COURT FILE NO.: FS-16-239-00

DATE: 2019 11 01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

N. L-C.

Applicant

• and -

J.C.

Respondent

HEARD: February 12, 13, 14, 15 and 16, March 15, November 16 and 21, and December 17, 2018 and March 18, 2019 at Brampton

Emery J.

REASONS FOR JUDGMENT

[1] At the commencement of trial, the applicant mother, N.L.C. (“N”) and the respondent father, J.C. (“J”) required a determination of the following issues:

1. Custody of their child, J.K.J.C. (“JK”) born on […], 2013. The mother N seeks sole custody of JK. The father J seeks shared custody of the child, although he made a claim for custody of JK in his closing submissions. J concedes that JK shall reside primarily with N in any parenting regime the court may order.

2. J seeks generous access to JK. He seeks overnight access each week from the time he picks JK up from school on Wednesday afternoon until he drops JK at school on Friday morning. He seeks access every other weekend from the time he picks JK up from school after on Friday afternoon until he drops JK at school the following Monday morning, or if that day is a holiday, at N’s home.

3. N seeks an order maintaining the status quo giving J access to JK each week from the time he picks the child up from school on Wednesday afternoon until he drops the child off at school on Thursday morning. That status quo limits J’s access to JK on every other weekend from the time he picks JK up from school on Friday afternoon until he delivers the child to N at her home at 6:00 pm the following Sunday evening.

4. Child support payable by J to N, both on an ongoing and a retroactive basis.

5. A determination of section 7 expenses for JK to be paid by each parent. The parties also seek an order setting out the proportionate contribution for each of them to make toward those expenses according to their respective incomes.

6. Equalization, and an unequal division between net family properties claimed by N.

7. An order for Divorce.

[2] The parties dispute the amount of J’s income for the purposes of establishing child support and the section 7 expenses he is to pay. They also dispute the date of separation to use as the valuation date for equalization. The date of separation was July 15, 2015 according to her, and October 11, 2016 according to him.

[3] An order for divorce was granted in the course of the trial on March 19, 2019.

[4] I have referred to the parties and their son throughout these reasons by their initials at the request of J, the father. N has no objection to referring to the individuals involved in this case by their initials, and I have therefore employed those identifiers to accomodate the parties.

Background Facts

[5] N and J first met in Jamaica during the summer of 2001 where both were working at Scotiabank. J was working at the bank as a teller. N was working there as a summer intern. After an on again, off again relationship over the next few years, they married in Jamaica on […], 2008. N returned to Canada shortly thereafter. J immigrated to Canada to join her in August 2010.

[6] JK was born on […], 2013. He was diagnosed as a baby with congenital hyperthyroidism.

[7] The parties purchased a property in Jamaica during the marriage. While they own this property jointly, there is a mortgage registered against title in J’s name alone. This mortgage was granted as security for two loans taken out in J’s name, one to purchase the land, and another to build a house on it. According to the evidence, that property was under foreclosure at the time of trial because J has defaulted under the mortgage. The property in Jamaica has been listed for sale by the mortgagee.

[8] The parties also purchased the matrimonial home at B[…] Circle in Brampton during the marriage. In October 2016, the matrimonial home had a market value of approximately $575,000, and was encumbered by one charge granted by both parties. The outstanding balance on the charge registered against title to B[…] Circle at the time was approximately $314,000. Regardless of which valuation date is used, each of the parties was a joint owner of the matrimonial home, and the charge against the matrimonial home was a joint debt.

[9] N moved out of the matrimonial home on October 11, 2016.

[10] On January 8, 2017, J purchased N’s interest in B[…] Circle by paying her $131,000. He financed this purchase by refinancing the property.

[11] J subsequently sold the house at B[…] Circle. He has moved at least twice since completing the sale. As of the end of the trial, he was living in temporary lodgings while looking for a new residence.

[12] Each of the parties filed a Form 13.1 financial statement in the course of attending case conferences throughout this proceeding. Prior to trial, each of the parties prepared an updated Form 13B net family property statement in January 2018. The evidence of each party at trial essentially adopted the information set out in their respective financial statements.

Analysis

[13] There is nothing of greater importance in a family case than the arrangements for the care of a child. It is for that reason that the custody and access issues should be decided first.

Parenting for JK

[14] Since the date of separation, JK has resided primarily with his mother. In November 2016, Justice Barnes granted a temporary order confirming this primary residence, and setting out the terms of access for J’s parenting time on every other weekend, and on Tuesday evening each week. Although J has been exercising access to JK under this order, the parties modified this access to move the weekly access for J from Tuesday to Wednesday afternoon from the time he picks JK up at school, until he returns him to school on Thursday morning.

Position of each Parent

[15] N takes the position that the status quo for parenting JK that has developed over the last two years should continue. With J conceding that JK shall reside primarily with his mother, N submits that she should be awarded sole custody, with the terms of access or parenting time that J currently exercises each Wednesday night and every other weekend from Friday night to Sunday night incorporated into a final order. An order of this nature will vest the ultimate and final decision making authority for JK with her.

[16] J took the position throughout the trial that the court should award joint custody or shared parenting for JK to give him equal decision making authority. On the final day of the trial, he changed his position to claim sole custody of JK. Either way, J seeks an order giving him greater parenting time with JK to expand access to include Thursday night as well, and to extend his access every other weekend to the time he would return JK to school on Monday morning. J argues that an order with these terms will provide JK with the increased time with his father that he says JK requires.

[17] Both N and J subscribe and adhere to the Christian faith. At one time, they attended the Toronto West location of the Seventh Day Adventist Church. Now N attends the Toronto West location of the church, while J attends the location of the church in Brampton.

Applicable principles

[18] As N and J were married, the provisions of the Divorce Act, R.S.C. 1985 c.3 apply to the relations between them. Section 16 of the current Divorce Act specifically applies with respect to any order this court is asked to make over the custody of, access to and the parenting for JK.

[19] Where parents are competing to have the court order sole custody of a child to one of them, Section 16(8) of the Divorce Act states in mandatory language that the court shall take into consideration only the best interests of the child. When determining those best interests, the court shall take into account the conditions, means, needs and other circumstances of the child.

[20] The Divorce Act recognizes both parents should each have as much contact with the child as is consistent with his or her best interests. This means that the best interests of the child are superior to the desires of the parents. Section 16(10) of the Divorce Act states as follows:

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

[21] If there are other factors that indicate that such maximum contact would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3.

[22] This mandate, often known as the “maximum contact principle” is an important consideration in this case.

[23] In all matters relating to the custody of and access to a child, it is therefore the child’s best interest that is the only consideration for the court. A child’s best interests must be ascertained from the perspective of the child rather than the parents. It has been said that the wishes of the parents and their rights do not play a role in the determination of custody except to the extent that those considerations are necessary to ensure the best interests of the child: Gordon v. Goertz (1996), 1996 CanLII 191 (SCC), 19 RFL (4^th) 177 (S.C.C.).

