Court File and Parties

COURT FILE NO.: FS-17-415805 DATE: 20190625 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Olga Vasina Applicant – and – Melvyn Geronimo-Oxha Respondent

Counsel: Mark DeGroot for the Applicant Kelly Hou for the Respondent

HEARD: March 18, 19, 20, 21, 22, 25, 27, and April 23, 2019

Akbarali J.

Overview

[1] The parties to this trial were married for about three and half years before they separated. It was a second marriage for both of them; each brought two children into the relationship. Together, they had another child.

[2] In this trial, I must determine the parenting and decision-making issues relating to the parties’ biological child. I must also determine whether the respondent husband, Mr. Geronimo-Oxha, who I will refer to as Mr. Geronimo, stands in the place of a parent to the applicant mother’s, Ms. Vasina’s, two older children. I must also determine child support, spousal support and issues of property division.

Background

[3] The parties met online in December 2008. Ms. Vasina had two children; her daughter R was then six years old, and her son F was then three years old. At that time, R and F had a relationship with their biological father, however, they resided primarily with Ms. Vasina.

[4] Mr. Geronimo also had two children; his daughter, E, was eight years old, and his son, A was seven years old. They resided half time with Mr. Geronimo and half time with their biological mother.

[5] According to Ms. Vasina, within a month of dating, Mr. Geronimo had a key to her apartment and was spending significant time with her and her children. The parties’ relationship quickly became serious.

[6] In the spring of 2011, R and F’s biological father moved to South Asia. Ms. Vasina testified that he continues to pay monthly child support, but neither she nor the children have had any contact with him since he left Canada.

[7] The parties married on May 12, 2013 but did not begin living together until September 1, 2013. At the time of marriage, R was ten and F was seven. The parties’ youngest child, G, a girl, was born on […], 2014.

[8] The parties separated on September 14, 2016, when Ms. Vasina left the parties’ condominium and moved to a women’s shelter with R, F and G. At that time the children were thirteen, ten and two years old. They resided there for nearly a year, after which Ms. Vasina and the children returned to the matrimonial home when Mr. Geronimo moved out.

Issues

[9] The parties raise the following issues for determination:

a. What custodial or decision-making orders should be made for G? b. What parenting time arrangements should be in place for G? c. Does Mr. Geronimo stand in the place of a parent with respect to either or both of R and F? d. What is the quantum of Mr. Geronimo’s table child support obligation? The answer to this question depends, in part, on the answer to question c) above. e. What is Mr. Geronimo’s obligation towards s. 7 expenses? Answering this question requires determining Ms. Vasina’s income, and in particular, whether any income should be imputed to her over and above her earned income. If Mr. Geronimo owes child support for R and/or F, it also includes determining what, if any, obligation he has towards their s. 7 expenses. f. What child support arrears are owed? g. Is Ms. Vasina entitled to spousal support? If so, what is the quantum? What arrears, if any, are owed? h. Is Mr. Geronimo barred from claiming a trust interest in the matrimonial home because he does not come to the court with clean hands? i. If he is not barred, has Mr. Geronimo established a resulting trust? Alternatively, has he established unjust enrichment and an entitlement to a constructive trust? If so, the parties both seek an order that Ms. Vasina buy out Mr. Geronimo’s interest in the home. Should such an order be made, and if so, on what terms? j. How should the value of the parties’ net family properties be equalized? k. Is Ms. Vasina entitled to occupation rent with respect to the time that Mr. Geronimo occupied the condominium while she lived in the shelter? l. Should any orders be made for the return of chattels owned by the parties, or alternatively for compensation for the non-return of chattels? m. Finally, the parties seek a divorce.

[10] I turn to the analysis of these issues.

Custody/Decision Making for G

[11] Where, as here, the parties are married, orders for custody and access may be made under s. 16 of the Divorce Act, R.S.C. 1985, c. 3, 2nd Supp. Subsection (1) provides the court with jurisdiction to make an order respecting custody of or the access to any or all children of the marriage. Subsection (4) specifically provides for orders for joint custody or access.

[12] By subsection (8), the court is directed to consider “only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child” when making an order for custody or access.

[13] Subsection (9) prohibits the court from considering the past conduct of any person unless it is relevant to the ability of that person to act as a parent of a child.

[14] Section 24(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, sets out a framework for determinations of custody and access. Although not the applicable statutory provision in this case, s. 24(1) is instructive because it assists in identifying factors relevant to the children’s needs and circumstances. It provides that an application for custody of, or access to, a child shall be determined on the basis of the best interests of the child, and describes factors that must be investigated in determining the child’s best interests:

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

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

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

[15] It is within this statutory framework that the determinations of decision-making authority for G must be reached.

[16] Mr. Geronimo seeks an order for joint custody of G. In the alternative, he seeks an order for parallel parenting, where each party would have final decision making for G in respect of certain areas. Ms. Vasina seeks an order for sole custody of G. Mr. Geronimo argues that a sole custody order is not appropriate, but if one is to be made, it should be in his favour.

Is joint custody feasible?

[17] Ms. Vasina argues that the parties do not communicate well enough to share joint custody.

[18] Mr. Geronimo agrees that there is conflict between the parties, but relies on K. (V.) v. S. (T.), 2011 ONSC 4035 at para. 74, to argue that conflict does not preclude an order for joint custody. Rather, the question for the court is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the interests of the child can be ensured on an ongoing basis”.

[19] Mr. Geronimo urges me to make a joint custody order to ensure that Ms. Vasina does not shut him out of decision-making for G, and to preserve the balance of power between the parties. He relies on several cases to argue that joint custody is appropriate to ensure both parents are actively involved in the child’s life, including Hsiung v. Tsioutsioulas, 2011 ONCJ 517 at para. 17, and Wilson v. Wilson, 2015 ONSC 479 at paras. 102-105.

[20] Unfortunately, I am of the view that G’s best interests will not be met in the future if an order for joint custody is in place. There is not a reasonable measure of communication and cooperation in place between the parties. I do not accept Geronimo’s argument that an order for joint custody is necessary to maintain the balance of power between the parties; rather, I am concerned that if Mr. Geronimo shares custody jointly with Ms. Vasina, he will use it to exclude her from meaningful participation in decision-making for G. In this case, a different order is required to ensure both parents are actively involved in G’s life. My reasons for this conclusion follow.

[21] The evidence before me establishes that the parties are unable to cooperate to make decisions in G’s best interests in a manner that is respectful of each other’s role in G’s life. I am particularly concerned about Mr. Geronimo’s role in the lack of cooperation between the parties.

[22] I was very troubled, for example, by the evidence I heard regarding some dental care that G needed. Ms. Vasina asked Mr. Geronimo to take G to a routine dental appointment in June 2018. She said she did so because Mr. Geronimo could get reimbursed from his health and dental benefits insurer for the visit, and she was concerned that Mr. Geronimo would not pass on reimbursement from the insurer if she took G and paid for the appointment. Ms. Vasina testified that after the appointment, Mr. Geronimo called to complain about the cost of the dentist but reported no concerns about G’s teeth. Ms. Vasina then took G to her next regularly scheduled dental appointment in January 2019 and learned that G had many cavities; some of G’s teeth even had multiple cavities. Ms. Vasina learned that this problem was identified and discussed with Mr. Geronimo at the June 2018 appointment, but Mr. Geronimo did not share this information with Ms. Vasina. The problem had progressed and G now required extensive dental work, including anesthesia. Ms. Vasina obtained an estimate for the work of about $6,000.

[23] Mr. Geronimo was not happy with the estimate and wanted a second opinion. Ms. Vasina agreed. Mr. Geronimo took G for a second opinion, and then - without notifying or discussing it with Ms. Vasina - proceeded to begin the dental repair work with the second dentist according to his proposed plan of care. Ms. Vasina was informed after the fact that the work had begun. Due to the insurer’s restrictions, the parties did not have the option of returning to the first dentist to follow his proposed plan of care without losing coverage. This is an example of Ms. Vasina attempting to engage Mr. Geronimo in an important health-related decision, and Mr. Geronimo hijacking the decision and shutting Ms. Vasina out of it.

[24] There are other examples of Ms. Vasina attempting to engage Mr. Geronimo in discussions about decisions for G that have not gone well. Ms. Vasina tried to get Mr. Geronimo’s input into the activities that G should be involved in. Mr. Geronimo did not respond within the time frame required to be able to enroll G in the activities Ms. Vasina was suggesting. Ms. Vasina had to take steps to enroll G in activities unilaterally because Mr. Geronimo did not respond.

[25] Another example of a significant communication problem arose with respect to G’s intended enrollment in Catholic school. Ms. Vasina did what she needed to do to enroll G in the Catholic school that she and Mr. Geronimo had discussed. The school required Mr. Geronimo’s original baptismal certificate to complete the enrollment. While Mr. Geronimo told Ms. Vasina that he was taking steps to secure his original baptismal certificate, he failed to advise her when he obtained it. Consequently, in the weeks before the start of school, Ms. Vasina was left not knowing whether they could complete G’s enrollment. This was important because, if G was going to be a student at the Catholic school, Ms. Vasina had to make different day care arrangements. Eventually, in the face of Mr. Geronimo’s silence, Ms. Vasina enrolled G in public school and made day care arrangements that would support G’s attendance at the public school. She acknowledged that she could have communicated around this issue better. While I agree that this issue discloses communication failings on the part of both parents, I find that it was Mr. Geronimo’s lack of communication around the baptismal certificate that left Ms. Vasina feeling that she had no choice but to take action to ensure that G would be able to start school and that arrangements would be in place for her care before and after school.

[26] The parties have not been able to communicate to make joint decisions in G’s best interest jointly. I have no optimism that this will improve in the future. While Ms. Vasina acknowledged that her communication could have been better around G’s enrollment in school, Mr. Geronimo did not recognize his communication failings in any of the instances I outline above. For example, he views commencing the dental treatment without Ms. Vasina’s involvement as being reasonable because the dentist was available to commence G’s treatment. If, even in hindsight, he cannot see how inappropriate his actions were, I have no confidence that he will be able or willing to manage joint decisions with Ms. Vasina in the future.

[27] Joint custody is not feasible, and will not promote the full involvement of Ms. Vasina in G’s life.

How should decisions be made for G?

[28] The question is thus how decision-making should be allocated between the parties or whether one party should have sole custody.

[29] While I have concluded that a joint custodial regime is unworkable in this case, I agree with Mr. Geronimo’s alternate argument that a tailor-made decision-making regime that takes into account the unique circumstances of the family, the strengths and weakness of the parents and the dynamics of their relationship will allow each parent to be involved in the decisions affecting G in a manner that will ensure her best interests.

[30] In Jackson v. Jackson, 2017 ONSC 1566 at para. 193, Chappel J. described the rationale in support of a tailor-made decision-making regime. She wrote:

Although the parties cannot work effectively together as a team in parenting Jacob and Carter, they are both loving, committed, attentive, responsible and competent parents who are able to meet all of the children’s basic needs. They each have strengths in certain areas that should be capitalized upon to support and foster the children’s well-being. The challenge is to craft a regime that allows both parties to continue to meet the children’s basic needs, that draws upon the parties’ particular parenting fortes, but which protects the children’s emotional needs by limiting the opportunities for the type of parental conflict that has clouded their lives for many years. I conclude that the divided parallel parenting regime that I am ordering will meet all of these objectives and would be in Jacob’s and Carter’s best interests. The custodial order that I am implementing recognizes that both parties are important players in the children’s lives and have valuable contributions to make in decision-making pertaining to the children. In my view, it is the option that is most likely to ensure that neither parent becomes an “outsider looking in” with respect to important issues involving the children. The allocation of decision-making areas as between the Applicant and the Respondent takes into consideration the parties’ respective strengths, commitment and interests with respect to areas of parenting.

