COURT FILE NO.: FS-18-006814

DATE: 2019-11-04

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Yoko Shigenobu Applicant

– and –

Michael Kinsey Respondent

Counsel: Aida Pasha for the Applicant In person (Michael Kinsey)

HEARD: October 1, 3, 2019

BEFORE: Akbarali J.

Overview

[1] In this family law trial, I am asked to determine issues of decision-making for children, parenting time, exclusive possession of the matrimonial home, property division, and child and spousal support.

Background

[2] The parties originally met in Japan, where the applicant mother, Ms. Shigenobu, lived, and where the respondent father, Mr. Kinsey, had gone to teach English. Mr. Kinsey returned to Canada in 1995. The applicant mother relocated to Canada in 1995. The parties married on July 6, 1996, in Toronto. Currently, Ms. Shigenobu is 46 years old. Mr. Kinsey is 49 years old.

[3] The parties have three children, S, born September 7, 2003, A, born March 14, 2006, and E, born July 23, 2011. During most of the marriage, Ms. Shigenobu was the primary income earner. However, on July 31, 2017, she was involved in an accident. She deposes she has been unable to work since that time.

[4] The parties separated on May 10, 2018, after which they continued to live separate and apart under the same roof, until Mr. Kinsey moved into his mother’s home on July 1, 2019. His move to his mother’s home was a result of my temporary, without prejudice order granting Ms. Shigenobu exclusive possession of the matrimonial home as of June 30, 2019.

Procedural History

[5] Ms. Shigenobu commenced an application on December 4, 2018. In it, she seeks a divorce, spousal support, child support, custody and access, equalization of net family properties, exclusive possession of the matrimonial home, sale of family property, and terms regarding travel, travel consent, and insurance as security for support.

[6] Mr. Kinsey did not deliver an Answer. On March 22, 2019, Horkins J. held a case conference, which Mr. Kinsey attended. On consent, Horkins J. ordered that he serve and file an Answer, a sworn Financial Statement and an Affidavit in Support of Custody and Access by April 5, 2019. She also made certain disclosure orders. She gave Ms. Shigenobu the right to proceed to an uncontested trial if Mr. Kinsey did not comply with the order.

[7] On May 14, 2019, Ms. Shigenobu brought a motion for, among other things, exclusive possession of the matrimonial home. The motion came before Stewart J. By the time of the motion, Mr. Kinsey had not complied with Horkins J.’s order. Stewart J. adjourned the motion to May 23, 2019 to allow Mr. Kinsey a further opportunity to comply with Horkins J.’s order and to file responding material on the motion.

[8] Ms. Shigenobu’s motion was returned on May 23, 2019 before Stevenson J. Stevenson J. noted that much of the relief Ms. Shigenobu sought was on a final basis and was more appropriately sought at an uncontested trial. She also noted that Mr. Kinsey remained in default, having not complied with Horkins J.’s order despite the extra time Stewart J. had provided him. Stevenson J. adjourned the motion one last time, peremptory to June 4, 2019, and gave Mr. Kinsey yet another chance to serve and file his Answer, Financial Statement and responding material on the motion. She held that, at the return of the motion, the relief sought by Ms. Shigenobu would be dealt with on a temporary basis only.

[9] On June 4, 2019, the motion was returned before Stevenson J. Mr. Kinsey attended, but once again, had not complied with the court’s orders. Stevenson J. noted that Mr. Kinsey had not provided any reasonable explanation for his failure to comply with three court orders. As a result, she set a date for an uncontested trial. However, given that there were issues of custody and access outstanding, Stevenson J. provided Mr. Kinsey the opportunity to participate in the trial on those issues, by providing oral evidence on the issues of custody and time sharing only, and by allowing him to cross-examine Ms. Shigenobu on the issues of custody and access only.

[10] Mr. Kinsey did, at some point, prepare an Affidavit in Support of Custody and Access and a Financial Statement. Unfortunately, the Financial Statement is incomplete. He never served nor filed an Answer.

[11] The trial commenced before me on June 21, 2019. At the outset of trial, I raised questions regarding the court’s jurisdiction to make some of the orders sought by Ms. Shigenobu. As a result of my enquiries, the parties chose to avail themselves of the onsite mediation services available, but unfortunately, they did not succeed in resolving their issues. Given the time they spent at mediation, the trial could not proceed on June 21, 2019. I adjourned the trial to continue before me on September 30, 2019. I also gave leave to both parties to file affidavits to address the terms of the adjournment. I scheduled a further attendance on June 27, 2019, for argument on the terms of the adjournment.

[12] On June 27, 2019, I made a series of orders on a temporary, without prejudice basis, pending the return of trial, including an order granting Ms. Shigenobu exclusive possession of the matrimonial home commencing on June 30, 2019. I set a summer parenting schedule which provided Mr. Kinsey with parenting time with S according to S’s wishes, and a week-about schedule with A and E through the summer months (except when A and E were at camp). Given that Mr. Kinsey would be relocating to Scarborough to live with his mother, I adjusted his parenting time as of the start of school such that he would have every weekend with A and E, who would otherwise reside in Etobicoke at the matrimonial home with Ms. Shigenobu. I also ordered that both parties could attend the children’s activities and school events.

[13] Due to a scheduling conflict with the court’s calendar, the trial began again before me on October 1, 2019, and continued on October 3, 2019. In addition to the affidavits filed by Ms. Shigenobu, each party gave oral evidence. I have also had regard to the other affidavits filed in this proceeding, including those filed in support of the terms of the adjournment.

[14] Mr. Kinsey’s participation in the trial was limited in accordance with Stevenson J.’s order. However, I gave Mr. Kinsey leave to introduce his bank account statements and credit card statements into evidence, and to Ms. Shigenobu to cross-examine Mr. Kinsey with respect to the s. 7 expenses he has paid since separation. I also gave Mr. Kinsey leave to make closing submissions on the child-related issues.

[15] Unfortunately, due to Mr. Kinsey’s limited participation in the litigation process, much of his evidence, which would have been useful to me, is not available. I have Ms. Shigenobu’s evidence on all issues in the trial. Unfortunately, there are also many gaps in the evidence she has led. I am thus left with an incomplete record, and charged with making findings of fact and decisions based on evidence that is far from satisfactory.

Issues

[16] This trial raises the following issues:

a. How should decisions be made for S, A, and E?

b. What parenting time orders should be made in respect of S, A, and E?

c. Should Ms. Shigenobu be granted an order for exclusive possession of the matrimonial home, and if so, for what period of time?

d. Is there an equalization payment owing, and if so, to whom and in what amount?

e. Does Mr. Kinsey owe Ms. Shigenobu for post-separation adjustments, and if so, in what amount?

f. What orders should be made with respect to child support, including s. 7 expenses?

g. Is Ms. Shigenobu entitled to spousal support, and if so, in what amount?

h. Are the parties entitled to a divorce?

[17] As is often the case in family law, many of these issues are interrelated. I will describe the parties’ respective positions in my analysis of the issues, to which I now turn.

Decision-making for the Children

[18] Ms. Shigenobu seeks an order for joint custody of the children, but with the proviso that, in the event the parties do not agree, she wants to have final say in major decisions for the children. Mr. Kinsey seeks an order for joint custody.

[19] 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.

[20] 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.

[21] 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.