[24] The Children’s Law Reform Act is provincial legislation that also guides the courts in making determinations of custody and access with respect to a child. In particular, Section 24 provides guiding principles applicable to this case. Section 24(2) speaks to the needs and circumstances of the child to determine the best interests of the child in the following terms:

24(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 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) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

[25] The rights and obligations of partenting are also referred to as “incidents of custody” in the Children’s Law Reform Act. These incidents include the right to physical care and control of the child, to determine the child’s residence, to discipline the child, and to make decisions about he child’s education, religion, medical care and general health and activities.

[26] Both the Divorce Act and the Children’s Law Reform Act seek to discourage the use of past conduct on the part of any person when making a decision about the parenting of a child unless that conduct is relevant to the ability of that person to act as a parent. Paragraph 16(9) of the Divorce Act reads as follows:

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

[27] Similarly, Section 24(3) of the Children’s Law Reform Act states that:

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1)

[28] Custody has been described by the courts in numerous ways. In Izyuk v. Langley, 2015 ONSC 2409, Justice Chappel neatly described custody as a “bundle of rights and obligations”. At paragraph 28, Justice Chappel discusses the nature of the decision-making authority that goes with custody:

An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent to interfere in carrying out these rights and responsibilities (Kruger v. Kruger (1979), 1979 CanLII 1663 (ON CA), 11 R.F.L. (2d) 52 (Ont. C.A.)). The term “joint custody” is used to describe situations where both parents are given full decision-making authority and responsibility in all areas respecting the child. Section 20(3) of the Act provides that where more than one person is entitled to custody of a child, “any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.”

[29] In Khairzad v. McFarlane, 2015 ONSC 7148, Justice Chappel expanded on the distinction between custodial regimes. I adopt the modern view expressed by Justice Chappel in Khairzad of what custody of and access to a child means in real life terms:

[21] The applicable legislation in this case in regard to the issues of custody, residence and access is the Children’s Law Reform Act (R.S.O. 1990, C. C-12, as amended) (“the Act”). Section 20 of the Act stipulates that except as otherwise provided for in Part III, N and mother of a child are equally entitled to custody of the child. Section 20(2) provides that the entitlement to “custody” encompasses the rights and responsibilities of a parent in respect of the person of the child. Custody has been described as a “bundle of rights and obligations,” referred to as “incidents of custody” in the Act, which includes the right to physical care and control of the child, to determine the child’s residence, to discipline the child, and to make decisions about the child’s education, religion, medical care and general health and activities (Young v. Young (1993),1993 CanLII 34 (SCC), 49 R.F.L. (3d) 117 (S.C.C.); Chou v. Chou, 2005 CanLII 11195 (ON SC),[2005] O.J. No. 1374 (S.C.J.); Harsant v. Portnoi, 1990 CanLII 6703 (ON SC), [1990] O.J. No. 1144, 74 O.R. (2d) 33 (H.C.J.)).

[22] An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent to interfere in carrying out these rights and responsibilities (Kruger v. Kruger (1979), 1979 CanLII 1663 (ON CA), 11 R.F.L. (2d) 52 (Ont. C.A.)). The term “joint custody” is used to describe situations where both parents are given full decision-making authority and responsibility in all areas respecting the child. Section 20(3) of the Act provides that where more than one person is entitled to custody of a child, “any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.”

[23] The entitlement to “access” is defined in section 20(5) of the Act as including “the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.”

[30] With these principles in mind, the court is able to determine the best interests of the child by applying the needs and circumstances set out in s. 24(2) of the Children’s Law Reform Act. This enables the court to identify which parent is able to meet the condition, needs, means and circumstances of a child required by section 16(8) of the Divorce Act.

Custody

[31] N and J have now each made a claim for sole custody of JK. It seems that J makes his claim for custody in terms of exercising physical care and control of JK as an alternative to the shared decision making authority he seeks over issues involving JK’s health, education, and religious instruction. I will therefore first consider with which parent JK will primarily reside. I will then turn to the issue of the claims J has made for joint custody, which relates to whether both parents or which one of them shall have final decision making authority.

[32] JK requires structure and stability in his life. These are necessary components for parenting a child in his formative years as they provide guidance and security to the child as he takes his next steps in life.

[33] Each case turns on its own unique set of facts. However, the ultimate issue for the court to determine is what order meets the best interests of the child in the particular circumstances of the case.

[34] In this case, the challenge before this court is to find the balance between JK’s best interests if sole custody is granted to N or to J, and to define the terms of access the other parent may exercise that would be in JK’s best interests. This requires a careful consideration of the decision making arrangements that can respond quickly to JK’s needs and circumstances, without delay or provocation.

a. Love, Affection and Emotional Ties

[35] N has provided compelling evidence that there is a strong bond between herself and JK. The love, affection and emotional ties between them as mother and son are irrefutable. N has also provided evidence that JK enjoys emotional bonds with members of her side of the family. These family members include his maternal grandmother in particular who has been a consistant presence in his life. Those family members also include his maternal aunt and cousins.

[36] J has provided evidence of a strong bond with JK that reflects the love, affection and emotional ties with himself as JK’s father. However, little if any evidence was given about whether that bond exists between J’s parents and JK, or between JK and other members of the family on J’s side.

[37] It is significant to note from the outset that neither party called their own parents or any sibling as witnesses.

b. Stable Environment

[38] JK was diagnosed with congential hypothyroidism at birth. He was also diagnosed with asthma at age 2. His is prone to having febrile seizures.

[39] N gave evidence that she has been involved fully with JK’s medical care since he was born.

[40] J has also provided evidence that he has involved himself in JK’s medical care. He was present at JK’s birth, and has taken time off work to take N and JK to the specialist and other medical appointments. This involvement has decreased over time, both before and after separation, likely due to J’s increased participation in political events.

[41] The evidence is clear and consistent that N has provided a stable home environment for JK throughout his life. There is no dispute that N is able and willing to provide JK with the opportunities to enjoy life as a young person within the family, and in his greater social and recreational circle.

[42] N has provided JK with the necessaries of life and is vigilant about any risk to exposing him to allergens. She is also careful about any outside agent that could trigger his asthma.

[43] By comparison, J gave little evidence about the stability of what JK could expect if he was to live with him. There was little evidence about the family dynamic inside the home, and little evidence about JK’s life and where he would go to school if he lived primarily with his father.

c. Guidance and Education

[44] N testified that she has enrolled JK in various sports. JK is particulary interested in swimming and in playing soccer.

[45] N testified that she intends to remain fully informed around supportive to JK’s education. He entered grade one this September. N also testified that JK is interested in reading. She has registerd JK at the library to check out books, and to enjoy Lego mania events. During the summer of 2018, N enrolled JK in vacation Bible School, which he enjoys immensely. Both N and J attended JK’s graduation from this program.

[46] The court also heard about JK’s love for nature from both N and J.

