visits, which the children thrive on (c) the applicant has a close and comfortable bond with his children who appeared very happy and at ease in his presence (d) the applicant currently lives with his parents in a large well-furnished home with adequate space for the children to play and thrive (e) it is evident that there has been high conflict to which the children have been exposed and that the conflict remains and at times has escalated (f) there is no evidence to suggest that the applicant has posed a physical risk to the children (g) she was concerned that instituting measures for parental safety would be at the expense of the other parent and interactions with the children and their environment (h) that the children, and in particular Daveney, were beginning to get caught in adult conflict and it is a concern that they may be burdened with loyalty towards parents, and (i) the respondent has assumed all responsibility for the children to the exclusion of the applicant, effectively isolating them from him

[67] The clinician opined that the children need constant contact with both parents and for both parents to work collaboratively for their best interests. Allowing one parent’s significant control is not in the children’s best interests and only serves to foster continued unrest for the children going through a separation.

[68] With respect to the children attending a school where the mother works but not in the area where the children live, the clinician recommended the children move to a school in their community where both parents reside. The clinician met with the school principal who raised concerns that the children frequently arrived late and did not have time to socialize with their classmates prior to starting their day. The principal advised the clinician that social time outside class allows the children to engage with their peers, is beneficial to children and it may help the children be more successful in their school. Further, if the respondent was not teaching at the same school perhaps that would allow the children to connect better with their peers and teachers.

[69] With respect to access, the clinician found that the applicant’s access to his children had been seriously compromised and that the restrictions imposed appear to be unreasonable and contrary to the children maintaining a healthy, trusting and safe relationship with their father.

[70] During her testimony, Ms. Reid attempted to get further information from the respondent’s counsellor, but was advised that her counsellor was only permitted to disclose that the respondent participated in counselling and could provide no further information.

[71] Ms. Reid met the applicant’s parents and indicated they presented very well and there were no concerns about their involvement with their grandchildren.

[72] In her discussions with the respondent, the clinical investigator was concerned because the respondent was agreeable that the applicant have access around the children’s activities. She confirmed that the only method of communication between the parties was either by text or email and that she was concerned that Daveney was self-regulating her behaviour as a result of the conflict between the parents.

[73] As part of her investigation, the investigator was advised by the respondent that the applicant should have no overnight access and that he could visit the children on Saturday or Sunday after piano or church.

[74] Overall, the investigator summarized the respondent’s position that she wants sole custody. that she did not want to communicate with the applicant, that she wants to exclude him from the children’s lives, and that she had nothing positive to say about the applicant or his family.

[75] The respondent advised that there were two incidents of domestic violence, being the incident in July 2016, and a previous incident where she was fearful of the applicant after an argument over a car seat. The investigator confirmed that there was no previous involvement of the Children’s Aid Society or police reports prior to July 2016. She spoke to the family doctor who indicated that the respondent had alleged physical/psychological issues without any further specification.

[76] On the issue of custody, the clinician made the following findings:

(a) both parents need to accept their roles in the conflict they are currently experiencing (b) the respondent’s limitation of access, control over the school environment and control over extra-curricular activities appears to have perpetuated the high conflict between the parties (c) the clinician’s significant concern is that should the respondent be granted sole custody of the children, this would effectively be granting the respondent more power and control in eliminating and alienating the applicant from the children’s lives. Her negativity towards him and her lack of moving forward in her healing from the difficult relationships with the applicant and his family is of concern (d) there is no evidence to suggest that any restriction in the applicant’s access to the children would be in their best interests. The children need stability, predictability and to feel reassured and secure in both environments (e) granting the respondent sole custody of the children would not be in their best interests (f) the applicant has demonstrated his focus on the children and willingness to work with the respondent for the children (g) the respondent has not shown a willingness to work together (h) there is no evidence to suggest that the children should be in one parent’s care more than the other, and (i) while there has been significant conflict in the relationship, the separation has mitigated this risk to the children and they should not be exposed to this at all any further

[77] Based on the above, the clinician recommended that sole custody should be granted to the applicant with equal time shared. Specifically, the recommendations are as follows:

(a) the applicant have sole custody of the children and access be shared on a 5-2-2-5 split with consistent Monday-Tuesday with one parent and Wednesday-Thursday with the other. This will allow parents to enroll the children in activities with a consistent presence of each parent (b) all major holidays be divided equally between the applicant and the respondent. The children should have the opportunity to spend time with each parent equally. For example, access should be split throughout the day with equal time at each home (c) during their access time, that parent attend related activities, for example, on Saturdays the parent attends piano lessons and on Sunday the children attend the access parent’s church (d) the children have unmonitored telephone contact with the parties on their non-access days (e) neither party speak disparagingly of each other in the presence of the children nor use them to communicate their anger, frustration and distrust of each other. Nor should they expose them to adult content and situations (f) the parties should attend the Parenting Through High Conflict or New Ways for Families Program (g) that the parties use an alternative form of communication through Family Wizards or 2houses.com and respond to each other in a timely fashion regarding care and needs of the children (h) the parties have the children at school on time, prior to the bell, and pick them up at the end of the school day (i) the children be transferred to a school in their community beginning September 2018 (j) the parties work collaboratively with the school towards appropriate resources to address Daveney’s needs (k) all decisions regarding the children’s care should be made by the applicant and communicated to the respondent prior to or immediately after (l) the applicant sign all necessary consents to allow the respondent access to all professionals involved with the children, including, but not limited to, medical, school, counselling and extra-curricular activities, and (m) police enforcement to be used if either party does not follow the recommended access times

Analysis

[78] I find that the applicant testified in a very matter-of-fact manner. He did not hesitate in answering the questions. He answered every question put to him to the best of his ability. I found that he was a credible witness.

[79] I find that the respondent could clearly remember circumstances that were favourable to her but had difficulty remembering any circumstances which were unfavourable to her. The respondent was quick to point out failings of the applicant but could not see any fault in any action that she has taken since separation. I found that much of her evidence was self-serving without corroboration.

[80] I find that the evidence discloses that the applicant has been described as having the following characteristics:

(a) patient (b) calm (c) respectful to his employees (d) an excellent teacher (e) empathetic (f) bubbly personality (g) does not swear (h) provides sound logical advice (i) has never shown frustration (j) very friendly (k) very attentive to his children (l) the typical family man (m) very involved father, and (n) intelligent and loving

[81] With respect to his interaction with his children, I received evidence from the same friends, ex-clients and family who were consistent in their views regarding his relationship with his children observed over the years as follows:

(a) his children are his priority (b) he teaches his children to follow the rules (c) the children appear very healthy and seems super happy in his care (d) there was a good vibe between the children and their father (e) the children are bubbly and energetic and hug the applicant without prompting (f) the children love both parents (g) he is a very involved father (h) the children are happy and smiling in his care and the applicant has never lost his cool with his children, and (i) the children run to him when they see him and he participates in many activities

[82] The respondent’s two witnesses testified that the respondent is a positive example for her children, that the girls are happy and that she is a very involved parent. The respondent’s sister testified that she sees the girls four to five times per year and communicates with them regularly on FaceTime. Her friend, Ms. Clark, testified that the respondent lives and breathes for her children and is a great mom.

[83] The respondent testified that the applicant would insult her, swear at her, belittle her and criticize her during the marriage. She said she was a victim of psychological, emotional and finally physical abuse. There is no corroboration of these allegations.

[84] I find that both parents have the necessary parenting skills to care for their children. This finding is based on the observations of the applicant and respondent, the evidence of the various witnesses, the testimony of the clinician and upon a review of the documentary evidence.

[85] I find that both parents love their children and are capable of providing them guidance and support in their lives.

[86] The respondent has raised the allegation that the applicant has been abusive during the relationship. The respondent alleges that on July 12, 2016, the applicant threatened to kill her. This applicant denies this. Based on the evidence I cannot conclude, on a balance of probabilities, that the applicant was abusive or that he ever intended to kill the respondent.

(a) The Children’s Aid Society on two occasions made investigations into this family. The first investigation was with respect to the incidents that occurred in July 2016. The second incident occurred in January 2019, as a result of allegations related to alleged cruel/inappropriate punishment causing a risk of harm to the children. The investigation was started as a result of comments made by the eldest child at school to a teacher. (b) After investigation, the Society concluded that the allegations were not verified and no child protection concerns have been identified relating to the applicant’s care of his children. In an email, filed as Exhibit 25 to the letter of the Society, dated March 6, 2019, the respondent raised concerns over the following issues: i. asking if the applicant’s actions of threatening to throw the eldest child down a flight of stairs amounted to cruel, inappropriate treatment and requested if the event could fall into the risk of emotional and physical harm category. This request was sent after the worker met with the applicant and determined that it was in jest and that the child was never at risk; ii. raised the issue that the applicant put the eldest child in a dark room causing her to have nightmares and whether that was a risk of emotional harm. This request was again sent after the worker met with the applicant and determined that the child was never placed in the room in the dark; iii. raised the issue that the applicant speeds while driving, fails to put the girls in car seats and drives without the child locks on the doors. She would inquire whether that was a risk of emotional harm and potential risk of physical harm; iv. alleged that the girls came home from the applicant’s house with sore private parts requiring her to seek medical attention; v. raised the issue that the girls are extremely tired because they don’t sleep well at the applicant’s home and that this lack of sleep is impacting their ability to self-regulate and function at school; vi. raised concerns about the girls being coerced into saying things that are being recorded by the applicant and asking the Society to verify if there are recordings of the girls; vii. raised concerns that the applicant has struggled with suicide and depression and that she is concerned about the children’s safety, and viii. raised the allegation that the applicant struggles with an addiction to pornography and that she was concerned that the girls are at risk of exposure.