[22] Subsection (10) codifies the principle of maximum contact. It requires 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, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact”.

[23] Section 24 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(2) 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 considered 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 for custody of or access to the child to act as a parent; and applying;

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

[24] Within this statutory framework I must determine decision-making authority for the children. Below, I review the evidence that is relevant to these factors.

Love, Affection and Emotional Ties

[25] Each party claims to have been the children’s primary caregiver. However, the evidence supports a conclusion that both parties have been involved and loving parents, who are engaged in many aspects of the children’s lives.

[26] Since about 2006, Mr. Kinsey has not been regularly employed. Ms. Shigenobu was the primary income earner. Until her accident in July 2017, Mr. Kinsey was the parent who was more often available to meet the children’s needs. He has been very involved in many aspects of the children’s lives, including as E’s scout leader, member of the parent council at each child’s school, and as a coach on the children’s sports teams.

[27] Mr. Kinsey seeks to empower the children, for example, by encouraging them to take appropriate responsibility in their lives.

[28] Mr. Kinsey has a close and loving relationship with A and E. His relationship with S has been strained. I accept that he is committed to improving it and is making efforts to do so.

[29] Text messages between Mr. Kinsey and S from this past summer are in evidence. For the most part, the message history is unremarkable. However, some texts shed light on the conflict between Mr. Kinsey and S. For example, in one text, S writes that Mr. Kinsey said he “didn’t want to talk [to S] or see [his] face”.

[30] Mr. Kinsey admits to having a difficult conversation with S during which Mr. Kinsey hung up on S – an action that led S to text Mr. Kinsey to say that he was being childish. S also complains in the text messages that Mr. Kinsey had not reached out to him but rather leaves it to S to get in touch. S appears hurt that his father is content to let S be the one to initiate contact.

[31] There was also evidence about some positive developments in Mr. Kinsey’s relationship with S this summer. It is apparent that S seeks a positive relationship with Mr. Kinsey, and S is finding it easier to work on it now that Mr. Kinsey is no longer living in the home, and now that the tension arising from the conflict between him and Ms. Shigenobu is more circumscribed.

[32] Ms. Shigenobu has also always been an involved and loving parent. Since her accident she has not been working and has been more available to the children as a result.

[33] Ms. Shigenobu has a close and loving relationship with all the children. I accept that she tries to listen to them and empower them.

[34] I also accept that the children have a close and loving relationship with each other.

The Children’s Views and Preferences

[35] I have no evidence of A’s or E’s views and preferences. I have already accepted that A and E have a close and loving relationship with both parents.

[36] Ms. Shigenobu has placed direct evidence from S (albeit hearsay evidence) before the court. In an affidavit Ms. Shigenobu filed, she attached a letter from S to the court in which S expresses that Mr. Kinsey causes him too much stress and puts him down. He states that living with Mr. Kinsey would not bode well for him or his sisters. He expresses his view that Ms. Shigenobu should be the primary caregiver and Mr. Kinsey should be the secondary caregiver. He states Ms. Shigenobu does the majority of the caregiving.

[37] This letter from S causes me great concern. It was a massive error in judgment for Ms. Shigenobu to involve S in these proceedings to such an extent as to seek a letter from him to the court. Children, even mature children of S’s age, should be insulated from their parents’ disputes. Ms. Shigenobu could have sought a voice of the child report from the Office of the Children’s Lawyer rather than directly involving S in choosing sides between his parents.

[38] Moreover, this letter from S expressing his wishes was entirely unnecessary. Both parties have testified about the tensions in S’s relationship with Mr. Kinsey, and on this point, their evidence largely accords with one another’s – I did not need a letter from S to understand that his relationship with Mr. Kinsey is difficult right now.

[39] I conclude, on the basis of the other evidence in the record apart from the letter from S, that his preference, given the difficulties in his relationship with Mr. Kinsey, is to reside primarily with Ms. Shigenobu and spend time with Mr. Kinsey in accordance with S’s wishes. This conclusion is consistent with the content of S’s letter.

The Length of Time the Children Have Lived in a Stable Home Environment

[40] The children are well-established in their home, schools, and community in Etobicoke. The home environment has not, however, been stable for them during their parents’ conflict, until Mr. Kinsey recently moved out.

[41] The evidence reveals Mr. Kinsey has involved the children in the dispute between the adults repeatedly. The evidence also reveals that his inability to control his emotions is a long-standing issue. In his Affidavit in Support of Custody and Access, he admits to striking Ms. Shigenobu once in the presence of the children. While he acknowledges his behaviour was wrong, I note that he used the passive voice to describe the incident, stating that “[there] was an unfortunate incident where [Ms. Shigenobu] was injured in the arm while I was driving”. By masking the aggressor (although it is clear Ms. Shigenobu was injured because Mr. Kinsey struck her), Mr. Kinsey fails to take responsibility for his actions.

[42] Moreover, there is ample evidence in the record of nastiness and disrespectful conduct Mr. Kinsey directed toward Ms. Shigenobu while the parties were living together, including calling her names in front of the children, disturbing her sleep, and other abusive and inappropriate conduct. I took particular note of Ms. Shigenobu’s evidence that Mr. Kinsey loudly revealed some very personal information about abuse Ms. Shigenobu suffered in her childhood which she did not want the children to know about. Such conduct was designed to hurt Ms. Shigenobu and betray her confidence without any regard to the effect it would have on the children.

[43] I note that in Mr. Kinsey’s affidavit evidence, he makes allegations that Ms. Shigenobu was abusive towards him. However, she was not cross-examined on these allegations nor did Mr. Kinsey offer any details or proof beyond some general statements. I have placed no weight on these allegations.

The Ability and Willingness to Provide Guidance, Education, and the Necessaries of Life

[44] I accept that both parents are willing to provide the children with guidance, education and the necessaries of life.

[45] However, I am concerned with the parties’ abilities to understand and to meet the children’s needs.

[46] My concerns are strongest in the context of Mr. Kinsey’s relationship with S. I am particularly concerned with Mr. Kinsey’s ability to understand the boundaries that S is seeking to establish, and his ability to communicate in a respectful manner with S.

[47] In a text exchange from this past summer, S asked Mr. Kinsey not to attend one of his baseball games because Ms. Shigenobu had already planned to drive S there. S expressed discomfort at having both parents at the same game. Rather than listen to and respect the boundaries S was trying to put in place, Mr. Kinsey texted, “I thought you were changing but I see I was amiss.” Mr. Kinsey suggested that he might withdraw a planned trip to Buffalo to see a football game that he had given S for his birthday. Mr. Kinsey also texted, “[S] usually you are a really nice kid to be around. However, when you and your mother get in the mix, you change. And not in a good way.” In the end, they went on the trip to Buffalo which Mr. Kinsey testified was a success. But the exchange between them suggests Mr. Kinsey does not always behave with respect towards S. I also note that he explained to me that he had a “right” to go to the game. He is correct that my order provided that he could go to the children’s activities. However, insisting on his “right” (when it is really the child’s right to have their parent participate in all aspects of their life) in the face of a 16-year-old expressing discomfort in a mature and communicative way was an example of Mr. Kinsey preferring his own interests over S’s.