[47] J gave little evidence about the details of providing guidance to JK as a parent. JK generally plays when he is with his father on access weekends, and J takes him swimming. JK can only enjoy with swimming with J as N has a phobia about water.

[48] J has not provided any child support to N for JK’s benefit since he began to live separate and apart from N in October 2016. He was not in a position to provide evidence of his ability to provide JK with “guidance and education,” the “necessaries of life” and to address any special needs JK may have since that time.

[49] N and J agreed to have JK attend the private Christian school where he had attended junior kindergarten. Regrettably, J has fallen behind on paying his one half share of the school fees for JK’s continued attendance. The parties had intended to enroll JK in this private school for his primary school years. However, this continued attendance is dependant upon J resuming his monthly contribution to school fees, which are currently $600 a month.

d. Parenting

[50] N testified that she communicates openly and often with JK’s teachers. She attends parent-teacher meetings on a regular basis. J has missed certain parent teacher meetings, stating he did not know about them.

[51] I am not downplaying the occasion when J attended at a school meeting for which N was running late. J is to be commended for insisting that N participate as the meeting was in progress by telephone.

[52] N testified that if sole custody was awarded to her, JK would continue to live with her in the home she has made for them. There already exists a stable home environment where JK would continue to live and thrive. This is the status quo that has emerged since Barnes J. made the temporary order for JK’s parenting arrangements in 2016.

[53] J has provided no evidence as to how he would encourage JK with his interests in music, reading or sports.

[54] J concentrated much of his evidence on N’s conduct with respect to him. He provided little or no evidence of a plan he would implement and follow if granted sole custody of JK for his care and upbringing. J did not provide any details about his plan to enroll JK in a school, or how he would transport JK between his home or any school he would arrange for JK to attend. He provided no plan for acquiring his own apartment or arranging for adequate and proper living space to accommodate JK as a 6 year-old boy who requires privacy and respect.

e. Permanence and Stability

[55] N testified that her role as JK’s mother follows the profile of a typical parent. She is a friend to JK while sharing his interests. N is a guide to JK at times when she must make important decisions relation to JK’s medical care, school and education. However, she also testified that she explains things about religion and faith to JK and takes her role seriously when it comes to providing structure to JK’s life as a parent.

[56] The incidents of custody include the physical care and control of the child, the right to discipline the child as well as the ability to make decisions about the childs education, religion, medical care and general activites: Khairzad and section 20 of the Children’s Law Reform Act. In order to protect his role as JK’s father on a regular basis, J has made a claim that maximizes his rights at the expense of JK’s best interests.

[57] I am therefore awarding physical care and control of JK to N. Under any custody or access arrangement, JK shall primarily reside with N.

Joint Parenting or Sole Custody

[58] The court must carefully consider the past and current parenting roles of each parent and the dynamics of the relationship between the parties to understand their ability to communicate, rather than to simply rely on allegations of conflict by one or both of them: Ladisa v. Ladisa, 2005 CanLII 1627 (Ont. C.A.). The court must determine “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interest of the child can be ensured on an ongoing basis”: Warcop v. Warcop, 2009 CanLII 6423 (ONSC).

[59] J has made a claim in his application for joint custody of JK as an alternative to his claim for sole custody. N and J do not and cannot communicate with each other when it comes to JK. For all of the reasons explained by the Court of Appeal in Kaplanis v. Kaplanis 2005 CanLII 1625 (ON CA), [2005] O.J. 275, the ability to communicate between parents is vital if the court is to make an order awarding joint custody of a child. It is not enough for one or both parties to have the intention to improve the communications between them for the parenting of a child.

[60] In support of his claim for joint custody, J relies on the decisions of this court in Nurmi v. Nurmi, 1988 CanLII 4860 and Lane v. Lane, 2002 CanLII 2794. Each of these decisions pre-date the Kaplanis decision from the Court of Appeal in terms of requiring the ability of the parents to communicate and to cooperate before an order awarding joint custody of a child is considered. Yet each of these cases contain the foundational principles that resonate in the later authorities.

[61] The trial judge in each Nurmi and in Lane made their decisions based on the best interests of the child in that case, having considered the relationship between the parents to act in the child’s best interests.

[62] J argues the facts in Nurmi are similar to the facts in this case. In Nurmi, the respondent father claimed joint custody of a 5 year old boy. In Nurmi, the applicant mother could not provide the court with a reason why she should control the ultimate decision making authority over the choild to the exclusion of the father. The court observed that the parents had cooperated up to that point on parenting, and could cooperate in the future to parent their son. Wallace J. was particularly impressed with the ability of the parties to set aside their differences to communicate frequently and effectively with each other about the care of the child, leading to her conclusion that joint custody was in the best interests of the child.

[63] In Lane, Fedak J. was guided by the principles set out in Nurmi and other decisions of the court to determine the parenting regime that would be in the best interests of the child. The court found that the respondent father responded effectively when needed by the child. There were no findings of negative conduct or conduct directed to controlling the applicant. Fedak J. found on the evidence that allowing both parents to share parenting would serve the best interests of the child in that case, and made a joint custody order.

[64] In my view, the facts before this court are dissimilar to those in either Nurmi or Lane. I find that J has a strong personality, and that he can at times be rigid. N testified that J’s conduct is often directed at controlling her and the arrangements that have been made around parenting JK. There is enough evidence that N gave at trial to find on the balance of probabilities that she has encountered resistance from J in the consulting process when making decisions for JK’s well being. Where N and J have given contradictory evidence on the ability to communicate, cooperate or to co-parent, I prefer the evidence that N has given.

[65] I therefore conclude that J’s intention to obtain joint decision making authority for JK will not be in JK’s best interests. I need only refer to the evidence of the demands J makes about when he must return JK after his birthday each year, and the trouble between the parties to arrange day care for him. N and J are unable to communicate, let alone frequently or effectively. I am concerned that giving them joint responsibility to make the very real, serious and continually arising decisions in JK’s life will produce opportunities for conflict and strife, not compromise and progress.

[66] N has demonstrated an impressive ability to parent JK. She has developed a plan she has built a life around to provide for all of JK’s needs and circumstances as his primary caregiver.

[67] JK needs both his mother and father in his life. Currently, his needs and circumstances are met by living with N, a fact recognized by J when he conceded JK should live primarily with her.

[68] J provided evidence of JK’s bond with him as the father. This evidence was revealing, but not in the way J intended. The photograph album introduced into evidence shows various pictures of family outings, as well as pictures of J and JK together when participating in family activities. These pictures depicted a family at play. They did not provide any probative evidence of J’s ability to parent JK in his home, or at times when acting responsibly was necessary. The introduction of these photographs as the most graphic example J has to show the bonding between father and son suggests that there is little, if any, other tangible evidence to illustrate the closeness of their relationship.

[69] J also provided live footage, recorded on his cell phone from the driver’s seat of his car, of JK strapped into the back seat when J was driving JK back to N’s house after an access visit. There was no context provided for this footage. It showed nothing but a young boy upset by something his father had told him. I did not find this live footage of any assistance in deciding the parenting issue. In particular, I did not find it probative of how or why more access time would benefit JK.