[87] None of these allegations were verified.

[88] The applicant states that it is important for the children to have both parents in their lives because both bring certain different expertise to their children. Further, it is important that both parents have input in all decisions. I find the statements by the applicant reflect insight into what is in the best interests of his children despite being separated and being restricted in his involvement in their lives.

[89] I find it important that despite recommendations of the Office of the Children’s Lawyer, that the parties complete the Parenting for High Conflict Program, only the applicant did so. The respondent admitted she had not yet taken the course despite the recommendation being made at a disclosure meeting in December 2017.

[90] I find that the applicant’s conduct has been geared to what is in the best interests of his own children. On the other hand, I find that the respondent has not acted in the best interests of her own children. As set out herein:

(a) From the sale of the matrimonial home in early July 2017, until November 2, 2017, the respondent, without justification, would not allow the applicant to have overnight access with his children despite him living with his parents in a five-bedroom house which had previously been occupied by the parties prior to marriage. (b) The respondent would not agree to summer access requests by the applicant requiring him to appear in court on three separate occasions in 2018. On the first occasion where he sought leave to bring an urgent motion, the respondent did not even attend the court proceeding. Eventually, the applicant was successful in obtaining one week in July and another week in August 2018. (c) Despite the Office of the Children’s Lawyer recommending that the children attend school in their own neighbourhood, the respondent did not agree, requiring the applicant to seek judicial intervention. On July 18, 2018, MacEachern J. granted that relief. (d) In May 2017, without any prior notice, the respondent unilaterally terminated the applicant’s right to pick the children up at school. Since separation, the respondent has never agreed that the applicant could pick the children up (once they started school) directly from school. This was a request from the applicant since the children started school. It was only on January 28, 2019, that the applicant was granted the right to pick the children up directly from school on Wednesdays and Fridays. Up until January 28, 2019, the mother would return home with the children and then drive to the Starbucks for 4:30 p.m. and then again to retrieve the children at 6:30 p.m. (e) In August 2018, the applicant requested the children’s health cards as he planned on travelling with the children on vacation. The respondent gave the applicant the health card numbers but not the cards because she was concerned they would be lost. (f) Since separation, I accept the evidence of the applicant that the children have called him from the respondent’s home no more than two times. On the other hand, the children called the respondent almost every weekend that they were in the applicant’s care. (g) I find that the respondent’s insistence that the applicant’s access be interrupted so that she could bring the eldest child to piano lessons on Saturday morning and both children to her church on Sunday mornings is indicative of her selfishness and lack of appreciation of the role that the applicant plays in his own daughter’s lives. It was only in September 2018, that the church provision was terminated. Despite the piano lessons stopping in June 2018, the respondent only advised the applicant on September 8, 2018, of this fact. However, from November 2, 2017, until the termination of these two events, the applicant’s access to his children was interrupted. (h) In a text dated September 7, 2018, the applicant was aware that the children were now being bussed to and from school. The applicant requested the right to pick the children up at school on Wednesdays and Fridays at 3 p.m. On September 12, 2018, the respondent replied that she would prefer the children take the bus and go home to be cared for by a teenage babysitter rather than having the applicant pick the children directly up from school. The result was that the children would be driven by the respondent to the Starbucks on Greenbank Road for the exchange for access. This continued until January 28, 2019, when the respondent, as a term of the adjournment of the trial, consented to this provision. (i) On November 16, 2018, the applicant proposed a Christmas access schedule. The applicant followed up three times between November 28 and December 21, 2018. The respondent finally responded on December 22, 2018, when she advised the applicant that she and her counsel were working on a proposal and that both children were sick. Finally, the respondent proposed that the applicant have the children from December 24 at 1 p.m. until December 25 at 1 p.m. as the respondent was travelling to Toronto to visit family. (j) Since separation, the children have refused to eat any meals with the applicant on the Wednesdays and Fridays that they have limited access to him. That refusal did not occur on the weekends when they spent Friday night at the applicant’s home. On those weekends, the children readily ate meals with the applicant. I accept the evidence of the applicant that he is aware that the children keep secrets from him and he believes that the children are instructed by the respondent not to eat at his home if they are returning at 6:30 p.m. (k) I accept the evidence of the applicant that the respondent has not informed him of any medical appointments, dental appointments, doctor appointments or counselling for the children despite my order dated September 20, 2018, and Hackland J.’s order dated November 2, 2017.