[48] The text messages also show Mr. Kinsey, at times, has involved S inappropriately in the conflict with Ms. Shigenobu. As set out above, this has included insults directed as Ms. Shigenobu (“when you and your mother get in the mix, you change. And not in a good way.”) At other times, Mr. Kinsey relayed information to S about the conflict between him and Ms. Shigenobu, reporting that he had a positive, or at least not a negative, exchange with Ms. Shigenobu. He does not seem to appreciate that it is not appropriate to involve S in the dispute between the adults at all.

[49] Mr. Kinsey’s text messages with A over this past summer were also in evidence. For the most part, they reveal a close and loving relationship between A and Mr. Kinsey. However, a couple of texts caused me some concern. For example, Mr. Kinsey asked A to get E to call Mr. Kinsey nightly before bed. It is not A’s job to facilitate the relationship between Mr. Kinsey and E. In another text message, A asked Mr. Kinsey to deal directly with Ms. Shigenobu on matters of scheduling. It is not appropriate to ask A to navigate the logistics that should be addressed between the adults. Mr. Kinsey does not appear to understand how he was placing inappropriate pressure on A.

[50] I have already described my concerns regarding Mr. Kinsey’s behaviour in the matrimonial home, which modelled disrespect of Ms. Shigenobu to the children and displayed a willingness to involve the children in the parties’ conflict. This conduct demonstrates an inability to understand how his actions are harmful to the children.

[51] I have also already noted Ms. Shigenobu’s willingness to inappropriately involve S in the parties’ conflict by obtaining a letter from him for these proceedings.

[52] Both parties have demonstrated a disregard for the other’s role in the children’s lives. This is perhaps most clearly seen in each party’s repeated actions in unilaterally making decisions for the children without discussing it with the other party. These decisions have related to travel plans and extra-curricular activities for the children. In some cases, Mr. Kinsey has made decisions without consultation with the children either. In making unilateral decisions, the parties have exacerbated their conflict, and created tense situations where the children have been caught in the middle. Neither party demonstrated any appreciation of their role in maintaining the conflict that is causing so much stress for their children.

[53] Thus, while I have no hesitation in concluding that the parties both want the best for their children, they lack insight into how their behaviour pushes the children to choose sides, or at the very least, inserts them into the conflict inappropriately.

[54] If the children are to develop into healthy adults, the parties will need to get their conflict under control and learn to support and respect each other’s role as their children’s other parent.

Plan Proposed by Each Party

[55] Ms. Shigenobu proposes joint custody, with final decision-making authority to her if she and Mr. Kinsey disagree. She proposes that she be awarded exclusive possession of the matrimonial home for ten years, giving enough time to allow the youngest child to finish high school, and that the children have their primary residence with her. She suggests S see Mr. Kinsey in accordance with his wishes, and that A and E spend every other weekend with Mr. Kinsey. She states she will leave the children’s relationship with the paternal side of their family to Mr. Kinsey.

[56] Mr. Kinsey proposes a nesting arrangement where each party will spend a week in the matrimonial home with the children. He proposes joint decision-making.

[57] In my view, neither party has proposed a realistic plan for the children. I address the issue of residency below in my discussion of parenting time and exclusive possession of the matrimonial home, but with respect to decision-making, I note the following:

a. Each party has made unilateral decisions for the children, without any consultation with the other, including travel plans and extra-curricular activities. In some cases, Mr. Kinsey has made decisions without consultation with the children either.

b. The evidence suggests the parties have had difficulty communicating with each other on child-related (or indeed, any) issues. However, it also suggests that the parties, particularly Ms. Shigenobu, are quick to find reasons to complain about the other. Ms. Shigenobu included in her affidavit an innocuous text from Mr. Kinsey that she described as a “jab” – a characterization that was unwarranted. Moreover, she left out the explanation for certain lapses in communication. I find her evidence was designed to try to make Mr. Kinsey’s conduct look worse than it actually was. In many respects, her characterization of his communication was unfair. Often, on cross-examination, Ms. Shigenobu was “not sure” or did not remember some circumstance that would have explained Mr. Kinsey’s conduct or placed it in a more favourable light.

c. The evidence suggests each party has been territorial about their time with the children. In testimony, they each referred to “my time” or the other party’s time, without any recognition that the time the children spend with each parent is time that belongs to the children. The parties’ jockeying for territory over the children’s schedules is not child-focused.

d. Although Ms. Shigenobu claims she believes it is important that the children maintain relationships with Mr. Kinsey’s side of the family, in her Affidavit in Support of Custody and Access she suggests she will leave these relations to Mr. Kinsey. Moreover, her evidence at trial included complaints that certain family events for Mr. Kinsey’s side of the family took place during “her weeks” and suggestions that he could have rescheduled those events, even though some of these events involved family travelling from out of province. There is some suggestion in the evidence that if the kids were to attend major Kinsey family events during “Ms. Shigenobu’s weeks”, there must be a corresponding trade for time for her during Mr. Kinsey’s weeks. Ms. Shigenobu’s possessive attitude to the children’s time is not child-focused and does not prioritize the children’s interest in maintaining a close and loving relationship with Mr. Kinsey’s extended family.

Conclusions regarding Decision-Making

[58] Taking into account the relevant factors and the evidence I have reviewed above, I conclude that an order requiring the parties to make joint decisions with respect to A and E is appropriate. I reach this conclusion because:

a. Both parties are loving parents with close relationships with A and E. With their joint input, decision-making for A and E can be robust and in the children’s best interest.

b. Both parties have demonstrated disrespect for the role of the other in A’s and E’s lives. Without joint decision-making, I am concerned one party will exclude the other from participation in the major decisions in A’s and E’s lives. I am also concerned that a parallel decision-making regime will lead the party with decision-making authority in a particular area to exclude the other from participating in the decisions for the children in that area.

c. Although there is significant difficulty in communication between the parties, both are intelligent people who have the capacity to improve their communication with each other.

[59] I direct that decision-making for A and E shall be approached in the following manner:

a. Except in cases of emergency, the party who becomes aware of a major decision to be made for the child shall advise the other in writing at least thirty days in advance of the decision being made.

b. In making decisions for A and E, the parties shall take into account the views of the child and the views of any relevant experts or professionals, such as teachers or physicians. Each party shall have the right to consult with the child and the expert(s) or professional(s) to obtain their views.

c. The parties shall attempt to reach a consensus in writing within fourteen days.

d. If no consensus is reached, either party may apply to the court for a determination of the issue. If the issue relates to the extra-curricular activities of a child, either party may apply to the court for a determination of the issue, or they may choose to unilaterally enroll the child in an activity during their parenting time only and at their sole cost.

e. In an emergency, the parties shall make best efforts to consult with each other and reach a consensus as quickly as possible. If no consensus can be reached, either party may seek an urgent determination of the issue from the court.

[60] Given the fractured relationship between S and Mr. Kinsey, a different decision-making order is appropriate. I order that the parties shall make joint decisions for S, following the protocol set out above, except that if the parties cannot reach a consensus with respect to the decision to be taken for S, Ms. Shigenobu shall have the right to make the final determination without need to apply to the court. However, if the decision relates to an extra-curricular activity, absent agreement or court order, Mr. Kinsey shall not be required to contribute to the cost of the activity or facilitate the activity during his parenting time with S.

[61] Day-to-day decisions involving the children shall be made by the parent in whose care the children are.