[70] I must make the order regarding the parenting arrangement for JK on an objective basis, and on the evidence given. I find that N has provided convincing evidence that she has the parenting plan, skills and environment to be the primary caregiver to JK. J did not provide any parenting plan at all. The evidence he provided this court of his parenting skills will benefit JK just as much when J is exercising access to JK as he would if parenting was shared. I also have concerns that J’s living arrangements do not provide him with the ability at this time to offer a suitable environment for custody or expanded access.

[71] I heard evidence that leads me to conclude that expanding J’s access with JK would not be in JK’s best interests at this time. This conclusion is based on evidence that J is often busy with his own aspirations and pursuits. Having JK overnight on Thursday every week and every other Sunday night might require more time than he can share, as access time whith JK under the current schedule has proven to be difficult for J to find. One such example occurred on Thursday morning, January 3, 2018 when N arrived at J’s home to pick up JK after an overnight on Wednesday with his father.

[72] N gave evidence that when she arrived that morning at 7 am, JK was placed on the patio in the dark “by an outstretched arm.” This arm belonged to an adult female who refused to identify herself. When N asked this woman if JK had been given inhalers for his asthma that morning, she stated he had not, and that she was not aware he needed them.

[73] N further provided evidence that JK’s paediatrician had instructed N and J to administer JK’s puffers each day during the winter.

[74] From this example, I make two findings of fact. One is that J is open to leaving JK with another individual at his home during an access visit when he is not there himself. The second is that JK’s health issues might not be considered closely enough while in his father’s extended care.

[75] J has encountered difficulty with his employment over the last two years. Some of that difficulty has arisen because of the changing economy, and some because of his interest running for public office on at least two occasions, without success. As recently as the last date at trial in which he was making submissions, J was without a permanent residence in which to provide a sound home environment for JK on more than an access basis. I sincerely hope that circumstances have improved since that time.

[76] JK has grown accustomed to living primarily with his mother and the access schedule that has now been followed for close to two years. I find that this access schedule should continue the status quo that has been established. This arrangement provides the stability that JK needs because it ensures maximum contact with both his parents on a regular and consistent basis.

[77] In my view, J is not so much seeking sole custody to request that JK’s primary residence be changed, but rather to preserve his decision making ability for JK’s health, education and religious instruction. His objective is to preserve as much access to JK as possible each month to ensure this role. By maximizing his claim, he hopes to preserve his parental rights from further erosion.

[78] Joint custody is clearly not appropriate to order in this case. J has demonstrated an inability to cooperate with N in raising JK as a co-parent. The necessary element of the ability or willingness of the parties to communicate cooperatively that the authorities require for the court to consider a joint custody order are conspicuously absent.

[79] There is no reason why N should not be trusted to make the right deicion for JK in those areas. N also requires the flexibility to make quick decisions for JK’s benefit without provocation or delay in matters relating to JK’s medical issues. To impose the joint decision making requirement required in shared parenting arrangements would be a disservice to JK, and cause hardship to both N and J.

[80] I therefore award sole custody of JK to N, with the same access to J that has been in place for the last two years. As the access parent, J is entitled to make inquires and to be given information or to the health, education and welfare of JK under section 20(3) of the Children’s Law Reform Act to keep himself informed.

Date of Separation

[81] The appropriate date of separation is the next issue to decide. This date is relevant to the calculation of retroactive child support, as well as the valuation date for property owned by either party for equalization purposes.

[82] The concept of a valuation date is central to any determination of ownership or in the calculation of net-family property under the Family Law Act. The definition of “valuation date” under section 4(1) can be the earliest date if it can be proven the spouses separated with no reasonable prospect that they will resume cohabitation, or October 11, 2016 at the latest, being the date this application was commenced.

Indicators of separation

[83] In Greaves v. Greaves, 2004 CanLII 25489 (SCJ), Mesbur, J. was guided by the criteria defined by Weiler, J. (as she then was) in Oswell v. Oswell (1990), 74 O.R. (2^nd) (15) (H.C.J.), affirmed at (1992), 12 O. R. (3^rd) (95) (Ont. C. A.) to determine the date of separation. Mesbur, J. framed this criteria in paragraph 34 of Greaves as follows:

34. It is true that every marriage is different. Parties can live apart under the same roof, and can still cohabit even if they live in separate locations. The court must look at various objective factors to determine if the parties are living apart or not. Oswell v. Oswell [5] perhaps best sets out the criteria for the court to consider. These include the following:

(a) there must be a physical separation… Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart;

(b) there must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship;

(c) the absence of sexual relations is not conclusive but is a factor to be considered;

(d) other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern.

(e) Although the performance of household tasks is also a factor…weight should be given to those matters which are peculiar to the husband and wife relationship outlined above.

(f) The court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent… [a]n additional consideration…in determining the true intent of a spouse as opposed to that spouse’s stated intentions is the method in which the spouse has filed income tax returns.

[84] In Greaves, Mesbur, J. did not find the presence or occurrence of a consistent sexual relationship to be determinative when she explained that:

37. I accept the evidence of Mr. Greaves’ witnesses confirming the objective perception that this couple was separated. They did not socialize as a couple. They did not routinely eat together as a family. They did not attend the same church. Although they had a consistent sexual relationship, I cannot find this determinative, any more than the absence of a sexual relationship would be.

[85] Heeney, J. in Tokaji v. Tokaji, [2016] O.J. No. 6547 relied on the quotation above taken from Greaves when called upon to consider several aspects of the lives of the parties to determine if their cohabitation was continual. He considered the absence or presence of ongoing sexual relations to be indicative but not conclusive. He also considered all aspects of their life with respect to purchasing a home an moving in together and expressions of intent to make the marriage work. Heeney J. concluded that there remained a “reasonable prospect of presumption of cohabitation” until the husband in that case announced that he would not participate in marriage counselling. Heeney, J. based his finding that the parties had finally separated upon the happening of that event.

Evidence

[86] N and J began to sleep in separate bedrooms within the matrimonial home in July 2015. J admitted under cross examination that the last intimate encounter they had with each other was closer to July 2015 than October 11, 2016. It is clear from the authorities that this is not conclusive, but an important factor to consider on the totality of the evidence to find if and when the parties separated.

[87] I find on the evidence that the parties presented themselves as a family to their church community after July 15, 2015. They engaged in family activities and presented themselves as parents cohabiting with each other and raising J.K. together after that date.

[88] The parties shared cooking and shopping activities J testified that at times they shared the same bedroom. Most telling, they attended counselling with each other after July 15, 2015.

[89] It was not until N insisted that J participate in counselling with her or else, she would file for divorce was an ultimatum given. When J would not agree with N’s demand, the prospect of separation became a reality and J moved out. The cessation of N’s participation in the marriage, like the husband’s announcement in Tokaji, was the manifestation of her intention to live separate and apart from J without any reasonable prospect of reconciliation.