[91] All of these allegations were investigated by the Society and found to be unverified. What is concerning to the court is that as late as February 27, 2019, the respondent is raising issues regarding the applicant’s ability to parent after the initial trial was adjourned from January until May 2019. I conclude that the respondent has attempted to involve the Society to buttress her argument as to why the applicant should have restricted access to his children.

[92] After reviewing the evidence, I conclude that the respondent has embarked upon a course of conduct since the birth of the children, and especially since separation, to attempt to eliminate the applicant from his own children’s lives. I accept the evidence of the clinician from the Office of the Children’s Lawyer that the respondent has intentionally attempted to alienate the children from the applicant’s life.

[93] The respondent’s conduct prevents an order of joint custody being in the best interests of the children. The respondent has not shown a willingness to communicate and make joint decisions regarding the best interests of the children since separation, if not before. The respondent does not value and recognize the applicant’s crucial role in the lives of the two children. The respondent is self-centred and only considers her best interests and not those of her children. Rather than embrace the applicant’s involvement in the children’s lives, the respondent has attempted to minimize and restrict his involvement in major decisions affecting the girls and in a parenting scheme that is in the girl’s best interests.

Disposition

[94] I find that it is in the children’s best interests that there be a shared physical access to the children. Consequently, I make the following order:

(a) the applicant shall have sole custody of Daveney Pryce, born January 17, 2011, and Keziah Pryce, born October 10, 2013 (b) the applicant shall consult with the respondent prior to making any final decisions on a major issue including but not limited to their health, their education and their activities. In the event of a dispute, the applicant shall have the right to make the final decision, which will be binding on the parents and the children (c) commencing July 1, 2019, the children shall reside equally with both parents on a 5-2-2-5 schedule, with the children residing with the applicant every Monday and Tuesday, with the respondent every Wednesday and Thursday, and alternating with the parents every second weekend from Friday to Sunday. (For clarification, the schedule shall commence on Friday, June 28, 2019, when the children will be in the applicant’s care until Wednesday, July 3, 2019, when the children will be in the respondent’s care until Monday, July 8, 2019) (d) with respect to the children’s transition between the parties, the children will be picked up and dropped off directly at school. When the children are not in school, the party with the children shall be responsible for dropping off the children at the parking lot near Starbucks on Greenbank Road at 8 a.m., unless otherwise agreed to in advance by the parties (e) the following holiday schedule shall override the regular parenting schedule in the event of a conflict as follows: i. if the children are not otherwise with the respondent on Mother’s Day, the children will reside with the respondent on Mother’s Day from 9 a.m. until their return to school on Monday ii. if the children are not otherwise with the applicant on Father’s Day, the children will reside with the applicant on Father’s Day, from 9 a.m. until the return to school on Monday iii. in odd numbered years, the children shall reside with the applicant from Thursday after school on a Easter weekend until Saturday at 6:30 p.m. and with the respondent from Saturday at 6:30 p.m. to Tuesday before school, at which time the regular residential schedule will resume. In even numbered years, the children shall reside with the respondent from Thursday after school on Easter weekend to Saturday at 6:30 p.m. and with the applicant from Saturday at 6:30 p.m. to Tuesday before school, at which time the regular residential schedule will resume iv. the children will reside with each party for two non-consecutive weeks during the children’s summer vacation. The parties will advise each other by April 1 of their chosen weeks, with the applicant having the first choice in odd numbered years and the respondent to have the first choice in even numbered years. For the year 2019, the applicant will advise the respondent by June 17, 2019 of the two non-consecutive weeks that he has selected for this year; and v. In odd numbered years, the children reside with the applicant from December 24 at 1 p.m. until December 25 at 1 p.m. and the children reside with the respondent from December 25 at 1 p.m. to December 26 at 1 p.m., after which time the parties shall resume the regular residential schedule. In even numbered years, the children shall reside with the respondent from December 24 at 1 p.m. until December 25 at 1 p.m. and children shall reside with the applicant from December 25 at 1 p.m. to December 26 at 1 p.m., after which of the parties were shall resume the regular residential schedule (f) both parties shall provide each other with their email address, current address and phone number where they can be reached at all times (g) both parties may attend extracurricular activities and schedule school events regardless of the schedule (h) if a child requires emergency medical care while in the care of one party, that party will promptly notify the other parent of the emergency (i) both parties may attend all school functions regardless of the schedule. Parties will attend parent-teacher meetings individually and each party will obtain his or her own school calendar and school notices (j) either child is free to communicate by email, phone or text with the applicant or respondent when they wish (k) the children’s names will not change without the written consent of both parents (l) neither parent shall move the children’s residence outside the City of Ottawa without the written consent of the other or court order obtain on at least 60 days’ notice to the other (m) the respondent shall deliver to the applicant by June 17, 2019, the children’s original passports, original birth certificates, and the original OHIP card. As of that date, the applicant shall retain the children’s passports, birth certificates and OHIP card. He shall provide them to the respondent when she requires them for travel or for any other reason and she shall return them to the applicant when they are no longer required. The applicant shall provide a colour copy of any new cards or certificates for the children to the respondent within seven days of receipt of same; (n) the parents shall communicate through Family Wizard or 2houses.com and respond to each other in a timely fashion regarding the care and needs of the children. Each party shall be responsible for paying for their own costs for such services (o) either party may travel with the children outside of Canada with the consent of the other, said consent not to be unreasonably withheld. A travel consent letter shall be executed by the non-travelling parent and provided to the travelling parent. The travelling parent shall provide a detailed itinerary and number where the travelling parent and children can be reached during the travel (p) the applicant shall sign all necessary consents to allow the respondent’s access to all professionals involved with the children including but not limited to medical, school and extracurricular activities, and (q) the children shall attend the following medical professionals currently involved with the children: i. Dr. Abdullah – the family doctor ii. Dr.Chacon – pediatrician iii. Dr. Hardy – optometrist, and iv. Southpoint dental clinic – dentist