Parenting Time

[62] The parties have different proposals with respect to parenting time. Ms. Shigenobu seeks to maintain the children’s primary residence with her, with access time to Mr. Kinsey for A, and E, every other weekend. She also proposes a holiday schedule. Mr. Kinsey proposes a nesting schedule with each parent residing with the children on alternate weeks in the matrimonial home.

[63] The evidence I have already reviewed with respect to decision-making is also relevant to parenting time. In addition to that evidence, I must consider the parties’ proposed residency plans.

[64] The parties agree the children should, if possible, remain in Etobicoke where they are well-established in their communities. I agree. The children are integrated into their schools, have robust social networks, and are committed to many extra-curricular activities centered in and around Etobicoke. S has less than two years left of high school. Disruption at this stage in the children’s lives is not in their best interest if it can be avoided.

[65] Mr. Kinsey’s plan hinges on a nesting arrangement. In my view, this is not a workable plan, for several reasons. First, if I were to order a nesting arrangement, Ms. Shigenobu would have nowhere to go during Mr. Kinsey’s time with the children. She has no family in Canada. She cannot couch-surf at friends’ places every other week. The parties do not have the means for each of them to have a separate apartment in addition to maintaining the costs of the matrimonial home. Moreover, in my view, there is significant potential for ongoing conflict if the parties share the matrimonial home, even in a nesting arrangement. Continued conflict between them is not in the children’s best interest.

[66] In addition, a parenting plan that requires S and Mr. Kinsey to live together half the time is not in S’s best interest at this time. Their relationship is too fractured, and Mr. Kinsey has not demonstrated a consistent ability to engage with S respectfully. In my view, forcing S to live with Mr. Kinsey half time would do more harm than good for their relationship, and create more conflict between them, which would, in turn, impact A and E negatively.

[67] I asked Mr. Kinsey what his residency plan would be if I did not order a nesting arrangement. He told me he has no plan; it will depend on what happens with this trial. He also explained that he is taking some workshops to understand how his anxiety about new situations may be preventing him from seeking work. If he can obtain regular employment, his options of where to live will open up. The result is that, apart from the unworkable nesting plan, Mr. Kinsey has no other plan that would allow him to parent the children in a significant way if the children remain in Etobicoke.

[68] Ms. Shigenobu’s plan is also problematic. She seeks to curtail Mr. Kinsey’s parenting time with A and E significantly, when he has been an involved and loving father up to now. While she states she wants to support his relationship with the children, her plans and actions do not demonstrate a commitment to doing so.

[69] However, there is a practical problem. Mr. Kinsey is currently living in the only accommodation open to him, with his mother in Scarborough. The children cannot regularly commute to Etobicoke for school and activities from Scarborough.

[70] There is thus no ideal solution to this family’s situation. If there was a feasible plan that involved Mr. Kinsey living near to the children’s current schools and activities in Etobicoke, I would have had no hesitation in ordering a fully-shared parenting arrangement for A and E. However, as long as Mr. Kinsey lives in Scarborough, fully-shared parenting time is not practical.

[71] Accordingly, I order that the children shall have their primary residence with Ms. Shigenobu. I order the following regular parenting time for Mr. Kinsey with A and E:

a. Every other weekend from Friday pick up from school to Monday morning drop off at school; and

b. Every Wednesday evening from pick up after school until 9 p.m.

[72] I considered ordering more weekend parenting time for Mr. Kinsey with A and E but the evidence at trial establishes that it is important for A to have weekend time in her local community. An every-other-weekend schedule balances A’s need to spend time with Mr. Kinsey with her need to stay connected to her community. It also allows A and E to stay together.

[73] Notwithstanding the regular schedule, Mr. Kinsey shall be entitled to attend A’s and E’s school and extra-curricular activities. If both Ms. Shigenobu and Mr. Kinsey are in attendance at any such activities, they shall maintain a respectful distance from one another. Given the extent of Mr. Kinsey’s involvement in the children’s activities, I expect that his participation in the children’s extra-curricular activities will meaningfully increase his parenting time with them.

[74] With respect to S, I order that regular parenting time with Mr. Kinsey shall be in accordance with S’s wishes. Mr. Kinsey shall be entitled to attend S’s school and extra-curricular activities in accordance with S’s wishes.

[75] In addition, I order the following holiday schedule, which shall supersede the regular schedule, for all the children as follows:

a. Except as otherwise set out below, long weekends shall be in accordance with the regular parenting schedule. The parent in whose care A and E are for the weekend shall have care of them from pick up at school on Thursday, if the holiday is on a Friday, or until drop off at school on Tuesday morning, if the holiday is on a Monday. On long weekends, parenting time with S shall be in accordance with S’s wishes;

b. A and E shall be in Mr. Kinsey’s care during the school March break for his regular weekend, and the TDSB’s scheduled holiday from Monday-Friday each year. Ms. Shigenobu shall have A and E for her regular weekend over the school March break. S shall have parenting time over the March break in accordance with his wishes.

c. S, A and E shall be in the care of Mr. Kinsey every Easter weekend from pick up at school on Thursday until drop off at school on Tuesday morning;

d. S, A and E shall be in the care of Mr. Kinsey on Thanksgiving weekend from pick up at school on Friday until drop off at school on Tuesday morning in even-numbered years. S, A and E shall be in the care of Ms. Shigenobu on Thanksgiving weekend from pick up at school on Friday until drop off at school on Tuesday morning in odd-numbered years.

e. S, A and E shall be in the care of Ms. Shigenobu on Mother’s Day from 9 a.m. until drop off at school on Monday morning.

f. S, A and E shall be in the care of Mr. Kinsey on Father’s Day from 9 a.m. until drop off at school on Monday morning.

g. S, A and E shall be in the care of Mr. Kinsey for the first half of the TDSB Christmas break, except that the children shall be in the care of Ms. Shigenobu on Christmas Day from 10 am to 3 pm. S, A and E shall be in the care of Ms. Shigenobu for the second week of the TDSB Christmas break.

h. A and E shall be in the care of Mr. Kinsey for half of the summer break, and in the care of Ms. Shigenobu for the other half of the summer break. To determine the children’s summer schedule the parties will:

i. Identify what weeks A and E will be at sleep-away camp and exclude these weeks from their time-sharing;

ii. In even-numbered years, Ms. Shigenobu shall be entitled to first choice of time with A and E. She shall identify blocks of time of no less than one week and no more than two weeks at a time, which together shall total half of the remaining summer holidays for A and E after their time at camp is excluded, and communicate these to Mr. Kinsey no later than May 15 of each year. In odd-numbered years, the same process will occur with Mr. Kinsey having first choice of time in the summer.

i. S shall have parenting time with Mr. Kinsey in the summer in accordance with S’s wishes.

j. Both parents shall remain reasonable and flexible with respect to special occasions, family reunions or celebrations to facilitate the children spending time with each other’s extended family.

k. The parties will celebrate their birthdays and the children’s birthdays during their respective parenting time.

l. Mr. Kinsey shall have such additional parenting time with A and E as the parties agree.

[76] In my view, this schedule maximizes the time that is practically available to A and E to spend with Mr. Kinsey while allowing them to remain involved in their school and community, which will provide stability and support to them while they get used to life as children with two households. It will also maximize the holiday time the children spend together, and honour Mr. Kinsey’s important family traditions around religious holidays while also honouring Ms. Shigenobu’s important family traditions around the New Year celebrations.