[31] In my view, this is a similar case, where each parent has particular strengths to offer to G. In addition, a parallel parenting regime will not only limit the possibilities for conflict between the parties but will ensure that decisions are made for G in a timely way. Below, I review relevant evidence regarding the parties’ parenting and describe the parallel parenting regime that is, in my view, in G’s best interests.

[32] I accept that both parties are loving parents and that G has a good relationship with both of them, all of her siblings, and her maternal and paternal extended families.

[33] I accept that Ms. Vasina acts in G’s best interests. She makes sure G has appropriate education and child care arrangements, and is involved in activities outside of school. She is concerned about and engaged in G’s health-related decisions. She appreciates the importance of Mr. Geronimo in G’s life. As noted above, the parties have not had success in joint decision making, but I am satisfied that - while not perfect - Ms. Vasina has tried her best to involve Mr. Geronimo in the major decisions affecting G.

[34] Mr. Geronimo criticized some of Ms. Vasina’s parenting decisions. At trial, much emphasis was placed on an incident when Mr. Geronimo was washing the family car outdoors with assistance from some of the parties’ children, but without assistance from his son, A. Ms. Vasina suggested to A that he go outside to help wash the car but A refused. The next day, Ms. Vasina told A that she had not made his lunch for school, as she usually did, and told him to take the responsibility for making it himself.

[35] Mr. Geronimo argued that foisting this responsibility on A, who was around 11 years old at the time, was such an objectively poor parenting decision that it must be factored in to considering Ms. Vasina’s ability to appropriately parent G.

[36] While perhaps not every parent or step-parent would make an 11 year old child prepare his own lunch as a response to the child failing to meet household expectations, I consider Ms. Vasina’s response to be one of many reasonable options open to her. Most 11 year old children are capable of making their own lunch and there is nothing wrong with teaching a child about their responsibility to themselves and their household by requiring them to look after some of their own needs. I am not concerned about Ms. Vasina’s ability to parent.

[37] In contrast, I am concerned about Mr. Geronimo’s ability to make decisions for G in her best interests. First, as the history I have related above makes clear, I am concerned that he has been lackadaisical about major decisions involving G’s health care, education, and extra-curricular activities. I am concerned that he has failed to appropriately seek Ms. Vasina’s views with respect to major decisions for G.

[38] I am also concerned that Mr. Geronimo has not demonstrated a willingness to make decisions for G that place her interests above his own. The most obvious example of this concern is Mr. Geronimo’s decision to remain in the matrimonial home, despite being asked to relocate so that Ms. Vasina could return to the home from the shelter with R, F, and G.

[39] Mr. Geronimo gave evidence that, when the conflict between the parties came to a head in September 2016, he had intended to leave the matrimonial home, but he needed a little time to make arrangements. In addition, the conflict became critical during a week that Mr. Geronimo’s older two children were in his care, and he wanted them in the care of their mother when he moved. Ms. Vasina then left the home unexpectedly. Mr. Geronimo learned soon after that she was staying in a shelter. Rather than continue his arrangements to move out as soon as possible so she could return home with the children, Mr. Geronimo resisted moving out for nearly a year.

[40] This arrangement with Mr. Geronimo in the matrimonial home and Ms. Vasina and the children in the shelter posed many problems. First, Mr. Geronimo admitted to being concerned that G was living in a shelter. Ms. Vasina testified as to the nature of the living arrangements, which were cramped and lacking privacy.

[41] Second, the shelter did not allow Ms. Vasina to disclose its location to Mr. Geronimo. This impeded Mr. Geronimo’s ability to see G because Ms. Vasina had no car, and was reliant on transit. During this period, Mr. Geronimo’s parenting time with G was insufficient because it was difficult for Ms. Vasina to take G to Mr. Geronimo on transit. Mr. Geronimo did not see G at all for the first three months and thereafter, only once per week for a visit during the day. Mr. Geronimo could have ameliorated the problem by relocating, as he claims he intended to do, but he did not. He left G in a shelter, even though it impeded his ability to spend time with her and he understood it was not an ideal living environment. I note that Ms. Vasina supported increased parenting time for Mr. Geronimo with G as soon as she was in the matrimonial home. I do not accept Mr. Geronimo’s argument that Ms. Vasina’s difficulties in supporting parenting time between him and G while she was living in the shelter was alienation; rather I accept it was the result of the difficult circumstances in which she was living.

[42] At the same time, though Ms. Vasina was not working, Mr. Geronimo allowed her to carry the mortgage and other expenses associated with the matrimonial home (with the exception of the condominium fees, which he paid). He also, as will become clear, massively underpaid child support. This effectively precluded any ability that Ms. Vasina might have had to find her own accommodation outside of the shelter, which could have both improved G’s living situation and allowed her to spend more time with Mr. Geronimo.

[43] Mr. Geronimo only agreed to move out after Ms. Vasina threatened to bring a motion seeking that specific relief. Even then, he left the home later than he agreed to, and in a state to which the children could not return until Ms. Vasina completed significant work to clean it up. In an exercise of poor judgment, he left behind a highly inappropriate note on the fridge.

[44] Ms. Vasina had to enlist the assistance of the police to encourage him to leave. Mr. Geronimo described the circumstances of his departure from the apartment as if he was caught unawares by the police and made to leave, with no recognition that he had previously agreed to vacate the apartment, and had ample time to arrange to move out with his things before Ms. Vasina’s return.

[45] Mr. Geronimo argued before me that Ms. Vasina chose to go to the shelter when it was not necessary to secure a tactical advantage. I do not accept this argument. At trial, Ms. Vasina focused on the toxic environment in the parties’ home, and there is no doubt that there was conflict. She gave evidence about an incident where she states Mr. Geronimo sought sex from her, and she turned him down. She testified that he continued to pester to her until she called the police. Mr. Geronimo agrees the police were called but denies that he was seeking sex or acting at all inappropriately towards Ms. Vasina. I am not prepared to find that there was any domestic violence in the parties’ household, however, neither am I prepared to find that Ms. Vasina left the home for any tactical reason. In any case, the reality of the situation is that Ms. Vasina and the three children were living in a shelter for nearly a year while Mr. Geronimo refused to vacate the home that he claims he was preparing to leave on short notice around the time of the parties’ separation. Mr. Geronimo made choices about what to do that were not in G’s best interest.

[46] I was also very troubled by the regular emails Mr. Geronimo was sending to Ms. Vasina to read to G while they were living in the shelter. Although he characterized these emails as evidence of his devotion to G, and his heartbreak at being separated from her, the emails are not at all appropriate for a child, and certainly not a child of G’s age. For example, Mr. Geronimo wrote the following to G, who was then not three years old [errors in original]:

• I still called you though but mom wouldn’t have it. That made me sad that she wouldn’t even connect us for a 20 seconds hello an bye which is all I would have wanted… I really want us to be together and actually live life Corazon, not rushed from activity A to B to C and vice-versa the way it has been imposed on us.
• I am sad lately because I still have to pretty much beg to be with you and you only get 7 hours in a whole week to be with your dad and family…you cry my baby saying you want to stay with Papa. Don’t wat to go to mom…
• Gordita I’m very upset. Its the same old from you know who…. Yeah, really you figure she thinks about the best for you. She doesn’t. She acts out of hatred and spite and she used you since you were a baby to do this and now you are 3 YEARS OLD in 8 more weeks and still comes up with excuses. Actually I know they’re lies.
• I don’t write as often as I would like to and now that I see yu and actually talk to you over the week, it helps my heart heal but we both want to be together more and mom keeps on getting in the way.
• I want to be with you all the time [G], and talk to you to show you the world through my eyes to yours, from my lips to your ears, from my arms to yours, from my heart to your tender soul, I want to see your expressions and reactions as you get to know this world. You are mother has effectively robbed me from all this, and I don’t know if I can ever forgive her. I want to but she keeps getting more vile and even sinister dealing with my role(s) as a dad to you….Oh yesh she also demanded money for taxi to travel with you because for 3 months I have not paid for anything. I wanted to pull my hair… how she has the audacity to “notice I didn’t pay” but she can’t notice she hasn’t allowed me to even hear your voice for one single minute for those months.
• I wish I could continue being somewhat cheerful [G] but I really can’t seem to get over these disturbing allegations against me, and even more from how these lies are serving as means to justify the means to alienate you from Papa…For instance no matter how bad your mother has been to you and me through these past couple of years, I hope she has changed after the years, and that you could forgive her.
• I have two things to share with you. One brings me un-measurable satisfaction, while the other wants to make me vomit. You see I haven’t received mail form your mom (reply to my emails) for near a week now…I always suspected mom was not completely sane….I choose to believe mom behaves this way because of that and not because of pure evil. But could it be?

[47] I am concerned about Mr. Geronimo’s ability to protect G from the conflict with Ms. Vasina and about his inappropriate communications with her which put her at risk of damage from being dragged into a dispute that should stay between adults. In my view, these communications seek to divide G from her mother. At best, these were messages meant for Ms. Vasina dressed up to look like they were going to G. At worst, they were self-indulgent communications for G that Mr. Geronimo sent without any thought as to the damage that could be inflicted on a young child as a result of involving her in the dispute between her parents.

[48] I view Mr. Geronimo’s behaviour as controlling over others, and lacking in self-control. I also consider his behaviour to be selfish, with little appreciation for the effect of his decisions on G. His decisions were motivated by his interests, not G’s.

[49] For these reasons, I have concluded that sole decision-making authority for G in matters of education and health care shall rest with Ms. Vasina. Ms. Vasina shall also have sole decision-making authority with respect to extra-curricular activities for G. I address the cost of the extra-curricular activities below, in my discussion of s. 7 expenses.

[50] Mr. Geronimo shall have sole decision-making authority for G in matters of religion. I make this order in recognition that Mr. Geronimo is a devout and active member of his church, and based on the evidence before me that Ms. Vasina has supported, or at least acquiesced to Mr. Geronimo involving, not just G, but R and F, in his faith. Mr. Geronimo shall thus be entitled to make decisions regarding G’s religion.

[51] Before making a major decision for G, each party shall meaningfully seek the input of the other and consider it when making a decision in G’s best interest.

[52] Neither party shall use the scope of their decision-making authority to affect the other’s parenting time with G, discussed below, absent the consent of the other parent.

[53] The party who has care of G under the parenting schedule I set out below shall make the day to day decisions for her and keep the other apprised in a timely way of important issues that arise respecting G while she is in their care.

[54] If an emergency decision on a major issue arises while G is in the care of the party who does not have authority to make such decisions, that party shall take all steps to immediately inform the other. If the other cannot be reached, emergency decisions may be made by the parent caring for G at the time.

[55] Each party shall be entitled to consult independently with and obtain information and documentation directly from all professionals or others involved with G, including her school, medical, dental or other health professionals, counsellors, third party caregivers or church without the consent of the other party. If a consent is required by the third party, each party shall execute it.

[56] Each party shall ensure that both parents are named on any forms which any professionals involved with G require them to complete, including contact information for both parents on such forms.

[57] The parties shall cooperate to renew G’s passport and other government documentation. Ms. Vasina will hold the originals of the documentation and shall provide copies to Mr. Geronimo. If Mr. Geronimo requires G’s passport for travel, Ms. Vasina will provide it to him at least seven days in advance of travel and Mr. Geronimo will return it no later than seven days after return from travel.