Conclusion

[90] I therefore find as a fact that the parties separated on October 11, 2016 for the purposes of this case.

Child Support

[91] J was working as a bank teller at Scotiabank in Jamaica when he met N in 2001. He built a successful career at Scotiabank from 2001 to 2010.

[92] J remained employed in the banking industry until at least 2016. At the time he filed his Answer, J was employed at TD Canada Trust as a financial advisor where he earned an annual salary of approximately $50,000.

[93] Since separation, J has quit his job at TD Canada Trust. Prior to holding that position, he was employed briefly at CIBC, earning $38,000 a year. He also found part time work as an Uber driver to supplement his income in 2016. On February 8, 2018, he was offered a position by Amazon as an FC Associate, with an hourly wage of $14.40 an hour, plus benefits.

[94] I find that J resigned from his full time position at TD Canada Trust so that he was both able and available to take part in political functions and to make public appearances in the spring of 2018. These activities were important to him to further his chances for a nomination to become a candidate for the Progressive Conservative Party of Ontario. When he failed to win that nomination, he subsequently stood as a candidate to Brampton City Council in the municipal elections that followed in November.

[95] This behaviour was consistent with J’s growing interest in politics and his aspirations to public life. J gave evidence that if he had succeeded in obtaining the nomination and then in being elected to the legislature, he would have earned $140,000 a year, and that he expected to earn approximately $110,000 a year as a city councillor. Either position would have paid him a salary that was double what he could earn at his previous positions at a bank.

[96] What income J is capable of earning is an issue relevant for the determination of the table amount J should pay for child support. N asks this court to find that J has been intentionally underemployed since separation, and to impute a greater income to him for child support purposes.

[97] A court may impute a greater income to a parent for child support purposes under s. 19(1)(a) of the (Federal) Child Support Guidelines. In Drygala v. Pauli 2002 CanLII 41868 (ON CA), [2002] O.J. 3731 (Ont. C.A.), the court defined three questions for the trial judge to frame this inquiry:

1. Is the parent intentionally under-employed or unemployed?

2. If so, is the under-employment or unemployment required by virtue of his (or her) reasonable educational needs; or

3. If not, what income is appropriately imputed in the circumstances?

[98] For a parent to be intentionally underemployed, that status must be voluntarily assumed. The Court in Drygala held that the employment history of a parent is a logical starting point to determine the capability of that parent to earn an income along with a variety of other factors to impute an appropriate income.

[99] J had a steady income from his employment within the banking industry since 2001, earning $50,000 in 2016. He earned income through operating a call centre in Jamaica known as Speedy Connections, although little evidence was given about the amount of that income. He also earned income from self-employment through his own transporation company, 2282335 Ontario Inc. that he operated as Double Line Transport in 2016 and 2017, but no income from that source was disclosed. He ceased operating Double Line Transport in 2017 when he sold his truck.

[100] J has demonstrated that he has the skill set and experience to find work in a bank or elsewhere in the financial sector that would pay him a salary of at least $50,000 a year. J also testified at trial that he was planning on writing the examinations to obtain a license to be a mortgage broker. There was no evidence before the court that he would encounter any impediment to obtain that license, or that he could expect that working as a mortgage broker would pay less than working at a bank.

[101] J made a conscious choice to seek public office rather than to continue working, or to find other employment in, the financial industry after 2016. He was therefore intentionally underemployed within the meaning of section 19 (1) (a) of the Child Support Guidelines. I find that he should have an imputed income of at least $50,000 a year on average for 2017 2018 and 2019. Based on that income, I order J to pay child support to N in the amount of $460 a month, commencing November 1, 2019.

[102] I also order J to pay retroactive child support in the amount of $460 a month since November 1, 2016. J has not paid child support for J.K. to N over the three years since the date of separation. However, I also find that J is entitled to certain credits adding upto $4,874.64 against the amount for retroactive child support that would otherwise be owing. Those credits are as follows:

(a) $130.34 from Double Line Transport on October 20, 2016

(b) $600 from Double Line Transport on November 4, 2016

(c) $342 from Double Line Transport on November 11, 2016

(d) $987 on November 21, 2016

(e) $658 on December 6, 2016

(f) $153.30 from Double Line Transport on July 4, 2017

(g) $400 from Double Line Transport on August 1, 2017

(h) $300 from Double Line Transport on September 13, 2017

(i) $350 from Double Line Transport on October 13, 2017

(j) $300 from Double Line Transport on November 12, 2017

(k) $312 from Double Line Transport on December 17, 2017

(l) $342 to purchase clothing for J.K.

[103] There is also evidence that J transferred funds directly to N for dates prior to October 11, 2016. These transfers include funds paid as an e-transfer from Double Line Transport in the amount of $447 on October 10, 2016. However, as these payments precede the date of separation, they do not count as credits towards child support payable by J.

[104] J is therefore entitled to a total credit of $4,875 (rounded) against the gross amount in arrears of $17,020, for a total balance owing of $12,145 for retroactive child support.

Section 7 Expenses

[105] N has given evidence that she earns $50,050 a year from her full time position as a program coordinator at the Centre for Education and Training in Mississauga, Ontario. This income is relevant to the computation of her proportionate contribution according to income towards section 7 expenses for J.K. I do not attribute extra income to N for the occasional cakes she bakes and sells any more than I attribute J’s extra income when he drives occasionally for Uber.

[106] Since October 11, 2016, the incomes of J and N, real or imputed, have been approximately equal. Therefore, the section 7 expenses they are to contribute towards will be shared on a 50/50 basis.

[107] The question of what are extraordinary activities to be shared by the parents under section 7 is another matter. Section 7 expenses are defined as expenses that would not otherwise be covered by the parent receiving child support or that fall within section 7(1.1) of the Federal Child Support Guidelines. Section 7(1.1)(a) and (b) read as follows:

(1.1) For the purposes of clauses (1) (d) and (f),

“extraordinary expenses” means

(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or

(b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,

(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child,

(iv) the overall cost of the programs and activities, and

(v) any other similar factors that the court considers relevant. O. Reg. 102/06, s. 1.

[108] The concepts provided in section 7(1.1) was discussed in Boisvert v. Boisvert, 2007 CanLII 24073 (ON SC), [2007] O.J. No. 2555 (S.C.J.) at para. 48 as follows:

48. Counsel for Mr. Boisvert raises the prospect that section 7(1.1) of the Guidelines would impact upon any amount due with respect to these extra-curricular expenses which he characterizes as “ordinary expenses”. Section 7(1.1)(a) appears to exclude expenses that would reasonably be expected to be covered by a combination of the custodial parent’s income and the Guideline amount received by that parent. Section 7(1.1)(b)(i) provides that if s. 7(1.1)(a) is not applicable, the court could still exclude such an expense if that expense was disproportionate and not economically justifiable given the income of and support received by the custodial parent. This section includes as factors for consideration the nature and number of extra-curricular activities, their cost, and any other factors considered relevant by the court. The overall thrust of section 7(1.1)(b) appears to be to exclude activities which would be beyond the lifestyle and economic means of the children and their parents. That cannot be said about a claim for extra-curricular activities such as Beavers, gymnastics, sport ball and day camp. These are all extra-curricular activities which are age appropriate and are modest means of developing the socialization and athleticism of young children.