[77] Finally, I have already noted that I would have made different determinations of parenting time for A and E if Mr. Kinsey had a workable residency plan that would have provided for stability in the children’s lives. If Mr. Kinsey develops a workable residency plan that would allow him to parent A and E regularly near to their established communities, I would consider that to be a material change in circumstances that could justify a new determination of parenting time.

Other Parenting Orders

[78] Under s. 16(6) of the Divorce Act, in making an order for custody, I may make other terms, conditions or restrictions in connection therewith as I think is fit and just. In view of the parties’ difficulties in communication, I make the following additional fit and just orders, which will define the parties’ expectations and hopefully reduce their opportunities for conflict:

a. Each party shall have the right to travel with the children within Ontario for up to two weeks at a time during their summer parenting time without the consent of the other. In the event either party wishes to do so, they will provide the other with a detailed itinerary, including contact information at least thirty days in advance of travel. Notwithstanding this direction, Mr. Kinsey may travel with the children to his family cottage during his parenting time on two days’ notice to Ms. Shigenobu.

b. Either party may travel outside of Ontario with the children with the consent of the other, or upon order of the court. Neither party shall unreasonably withhold consent to the other. The party seeking to travel shall request the consent of the other no later than 30 days prior to travel, except in the case of emergency.

c. If any of the children seek to travel outside of Ontario without either parent, consent of both parents or court order shall be required. Neither party shall unreasonably withhold consent. The party seeking to arrange such travel shall seek the consent of the other no later than 30 days prior to travel, except in the case of emergency.

d. The travelling party, or the party arranging the travel, shall provide the consenting party with a travel consent at least ten days in advance of travel, except in the case of emergency, and the consenting party shall execute and return it at least five days in advance of travel.

e. If either party travels without the children, she or he will ensure the other party has contact information for the travelling parent in the event of an emergency.

f. Ms. Shigenobu shall be the custodian of the children’s documents. She shall promptly provide Mr. Kinsey with copies of the children’s health cards. In the event Mr. Kinsey requires the children’s passports for travel, Ms. Shigenobu shall provide them at least ten days in advance of travel, and he will return them to Ms. Shigenobu within ten days of the child returning to the jurisdiction.

g. The parties shall cooperate to renew any government documents for the children and share the cost of the renewal of the documents equally.

h. The parties shall communicate with each other via email or text messaging. In an emergency, the parties may communicate with each other via telephone. At all times the parties shall communicate with each other respectfully.

i. The parties may each make enquiries of the children’s schools, teachers, health care professionals and others involved with the child without the necessity of a consent, direction or authorization from the other. However, should any person or organization involved with the child require a consent, direction or authorization from the other, that parent shall provide one promptly.

j. Each party may attend individually-arranged parent-teacher meetings.

k. Each party will obtain his or her own school calendar and school notices.

l. Either party may make routine appointments with a professional for the child and will be the parent responsible for attending such appointments. Routine appointments will be made with the child’s regular professional only, absent agreement by the parties. If a party makes a routine appointment for a child, they will inform the other party within one day, and after the appointment, will advise the other party in writing within one day as to the information obtained and the appointment, the outcome and any follow-up.

m. Emergency medical appointments may be made by the party in whose care the children are. That party shall update the other parent as soon as practicable in the event of an emergency appointment.

Exclusive Possession of the Matrimonial Home

[79] As I have noted, Ms. Shigenobu seeks an order for exclusive possession of the matrimonial home. She seeks an order for a ten-year period, until E is finished high school. Alternatively, she seeks the order for a five-year period, after which time A will be finished high school. S will be finished high school in June 2021, less than two years from now.

[80] At the adjournment of the trial, Mr. Kinsey opposed the order for exclusive possession of the matrimonial home. As I noted, he sought a nesting order at trial.

[81] The matrimonial home is jointly owned, and it is the parties’ major asset. Ms. Shigenobu has produced a comparative sales analysis prepared by a realtor who did not give evidence. The analysis is thus hearsay. If I could accept it for proof of the truth of its contents, it would suggest the house has a value of $740,000-790,000. Ms. Shigenobu argues that the value of the house is lower than the comparative analysis would suggest, because the house needs substantial work. Her evidence suggests the house needs overall updating and repairs, including fixing broken windows. She states the house is worth about $700,000. Mr. Kinsey used the same $700,000 figure in his Financial Statement. However, he was unable to participate in the financial issues at trial due to Stevenson J.’s order, so his position on the value of the house is not clear.

[82] The house is subject to a mortgage of just over $100,000. Apart from some RSPs, the house is the parties’ only asset of significance. The equity in the house is particularly important given that neither party currently holds full-time work.

[83] Under s. 24(1) of the Family Law Act, R.S.O. 1990, c. F. 3, the court can make an order for exclusive possession of a matrimonial home. The criteria to do so are set out in s. 24(3), which provides:

In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children.

[84] Also relevant is s. 24(4) which provides that, in determining the best interests of a child, the court shall consider:

(a) the possible disruptive effects on the child of a move to other accommodation; and

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

[85] In my view, Ms. Shigenobu should be granted an order for exclusive possession of the matrimonial home until July 15, 2021. This order is in the best interest of the children. In reaching this conclusion I note the following:

a. The children are all well-established in their schools and local communities. They are active in school activities and in extra-curricular activities. It is in their best interest that these stabilizing elements of their lives not be upended so soon after Mr. Kinsey’s departure from the home.

b. Ms. Shigenobu has proven that there is no suitable, alternative accommodation nearby that is affordable to her.

c. Because the parties’ mortgage is so low, it is affordable to Ms. Shigenobu to maintain the matrimonial home. She is not in a financial position to afford to buy or rent new accommodation at this time.

d. Ms. Shigenobu expects her financial position to change some time next year when two civil actions in which she is a plaintiff are likely to be resolved. She expects to receive a meaningful settlement as a result.

e. S is in grade 11. A move to new accommodation at this juncture would be particularly disruptive to him.

f. However, an order for exclusive possession of the matrimonial home in Ms. Shigenobu’s favour ties up Mr. Kinsey’s equity in the matrimonial home. Any order must thus be only as brief as necessary to allow for minimal disruption to the children’s lives and to give the parties a chance to find their financial footing in their newly-changed circumstances.

g. There is no written agreement between the parties to consider.

h. I have no evidence before me of the children’s views and preferences, though given their solid community connections, I infer that they would prefer to remain in the Etobicoke community.

i. I have already discounted Mr. Kinsey’s allegations of violence. Mr. Kinsey admits to one incidence of physical violence against Ms. Shigenobu which occurred long ago. However, the evidence establishes harassing, disrespectful and inappropriate behaviour towards Ms. Shigenobu by Mr. Kinsey in the recent past. Accordingly, it is not appropriate that both parties share the matrimonial home despite its joint ownership.

j. An order granting Ms. Shigenobu exclusive possession of the matrimonial home until July 15, 2021 takes account of the children’s immediate need for stability, while balancing Mr. Kinsey’s need for his equity from the home within a reasonable period of time. Moreover, it gives Ms. Shigenobu about a year and a half to prepare for a move and address her financial circumstances. It also allows S to complete his high school education in the school he currently attends and complete his grade 12 exams before the sale of the home will close.