[58] Although Mr. Geronimo sought specific terms with respect to consent to travel, no submissions were made about the appropriateness of those terms. I conclude that G may travel with either of the parties during their regular parenting time or as otherwise agreed between the parties. If the party travelling intends to travel outside of Ontario with G, they shall first obtain the consent of the other party or a court order.

The Email Offering Money to Ms. Vasina to Walk Away from G’s Life

[59] I must also address an email Mr. Geronimo sent to Ms. Vasina, offering to pay her $100,000 if she were to leave G in Mr. Geronimo’s care and absent herself from G’s life.

[60] I admitted this email into evidence over Mr. Geronimo’s objection. He argued that it was an offer to settle and thus subject to settlement privilege. I found it was admissible, and indicated that I would explain my reasons for admitting it in my judgment. I do so now.

[61] Settlement privilege is a class privilege that creates a prima facie presumption of inadmissibility: R. v. Delchev, 2015 ONCA 381 at para. 24, citing Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 at para. 12. Settlement privilege applies if the following conditions are met:

a. A litigious dispute must be in existence or within contemplation; b. The communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed; c. The purpose of the communication must be to attempt to effect a settlement.

[62] In Delchev, at para. 28, relying on Sable Offshore at para. 12, the Court of Appeal recognized that exceptions to settlement privilege will be found when the justice of the case requires it. The party must show “a competing public interest outweighs the public interest in encouraging settlement”. Countervailing interests have been found to include allegations of misrepresentation, fraud, undue influence, and preventing a plaintiff from being overcompensated.

[63] In Hutton v. Hutton, the Ontario District Court grappled with the conflict between the public interest in protecting the best interests of the child and the public interest in protecting communications made for the purposes of settlement. The court found that the best interests of the child cannot be protected when information critical to the sincerity of one of the litigants is being withheld. The court elevated the best interests of the child over the adversarial interests of the parents. However, it left open for another day the question of whether the adversarial interests of the parents would override a child’s best interests if privilege had been expressly claimed, as it was by Mr. Geronimo, whose email states that it is without prejudice.

[64] In my view, when determining how to reconcile the competing priorities between settlement privilege and the best interest of the child, it is necessary to remember why settlement privilege is important. The Court of Appeal in Delchev recognized that settlement privilege is important because parties will be reluctant to engage in settlement negotiations if those negotiations could be admitted at trial as evidence of concessions. Thus, exceptions to settlement privilege are justified where evidence of the negotiations is used for a purpose other than illustrating the weaknesses of one party’s case. “If a party is not seeking to admit the settlement offer or negotiations as evidence of a concession, an exception to settlement privilege would do little to detract from the ‘public interest in encouraging settlement’”. Delchev, at para. 31.

[65] Ms. Vasina argued that settlement privilege did not apply to the offer in question because it was not a bona fide offer intended to promote settlement, but rather an attempt to harass or upset her. She also argued that there is a countervailing public interest in admitting the email, that is, the best interest of the child. She argued that the email is relevant to the question of Mr. Geronimo’s approach to G’s best interest and to his respect for Ms. Vasina’s role in G’s life.

[66] In contrast, Mr. Geronimo argued that the email was his attempt to see if Ms. Vasina would offer him a greater role in G’s life. He argued that the email was intended as a full property settlement as well. He maintained that he expressly claimed privilege over the email, and he should be entitled to rely on it.

[67] I admitted the email because, in my view, it was relevant to the question of G’s best interest. The best interest of a child is a countervailing public interest to the public interest in the promotion of settlements. Moreover, in balancing those interests, I note that Ms. Vasina did not seek to admit the letter to expose a weakness or concession in Mr. Geronimo’s case, but to challenge Mr. Geronimo’s evidence that he valued Ms. Vasina’s role in G’s life and would respect it. This, in turn, is relevant to the question of decision-making authority and parenting time for G. In my view, regardless of the express claim of privilege, the best interest of the child must supersede the litigation interests of the parents. If prioritizing the best interest of the children over a parent’s litigation interests prevents parents from taking settlement positions that are not in the best interests of the children, I consider that to be a good thing.

[68] Moreover, I am not persuaded by Mr. Geronimo’s evidence that he only sent the email to see if Ms. Vasina would allow him a greater role in G’s life. An offer to Ms. Vasina to leave G’s life entirely is not an offer of a greater role for Mr. Geronimo; it is an offer of a solo role for Mr. Geronimo. Ms. Vasina could only have been offended by the offer. Thus, while I admit the offer on the basis that the best interest of the child supersedes the public interest in encouraging settlement, I also find it was not a bona fide offer to settle.

[69] In terms of the content of the offer, I note that it is broadly consistent with the conclusions I have reached on the evidence I have already reviewed. That is, at times, Mr. Geronimo has acted to shut out Ms. Vasina and disrespect Ms. Vasina’s role in G’s life. However, I reached those conclusions first having no regard to Mr. Geronimo’s email to Ms. Vasina, to which, given its age, I have attached relatively little weight. I am far more concerned about the more recent examples of Mr. Geronimo’s lack of respect for Ms. Vasina, such as his hijacking of the dental care decision for G.

Parenting Time for G

[70] The statutory framework, laid out above, with respect to custody applies equally to questions of access or parenting time.

[71] Also relevant is s. 16 (10) of the Divorce Act which sets out the maximum contact principle. It directs the court 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, and, for that purpose, to take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[72] Ms. Vasina argues that G is doing well on the current, regular parenting time schedule which should continue. She proposes that Mr. Geronimo shall have care of G every Saturday from 5 pm until Monday morning drop off at day care or school, every other Wednesday afternoon from pick up at day care or school to Thursday morning drop off at day care or school, and other time as agreed upon between the parties.

[73] Mr. Geronimo proposes a schedule that ramps up quickly to an equal time sharing plan, although the precise times proposed would actually lead to Mr. Geronimo becoming G’s primary parent in just about a year’s time.

[74] In considering how G should divide her time between her parents, I note the following:

a. G has a close and loving relationship with both of her parents, with all of her siblings, and with the extended families of both of her parents. Mr. Geronimo’s extended family lives close by, and G benefits from time with them. b. G also has a tight knit church community in which she participates with Mr. Geronimo, and which allows her opportunities outside of the home to participate in Spanish-speaking life. She benefits from involvement with this community. c. G is too young to express views and preferences for the court to consider. d. Both parents are capable of providing a stable home environment for G. However, Ms. Vasina has been G’s primary caregiver throughout her life. e. Ms. Vasina has provided G with guidance and education, the necessaries of life and has been the driving force in making decisions for G in her best interest. f. Although Mr. Geronimo is capable of providing G with guidance, education and the necessaries of life, he has not always done so. At times he has placed his own interests ahead of G’s.

[75] I am also cognizant of the principle of maximum contact which, in this case, demands that G have significant time with both parents, as they are both loving and capable.

[76] In my view, however, an equal parenting schedule is not in G’s best interest. I reach this conclusion in part because I am concerned that Mr. Geronimo will use equal parenting time as a way to make major decisions for G under the guise that they are day-to-day decisions, and in doing so, unfairly exclude Ms. Vasina from participating in decision-making for G. I am also concerned that he has not always shown a willingness to place G’s interests above his own.

[77] In my view, the following parenting schedule is in G’s best interest in that it promotes the stability and child-focused parenting that she enjoys with Ms. Vasina, while still allowing for significant contact with Mr. Geronimo, who loves her and can offer her, among other things, a big extended family and faith community from which to benefit. It also provides for frequent contact with both parents which is, in my view, important given G’s young age. It represents a meaningful increase in parenting for Mr. Geronimo without a significant change for G, who has been doing well with the parties’ current schedule.

[78] Mr. Geronimo shall have care of G as follows:

a. Every week from Saturday at 5 p.m. to Monday morning drop-off at day care or school; b. Every week from Wednesday pick up at school or day care until Thursday drop off at school or day care.

[79] Mr. Geronimo shall drop G off and pick G up at day care rather than school until she no longer attends subsidized day care. This is necessary to ensure that she does not lose her subsidy.

[80] In addition to the regular schedule, the parties seek a holiday schedule. They did not make submissions on the holiday schedule beyond their proposals in their draft parenting plans and draft orders. In my view, the following schedule, which shall override the regular schedule, is in G’s best interests in that it provides for significant time for her with each parent during the holidays and ensures she has regular points of contact with each parent.

a. Family Day weekend – In even-numbered years, G shall reside with Ms. Vasina from pick up at day care or school on Friday afternoon until drop off at day care or school on Tuesday morning. In odd-numbered years, G shall reside with Mr. Geronimo from pick up at day care or school on Friday afternoon until drop off at day care or school on Tuesday morning. b. Easter weekend – In even-numbered years, G shall reside with Ms. Vasina from Thursday pick up at day care or school to Saturday evening at 5 p.m., and with Mr. Geronimo from Saturday evening at 5 p.m. to drop off at day care or school on Tuesday morning. In odd-numbered years the schedule shall reverse. c. Mother’s Day – G shall reside with Ms. Vasina for the entire weekend from pick up at day care or school on Friday to drop off at day care or school on Monday morning. d. Victoria Day weekend – In even-numbered years G shall reside with Mr. Geronimo from pick up at day care or school on Friday afternoon until drop off at day care or school on Monday morning. In odd-numbered years G shall reside with Ms. Vasina from pick up at day care or school on Friday afternoon until drop off at day care or school on Monday morning. e. Father’s Day – G shall reside with Mr. Geronimo for the entire weekend, from pick up at day care or school on Friday until drop off at day care or school on Monday morning. f. Summer vacation – commencing in summer 2019, G shall reside with each parent for one uninterrupted week during her school vacation. Ms. Vasina shall have first choice of her week in even-numbered years and Mr. Geronimo shall have first choice in odd-numbered years. In 2019, Mr. Geronimo shall advise Ms. Vasina of his choice within seven days of receipt of these reasons, and Ms. Vasina shall advise Mr. Geronimo of her chosen week within seven days thereafter. Thereafter, the party with first choice will advise each other of their chosen week by May 1, and the party with second choice will advise the other of their chosen week by May 15. g. Labour Day weekend – In even-numbered years G shall reside with Ms. Vasina from 5 p.m. on Friday until drop off at day care or school on Tuesday morning. In odd-numbered years, G shall reside with Mr. Geronimo in odd-numbered years from 5 p.m. on Friday until drop off at day care or school on Tuesday morning. h. Halloween – G shall spend Halloween from 5 p.m. until 9 p.m. with Ms. Vasina in even-numbered years and with Mr. Geronimo in odd-numbered years. i. Thanksgiving weekend – In odd-numbered years G shall reside with Ms. Vasina from pick up at day care or school on Friday until drop off at day care or school on Tuesday morning. In even-numbered years G shall reside with Mr. Geronimo from pick up at day care or school on Friday until drop off at day care or school on Tuesday morning. j. Christmas Eve, Christmas and Boxing Day – In even-numbered years, G shall reside with Ms. Vasina from Christmas Eve from pick up from day care or school, or from 9 am if there is no day care or school, until noon on Christmas day, and with Mr. Geronimo from noon on Christmas day until day care drop off on December 27, or 9 am on December 27 if there is no day care. In odd-numbered years this schedule shall be reversed. k. New Years’ Eve and New Years’ Day – in even-numbered years G shall reside with Ms. Vasina from New Years’ Eve from day care pick up, or from 9 am if there is no day care, to 9 am on January 2. In odd-numbered years, G shall reside with Mr. Geronimo from New Years’ Eve from day care pick up, or from 9 am if there is no day care, to 9 am on January 2. l. Winter holidays – the remainder of the winter holidays shall be shared equally with G being in Ms. Vasina’s care for the first half of winter holidays and in Mr. Geronimo’s care for the second half of winter holidays in even-numbered years. The schedule shall be reversed in odd-numbered years.