Child Support

Income of the parties

[95] Both parties agree that the child support should commence as of July 1, 2019.

[96] The applicant’s position is that the parties’ income should be based on their 2018 income tax returns. The applicant’s income in 2018 was $39,753. The respondent has not produced her 2018 income tax return because she usually completes it in the summer months. There is no reasonable explanation as to why the respondent did not prepare the tax return for this court proceeding. In any event, I will use the respondent’s 2017 income tax return which states that the respondent’s income was $98,016. I have deducted her annual union dues of $1,305 to arrive at a final figure of $96,711.

[97] The respondent seeks to impute an undisclosed amount of income to the applicant.

[98] The applicant proposes that child support be calculated using the set-off method while the respondent proposes that support be paid according to the table amount with her having primary residence of the children.

Legislative and jurisprudential framework

[99] The respondent submits that the court should impute an income to the applicant because he has the ability to earn more income based on his education.

[100] The court has jurisdiction under section 19 of the *Federal Child Support Guidelines*, SOR/97-175 (“Guidelines”), to impute an income to a spouse as it considers appropriate in the circumstances. The Court of Appeal in *Drygala v. Pauli* (2002), 61 O.R. (3d) 711 (C.A.), at para. 23, set out a three-part test for determining whether income should be imputed on the basis of intentional under-employment or unemployment as follows:

1. Is the spouse intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[101] The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is intentionally under-employed or unemployed (*Homsi v. Zaya*, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28).

[102] Where the spouse is intentionally and unreasonably under-employed or unemployed, the court has a large range of discretion to impute as income an amount founded on a rational basis, as detailed in *D.D. v. H.D.*, 2015 ONCA 409, 335 O.A.C. 376 (C.A.).

[103] The main factors a court should consider are the age, education, skills, and health of the parent, along with the number of hours that can be worked in light of competing obligations and the hourly rate the parent could reasonably obtain (*Drygala*, at para. 45).

[104] A factor to take into consideration in arriving at an amount of income to be imputed is evidence of a spouse’s previous income as was done by the Court of Appeal in *Lawson* at para. 38.

[105] Section 9 of the Guidelines states that where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account:

(a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[106] In *Contino v. Leonelli-Contino*, 2005 SCC 63, [2005] 3 S.C.R. 217, the Supreme Court of Canada provided a step-by-step method of calculation of child support in shared custody arrangements. The principles outlined in Contino are as follows:

(a) all three factors in subsections (a), (b), and (c) of s. 9 of the Guidelines must be given equal weight (b) it is not appropriate to apply any form of fixed mathematical formula to calculate child support in shared custody cases (at para. 82) (c) the starting point is the set-off described in section 9 (a) of the Guidelines (at para. 44) (d) appropriate evidence must be provided to the court to enable the consideration of ss. 9(b) and 9(c) (at para. 56), and (e) there is no presumption that the quantum of child support in a shared custody case should be more or less than the table amount of child support payable by the payor (at paras. 30-31)

Analysis

[107] The applicant’s income history is as follows:

(a) 2014, $17,798 (b) 2015, $23,372 (c) 2016, $20,525 (d) 2017, $21,638, and (e) 2018, $39,753

[108] In this case, the respondent has provided no evidence to establish an evidentiary basis as to any income that should be imputed to the applicant. In submissions, the respondent indicated that the sum of $40,000 should be imputed to the applicant. The respondent has not met her evidentiary burden to show that the applicant is intentionally underemployed. I have reviewed the applicant’s income for the years 2014 to 2018 and find that there is no evidence that the applicant is intentionally underemployed. Rather, the year 2018 is the highest income earned by the applicant in the past 5 years. For these reasons, I find that it is fair and reasonable to determine the applicant’s income to be $39,753 being the income for his last income tax return.