[109] In Boisvert, the Court found that Beavers, gymnastics, sport ball and day camp were all activites that qualified as section 7 expenses.

[110] In Dalglish v. Pfannenstiel, [1999] O.J. No. 3976, Aston J. found that the cost of school busing to transport the child to attend a special school outside of the school district boundaries where he lived qualified as one instance of additional support under section 7 of the Child Support Guidelines. Other costs to enroll the child in summer camp or in a theater group did not meet the test of being “extraordinary” under section 7. The trial judge found them to be “reasonably necessary” and therefore declined to order the father to contribute to those expenses.

[111] It would appear that J has paid most of the fees for J.K.’s swimming lessons since January 1, 2017. He has paid $1,290.75 for the fourteen months between January 1, 2017 and March 11, 2018, when he stopped making those payments. The parties shall split this cost equally, with N making a contribution of $776 to J for her share of this expense.

[112] Similarly, N has paid, and is paying the following expenses for JK:

(a) Camp ($500)

(b) Soccer

(c) Private school ($600 per month)

(d) Daycare before and after school ($70 per month)

(e) Warm meal plan (one day a week)

(f) Health insurance ($140 per month)

[113] These expenses are extraordinary expenses that each J and N shall share equally, effective October 11, 2016. J shall reimburse N for one half of those expenses that he has not paid since the date of separation.

[114] J has told the Court he takes JK swimming and that JK thrives when he is swimming with him. The cost for swimming shall be borne by J, effective immediately. N’s share of the swimming costs will be reimbursed to J as a credit towards those amounts that J owes to N for the section 7 expenses she covers and has covered for JK.

Equalization

[115] The determination of this Court that October 11, 2016 was the date of separation is also significant for the issues of equalization and post separation adjustments. J preferred this later date because of property registered in his name in July 2015, specifically the Mercedes Benz which had a value of $15,000 to $17,000, that he did not own after September 2015. The date of separation is also relevant to the distribution of debts between the parties in October 2016.

[116] N and J had no property or debts to speak of as of the date of marriage. The determination of any equalization payment between them largely hinges on the debts claimed by J, as the chief assets of the matrimonial home and the property in Jamaica were held jointly. Even though J purchased N’s interest in the matrimonial home after the date of separation, this subsequent transaction has no bearing on the calculation net family property as of the valuation date under section 5 of the Family Law Act.

a. Property on Date of Separation

[117] The parties agree that the matrimonial home at B[…] Circle in Brampton had a fair market value of $575,000 on October 11, 2016. Therefore, the interest in the matrimonial home held by each of them has a value of $287,500.

[118] The property in Jamaica is more problematic. Early in the marriage, the parties decided to purchase a lot on which to build a house in Jamaica. They initially granted two mortgages against the property, one to acquire the land and the second to finance the construction of the home. The lot with house was completed during the marriage. It has never really carried itself financially. It has been rented at times by tenants, and occupied at others by J’s father.

[119] The parties hold title to the property in Jamaica jointly. Each of them therefore holds a one half interest in the property, and each owns one half of its value.

[120] J filed a valuation report by Romans and Company Realty Limited, a valuation surveyor and real estate dealer in Montego Bay, Jamaica to prove the value of the Jamaican property. That valuation report is dated March 9, 2016 and it is the only evidence of the appraised value for the property given at trial. I accept the fair value of the Jamaican property given in that report as it was completed during the same calendar year as the date of separation.

[121] The valuation report shows a market value of the Jamaican property at J$9,700,000 - $10,200,000 dollars as of March 9, 2016. I take judicial notice that the conversion rate between Jamaican dollars and Canadian dollars is approximately 102:1. Therefore, the appraised value of the Jamaican property, when converted into Canadian dollars, would be between $95,098 and $100,000 in 2016.

[122] J filed an updated financial statement dated January 11, 2018 prior to trial as required by the Family Law Rules. In this financial statement, he attributes $50,382 to each N and himself for the Jamaican property as of October 12, 2016. Based on the value given to the respective interests of the parties in the Jamaican property according to J’s financial statement and the valuation report, I make a finding that $98,000 would be a fair assessment of the value of the property in Jamaica on the date of separation. I therefore attribute $49,000 of that value to each J and N for their respective interests.

[123] There is an email proving that J purchased a 2006 Mazda 3 on February 20, 2016 at auction. He owned that car on the date of separation and it has a value of $1,800.

[124] J also owned a 2010 Ford Focus in 2016. A value of $4,500 is given to J as of the date of separation in his Net Family Property Statement. There was no evidence given by any witness to the contrary. I therefore accept that J owned tis car and that the car had this value to include in J’s property on the valuation date.

b) Debts and Liabilities on Date of Separation

[125] Each of the parties shared a joint debt to CMLS Financial in the amount $314,000 against the matrimonial home on the valuation date. Therefore, $157,000 will be deducted from the net family property of each of them.

[126] J also had significant consumer debt owing on a number of credit cards, and a $14,000 loan to Principis Capital. He testified that he borrowed funds from Principis Capital to payout two small mortgages against the Jamaican property. N has not contested the existence or value of these debts.

[127] J claims a deduction of $38,000 for the balance outstanding under the two outstanding mortgages against the property in Jamaica. I conclude from the letters and emails from Bank of Nova Scotia that he alone applied for these mortgages. It would therefore appear that the debts secured by the mortgages against the property in Jamaica are in the name of J only.

[128] J also claims a debt owing to his corporation, Double Line Transport in the amount $41,254.41. Double Line Transport his business name of 2282335 Ontario Inc. incorporated by J. He testified at trial that Double Line Transport made many of the payments under the mortgages against the Jamaican property. J now takes the position that he owes that money back to the company as a shareholder’s loan. Although he is the only shareholder in Double Line Transport, he states that there is another partner, Ackiel Lee. There was no evidence given about whether Mr. Lee advanced funds to the company to make those payments, or if he expected any repayment from the corporation.

[129] It is somewhat surprising that J claims he owes a debt for the stated amount to Double Line Transport, and yet does not show a value for Double Line Transport as an asset owned by him on the date of separation. Presumably, Double Line Transport would have a value of at least the same amount it was owed by a third party.

[130] While there is evidence that Double Line Transport made payments from its account to J or on his behalf, there is no promissory note or other evidence of indebtedness where J had an obligation to repay Double Line Transport. It is also not clear what funds Double Line Transport paid to J or on his behalf as there is limited evidence about the amount of the payments advanced. There was no evidence about how J operated Double Line Transport, how funds were advanced or paid by the corporation, or how funds were repaid to the corporation. There is no evidence about what amount, if any, J owed to Double Line Transport as of the date of separation, let alone the $41,254.41 he claims.