[81] I have made no particular provision for the parents’ birthdays or G’s birthday. These days shall follow the regular schedule. Each party may arrange their own birthday celebrations on their regular parenting time.

Does Mr. Geronimo Stand in the place of a parent with respect to R and/or F?

[82] Under the Divorce Act, s. 2(2), a “child of the marriage” is a child of two spouses or former spouses where both spouses or former spouses stand in the place of parents, or any child of whom one is the parent and the other stands in the place of a parent.

[83] In Chartier v. Chartier, [1998] S.C.J. No. 79, Bastarache J., for the Court, concluded that a person who stands in the place of a parent to a child within the meaning of the Divorce Act cannot unilaterally give up that status and escape the obligation to provide support for that child after the breakdown of the marriage. He stated, “[s]pouses are entitled to divorce each other, but not the children who were part of the marriage”: para. 32.

[84] Bastarache J. found that a court must determine whether a parental relationship existed as of the time the family functioned as a unit: para. 36.

[85] Whether a person stands in the place of a parent must not be determined exclusively from the perspective of the child. Rather, whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship, by looking at a number of factors, including intention. Intention may be expressed formally and it may be inferred from actions. Even expressed intentions may change. The manifestation of the intention of the step-parent cannot be qualified as to duration or be otherwise made conditional or qualified, even if this intention is manifested expressly. Once a child is a “child of the marriage”, the obligation of a step-parent towards him or her are the same as those relative to a child born of the marriage: para. 39.

[86] In Chartier, at para. 39, Bastarche J. identified the relevant factors in defining the parental relationship to include:

a. whether the child participates in the extended family in the same way as would a biological child; b. whether the person provides financially for the child (depending on ability to pay); c. whether the person disciplines the child as a parent; d. whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; e. the nature or existence of the child’s relationship with the absent biological parent.

[87] In determining whether a person stands in the place of a parent, the court must distinguish those situations where there is a clear, permanent, loving relationship formed with the child while operating within the family unit, from those situations where the party from whom child support is claimed has demonstrated kindness to the child or children while operating within the family unit: Dovicin v. Dovicin, 2002 CarswellOnt 1745 at para. 30. In Neil v. Neil at paras. 36-37, the court referred to “derivative relations” – that is, a step-parent and step-child rely on the goodwill they receive from being the child of their parent, or the partner of the parent. These derivative relations are distinct from relationships where a person stands in the place of a parent. One measure is to consider whether the step-parent has evidenced voluntary acts with the children utilizing the step-parent’s own free time: see Dovicin at para. 42.

[88] Thus, the threshold for a finding that a person stands in the place of a parent must be sufficiently high so as to avoid the imposition of obligations and the acquisition of rights except where the step-parent can clearly be shown to have assumed the role of parent. Otherwise, the step-parent may be held to long-term obligations for simply being nice to their spouse’s child: Eljoujjaji v. Campigoto, 2017 ONCJ 189 at para. 21.

[89] I agree with Mr. Geronimo that the question of whether he stood in the place of a parent must be examined for each child separately. Ms. Vasina bears the onus of proving that Mr. Geronimo stood in the place of a parent to R and/or F: Eljoujaji at para. 24.

[90] In my view, Ms. Vasina has discharged her burden of demonstrating that Mr. Geronimo stands in the place of a parent to both, R and F.

[91] I turn first to R.

[92] R was baptized into Mr. Geronimo’s church, to which Ms. Vasina did not belong. The documentary evidence led at trial included four pages of records from Mr. Geronimo’s church. The pages appear to be four individual documents, each entitled “Individual Ordinance Summary”. There is one document for each of Mr. Geronimo, R, F, and G. Each person has their own record number. The individual church ordinance summary for Mr. Geronimo records his children as E, A, R, F and G. R’s individual church record lists Mr. Geronimo as being her parent.

[93] Mr. Geronimo first offered evidence that the church records require each child to be attached to an adult in the same household, and that the records in evidence were a clerical record-keeping tool by which the church kept members of a household together. Later, when asked more specific questions about the records, Mr. Geronimo testified that he was not involved with keeping the church’s records, and could not answer the questions posed about them. In other words, he was knowledgeable about the records when it suited his purpose.

[94] In any case, I do not accept his evidence that the records were household records. It is clear from the records themselves that each individual has their own record number. The record that Mr. Geronimo described as a household record was in fact his individual record, followed by the individual records of R, F, and G. Notably, the documents did not include a record for E or A, although they were also part of Mr. Geronimo’s household. E and A were not baptized into the church and neither was G, but her record was included in the documents. The records for E and A would have been interesting as they would have disclosed whether Ms. Vasina was listed as their “parent”, in that she was an adult member of the household, or whether their biological mother was listed, even though she was not a member of Mr. Geronimo’s household. That evidence, however, was not led.

[95] The individual ordinance summaries in evidence were consistent and showed that Mr. Geronimo represented to his church that he was the parent of R and F, as well as E, A, and G. The evidence was also clear that Mr. Geronimo is an involved and dedicated member of his church, with a strong, abiding faith. I see no reason why he would have misrepresented himself to his church as R and F’s father, and he offered no such explanation, apart from his assertion that the records were household records, which I have rejected.

[96] I also note that Mr. Geronimo spent his free time with R at his church, including taking her to services and church activities. Ms. Vasina had attended the church when the parties first began dating, but she attended less often after they were married, and stopped going after G was born. R continued to go with Mr. Geronimo. Mr. Geronimo explained that he often took young people to church activities, and so downplayed spending his free time with R in this way. Mr. Geronimo may have been involved with youth activities in the church, but the regularity with which he involved R in his church suggests his involvement with bringing her to church was substantial, like that of a parent teaching his religious traditions to a child, not that of a convenient chauffeur facilitating church activities for busy families.

[97] I note too that the church services were in Spanish, Mr. Geronimo’s native language. R began learning Spanish. She did not participate in the English services at the church, although English services were run out of the same location.

[98] Mr. Geronimo also participated in disciplining R. Although he denies this, the documentary evidence in the record, confirmed by Ms. Vasina’s oral evidence, establishes that he and Ms. Vasina sought out professional help to determine a strategy on which they could agree to discipline R. The therapist’s report records Mr. Geronimo as talking about loving all his children, including R, equally, and Ms. Vasina discussing Mr. Geronimo’s role as R’s father. That there was disagreement between them necessitating outside help suggests that Mr. Geronimo was acting to discipline R in his own manner, and not as an adjunct to Ms. Vasina.

[99] Mr. Geronimo also held himself out as R’s and F’s father when the family explored enrolling them in Catholic school, referring to R and F as “our children” and “our kids”. He also supported R when writing her high school entrance exam, both by delivering documents to the school and also by giving her moral support before she wrote the exam. As it happened, R wrote the exam remotely while on a holiday with Ms. Vasina, and Mr. Geronimo made a point of calling her to encourage her before the exam.

[100] Apart from Mr. Geronimo’s involving R in his church, he also supported R financially. When Ms. Vasina’s maternity leave employment insurance benefits ran out and the parties decided she would not return to her position, Mr. Geronimo supported the entire family financially.

[101] While some of R’s school projects did not refer to Mr. Geronimo or his children as part of her family, R also gave Mr. Geronimo cards calling him her father, including a certificate in Spanish “para el major padre”. At best, the evidence about R’s subjective belief about Mr. Geronimo was inconsistent. Although Mr. Geronimo urged me to draw an adverse inference against Ms. Vasina for failing to call R to testify, I decline to do so. R is still a child, and in my view, children should rarely be required to give evidence at family law trials given how difficult such an experience may be for them. Here, there is sufficient evidence to determine the question of Mr. Geronimo’s role in R’s life without requiring her to come to court to give evidence on the question.

[102] Mr. Geronimo argued that he treated his biological children differently than he treated R and F. Ms. Vasina agreed that he did not discipline his biological children as harshly as he disciplined her children. That may be, but in my view, R participated in the family in much the same way as Mr. Geronimo’s biological children. For example, the entire family took camping trips and participated in activities together.

[103] Although not determinative, R had no relationship with her biological father as of spring 2011. Her only father figure after that time was Mr. Geronimo.

[104] Much of the evidence reviewed above also applies to F. As with R, F was baptized into Mr. Geronimo’s church. Mr. Geronimo took F to church with him during his free time, often without Ms. Vasina present. The individual ordinance summaries confirm Mr. Geronimo represented to his church that F was his child. F participated in the family events as R did. When Ms. Vasina stopped receiving employment insurance after G’s birth, Mr. Geronimo supported the entire family, including F. Like R, F had no relationship with his biological father after the spring of 2011.

[105] Mr. Geronimo attended at least one educational meeting at F’s school to address whether F should be placed into a gifted program. He also attended many of F’s hockey games, and at least one out of town tournament. Ms. Vasina testified that he was known at hockey as F’s dad, and that Mr. Geronimo and F spent a lot of time sharing their common interest in sports. It is notable that Mr. Geronimo used his free time to spend it with F.

[106] Mr. Geronimo claimed that he attended the school meeting and the hockey games to provide care for G, so Ms. Vasina could focus on F. He did not explain why, if his sole purpose was to care for G as a baby or toddler, he could not have stayed home to do so. It would be sensible for a parent to stay home with an infant rather than bring her to a cold hockey arena unless watching the hockey games and cheering on F was a family affair.

[107] Mr. Geronimo received emails about F’s hockey games and other team-related news. With the permission of the league, and the full knowledge of Mr. Geronimo, F began playing hockey with the name “Geronimo” on his jersey.

[108] F’s school projects consistently include Mr. Geronimo in his family. His cards to Mr. Geronimo indicate that F loved Mr. Geronimo as a son loves his father. There is email correspondence between F and Mr. Geronimo in which F calls Mr. Geronimo “daddy Melo”. Mr. Geronimo continued to email F post-separation. Though he tried to downplay the communication in his evidence, and referred to his emails to F a “means to an end” to find out about how G was doing, I do not accept that explanation. Rather, he was emailing F because he considered F to be his son. It was only after Ms. Vasina offered Mr. Geronimo parenting time with F and R, and he became worried that he would be responsible for financial support, that he withdrew from F’s life.

[109] Mr. Geronimo also asked that I draw an adverse inference because Ms. Vasina failed to call F to give evidence. I reject this argument for the same reasons I did so above with respect to R. Those reasons are even more compelling, given that F is younger than R.

[110] As I have noted above, the time to assess whether a person stands in the place of a parent to a child is at the time the family is functioning as a unit. I conclude that the evidence establishes that Mr. Geronimo stood in the place of a parent to R and F. I place particular weight on the representations Mr. Geronimo made to the church of which he is a devout follower. The other evidence I have reviewed is also overwhelmingly consistent with his role as R and F’s father.

What is Mr. Geronimo’s table child support obligation?

[111] Mr. Geronimo is a T4 employee. His financial statement discloses current income of $95,409.60 annually, however his submissions about child support use an estimated income for 2018 and 2019 of $95,664.92. I will use this latter figure given that it is the one Mr. Geronimo has used himself. Based on this income, table support for three children is $1,853.00 monthly.