[109] The applicant has proposed that the set off method be used to calculate child support in a shared custody situation. The respondent has only addressed child support based on her having primary residence of the children. I have determined that the children should be in a shared custody arrangement. In the circumstances, I will use the set-off method of child support to determine the proper amount of support. Based on the party’s respective incomes determined herein, I order that commencing July 1, 2019, the respondent pay to the applicant the sum of $838 per month as table child support as set out in the DivorceMate calculations attached as Schedule One.

Section 7 expenses

[110] Despite requesting a contribution to s. 7 expenses in her answer and despite the order of Hackland J. dated November 2, 2017, ordering that the parties were to contribute to the children’s special and extraordinary expenses as agreed upon in advance by them in writing, I find that the respondent has not, since separation, submitted a request to the applicant to contribute to any of the children’s expenses.

[111] The respondent alleges that she did request some contributions, however, she has not provided any documentary evidence to support a claim being made towards the applicant or the cost of any such activity.

[112] As there is no evidentiary basis to support an order requiring the applicant to contribute to any such expenses prior to this trial,

[113] The respondent testified that the eldest child may require orthodontic treatment with Dr. Tan. I order that if the treatment is required, the parties are to consult with each other, ascertain the coverage through the respondent’s extended health plan and share in the non-covered costs.

[114] I order that the parties shall contribute to the children’s special and extraordinary expenses as agreed upon in advance by them in writing, on the basis of the applicant contributing 32% and the respondent contributing 68% as per the DivorceMate calculation attached as Schedule One.

Equalization of the Net Family Property

[115] At the beginning of this trial, there was no agreement on the equalization of the net family property. During the trial, the applicant filed supporting documentation and testified on the value of assets and liabilities. Further the applicant filed as Exhibit 32 his Comparison of Net Family Property Statements which set out the various assets and liabilities with the various values attributable to each party.

[116] The respondent did not file any supporting documents, did not file a Net Family Property Statement or a Comparison of Net Family Property Statements. She did testify responding the values set out in Exhibit 32.

[117] At the end of the respondent’s examination in chief, the respondent agreed to the proposal set out in the applicant’s Comparison of Net Family Property Statements (Exhibit 32) which proposed as follows:

(a) house proceeds equally split (b) pension split = $83,669.17 (taxable) for the applicant, and (c) the applicant pays one half of RBC visa balance at separation to respondent

[118] At the time of separation, the parties agreed that the amount owed by the applicant to the respondent was $3,269.16 for his share of the RBC visa statement. Based on the consent of the parties, I order as follows:

(a) the proceeds of sale from the matrimonial home currently being held in trust are to be divided into two equal shares (b) the sum of $3,269.16 is to be deducted from the applicant’s share and paid to the respondent, and (c) the respondent’s Ontario Teachers’ pension shall be divided at source and the applicant is entitled to $83,669.17. This amount shall be transferred directly from the Ontario Teachers’ Pension Plan into a qualified investment vehicle in the applicant’s name

Spousal Support

[119] The applicant seeks spousal support of $660 per month for a period of 5 years ending June 1, 2024, based on a compensatory and non-compensatory basis. The respondent denies the applicant is entitled to support and, in the alternative, alleges she has no ability to pay.

Legislative and jurisprudential framework

[120] Section 15.2(1) of the *Divorce Act* provides that “[a] court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sums and periodic sums, as the court thinks reasonable for the support of the other spouse.”

[121] Subsection 15.2(2) states that, “[w]here an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of an application under subsection (1).”

[122] Section 15.2(4) states that a court, in making an order under subsection (1) or an interim order under subsection (2), shall take into consideration the condition, means, needs, and other circumstances of each spouse and, more specifically:

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

[123] Section 15.2(6), states that an order under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:

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

[124] In order to achieve a fair and equitable distribution of resources, all four of the objectives of section 15.2(6) should be examined: see *Moge v. Moge*, [1992] 3 S.C.R. 813, at p. 866.

[125] The Supreme Court of Canada in *Bracklow v. Bracklow*, [1999] 1 S.C.R. 420, stated at paras. 35-36:

Moge, supra, sets out the method to be followed in determining a support dispute. The starting point is the objectives which the Divorce Act stipulates the support order should serve: (1) recognition of economic advantage or disadvantage arising from the marriage or its breakdown; (2) apportionment of the financial burden of child care; (3) relief of economic hardship arising from the breakdown of the marriage, and (4) promotion of economic self-sufficiency of the spouses: s. 15.2(6). No single objective is paramount; all must be borne in mind. The objectives reflect the diverse dynamics of many unique marital relationships.