[131] For these reasons, I do not allow J’s claim of any debt or liability he owed to Double Line Transport as of October 11, 2016.

[132] The mortgage debt as of the valuation date on the property in Jamaica is another matter. The mortgages held by Bank of Nova Scotia and the National Housing Trust are in J’s name alone. It is clear from the evidence that J is liable for the entire debt to each of those lenders.

[133] I find that N had debts and liabilities on the date of separation in the amount of $157,000 for her one half share of the mortgage against B[…] Circle, and that J had debts and liabilities totalling $221,895, including his half share of the same mortgage and those credit card balances N has not contested.

c) Net value of property on the date of marriage

[134] The parties agree that N had $5,672 in a bank account on the date of marriage. N also had debts in the amount of $1,500, leaving a net worth of $4,172 on the date of marriage.

[135] In contrast, J owned a motor vehicle for which he claims $10,000, household items claimed at $4,000, and $5,200 in a bank account for a total of $19,200. He claims he had debits and liabilities totalling $4,150. J therefore had a net worth of $15,050 as of the date of marriage.

d) Calculation of net family property and equalization

[136] I therefore find that the property owned by each N and J as of the date of separation had a value of $336,500 and $342,800, respectively. After subtracting debts and liabilities as of the valuation date and the net worth of each party on the date of marriage, I find that the following net family property values can be calculated as follows:

Valuation Date (VD)

Total Value of Assets on VD

ASSETS

N

J

Matrimonial Home

$287,500

$287,500

Property in Jamaica

$49,000

$49,000

Automobiles

$6,300

Value of Property Owned on VD

$336,500

$342,800

Total Value of Debts & Liabilities on VD

Total: Value of Debts & Liabilities

$157,695

$221,895

Net value of Property Owned on VD

$178,805

$128,905

Date of Marriage (DM)

net Value of property (other than a Matrimonial Home) & Debts on DM

Assets

RRSP

Value of Property Owned on DM

$5,672

$19,200

Total Value of Debts and Liabilities on DM

Debts & other liabilities

1,500

$4,150

Total: Value of Debts & Liabilities

Excluded Property

N/A

N/A

Net value of Property Owned on DM

$4,172

$15,050

TOTALS VD & DM

Net Value of Property Owned on the VD

$178,805

$120,905

Net Value of Property Owned on the DM

$4,172

$15,050

NET FAMILY PROPERTY

$174,633

$105,855

[137] The value of N’s net family property is greater than the net family property of J in the amount of $68,778. This is largely because of J’s indebtedness to Scotia Bank and the National Housing Trust under the mortgages against title to the property in Jamaica, and his own consumer debt.

Unequal division of NFP

[138] N would ordinarily be required to pay one half this difference to J for equalization, in this case $34,389. However, N seeks an unequal division of that difference under section 5(6) of the Family Law Act because J has depleted the family assets by his own default, notably the property in Jamaica.

[139] Specifically, N should on unequal division of the equalization payment under s. 5(6)(b) or (d). Section 5(6)(b) and (d) reads as follows:

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

[140] The Court of Appeal decision in Serra v. Serra, 2009 ONCA 105, explained the following process for the court to follow when considering an unequal distribution.At paragraph 37, the court directed that:

a) The court must first ascertain the net family property of each spouse, by determining and valuing the property each owned on the valuation date (subject to the deductions and exemptions set out in section 4);

b) Next, the court applies section 5(1) and determines the equalization payment; and

c) Finally, and before making an order under section 5(1), the court must decide whether the equalization of net family properties would be unconscionable under section 5(6), having regard to the factors listed in paragraphs 5(6)(a) through (h).

[141] Justice Blair emphasized that the court may only exercise its discretion under section 5(6) to make an unequal distribution between net family properties on the satisfaction of two conditions: where the factors under subsection 5(6) can be applied to the facts, and if the court makes a finding of unconscionability under that section. Both requirements must be met for the court to grant an unequal distribution claim. Blair J.A. explained that the jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. It is only when an equal division of net family properties in the circumstances would “shock the conscience of the court” would the threshold be met.

[142] Reference is also made to the definition to unconscionability given by Backhouse J. in the trial decision of LeVan v. LeVan (2006), 2006 CanLII 31020 (ON SC), 82 O.R. (3d) 1 (SCJ) that unconscionability is such a high test that “the courts have only minimal discretion to order anything other than an equal division of family property.” Unconscionable conduct could be seen as “conduct that is harsh and shocking to the conscience, repugnant to anyone’s sense of justice, or shocking to the conscience of the court.”

[143] Section 5(6) should be read along with section 5(7) to provide context for its proper application. Section 5(7) reads as follows:

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). R.S.O. 1990, c. F.3, s. 5 (7).

[144] The cases under section 5(6) of the Family Law Act have discussed whether the court must find fault based conduct to come within the factors under section 5(6), or if circumstances may arise that make those factors applicable that also shock the conscience of the court. In this case, N is clearly alleging fault based conduct against J.

[145] Perkins J. in Cosentino v. Cosentino, 2015 ONSC 271 provides a recent treatment of how section 5(6) of the Family Law Act is to be applied in a fault based claim. In that case, the husband had carried on an extramarital affair in which he had left evidence of his infidelity where his wife could find it. This evidence could have led to one or more of the other women having to interact with his wife. Perkins J.referred to his decision in Biant v. Sagoo, [2001] O.J. No. 1685 (SCJ) where the wife sought compensation under section 5(6) from the husband for the $20,000 to $50,000, he had spent for jewelry and travel on the women with whom he had formed a relationship. In Biant v. Sagoo, the court rejected the wife’s claim stating there was no evidence that the husband’s expenditures had materially affected the family in any way, or evidence that the wife would be called upon or expected to pay for any of them.

[146] N relies upon section 5(6)(b)(d) and (f) of the Family Law Act to claim an unequal division of the difference between net family property values. These factors have been considered on the evidence given at trial in the following ways.

[147] J has not made payments under the mortgages against the Jamaican property since 2016. In a letter dated December 8, 2107, the firm of Watson & Watson in Kingston, Jamaica put J on notice on behalf of their client, the National Housing Trust, that the outstanding balance under that mortgage, including outstanding premiums and late charges, legal fees and postal service costs totalled $1,213,149.62 Jamaican. This translates into approximately $11,893.62 CDN. The notice letter further advised J that unless payment was received in full by January 13, 2018, the Jamaican property would be auctioned and sold under the power of sale provisions in the mortgage.

[148] J gave evidence at trial that either National Housing Trust or the Bank of Nova Scotia have given notice that the property will be sold under the power of sale provision in either mortgage to realize the secured debt. The property in Jamaica remained unsold as of the date of trial.

[149] J wrote to the court on September 5, 2019, to request an opportunity to make further submissions on payment of the mortgage debt as the Jamaican property has now been sold for less than the amount owing on the mortgage. The court advised both J and N that further submissions would be permitted only if both parties consented. Otherwise, this decision would be made on the evidence already given at trial.