[86] Although in my view an order for exclusive possession of the matrimonial home is reasonable, I find it is also necessary to make plans for the eventual sale of the home. Absent agreement by the parties that would let one buy the other’s interest out, I direct the following provisions regarding sale:

a. The home shall be listed for sale no later than March 30, 2021, with a closing date no earlier than July 15, 2021.

b. If the parties cannot agree on a realtor to list the property for sale, a listing price, or the appropriate sale price, either one may apply to the court to determine the issue or issues.

[87] Ms. Shigenobu notes that the mortgage on the matrimonial home will be up for renewal next year. I direct the parties to cooperate to renew the mortgage for a period that extends at least until the end of the period of exclusive possession that I have ordered.

[88] I also direct that, while Ms. Shigenobu enjoys exclusive possession of the matrimonial home, she shall be solely responsible for its upkeep, including the costs of the mortgage, home insurance, and property taxes. Currently the costs of maintaining the home are significantly less than a similarly sized rental in the area. Mr. Kinsey has filed no Answer, so there is no claim for occupation rent. However, in my view, if Mr. Kinsey’s equity is to be tied up in the house, and if Ms. Shigenobu is able to live there at a significantly lower cost than she would incur were she renting, it is only just that she pays the costs of maintaining the home.

[89] I note that Ms. Shigenobu sought a vesting order with respect to the matrimonial home at trial (although she did not seek one in her Application). I have concluded a vesting order is not appropriate; I explain why in my discussion of equalization of the parties’ net family property.

Equalization

[90] At trial, Ms. Shigenobu provided me with two versions of a Net Family Property Statement. In one, she assumed the matrimonial home was sold. In the other, she assumed the matrimonial home was transferred to her.

[91] It is apparent from my analysis of Ms. Shigenobu’s claim to exclusive possession of the matrimonial home that I have concluded that a vesting order is not appropriate. Before I turn to the question of the equalization payment, I will explain why.

[92] Ms. Shigenobu sought vesting of the matrimonial home in her on the basis that Mr. Kinsey should pre-pay his future spousal support and child support obligation, which should be set off against his interest in the matrimonial home. She also sought to set off post-separation adjustments. She proposed that if, after setting off these obligations, Mr. Kinsey still had an entitlement to equity in the home, I could order a non-interest bearing mortgage in his favour. This was not a feasible approach to the parties’ equity in the matrimonial home for the following reasons:

a. Ms. Shigenobu’s calculations of future support owing were flawed in several material ways. First, as will be apparent from my analysis of Mr. Kinsey’s income, she prepared her calculations using an imputed income to Mr. Kinsey that was too high and using no income for herself when she is receiving an income. Second, she calculated the future support obligation by taking the monthly quantum of support she calculated and multiplying it by the months she assumed support would be payable, making no deduction for tax consequences of spousal support, and not calculating a present value of the future obligation.

b. As will be apparent from my analysis of spousal support below, even assuming entitlement to support, the quantum of spousal support owing to Ms. Shigenobu is zero;

c. Ms. Shigenobu’s suggestion that any mortgage in favour of Mr. Kinsey be non-interest bearing was made because she urged me to find that Mr. Kinsey would have been late paying his support obligation. She did not factor in the fact that her proposal would have had Mr. Kinsey pre-paying the support obligation (as I have noted, without a deduction for its present value or tax consequences).

d. At the same time, Ms. Shigenobu suggested she could pay Mr. Kinsey out using her RSP, which she also suggested she could use to pay off the mortgage in favour of the bank. The RSP is not sufficient to discharge the mortgage in favour of the bank, especially given that it is taxable on withdrawal. Ms. Shigenobu also suggested that Mr. Kinsey be ordered to participate in the renewal of the mortgage in favour of the bank, although she sought to have his interest in the home extinguished and suggested he be indemnified for the mortgage.

[93] I understand Ms. Shigenobu wishes to retain the house. There is no basis in fact or in law for the vesting order she sought.

[94] Since I have ordered the house be sold in 2021, and since the house is jointly owned, the net proceeds will be shared equally between the parties. I thus approach the question of equalization having no regard to the house or the mortgage associated with it.

[95] Based on Ms. Shigenobu’s Net Family Property statement that assumes the sale of the house, she owes Mr. Kinsey an equalization payment of $25,921.73.

[96] I enquired as to whether any component of Ms. Shigenobu’s lawsuits would have been contingent assets subject to equalization at separation. Her counsel advised me that the causes of action did not exist at separation. That is not accurate. Ms. Shigenobu’s accident pre-dated separation. However, her claim for long-term disability is, in effect, a claim for income replacement, and as such, any proceeds from that lawsuit will be relevant to the assessment of her income going forward.

[97] Ms. Shigenobu’s tort claim is not in evidence, but damages for personal injury are excluded under s. 4(2)(3) of the Family Law Act. While Ms. Shigenobu should have valued the claim for purposes of her Financial Statement and then excluded it, the net effect on the equalization payment is likely zero.

[98] I have no basis to question Ms. Shigenobu’s Net Family Property statement because, as I have noted, Mr. Kinsey provided only an incomplete Financial Statement and did not participate in the financial issues at trial.

[99] Accordingly, while I would have preferred more complete evidence to calculate the equalization payment, I find that Ms. Shigenobu owes Mr. Kinsey an equalization payment of $25,921.73.

Post-Separation Adjustments

[100] Ms. Shigenobu claims post-separation adjustments. Leaving aside the question of s. 7 expenses, which I address in the context of my analysis of child support, below, I must consider Ms. Shigenobu’s other claims for post-separation adjustments.

[101] Ms. Shigenobu’s evidence is that Mr. Kinsey did not contribute to household expenses after separation. His credit card and banking statements show some purchases he states are for food; however, Ms. Shigenobu’s evidence is that he bought himself food and kept it separately in the kitchen for only his own use. She also gave evidence that Mr. Kinsey deposited nothing into their joint account such that expenses that were funded from the joint account were funded by her only.

[102] I find that Ms. Shigenobu has established that she is entitled to post-separation adjustments in the amount of $230.10 for amounts paid from the joint account for Mr. Kinsey’s cell phone bill in July and August 2019.

[103] Ms. Shigenobu also seeks half of $1,699.90 which is the amount she has transferred from her sole accounts into the joint account. However, I have no evidence to assist me in understanding what these amounts were used for. I thus have no basis to determine that Mr. Kinsey should bear responsibility for half of them.

[104] I note too that Ms. Shigenobu has withdrawn from the parties’ joint line of credit to meet living expenses since separation. The responsibility for the line of credit rests with both parties equally. It thus appears that Mr. Kinsey has been contributing to the family expenses if only through his share of the debt.

[105] Ms. Shigenobu also seeks Mr. Kinsey’s contribution to S’s transportation and cell phone fees, and to the home internet fees. The documentary evidence establishes that these expenses were paid for by Ms. Shigenobu’s credit card. However, I have no evidence to establish from where the money to pay the credit card bills came. If the money came from the joint line of credit, Mr. Kinsey has already paid his share through his increased share of family debt. Ms. Shigenobu has not proven that these amounts are owing to her.