Against the background of these objectives the court must consider the factors set out in s. 15.2(4) of the Divorce Act. Generally, the court must look at the “condition, means, needs and other circumstances of each spouse”. This balancing includes, but is not limited to, the length of cohabitation, the functions each spouse performed, and any order, agreement or arrangement relating to support. Depending on the circumstances, such factors may loom larger than others. In cases where the extent of the economic loss can be determined, compensatory factors may be paramount. On the other hand, “in cases where it is not possible to determine the extent of the economic loss of a disadvantaged spouse … The court will consider need and standard of living as the primary criteria together with the ability to pay of the other party” … There is no hard and fast rule. The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown.

[126] The basis for a spouse’s entitlement to compensatory spousal support may arise when parties separate and there is a need for the equitable distribution of the economic consequences of the marriage. There are many forms of compensatory spousal support. One form is where one spouse suffered an economic disadvantage and the other spouse has obtained an economic advantage as a result of one spouse assuming primary responsibility for child care and domestic functions, permitting the other spouse to advance their career. The goal of compensatory spousal support in these circumstances is to compensate the other spouse for the sacrifice and contributions of the career of the other spouse (*Thompson v. Thompson*, 2013 ONSC 5500, at para. 55).

[127] In *Gray v. Gray*, 2014 ONCA 659, 122 O.R. (3d) 337, the court stated at para. 27:

One of the objectives of the Divorce Act is to relieve economic hardship. Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership. As stated by this court in *Marinangeli v. Marinangeli* (2003), 66 O.R. (3d) 40 at para. 74, in determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient's ability to support herself, in light of her income and reasonable expenses.

Factual findings

[128] When the parties started living together in August 2006, the applicant was working at a wellness and health centre while the respondent had graduated from teachers college after obtaining her university degree.

[129] From 2006 until separation and continuing on today, the respondent pursued her career as a teacher. The applicant did assist the respondent by taking two months paternity leave off from September to the end of October 2011, after the birth of their first child.

[130] From 2006 to 2016, the respondent worked at a health and wellness centre, the YMCA and then pursued, with the support of the respondent, his desire to be self-employed in the field of personal training. By September 2013, he embarked upon a joint venture with two other individuals in creating a gym known as CrossFit.

[131] I find that throughout the marriage, and especially as of 2011, the respondent was the higher wage earner of the parties. Together, the parties had a comfortable lifestyle.

[132] The applicant has pursued his career in personal training. However, the financial benefits of such a career have not met his expectations. Consequently, the applicant has obtained employment working from 8:30 a.m. to 2:30 p.m. as a shipper/receiver to supplement his income as a personal trainer.

[133] I do not find that the applicant is entitled to compensatory spousal support. I do not find that the applicant sustained a disadvantage or the respondent an advantage as a result of their roles in the marriage. At the time of the marriage, the applicant was a personal trainer while the respondent was a teacher. At the date of separation, the applicant was again a personal trainer and the respondent continued in her career as a teacher.

[134] I do find that the applicant is entitled to needs-based support based on the significant change in the economic unit resulting from the separation. At the date of the trial, the applicant earns approximately $40,000 and the respondent earns approximately $98,000. This disparity in income existed during the marriage and since separation.

[135] I have taken into consideration the fact that the parties lived together for approximately 10 years, from age 29 to age 39.

[136] According to the Spousal Support Advisory Guidelines, the duration of support based on this period of cohabitation is 4.5 years to a maximum of 13 years. According to the DivorceMate calculation submitted by the applicant, the range of spousal support is as follows:

(a) Low-end – $533 with the applicant having 51% of the Net Disposable income and the respondent with 49% (b) Midrange – $920 with the applicant having 54% of the Net Disposable income and the respondent with 46% (c) High-end – $1,296 with the applicant having 57% of the Net Disposable income and the respondent with 43%

[137] I have also taken into consideration that there will be a shared parenting arrangement with the children residing equal amounts of time with both parents. In the Spousal Support Advisory Guidelines: the Revised User’s Guide, Professors Rogerson and Thompson, at p. 34, state the following:

The shared custody formula (SSAG 8.6)

In shared custody cases, there is a clear default location for amount in the range: the amount of spousal support which would leave the children in each household with roughly similar standards of living. See Rollie Thompson, “The TLC of Shared Custody: Time, Language and Cash” (2013) 32 Canadian Family Law Quarterly 315. This outcome is consistent with the strong statements about similar standards of living in *Contino v. Leonelli-Contino*, 2005 SCC 63.

[138] Attached as Schedule One is the DivorceMate calculation providing an additional scenario which indicates that upon the payment of $348 per month by the respondent to the applicant, the parties will have the equivalent net disposable income.

[139] I find that in a shared custody arrangement where spousal support is paid, the children should have a similar standard of living and that the spousal support paid with the amount of child support should result in both families having an equivalent net disposable income.