[112] However, Mr. Geronimo argues that I should consider reducing his child support obligation on two basis: first, he seeks set-off child support if the parenting schedule for G justifies it, and second, he argues that the court has the discretion to vary his child support obligation to R and F, if it exists.

[113] The first basis is easily dealt with. The parenting schedule I have ordered provides for about 1/3 of G’s time to be spent with Mr. Geronimo, so set-off child support is not appropriate for G.

[114] With respect to R and F, I note s. 5 of the Federal Child Support Guidelines, which provides:

Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child.

[115] Mr. Geronimo relies on Straus v. Pocsai, 2014 ONSC 1255 at paras. 64-70 to argue that table support that is less than that mandated by the Guidelines is appropriate. He relies on the review of case law contained in Straus, including jurisprudence in which 50% of the Guideline amount was found to be appropriate, and in which a lower amount of support was held to be appropriate based on the length of the cohabitation.

[116] Mr. Geronimo argues that I should reduce his table support obligation taking into consideration the fact that he pays support for his older two biological children. He argues that ordering him to pay the full table amount would amount to undue hardship. He also argues that Ms. Vasina has never taken any steps to increase the support that she receives for R and F from their biological father, although there is no evidence before me to indicate that there is a basis to increase that support.

[117] In contrast, Ms. Vasina argues that Mr. Geronimo should pay the full table support amount for three children, less the contribution she receives from R and F’s biological father of $271.00 monthly. She states that he stands in the place of a parent to R and F, and bears a parent’s obligations to them.

[118] The evidence around Mr. Geronimo’s financial obligation towards A and E is very confusing. E is now at university. According to Mr. Geronimo her expenses are funded entirely by loans and once she has completed her education his contribution to her expenses will be determined retroactively. Mr. Geronimo also testified that he currently pays support of $250 monthly to his ex-wife for A. However, the financial records in evidence do not establish a history of regular child support payments for A and E.

[119] It is clear that Mr. Geronimo owes child support for G in the full table amount. For one child at his income, table support is $877 monthly. The increase in monthly amount to reflect child support for three children is $976.

[120] Given the relatively short duration of the parties’ relationship, I agree it is appropriate to reduce Mr. Geronimo’s child support obligation for R and F. In my view, it is consistent with Mr. Geronimo’s role as R and F’s father for him to pay 50% of the delta between the obligation for one child and the obligation for three. In other words, Mr. Geronimo’s prospective table support obligation is $1,365 monthly for three children. Having reduced his obligation to R and F by 50%, I do not consider it appropriate to make further reduction because of the contribution to R and F’s support by their biological father, which is significantly less than the reduction I have already allowed to Mr. Geronimo by reason of the relatively short marriage of the parties.

[121] Accordingly, Mr. Geronimo’s prospective table support obligation for R, F, and G, based on an income of $95,664.92 annually is $1,365 per month. He shall commence paying this amount on July 1, 2019 and on the first day of every month thereafter.

What is Mr. Geronimo’s obligation to contribute to s. 7 expenses?

[122] Mr. Geronimo’s responsibility for s. 7 expenses turns on the answer to two questions: first, what is the respective income of the parties, and second, does Mr. Geronimo have any obligation to contribute to s. 7 expenses for R and F?

[123] Mr. Geronimo argues that income should be imputed to Ms. Vasina and her share of s. 7 expenses increased as a result. Mr. Geronimo also argues that he should not be required to contribute to R and F’s s. 7 expenses because Ms. Vasina always bore those expenses solely.

[124] Ms. Vasina disagrees that she should be imputed income. She also argues that if Mr. Geronimo stands in the place of a parent to R and F, his obligation includes contributing to their s. 7 expenses.

Should income be imputed to Ms. Vasina?

[125] To determine whether to impute income to Ms. Vasina, it is necessary to understand the roles the parties took during the marriage as it related to Ms. Vasina’s employment history.

[126] Ms. Vasina holds a Master’s degree from her native Ukraine. In Canada, she completed a web development course and obtained a placement as a systems analyst. After her placement she was offered a position earning $45,000 per annum. This is the highest paid position Ms. Vasina has ever held. She held that position when she became pregnant with G, and worked there up until her maternity leave. In total, she worked in this role for just over two years.

[127] As her maternity leave came to an end, the parties decided that Ms. Vasina would not return to work. Mr. Geronimo assisted her in drafting her resignation. By the time of the parties’ separation, when G was 2 ½ years old, Ms. Vasina had just started looking for work.

[128] In the immediate aftermath of the separation, Ms. Vasina testified that she focused on providing stability for the children given the difficult situation they were in, living in the shelter. However, within a couple of months she began looking for work. She participated in workshops at the shelter to assist in preparing her resume. Ms. Vasina tried to obtain work in web development, or as a business analyst, but was unsuccessful. She found work as a babysitter, and later, as a clerk at Value Village. She testified that her staff discount at Value Village proved useful to her as she was unable to obtain many things from the matrimonial home and was forced to repurchase items she no longer had.

[129] Once she returned to the matrimonial home, the travel to her job at Value Village became difficult. She found a new position at a slightly increased salary. She is now earning $17/hr.

[130] The documentary evidence of Ms. Vasina’s job search ends in 2017. However she testified that she obtained her current employment in August 2018. She states that she is not currently looking for better paid work because she does not have the time.

[131] Ms. Vasina’s Notices of Assessment in evidence establish her Line 150 income as follows:

a. 2013 - $45,000 b. 2014 - $31,826 c. 2015 - $8,290 d. 2016 - $1,680 e. 2017 - $9,984

[132] In addition, Ms. Vasina’s evidence is that her income in 2018 was $28,000. Her T4’s from 2018 establish her income at $28,435.41. That is consistent with her current employment income as set out in her Financial Statement.

[133] When determining whether to impute income under s. 19(1)(a) of the Federal Child Support Guidelines, SOR/97-175 [“Child Support Guidelines”] I must consider: (i) whether the spouse is intentionally unemployed or underemployed; (ii) if so, whether the intentional under-employment or unemployment is required by virtue of her reasonable educational needs; (iii) if not, then what income is appropriately imputed in the circumstances: Drygala v. Pauli, 61 O.R. (3d) 711 (C.A.), at paras. 23-26 [“Drygala”].

[134] Intentional unemployment or intentional underemployment does not require a specific intent to avoid child support: Drygala, at para. 25.

[135] In my view, Ms. Vasina is underemployed. She is well-educated and intelligent. She is capable of earning more than $28,000 annually, which is barely over minimum wage.

[136] However, I do not find that she should be imputed income of $45,000 annually as Mr. Geronimo alleges. An annual salary of $45,000 is the most Ms. Vasina has ever earned, and she only earned that amount in one job which she held for about two years before G was born in […] 2014. Since that time, she has been out of the workforce entirely, and then out of that field of work. Her evidence is she sought work in that field but without success.

[137] In my view, Ms. Vasina is capable of earning more than minimum wage, but not at the level of her highest paying job ever. I thus impute her income at $35,000 for 2019.

[138] I decline to impute any income to Ms. Vasina retroactively. In my view, her circumstances around the separation, including having three children to care for while living in a shelter, having been out of the workforce for 2 ½ years and dedicating her funds to paying for the condominium expenses for the residence in which Mr. Geronimo was living all suggest that she did the best that she could. Her efforts to re-establish herself were also frustrated by other decisions Mr. Geronimo made, including his remarkable underpayment of child support (even for just one child) which I address below. In those circumstances, it was reasonable for Ms. Vasina to require time to get on her feet again. That time has now passed, however, and she is currently capable of earning $35,000 per year.

[139] As a result, commencing in 2019, the parties’ income from which to determine the proportionate sharing of s. 7 expenses are $35,000 for Ms. Vasina and $95,664.92 for Mr. Geronimo. The parties gave me no calculations of the sharing of s. 7 expenses that would allow me to determine the value of any tax credits that could increase either of their incomes for purposes of determining their pro rata share of s. 7 expenses. Accordingly, using only the income figures set out above, Ms. Vasina is responsible for 26.8% of the s. 7 expenses, while Mr. Geronimo is responsible for 73.2% of the expenses.

[140] I have ordered above that Ms. Vasina has decision-making authority for G’s extra-curricular activities. Mr. Geronimo is responsible to contribute to one extra-curricular activity for G at a time, as a s. 7 expense. Beyond that, s. 7 expenses, including additional extra-curricular activities, shall be agreed upon by the parties. Absent agreement, either party may apply to the court for a determination of whether an expense is properly a s. 7 expense.

[141] For clarity, Ms. Vasina may enroll G in more than one extra-curricular activity, but absent agreement or court order, Mr. Geronimo is only required to contribute to one extra-curricular activity at a time as a s. 7 expense. In addition, as noted above at para. 52, Ms. Vasina shall not enroll G in extra-curricular activities that take place during Mr. Geronimo’s parenting time absent his consent.

Does Mr. Geronimo have an obligation to contribute to s. 7 expenses for R and/or F?

[142] As I have noted above, when a support payor stands in the place of a parent, the court has discretion to determine the appropriate amount of support payable.

[143] In the circumstances of this case, the evidence establishes that, apart from one hockey camp for F, Mr. Geronimo did not contribute to any of R or F’s s. 7 expenses, even when Ms. Vasina was not earning any income.

[144] In my view, in these circumstances it is appropriate to deviate from the strict application of the guidelines. I conclude that Mr. Geronimo is not responsible for any of R or F’s s. 7 expenses.

[145] For as long as child support is payable, once annually the parties shall exchange the ongoing financial disclosure required by the Federal Child Support Guidelines, SOR/97-175.

What child support arrears are owing?

[146] The parties agree to use the following income for Mr. Geronimo:

a. 2016 - $83,561 b. 2017 – $84,836 c. 2018 - $95,664.92

[147] When the parties separated, Mr. Geronimo at first paid no child support. He began paying support in 2017, which he calculated on a set off basis for one child, in spite of the fact that G was in Ms. Vasina’s care almost 100% of the time.

[148] Adopting the same calculation to Mr. Geronimo’s table support obligation retroactively as I have done prospectively, whereby Mr. Geronimo pays full table support for G, and 50% table support for R and F, Mr. Geronimo’s obligation to pay table support was as follows:

a. 2016 (from mid-September to December) - $1,168.50 monthly b. January –November 2017 - $1,183.50 monthly c. December 2017 - $1,232 monthly d. 2018 - $1,365 monthly e. January – June 2019 - $1,365 monthly

[149] Thus, Mr. Geronimo’s total table child support obligation since separation is $42,910.25. Assuming Mr. Geronimo has continued to make the monthly payments in April – June 2019 that he made in January – March 2019, Mr. Geronimo has actually paid $20,227 in child support during this time. Mr. Geronimo thus owes table child support arrears of $22,683.25.

[150] Ms. Vasina’s claim for retroactive s. 7 expenses relates solely to expenses incurred for F and R. Since I have determined that Mr. Geronimo has no obligation to contribute towards their s. 7 expenses, there is no retroactive child support owing in respect of s. 7 expenses.

Is Ms. Vasina entitled to spousal support? If so, what quantum is appropriate? Are any arrears owing?

[151] Ms. Vasina has made a claim for spousal support. She acknowledges that if child support is ordered at the level she seeks, the quantum of spousal support will be zero, as Mr Geronimo does not have sufficient income to pay both child and spousal support. However, she asks the court to address spousal support in any event, in case Mr. Geronimo’s income increases.