[106] Similarly, Ms. Shigenobu seeks Mr. Kinsey’s contribution to premiums paid for Cumis life insurance policies. Both parties hold a $200,000 life insurance policy. Ms. Shigenobu says she has been paying the premiums. The documentary evidence shows that premiums are being taken from an account named “chequing 2”, but I have no evidence as to the owner of this account or where the funds in the account originated. Again, if these amounts were paid by withdrawals from the joint line of credit, Mr. Kinsey has already paid his share. Ms. Shigenobu has not proven that these amounts are owing to her.

[107] Ms. Shigenobu has also claimed half of an overdue water bill that was paid in July 2019 from “chequing 2”, but again, without evidence as to who owned that account or where the money originated from, Ms. Shigenobu has not proven this claim.

[108] Ms. Shigenobu also seeks Mr. Kinsey’s contribution to an Enbridge gas bill from the summer 2019. Given that Ms. Shigenobu has had exclusive possession of the matrimonial home since July 1, 2019, and given my conclusion that she must solely bear the expenses associated with the matrimonial home during the period of exclusive possession, there is no basis to seek a contribution from Mr. Kinsey for this amount.

[109] Accordingly, Ms. Shigenobu has proven that Mr. Kinsey owes her $230.10 in post separation adjustments.

Child Support

Table Support

[110] On the parenting schedule I have ordered, Mr. Kinsey is responsible for paying full table support for the children. The question is his income.

[111] At trial, Mr. Kinsey testified that he was engaged in temporary work related to the federal election. He expects to earn $7,000-$8,000 for this work. He has also done some construction work this year. He states he worked about 90 hours for minimum wage. He gave evidence that he is taking some workshops to try to address his anxiety about seeking work in new situations. He does not understand what stops him from “making that phone call”.

[112] Mr. Kinsey has worked in the past. He originally worked as an ESL teacher and last earned a salary of about $41,000 in that role in about 2006. In submissions, he tried to explain that he was no longer qualified to teach ESL, but he gave no evidence on the point, nor was he entitled to in view of Stevenson J.’s order.

[113] Ms. Shigenobu argues that Mr. Kinsey has construction skills. She deposes he has the skills to paint, build decks and lay flooring. She has attached some internet searches showing average Canadian income of $35,000-$50,000 for these types of positions. However, the source of these salaries is not clear to me from the internet search. Nor is it clear to me how a Toronto salary would compare to the average Canadian salary.

[114] Ms. Shigenobu also handed up some Google searches with the average salary for a general contractor which she argues is about $52,000. I received these in submissions; they are not in evidence. They also raise the same questions about reliability as the searches that are in evidence. She states I should assume Mr. Kinsey is qualified as a general contractor – although there is no evidence that his construction skills in fact do qualify him for the responsibilities of a general contractor as opposed to, for example, a handyman. She argues I should gross up the average salary to $60,000, because contractors are self-employed, and the $52,000 salary would be reduced by business expenses for tax purposes that would be included as income for support purposes. This is all wild speculation. Among other things, there is no breakdown of the $52,000 salary (that is not in evidence) to demonstrate how it was calculated, or even that it is business income as opposed to employment income.

[115] I agree that I must impute an income to Mr. Kinsey. I have no medical evidence to establish that he is disabled from working. He is currently working, so I must assume he is capable of working. He is clearly intelligent and articulate. He is engaged heavily in the children’s activities, so has proven himself to be a capable contributor in other contexts. Mr. Kinsey has an obligation to support his children financially. He must take steps to get a steady, reliable job. Doing so will allow him to afford accommodation near the children and play a greater role in their lives.

[116] However, Mr. Kinsey has never earned more than $41,000. In my view, it is not realistic to suggest he should be earning $60,000 without any reliable evidence that there are jobs for which he is qualified that would generate that income, and without any income earning history that even begins to approach a salary at that level.

[117] I am prepared to conclude that Mr. Kinsey is capable of earning a salary of $45,000. If he was capable of earning a salary of $41,000 thirteen years ago, it is reasonable to assume that with cost of living increases, he should be capable of earning $45,000 today as an ESL teacher. Moreover, as someone with construction skills, Mr. Kinsey should be able to earn more than minimum wage.

[118] I thus conclude that Mr. Kinsey’s income shall be imputed at $45,000 annually. At this income, his table support obligation for three children is $888 per month commencing December 1, 2019.

[119] In terms of retroactive child support, I note that my order setting terms for the adjournment of the trial provided for child support payable for one child only (because A and E spent the summer with each parent equally) based on a minimum wage income. However, my order preserved retroactive claims.

[120] In my view, retroactive support should be calculated based on the income I have found should be imputed to Mr. Kinsey. I also find that the retroactive support should be calculated for three children, not one, and beginning July 1, 2019. I reach this conclusion because, despite the shared parenting over the summer months, Mr. Kinsey will have A and E in his care less than 40% of the time over the course of July-December 2019, so a reduction in table child support is not appropriate.

[121] I see no reason to extend the retroactive calculation to a time earlier than July 1, 2019 because the parties resided together and expenses were, to a great extent, funded by withdrawals from their joint line of credit. I have otherwise addressed Ms. Shigenobu’s claims for post-separation adjustments (with the exception of s. 7 expenses, which I address below).

[122] Despite my order for interim child support, Mr. Kinsey has made no payments of child support. Accordingly, the retroactive table child support owing from Mr. Kinsey to Ms. Shigenobu for the period up to November 30, 2019 is $4,440.

Section 7 Expenses

[123] In order to determine the parties’ respective responsibility for the children’s s. 7 expenses, it is necessary to consider Ms. Shigenobu’s income.

[124] Although in her support calculations, Ms. Shigenobu assigns herself an income of zero, she is in fact receiving funds that should be considered. These amounts are explained in her affidavit. They consist of $413.06, which is a disability insurance payment from an insurance policy on the line of credit, $1,116.00 from Ontario Works, and child tax benefits.

[125] In addition to these amounts, Ms. Shigenobu deposes that she received a settlement for future medical expenses which netted her about $31,000. I have disregarded these funds for purposes of calculating her income since they are designed to pay health costs associated with addressing her ongoing medical needs arising out of her accident.

[126] I have generated as Divorcemate calculation, attached at Schedule A to these reasons. Considering her monthly receipts, Ms. Shigenobu’s annual income for purposes of the Federal Child Support Guidelines is calculated at $18,348.00. Thus, the parties’ respective shares of s. 7 expenses are as follows: Ms. Shigenobu is responsible for 29% of the children’s s. 7 expenses. Mr. Kinsey is responsible for 71%.

[127] In terms of what expenses are properly considered s. 7 expenses, the parties are largely in agreement. They agree that the children’s extra-curricular fees and the associated necessary equipment are proper s. 7 expenses. They also agree that the children’s medical and dental expenses are s. 7 expenses. Ms. Shigenobu took some objection to Mr. Kinsey’s decision to get braces for A and S now, when they are difficult to afford. Mr. Kinsey explained that the orthodontist recommended they not delay. In the circumstances, I am satisfied that the orthodontic work is a reasonable and necessary expense. The parties are committed to the children’s extensive sporting activities. Their dental health is as important.

[128] Ms. Shigenobu’s affidavit sets out her claim to past s. 7 expenses for the children. These include $869.28 in medical expenses and $10,432.83 in extra-curricular expenses. Some of the extra-curricular expenses claimed are not proper s. 7 expenses, such as haircuts, lunchboxes, sunscreen, shoes, and gifts for friends. At the same time, Ms. Shigenobu acknowledges $3,037 in s. 7 expenses (excluding haircuts) paid by Mr. Kinsey.