[140] Consequently, I order that commencing July 1, 2019, and on the first day of each month thereafter, the respondent shall pay to the applicant the sum of $348 per month as spousal support.

[141] I agree that the duration of support should be for a period of five years. I do so based on the length of cohabitation, the ages of the parties at separation and the fact that spousal support is being ordered as non-compensatory support. I order that the support shall terminate on June 1, 2024.

Extended health coverage

[142] The applicant seeks an order that both parties shall include the children on any extended health and dental benefits available through their employment. At this time, the applicant does not have such benefits available through his employment. The respondent has such benefits through her employment as a teacher.

[143] I order that the respondent shall designate the children as dependents under her extended health and dental benefits available through her employment.

[144] I order that in the event that the applicant obtains employment where an extended health and dental benefit packages are available, he shall also designate the children as dependents under such benefits.

Life insurance as security for support

[145] In his draft judgment, the applicant seeks an order that the respondent shall designate the applicant as the irrevocable beneficiary in trust for the children of life insurance coverage available through her employment as long as it continues to be available to her and the children qualify. Further, the applicant submits that he shall attempt to obtain equivalent life insurance for the children, naming the respondent as the irrevocable beneficiary, provided that he is able to do so at a reasonable cost given his medical condition. If not, child support shall be a first charge against the applicant’s estate.

[146] In her draft judgment provided by the respondent, the respondent seeks an order that each party maintain life insurance as security for his/her obligation to contribute to the support of the children with the face amount of such policy to be not less than $250,000 with a trustee to be named for the children, the choice of whom shall be in each parent’s personal discretion. In the case of the respondent, she proposes that the children’s godmother be the trustee.

[147] The applicant has no life insurance policy in effect. The respondent has two life insurance policies. The first policy is a group insurance plan through her employment as a teacher which is equivalent to two times her salary which would mean, as of today, to be approximately $196,000. In addition she has term life insurance with Primerica in the amount of $420,000.

[148] In *Katz v. Katz*, 2014 ONCA 606, 377 D.L.R. (4th) 264, at paras. 66-74, the Ontario Court of Appeal canvassed the issue of life insurance securing support obligations and provided the following principles:

(a) the *Divorce Act* does not have a provision like s. 34(1)(k) of the *Family Law Act*, R.S.O. 1990, c. F.3, which permits a court to order a spouse to obtain insurance to secure payment of support following the payor’s death (b) despite not having the specific provision, the court is given broad discretion to impose terms, conditions, and restrictions in connection with an order for child or spousal support, including the power to order a spouse to obtain insurance to secure the payment and that the payments are binding on the payor’s estate, and (c) there are several factors to be considered in determining the quantum of life insurance, once the issues of insurability and cost of the insurance are resolved: the amount of life insurance cannot exceed the amount of support payable over the duration of the support order; the amount of insurance to be maintained should decline over time as the amount of spousal support payable will diminish over the duration of the award; the obligation to maintain insurance should end when the support obligation ends; and the court should first order that the support obligation is binding on the payor’s estate

[149] I have considered the following factors in arriving at my decision regarding life insurance:

(a) I have the jurisdiction to order the parties to obtain and maintain life insurance to secure their payment of a support obligation, and (b) I have the jurisdiction to order the support obligation to be binding on the parties’ estates

[150] The applicant does not have any insurance. I will not order the applicant to obtain and maintain life insurance because I have no evidence as to his insurability and the cost of the insurance. The applicant has a legal obligation to secure his obligation to support his children. I accept the submission of the applicant that he shall attempt to obtain the equivalent life insurance ordered for the children naming the respondent as the irrevocable beneficiary, provided he is able to do so at a reasonable cost. Until the applicant can obtain equivalent life insurance, I order that the applicant’s obligation to pay child support shall be binding on his estate. I further order that the applicant attempt to obtain equivalent life insurance and advise the respondent by August 30, 2019.

[151] With respect to the respondent, she also has a legal obligation to secure her obligation to support her children. I order the respondent to designate the applicant as the irrevocable beneficiary in trust for the children of her life insurance policy through her employment which is two times her salary. I order that the respondent shall provide the applicant proof of such designation by July 1, 2019. In the event that the life insurance policy is no longer in effect, I order that the respondent’s obligation to pay child support shall be binding on her estate.

Costs

[152] I encourage the parties to settle the issue of costs by June 17, 2019. If they cannot, the applicant shall provide his cost submissions, not to exceed three pages plus a bill of costs, and any offers to settle by June 21, 2019. The respondent shall file her cost submissions, not to exceed three pages plus a bill of costs, and any offers to settle by July 5, 2019. The applicant may provide reply costs submissions, not to exceed two pages, by July 12, 2019.

Mr. Justice Mark Shelston Released: June 7, 2019