[152] Mr. Geronimo states that Ms. Vasina is not entitled to spousal support, arguing that it was always the parties’ intention that they would keep their finances separate.

[153] Section 15.2(1) of the Divorce Act sets out the court’s jurisdiction to make an order for spousal support. Section 15.2(4) requires the court to consider the condition, means, needs and other circumstances of each spouse, including the length of time the spouses cohabited, the functions performed by each spouse during cohabitation and any order, agreement or arrangements relating to support of either spouse.

[154] The objectives of a spousal support order are set out in s. 15.2(6) as follows:

a. To recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; b. To 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. To relieve any economic hardship of the spouses arising from the breakdown of the marriage; and d. In so far as is practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.

[155] According to Mr. Geronimo, when the parties married, they did so on the understanding that each would be responsible for their own expenses. Ms. Vasina’s evidence is the opposite: she was receiving housing and day care subsidies before marriage, and was worried that she would lose them on marriage. She states that she was clear with Mr. Geronimo that she would need his financial support if they were to be married, and he agreed.

[156] The parties had a joint account to cover joint expenses. Ms. Vasina testified that they originally intended to contribute to it in proportion to their incomes. However, Ms. Vasina’s income decreased when she was on maternity leave, and subsequently ceased all together when she resigned to be at home with G.

[157] Whatever agreement they had about their respective financial contributions, if any, once Ms. Vasina left her job and her maternity leave benefits ended, Mr. Geronimo was the breadwinner of the family. He contributed the bulk, if not all, of the funds to the parties’ joint account, and he paid the household expenses. There is no question that Ms. Vasina was financially dependent on him during that time. Moreover, given his involvement in her resignation from her work, I conclude that the decision that Ms. Vasina would stay at home after her maternity leave ended was a joint one.

[158] The evidence suggests that Ms. Vasina was primarily responsible for all the household tasks and the bulk of the child care. Mr. Geronimo spent a lot of his free time engaged in endeavours outside the home, including his tennis club, his church, and his role as a member of the condominium corporation’s board of directors. Ms. Vasina expressed exasperation that he was often not home. Mr. Geronimo agreed that, especially as the parties’ relationship deteriorated, he spent more and more time outside the home. As a result, the tasks of keeping the household running fell to Ms. Vasina.

[159] I have already reviewed the circumstances Ms. Vasina faced immediately after separation and concluded that it was reasonable for her to require time to re-establish herself. The situation in which she found herself was, in part, a result of the parties’ joint decision that Ms. Vasina quit her job to stay home to care for G, and in part a result of Mr. Geronimo’s failure to pay adequate child support or contribute appropriately to the expenses for the matrimonial home. This failure contributed to the struggles with which Ms. Vasina had to cope, while also looking for work while living in a shelter.

[160] In my view, Ms. Vasina suffered economic disadvantage as a result of the marriage, and has disproportionately borne the financial consequences arising out of the marriage breakdown arising from her obligation to care for G, R and F. I am also of the view that Ms. Vasina disproportionately suffered economic hardship arising out of the marriage breakdown, in particular as a result of Mr. Geronimo’s failure to properly pay child support or fund more of the matrimonial home expenses at a time when Ms. Vasina was not working.

[161] In my view, Ms. Vasina has established an entitlement to compensatory support. However, in view of her ability to work, the short duration of the marriage, and to promote her economic self-sufficiency within a reasonable period of time, I conclude that the duration of spousal support is short.

[162] The Spousal Support Advisory Guidelines calculations with which I have been provided suggest a range for spousal support of two years to fourteen years. In my view, a duration of five years is appropriate in this case, recognizing the length of time that Ms. Vasina was out of the workforce was only about 2 ½ years, and also recognizing the year she spent in the shelter, funding a significant portion of the expenses for the home in which Mr. Geronimo was living.

[163] I have not been provided with a calculation of spousal support that is based on the findings contained in these reasons. I do not know whether, given the reduction in child support I have ordered for R and F, and the incomes of the parties which I have accepted, the SSAGs would provide for any quantum of spousal support above zero to be payable following separation. Accordingly, I direct the parties to complete their SSAG calculations using the findings in these reasons. If the parties cannot agree on the quantum of spousal support, if any, they shall each provide me with their SSAG calculation and further written submissions with respect to the quantum of prospective spousal support and arrears, if any. I provide further directions on these additional submissions below.

Life Insurance

[164] Ms. Vasina, in her draft order, seeks an order directing Mr. Geronimo to secure life insurance as security for his support obligations. The parties made no submissions on this relief, nor did they provide calculations as to the appropriate amount of life insurance.

[165] If the parties cannot agree on whether life insurance is required, and in what amount, I will require submissions on the issue. I provide directions with respect to the written submissions at the end of these reasons.

Equalization of the Value of Net Family Property

[166] I turn now to the property issues between the parties. Of these, the most significant issue in dispute is the ownership of the matrimonial home. Title to the home is held in Ms. Vasina’s name solely. Mr. Geronimo claims a resulting trust interest in the home, and in the alternative, claims a constructive trust due to unjust enrichment. Ms. Vasina argues that Mr. Geronimo is barred from seeking an equitable remedy with respect to the home because he does not come to court with clean hands. I thus first consider the issues around the ownership of the matrimonial home, and then turn to the question of equalizing the value of net family property.

Is Mr. Geronimo barred from seeking an equitable remedy with respect to the ownership of the matrimonial home because he comes to court without clean hands?

[167] Ms. Vasina testified candidly that, although the condominium is held in her name only, she understood that half of the condominium belonged to Mr. Geronimo. There is evidence that both parties contributed to the down payment and expenses related to the condominium.

[168] However, Ms. Vasina points to Mr. Geronimo’s behaviour in the litigation and argues it disqualifies Mr. Geronimo from seeking equitable relief. If I accede to this argument, Mr. Geronimo will be entitled to share in the value of the condominium as of the date of separation, as it will form part of Ms. Vasina’s net family property, but he will not enjoy the growth in value of the condominium since the date of separation.

[169] It is trite that “he who comes to equity must come with clean hands”: see, for example, Taylor v. Guindon at para. 48. But this maxim is not meant to define a catch-all punishment for wrongdoing. In Royal Bank of Canada v. Boussoulas, 2012 ONSC 2070 at para. 51, the Divisional Court adopted the following statement:

...the metaphor that a claimant for equitable relief must have clean hands must be put into context. Judges of the courts of equity do not deny relief because the claimant is a villain or wrongdoer; rather, the judges deny relief when the claimant’s wrongdoing taints the appropriateness of the remedy being sought from the court.

[170] Only conduct that is necessarily related to the claim in question will bar a claim in equity: Taylor at para. 48. Examples of conduct that can bar a claim in equity include receiving social assistance while failing to disclose support received from a common law spouse, having received tax deductions for contributions on which a claim for unjust enrichment is based, or failing to disclose information related to one’s claim: Taylor, para. 54.

[171] Ms. Vasina alleges that Mr. Geronimo’s equitable claim to an ownership interest in the matrimonial home is part of the overall property claim. As such, the claim is tied to the parties’ claims for equalization of the value of net family property, and the financial disclosure that has been made - or not made - in this proceeding. Ms. Vasina submits that Mr. Geronimo’s financial statement is replete with errors and completely untrustworthy. She submits that Mr. Geronimo has admitted to altering disclosure, lied to the court on more than one occasion, and continues to misrepresent his debts and assets. On this basis, she argues that he should be barred from seeking equitable relief.

[172] I am very concerned about Mr. Geronimo’s conduct in this litigation and the accuracy and reliability of Mr. Geronimo’s financial statement. I set out these concerns below.

[173] First, Mr. Geronimo’s financial statement does not disclose his date of marriage debt with any particularity. It sets out a number - $31,890.54 - that is broken down only in Ms. Vasina’s Net Family Property Statement, based on information she was able to glean from demand letters from Mr. Geronimo’s creditors. There are reasons to believe that this is not an accurate statement of Mr. Geronimo’s date of marriage debt.

[174] For example, Mr. Geronimo admitted that he did not know with certainty what his date of marriage debt was. During cross-examination, counsel proposed to Mr. Geronimo that he had date of marriage debt of at least $30,000, but the exact amount could not be determined because Mr. Geronimo had failed to provide the relevant disclosure. It is apparent that there is no supporting documentation for the date of marriage debt, despite the fact that this information should have been available, considering that the parties separated in 2016 after approximately 3½ years of marriage.

[175] Mr. Geronimo testified that if a debt was not disclosed on his Equifax report which bears a date shortly after the parties' marriage, he ignored it when calculating his date of marriage debt. This suggests that the Equifax report, on which Ms. Vasina relied to get some idea of his date of marriage debt, was not complete.

[176] Moreover, the reason the condominium was placed in Ms. Vasina’s name had to do with Mr. Geronimo’s inability to obtain financing on good terms. This suggests his credit rating was poor and that he may have had significant date of marriage debt. As I noted, Ms. Vasina has been able to quantify $31,890.54 of date of marriage debt. Although this figure likely understates Mr. Geronimo’s date of marriage debt, I have no evidentiary basis to determine another, more precise, figure. Ms. Vasina has done her best to quantify what she can, but the disclosure failing is Mr. Geronimo’s. The net effect of understating Mr. Geronimo’s date of marriage debt is a devaluation in his claimed net family property value.

[177] Second, Mr. Geronimo’s financial statement does not disclose a beneficial interest that he holds in a home located on Queens Drive. The evidence was that this home was bought with proceeds from a settlement that arose out of a fatal car accident involving Mr. Geronimo’s mother. Mr. Geronimo and his father, Fecundo Geronimo, both gave evidence that the settlement included amounts for Mr. Geronimo for pain and suffering on the loss of his mother. Mr. Geronimo testified that his father was the steward of the money, which went into the home on Queens Drive. Mr. Geronimo was involved in construction related to the home, dealing with the city on permitting issues for example.

[178] At present, the house is in the name of Mr. Geronimo’s brother, who is in litigation with Mr. Geronimo’s father over the ownership of the house. Mr. Geronimo’s father was not specific in his evidence about Mr. Geronimo’s entitlement to any of the property. He claimed he would decide who would get the house in his will, and would likely leave an interest in the house to his children and grandchildren. It is also clear that Mr. Geronimo has not asserted an interest in the home. He is not, for example, a plaintiff in the lawsuit against his brother.

[179] However, the evidence is also clear that some of Mr. Geronimo’s money and sweat equity went into the house. In my view, Mr. Geronimo has a claim to an interest in the house which he cannot shield from equalization by failing to take steps to enforce it. Even if only a contingent interest, it was incumbent upon him to disclose it on his financial statement.

[180] I have no evidence as to the value of the house, or about how much was received in settlement that went into the house, or how much of that was Mr. Geronimo’s money. Mr. Geronimo has failed to provide adequate disclosure about this asset. I am left completely in the dark as to what it might be worth, or the contingencies that might affect his ability to realize on his interest.

[181] Third, Mr. Geronimo’s financial statement misstates his date of separation debt to his father. He claims he owed his father $10,000 when the oral evidence clarified that the debt was $1,600.

[182] Fourth, post-separation items that are not, strictly speaking, relevant to the calculation of equalization of net family property are also missing from, or misstated on, Mr. Geronimo’s sworn financial statement. These include a second car, a motorcycle, a second credit card, and the current value of his debt to his father. The failure to include these items on the financial statement is further evidence of the lack of reliability of the financial statement as a whole.