[150] N expressly declined to give her consent. The court did not invite the parties to provide further evidence on any issue relevant to the deficit owing to National Housing Trust.

[151] J wrote to the court on October 22, 2019 to advise that he was never copied with N’s email and that he had just learned of it. He urged the court to grant permission for him to bring a motion to introduce evidence that the Jamacian property had been sold, and that there was a balance owing to the mortgages that the court should take into account.

[152] J did not require permission from the court to bring a motion to seek leave to introduce fresh evidence. If that motion had been brought, J would have to satisfy the court that the proposed evidence met the four part test set out by the Supreme Court in The Queen v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759:

1. The evidence should not generally be admitted if, by due diligence, it could have been adduced at trial;

2. The proposed evidence must be relevant in that it had a bearing on a decisive, or potentially decisive issue at trial;

3. The evidence must be credible in that it is reasonalbly capable of being believed; and

4. It must be of such weight that, when taken with other evidence given at trial, it could be expected to have an affect on the outcome.

[153] These principles apply to fresh evidence motions on an appeal. However, I see no reason why they should not apply on a motion for leave to introduce fresh evidence after a trial, but before judgment has been given.

[154] J was responsible for paying each mortgage as the sole borrower. J allowed those mortgages to fall into default. He should not profit by that default. If the property has since been sold under power of sale, the parties should not apply hindsight to what net proceeds of sale, or deficiency, were realized since date of separation.

[155] J has recklessly depleted this family property by defaulting on the morgages against the Jamaica property. This has had the effect of depleting not only his own net family property value, but also that of N, who does not have the corresponding debt to adjust her net family property. It has also created a greater difference between net family properties. This difference is an artifice that would be so unfair, produces a result that would be unconscionable if N was required to pay J an equal amount of that difference.

[156] J has incurred a disproportionate amount of consumer debt on top of the loans in Jamaica, that has already reduced his net family property.

[157] N has satisfied this court on the evidence that she is entitled to an order that she pay an unequal division of the difference of the net family properties within the meaning of section 5(6). A just order that would relieve the unconscionability of the equalization payment N would otherwise owe to J would be to reduce N’s net family property by one half the value of the Jamaican property as though she did not own an interest in that property on the valuation date. This would result in a reduction of her net family property by $49,000, to $125,633. This reduction in turn results in an adjustment of the equalization payment to $9,889 she would owe to J.

Post Separation Adjustments

[158] J was successful in establishing that October 11, 2016 was date of separation. I can only consider post separation adjustments for expenses incurred by one party or the other after they ceased cohabiting as spouses to award any post separation adjustment as between them.

[159] N seeks a post separation adjustments of $6,000, based on the $12,000 she paid towards the mortgage against the matrimonial home between July 2015 and June 2016. She concludes that she paid $12,000 more than J to joint expenses by comparing the contributions each of them made towards the household expenses, not including groceries or household items, in the amount of $26,850 paid by her, and $14,617 paid by J.

[160] The contributions of each party prior to October 2016 and any over payment by one spouse over the other is not a post separation adjustment. I do not grant N the $6,000 she seeks under this category.

Orders

[161] The following orders are made, which shall refer to each of the parties and to JK by their names in the final order:

1. N is awarded sole custody of JK.

2. J shall have generous access to JK, on the following terms:

a) alternate weekends, from 6 p.m. on Friday to 6 p.m. on Sunday,

except where the following day is a statutory holiday, in which case J will return JK to N at 6 pm that evening, unless otherwise agreed upon in writing;

b) every Wednesday night from the time J picks up JK at school on Wednesday afternoon to the time J drops JK off at school the next morning;

c) each year, from 3 pm to 7 pm on J’s birthday and Father’s Day, where those days do not fall on a regular access day;

d) on even numbered years, every Christmas Eve day and Christmas Day, and on odd numbered years, every weekend embracing Good Friday and Easter Sunday until 6 pm;

e) two continuous weeks of summer vacation in Ontario, to be arranged between the parties having regard to JK’s other summer activities; and

f) as the access parent, J has the right to make inquiries to, and to be given information by, N and relevant third parties about the health, education and welfare of JK.

3. J shall pay N child support for JK in the amount of $460 each month, effective November 1, 2019. This is the table amount payable on a one child formula based on an income of $ 50,000 per year this court imputes to J.

4. J shall pay N in the amount of $12,145 for retroactive child support from November 1, 2016 up to and including October 31, 2019. This amount is calculated using the child support payable each month since November 1, 2016 and has been reduced by the $4,875 as a credit to J for amounts he has paid toward retroactive child support over that period.

5. N and J shall share section 7 expenses equally to pay for the extra ordinary activities of JK, which are currently:

a. Payable initially by N:

i. Camp

ii. Soccer

iii. Private school

iv. Daycare

v. Warm meal plan

vi. Health insurance

b. Payable initially by J:

i. Swimming and related activities

6. N and J shall disclose, with proof of payment, the amounts they have paid for section 7 expenses since October 11, 2016 and arrange for the reimbursement of one persons share to the other after any right of set-off under these reasons. If the parties cannot agree on those amounts either party may seek forther direction from the court.

7. N and J shall disclose their respective incomes to each other for the immediately preceding calendar year by June 1 of the year following, commencing on June 1, 2020. This disclosure shall be in the form of a notarial copy of her or his income tax return, complete with all attachments, showing her or his income from and for all sources for the tax year immediately preceding that date. Each party shall provide a copy of her or his Notice of Assessment for that year as soon as it has been received to confirm that income.

8. Any increase to J’s income will result in a corresponding change to the monthly child support he shall pay to N, according to the (Federal) Child Support & Guidelines, effective July 1 for the year that follows. Any change to either income earned by J or N over the preceding year will also result in the corresponding change to the proportionate share of their contributions to section 7 expenses for the coming year, effective July 1.

9. N shall pay J in the amount of $9,889 for the unequal difference between their respective net family properties in full satisfaction of any and all equalization claims. This amount shall be set-off against the retroactive child support that J has been ordered to pay to N for JK. This amount also takes into account any and all post-separation adjustments.

10. A Support Deduction Order shall issue.

Costs

[162] Any party seeking costs of this proceeding, including trial shall serve and file written submissions by November 15, 2019, and the responding party shall serve and file responding submissions by November 30, 2019. Any submissions shall be restricted to three pages, not including any offer to settle or Bill of Costs.

Conclusion

[163] Each party may also file submissions consisting of no more than two pages of any mathematical corrections or request for clarification of these reasons they wish to call to my attention, provided any requested correction or clarification is consistent with my findings of fact. Those submissions are due at the same time that submissions on costs are due.

Emery J.

Released: November 1, 2019

COURT FILE NO.: FS-16-239-00

DATE: 2019 11 01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

N.L-C.

Applicant

• and -

J.C.

Respondent

REASONS FOR JUDGMENT

Emery J

Released: November 1, 2019