[183] These failings in the financial statement come after numerous court orders for disclosure, many of which were not complied with, or not complied with in a timely way. Of particular concern is that, on one occasion, Mr. Geronimo altered a document he was ordered to disclose. Twice, he told judges of this court that he had taken steps to obtain his pension valuation when he had done no such thing. Ms. Vasina also raises legitimate complaints about Mr. Geronimo’s conduct that, at times, delayed the proceedings.

[184] Mr. Geronimo attempts to excuse his lack of disclosure, lack of compliance with court orders, altering evidence, untruths to the court, and behaviour that delayed the proceedings on the basis that he was self-represented. I do not accept this explanation. Mr. Geronimo was originally represented by counsel. He became self-represented for a time, and then engaged new counsel. He had the benefit of legal advice at different times during the proceeding. Even when he was self-represented, the court’s orders were clear, and his failure to abide by them were, at least at times, deliberate.

[185] The end result is that, after a process that Mr. Geronimo attempted to frustrate and delay, his disclosure remains inadequate and his financial statement is completely unreliable. I have no faith in the figures Mr. Geronimo advances. I note that most, if not all, of the errors in his financial statement operate in his favour to depress his net family property. I do not think that is a coincidence.

[186] In my view, Mr. Geronimo’s conduct in relation to the property claims in this action is sufficiently serious and significant so as to disentitle him to an equitable remedy with respect to the condominium. I find he does not come to the court with clean hands, and it is appropriate in this case to exercise my discretion to refuse the equitable trust remedies that he seeks. By his conduct he has attempted to depress his net family property to defeat Ms. Vasina’s legitimate claims. I cannot undertake a net family property calculation with confidence. Even with the evidence Ms. Vasina was able to uncover on cross-examination, I still have grave doubts that Mr. Geronimo’s assets and debts will be properly reflected. The fault for that is Mr. Geronimo’s. Accordingly, the only just step I can take is to refuse to grant him an equitable remedy with respect to the condominium.

Has Mr. Geronimo established a beneficial interest in the matrimonial home?

[187] Given my finding above, it is not necessary to consider whether Mr. Geronimo established a resulting trust or unjust enrichment justifying a constructive trust with respect to the matrimonial home.

[188] However, if I am wrong to have deprived Mr. Geronimo of equitable relief on the basis of the clean hands doctrine, I would have found him to be an equal co-owner of the house with Ms. Vasina. As I noted, both parties contributed to the down payment and the expenses of the house. In addition, Ms. Vasina admitted that she understood the condominium was owned equally by the parties.

How should the value of the parties’ net family properties be equalized?

[189] There are several questions that arise with respect to the equalization of the value of the parties’ net family properties.

[190] First, as is apparent from the discussion above, Mr. Geronimo’s date of separation debt to his father needs to be adjusted. He disclosed a $10,000 debt to his father, when the debt was actually $1,600.

[191] There should be a further adjustment to Mr. Geronimo’s date of marriage and date of separation assets to reflect his interest in 184 Queens Drive, but I have no evidence by which to calculate it. Any number I add would be nothing more than a wild guess. Ms. Vasina submits, fairly, that I cannot include any number for 184 Queens Drive because there is no principled basis to do so.

[192] There should be an adjustment to Mr. Geronimo’s date of marriage debt, which I have found is understated, but as I explained above, I have no evidence by which to calculate it accurately. I am thus limited to using the $31,890.54 figure that Ms. Vasina has been able to prove.

[193] Second, the treatment of the matrimonial home must reflect Ms. Vasina’s sole ownership of it. Ms. Vasina, as sole owner, is entitled to keep the growth in the asset since the parties’ separation. Accordingly, her date of separation assets must show the value of the condominium in its entirety as of that date, and that value forms part of the net family property to be equalized. Her net family property calculation must also reflect the mortgage debt on the date of separation as her liability entirely.

[194] The parties each called experts to testify as to the current value of the condominium and its value at separation. The only value which is relevant, given my conclusion on Mr. Geronimo’s equitable claim, is the value at separation. On this, the parties’ experts were very close. Ms. Vasina’s expert, Heinsaar Toivo, estimated the value of the condominium on separation to be $200,000. Mr. Geronimo’s expert, Jim Parthenis, estimated the value of the condominium on separation to be $215,000.

[195] In his examination in chief, Mr. Parthenis had no comments to make on Mr. Toivo’s report with respect to date of separation value. He accepted that the comparables chosen by Mr. Toivo were appropriate, and he noted that the values selected by the experts were very close.

[196] There is little to choose between the expert reports relating to date of separation value. Each expert employed a similar methodology. Each chose comparable sales from among those in the parties’ condominium building. The values they reached were similar. I will take the average of the experts’ values - or $207,500 - as the value of the condominium on the date of separation.

[197] Making these adjustments to the parties’ net family property calculations, Mr. Geronimo would owe Ms. Vasina an equalization payment in the amount of $34,858.98.

[198] However, I recognize that the growth in value of Mr. Geronimo’s net family property turns largely on the growth in his pension during the marriage. Mr. Geronimo argues that s. 10.1 of the Family Law Act allows the court to provide for the immediate transfer of a lump sum out of a pension plan to satisfy the equalization payment. By s. 10.1(4), when determining whether to order the immediate transfer of a lump sum out of a pension plan, and in determining the amount to be transferred, the court may consider, along with other matters:

a. The nature of the assets available to each spouse at the time of the hearing; b. The proportion of a spouse’s net family property that consists of the imputed value, for family law purposes, of his or her interest in the pension plan; c. The liquidity of the lump sum in the hands of the spouse to whom it would be transferred; d. Any contingent tax liabilities in respect of the lump sum that would be transferred; e. The resources available to each spouse to meet his or her needs in retirement and the desirability of maintaining those resources.

[199] By s. 67.3 of the Pension Benefits Act, R.S.O. 1990, c. P.8, the maximum percentage of the lump sum transfer in pension benefits cannot exceed 50% of the family law value of the pension.

[200] Mr. Geronimo’s pension is valued for family law purposes at $72,662.03 on his financial statement, which also discloses net disposition costs of the pension set at 20%. Thus, the calculation of the equalization payment I have made is net of disposition costs, while a transfer of the payment from the pension at source would be gross of disposition costs.

[201] I am satisfied that, given that Mr. Geronimo’s assets consist largely of the pension, it is just that the equalization payment be made in accordance with the legislation, so that as much as of the equalization payment as possible can be made through a transfer of the pension at source.

[202] In my view, the best way to accomplish this is to equalize the family law value of the pension at source, and remove from the calculation of Mr. Geronimo’s net family property statement both the value of his pension and the net disposition costs of the pension. As set out in Schedule A attached, when this is done, the equalization payment Mr. Geronimo owes Ms. Vasina, after the transfer of half the family law value of his pension at source, is $5,793.91.

Current Value of the Condominium

[203] If I am wrong to have deprived Mr. Geronimo of an interest in the condominium, the equalization payment calculation would have to reflect ownership by each party of half of the current value of the condominium. In those circumstances, I would have preferred the approach of Ms. Vasina’s expert, Mr. Toivo, and concluded the condominium’s current value is $240,000.

[204] Mr. Geronimo’s expert, Mr. Parthenis, concluded the current value of the condominium was $310,000. The principal difference between the experts’ approaches was in the comparable sales they chose to appraise the value of the condominium. Unlike the appraisals for date of separation value, neither expert could locate sales in the same condominium building to assist in determining current value of the condominium.

[205] I prefer Mr. Toivo’s choices of comparable sales. He chose as comparable sales condominium units located north of the matrimonial home, on the same street, of similar footage with outdoor living space, like the matrimonial home has. In addition, he explained that the condominium is one direct bus ride to a subway station. While the comparable units he chose were further away from the subway station closest to the condominium, they were located within a shorter direct bus ride to a different subway station.

[206] In contrast, the comparable sales chosen by Mr. Parthenis were smaller units, without outdoor living space, and a more difficult commute to a subway station. These units require more adjustments to the sale price to reach a value for the condominium. Mr. Parthenis agreed in cross-examination that, when identifying comparable sales, it is preferable to have to make fewer adjustments to value.

[207] Mr. Parthenis testified that the comparable sales chosen by Mr. Toivo were in a location that was not comparable, because they were further north than the condominium and closer to an area he thought was less desirable. The evidence did not establish that the location of the comparable sales chosen by Mr. Toivo was not desirable; they were near a golf course and located on major transit routes.

[208] In my view, Mr. Toivo’s approach to the current value of the condominium is preferable. Should it become necessary to determine the current value of the condominium, I conclude its value is $240,000.

Is Ms. Vasina entitled to occupation rent?

[209] Ms. Vasina seeks occupation rent in the amount of $5,412.75 for the period of time during which Mr. Geronimo resided in the matrimonial home after Ms. Vasina had asked him to leave, and during which she lived in the shelter. Throughout this period, Ms. Vasina paid the mortgage, property taxes and insurance, while Mr. Geronimo paid the condominium fees. During this time, Mr. Geronimo paid no spousal support and significantly underpaid child support.

[210] Ms. Vasina relies on Khan v. Khan, 2015 ONSC 6780 at paras. 11-12, in which this court noted that, where there is no order for exclusive possession of the matrimonial home, the court has the power to order occupation rent. Occupation rent is not automatic and should only be awarded when it is reasonable and equitable to do so. Occupation rent is a tool to achieve justice, and is usually awarded in an amount that represents half the rent that could have been earned had neither spouse lived in the home.

[211] Mr. Geronimo, for his part, states that if he is found not to have a proprietary interest in the matrimonial home, he does not object to paying occupation rent from September 14, 2016 to August 9, 2017, a period longer than that for which Ms. Vasina seeks occupation rent. However, he seeks credit for the amount he paid in mortgage payments, property taxes, and condominium fees during this period.

[212] The parties agree that monthly occupation rent should be calculated having regard to the sum of the monthly mortgage, prorated monthly property tax and monthly condominium maintenance fee. These expenses total $1,546.50 monthly. It seems reasonable, especially in the face of the parties’ agreement to that effect, to use this figure as the potential rent that could have been earned on a down-market three bedroom condominium in Toronto. Ms. Vasina submits that 50% of this amount is an appropriate amount for occupation rent. She thus claims $773.25 per month for seven months from Mr. Geronimo.

[213] I agree with the parties that an order for occupation rent is appropriate, since Mr. Geronimo was living in the condominium while Ms. Vasina paid significant expenses for the condominium while living in a shelter, and since I have determined that the ownership of the condominium shall rest with Ms. Vasina.

[214] However, I also agree with Mr. Geronimo that the claim for occupation rent must take into account the fact that Mr. Geronimo in fact paid the condominium fees for the seven month period. Condominium fees were $696.50 monthly. If Mr. Geronimo is given credit for this figure, he paid a total of $4,875.50 during the seven month period for which Ms. Vasina claims occupation rent. The difference is $537.25.

[215] I thus conclude that Mr. Geronimo shall pay $537.25 to Ms. Vasina in occupation rent for the period January-July 2017. I make no order for occupation rent outside of this time frame because Ms. Vasina has not sought it.

Should any orders be made for the return of or compensation for chattels owned by one party but kept by the other?

[216] The respondent has claimed return of personal items or compensation in lieu. He itemizes these in his closing argument and attaches a value to the items.

[217] I received no evidence about the items that Mr. Geronimo claims Ms. Vasina has withheld nor of their value. I do not know how Mr. Geronimo has calculated the values he assigns to the goods in his closing argument. I do not know whether Ms. Vasina agrees she has the items that are described.

[218] Ms. Vasina, for her part, claims $1,555 for personal property either removed or damaged. She gave some evidence about the state of the parties’ matrimonial home when she returned home and some items that had been removed. She explained that she valued the items by estimating what it would cost to replace the item with a used equivalent. Mr. Geronimo was asked about the list Ms. Vasina prepared and he acknowledged that some of the items were ruined or discarded. He stated other items were in storage or at his father’s house. The only item Mr. Geronimo seriously disputed was a stroller that he said he paid for and sold, which Ms. Vasina valued at $200.

[219] Given the lack of evidence offered by Mr. Geronimo, I award nothing to him for the items he states are in Ms. Vasina’s possession that belong to him.

[220] With respect to Ms. Vasina’s claim, I order Mr. Geronimo to pay her $1,355 for the items she states he has kept that belong to her, except the stroller, which she did not prove she paid for or was entitled to.

Are the parties entitled to a divorce?

[221] I am satisfied that there is no reasonable prospect of reconciliation between the parties, and that neither is attempting to defraud the court. The court has received the parties’ original marriage certificate and clearance certificate. The parties are entitled to a divorce.

Costs

[222] If the parties cannot agree on costs, I will receive written submissions as described below.

Conclusion

[223] In summary, in these reasons I have made the following orders:

a. Ms. Vasina shall have sole decision-making authority for G in matters of education, health care and extra-curricular activities for G. b. Mr. Geronimo shall have sole decision-making authority for G in matters of religion. c. Before making a major decision for G, each party shall meaningfully seek the input of the other and consider it when making a decision in G’s best interest. d. Neither party shall use the scope of their decision-making authority to affect the other’s parenting time with G absent the consent of the other parent. e. The party who has care of G shall make the day to day decisions for her and keep the other apprised in a timely way of important issues that arise respecting G while she is in their care. f. If an emergency decision on a major issue arises while G is in the care of the party who does not have authority to make such decisions, that party shall take all steps to immediately inform the other. If the other cannot be reached, emergency decisions may be made by the parent caring for G at the time. g. Each party shall be entitled to consult independently with and obtain information and documentation directly from all professionals or others involved with G, including her school, medical, dental or other health professionals, counsellors, third party caregivers or church without the consent of the other party. If a consent is required by the third party, each party shall execute it. h. Each party shall ensure that both parents are named on any forms which any professionals involved with G require them to complete, including contact information for both parents on such forms. i. The parties shall cooperate to renew G’s passport and other government documentation. Ms. Vasina will hold the originals of the documentation and shall provide copies to Mr. Geronimo. If Mr. Geronimo requires G’s passport for travel, Ms. Vasina will provide it to him at least seven days in advance of travel and Mr. Geronimo will return it no later than seven days after return from travel. j. G may travel with either of the parties during their regular parenting time or as otherwise agreed between the parties. If the party travelling intends to travel outside of Ontario with G, they shall first obtain the consent of the other party or a court order. k. Mr. Geronimo shall have care of G as follows: i. Every week from Saturday at 5 p.m. to Monday morning drop-off at day care or school; ii. Every week from Wednesday pick up at school or day care until Thursday drop off at school or day care. l. Mr. Geronimo shall drop G off and pick G up at day care rather than school until she no longer attends subsidized day care. m. The following holiday schedule shall override the regular schedule: i. Family Day weekend – In even-numbered years, G shall reside with Ms. Vasina from pick up at day care or school on Friday afternoon until drop off at day care or school on Tuesday morning. In odd-numbered years, G shall reside with Mr. Geronimo from pick up at day care or school on Friday afternoon until drop off at day care or school on Tuesday morning. ii. Easter weekend – In even-numbered years, G shall reside with Ms. Vasina from Thursday pick up at day care or school to Saturday evening at 5 p.m., and with Mr. Geronimo from Saturday evening at 5 p.m. to drop off at day care or school on Tuesday morning. In odd-numbered years the schedule shall reverse. iii. Mother’s Day – G shall reside with Ms. Vasina for the entire weekend from pick up at day care or school on Friday to drop off at day care or school on Monday morning. iv. Victoria Day weekend – In even-numbered years G shall reside with Mr. Geronimo from pick up at day care or school on Friday afternoon until drop off at day care or school on Monday morning. In odd-numbered years G shall reside with Ms. Vasina from pick up at day care or school on Friday afternoon until drop off at day care or school on Monday morning. v. Father’s Day – G shall reside with Mr. Geronimo for the entire weekend, from pick up at day care or school on Friday until drop off at day care or school on Monday morning. vi. Summer vacation – commencing in summer 2019, G shall reside with each parent for one uninterrupted week during her school vacation. Ms. Vasina shall have first choice of her week in even-numbered years and Mr. Geronimo shall have first choice in odd-numbered years. In 2019, Mr. Geronimo shall advise Ms. Vasina of his choice within seven days of receipt of these reasons, and Ms. Vasina shall advise Mr. Geronimo of her chosen week within seven days thereafter. Thereafter, the party with first choice will advise each other of their chosen week by May 1, and the party with second choice will advise the other of their chosen week by May 15. vii. Labour Day weekend – In even-numbered years G shall reside with Ms. Vasina from 5 p.m. on Friday until drop off at day care or school on Tuesday morning. In odd-numbered years, G shall reside with Mr. Geronimo in odd-numbered years from 5 p.m. on Friday until drop off at day care or school on Tuesday morning. viii. Halloween – G shall spend Halloween from 5 p.m. until 9 p.m. with Ms. Vasina in even-numbered years and with Mr. Geronimo in odd-numbered years. ix. Thanksgiving weekend – In odd-numbered years G shall reside with Ms. Vasina from pick up at day care or school on Friday until drop off at day care or school on Tuesday morning. In even-numbered years G shall reside with Mr. Geronimo from pick up at day care or school on Friday until drop off at day care or school on Tuesday morning. x. Christmas Eve, Christmas and Boxing Day – In even-numbered years, G shall reside with Ms. Vasina from Christmas Eve from pick up from day care or school, or from 9 am if there is no day care or school, until noon on Christmas day, and with Mr. Geronimo from noon on Christmas day until day care drop off on December 27, or 9 am on December 27 if there is no day care. In odd-numbered years this schedule shall be reversed. xi. New Years’ Eve and New Years’ Day – in even-numbered years G shall reside with Ms. Vasina from New Years’ Eve from day care pick up, or from 9 am if there is no day care, to 9 am on January 2. In odd-numbered years, G shall reside with Mr. Geronimo from New Years’ Eve from day care pick up, or from 9 am if there is no day care, to 9 am on January 2. xii. Winter holidays – the remainder of the winter holidays shall be shared equally with G being in Ms. Vasina’s care for the first half of winter holidays and in Mr. Geronimo’s care for the second half of winter holidays in even-numbered years. The schedule shall be reversed in odd-numbered years. n. The regular parenting schedule shall apply on the birthdays of the parties and G. The parties shall make arrangements to celebrate their and G’s birthdays during their regular parenting time. o. Mr. Geronimo stands in the place of a parent to R and F. p. Mr. Geronimo’s prospective table support obligation for R, F, and G, based on his income of $95,664.92 annually is $1,365 per month. He shall commence paying this amount on July 1, 2019 and on the first day of every month thereafter. q. Ms. Vasina’s income is imputed at $35,000 for 2019. r. Mr. Geronimo’s income for 2019 is $95,664.92 s. Ms. Vasina shall responsible for 26.8% of G’s s. 7 expenses, while Mr. Geronimo is responsible for 73.2% of G’s s. 7 expenses. t. Mr. Geronimo shall contribute to one extra-curricular activity for G at a time, as a s. 7 expense. Additional s. 7 expenses, including additional extra-curricular activities, shall be agreed upon by the parties. Absent agreement, either party may apply to the court for a determination of whether an expense is properly a s. 7 expense. u. Mr. Geronimo shall not be responsible for any of R or F’s s. 7 expenses. v. For as long as child support is payable, once annually the parties shall exchange the ongoing financial disclosure required by the Federal Child Support Guidelines, SOR/97-175. w. Mr. Geronimo shall pay Ms. Vasina table child support arrears of $22,683.25. x. Mr. Geronimo shall not be responsible for any arrears of s. 7 expenses. y. Ms. Vasina has established an entitlement to compensatory spousal support. The term of spousal support shall be five years from the date of separation. z. Mr. Geronimo’s request for an equitable interest in the parties’ condominium is dismissed. aa. The parties will sign the necessary documents to effect the transfer of one half of the family law value of Mr. Geronimo’s pension, or $36,331.02, into the investment account of Ms. Vasina as she may direct. bb. Mr. Geronimo shall pay Ms. Vasina an equalization payment in the amount of $5,793.91. cc. Mr. Geronimo shall pay $537.25 to Ms. Vasina in occupation rent for the period January-July 2017. dd. Mr. Geronimo’s request for compensation for chattels of his that he states are in Ms. Vasina’s possession is dismissed. ee. Mr. Geronimo shall pay Ms. Vasina $1,355 to compensate her for non-return or loss of her chattels that are or were in his possession. ff. The parties are hereby divorced.

[224] If the parties cannot agree, I will require further submissions on the following issues:

a. What is the quantum, if any, of spousal support owing prospectively to Ms. Vasina? What are spousal support arrears, if any? b. Is life insurance required to secure Mr. Geronimo’s support obligations and if so, in what amount? c. Costs.

[225] The parties shall exchange written submissions on these issues within 28 days of the release of these reasons. Written submissions shall be limited to eight pages, plus any necessary Divorcemate calculations and bills of costs. Parties shall respond to each other’s submissions within 21 days after receipt. Written responding submissions shall be limited to four pages. Submissions may be delivered to my attention at Judges’ Administration, 361 University Avenue.

Schedule A - Calculation of Equalization Payment

Value of Assets Owned on Valuation Day

ASSET	WIFE	HUSBAND
Matrimonial home	$207,500
Household Goods	$5,590	$11,100
Bank accounts, savings, and securities	$1,599.70	$25,668.86
VALUE OF PROPERTY OWNED ON V-DAY	$214,689.70	$36,768.86

Value of Debts and Liabilities on Valuation Day

DEBT	WIFE	HUSBAND
Mortgage	$150,323.33
Loan owed to Facundo Geronimo		$1,600
Credit Cards	$1,765.34	($205.39)
Property Taxes	$320.65
Notional Disposition costs of matrimonial home	$12,500
TOTAL	$164,909.32	$1,394.61

Value of Property, Debts and Liabilities on Date of Marriage

CATEGORY AND DETAILS	WIFE	HUSBAND
Property	$33,082.36	$38,978.95
Debts		($31,890.54)
TOTAL AT DATE OF MARRIAGE	$33,082.36	$7,088.41

Net Family Property Calculation

	WIFE	HUSBAND
Total Value of Property Owned on V-Day	$214,698.70	$36,768.86
• Less Debts and Liabilities owed on V-Day	($164,909.32)	($1,394.61)
• Less Property Owned at Date of Marriage	($33,082.36)	($7,088.41)
TOTAL NET FAMILY PROPERTY	$16,698.02	$28,285.84

Equalization Calculation

Husband pays to wife $5,793.91.

J.T. Akbarali J. Released: June 25, 2019

Reasons for Judgment

COURT FILE NO.: FS-17-415805 DATE: 20190625 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Olga Vasina Applicant – and – Melvyn Geronimo-Oxha Respondent

REASONS FOR JUDGMENT J. T. Akbarali, J. Released: June 25, 2019