[129] In my review of the s. 7 expenses Ms. Shigenobu states she incurred, approximately $9,880 are properly s. 7 expenses for extra-curricular activities, and $869.28 are proper s. 7 expenses for medical expenses. Unfortunately, it is impossible for me to confirm who paid for these expenses, or whether they were funded by debt drawn from the joint line of credit. Many expenses were paid by Ms. Shigenobu’s credit card, but again, I do not know where the funds came from to pay the credit card bill. Similarly, while I understand that Mr. Kinsey incurred charges for $3,037 in s. 7 expenses, I do not know where the funds to pay those amounts came from, and in particular whether they originated from the parties’ joint line of credit.

[130] I thus conclude that neither party has established an entitlement to retroactive reimbursement for s. 7 expenses.

[131] Accordingly, I order no amount payable for retroactive s. 7 expenses from either party. Going forward, the parties will bear their proportionate share of s. 7 expenses.

[132] Ms. Shigenobu seeks two additional orders. First, she seeks an order that Mr. Kinsey contribute to an RESP for the children. While an RESP is a desirable investment in the children’s future, the parties are not currently employed. I see no basis to order Mr. Kinsey to make an RESP contribution monthly. Moreover, Ms. Shigenobu did not establish my jurisdiction to make such an order.

[133] Second, Ms. Shigenobu seeks an order for life insurance as security for support. Currently Mr. Kinsey’s life is insured through a policy with Cumis Insurance in the amount of $200,000. Ms. Shigenobu states that she has been paying the premiums, although it is unclear to me whether the premiums are paid by her or whether they have been funded by the parties’ joint debt.

[134] The Divorcemate calculation I have generated suggests that appropriate security for child support is $68,336. I order Mr. Kinsey to designate Ms. Shigenobu as the irrevocable beneficiary of life insurance in the amount of $68,336 for as long as he has an obligation to pay child support. He shall keep the life insurance of $68,336, of which Ms. Shigenobu is the irrevocable beneficiary, in full force and effect, with premiums paid. He shall provide written proof of the beneficiary designation within thirty days. He shall not encumber the policy of which Ms. Shigenobu is the beneficiary and shall not borrow, withdraw, or otherwise take any steps to reduce the cash surrender value of the policy.

Spousal Support

[135] Ms. Shigenobu makes a claim for spousal support in her application and the second affidavit she filed at trial. This represented a change in position from the first affidavit she filed in support of the uncontested trial, in which she stated she was not seeking spousal support.

[136] Ms. Shigenobu argues that because of her accident, she is unable to work. After years of providing for the family as the primary income earner, she states she is entitled to look to Mr. Kinsey for support now that she is unable to work.

[137] Ms. Shigenobu has not given any evidence with respect to her medical status, or why she is unable to work as a result of her accident. The evidence establishes that she settled her claim for future medical care costs at about $31,000, and that she is receiving about $400 a month in LTD benefits from the policy on her line of credit. It also establishes that she is in litigation with another LTD insurer and that she has a tort claim ongoing. There is no evidence to establish whether she can no longer work at her former job, or whether she cannot work at any job.

[138] As the primary income earner throughout the marriage, Ms. Shigenobu does not have a claim to compensatory support. She might have a claim to needs-based support on the basis that after her accident, she needs Mr. Kinsey’s support, but she has not proven it.

[139] Assuming she had proved her entitlement to support, Ms. Shigenobu would seek spousal support at the high end of the SSAGs. When I asked her why she would be entitled to spousal support at the high end of the SSAGs, she told me that, on her calculations, monthly support at the low end of the SSAGs was zero, at the mid-range was $16, and at the high end of the range was $174. She suggested support at the high end was appropriate, because she needed the money. That is not a proper basis to establish support at the high end of the SSAGs.

[140] In any case, even if Ms. Shigenobu was entitled to non-compensatory spousal support, based on the parties’ respective incomes, after taking into account child support, Mr. Kinsey does not have an ability to pay. The quantum of spousal support owing is zero, even at the high end of the range. This can be seen in the Divorcemate calculation attached at Schedule A to these reasons. I ran the calculations including the children’s s.7 expenses, and note that doing so did not change the spousal support, which remained at zero.

[141] I thus conclude that no spousal support is owing either prospectively or retroactively.

Divorce

I am satisfied that the parties have been separated over a year, and that there is no reasonable prospect of reconciliation. I am also satisfied that neither party is attempting to defraud the court. Accordingly, I grant Ms. Shigenobu’s request for a divorce.

Costs

[142] Ms. Shigenobu’s counsel advised me that offers to settle have been made, which may impact on costs.

[143] If either party seeks costs, and the parties cannot agree on costs, I will receive written submissions. Any party wishing to make a claim to costs shall deliver written submissions not to exceed three pages, together with a bill of costs and any relevant offers, within fourteen days of these reasons. Any party responding may deliver written submissions not to exceed three pages, together with a bill of costs and any relevant offers, within fourteen days of receipt of the other party’s submissions. If reply submissions are necessary, I will receive written submissions, not to exceed two pages, within seven days of receipt of the responding submissions. Written submissions may be delivered to my attention at Judges’ Administration at 361 University Avenue.

Conclusion

[144] In summary, I make the following orders:

a. The parties shall make joint decisions for S, A, and E, following the protocol below:

i. Except in cases of emergency, the party who becomes aware of a major decision to be made for the child shall advise the other in writing at least thirty days in advance of the decision being made.

ii. In making decisions for the child(ren), the parties shall take into account the views of the child(ren) and the views of any relevant experts or professionals, such as teachers or physicians. Each party shall have the right to consult with the child(ren) and the expert(s) or professional(s) to obtain their views.

iii. The parties shall attempt to reach a consensus in writing within fourteen days.

iv. If no consensus is reached with respect to a non-emergency decision for A or E, either party may apply to the court for a determination of the issue. If the issue relates to the extra-curricular activities of a child, either party may apply to the court for a determination of the issue, or they may choose to unilaterally enroll the child in an activity during their parenting time only and at their sole cost.

v. If an emergency decision needs to be made for A or E, the parties shall make best efforts to consult with each other and reach a consensus as quickly as possible. If no consensus can be reached, either party may seek an urgent determination of the issue from the court.

vi. If no consensus is reached with respect to a non-emergency decision for S, Ms. Shigenobu shall have the right to make the final determination without need to apply to the court. However, if the decision relates to an extra-curricular activity, absent agreement or court order, Mr. Kinsey shall not be required to contribute to the cost of the activity or facilitate the activity during his parenting time with S.

vii. If an emergency decision needs to be made for S, the parties shall make best efforts to consult with each other and reach a consensus as quickly as possible. If no consensus can be reached, Ms. Shigenobu shall have the right to make the final determination without need to apply to the court.

viii. Day-to-day decisions involving the children shall be made by the parent in whose care the children are.

b. The parties shall have parenting time with the children as follows:

i. S, A, and E shall have their primary residence with Ms. Shigenobu in Etobicoke.

ii. Mr. Kinsey shall have regular parenting time with A and E as follows:

1. Every other weekend from Friday pick up from school to Monday morning drop off at school; and

2. Every Wednesday evening from pick up after school until 9 p.m.

iii. Mr. Kinsey shall be entitled to attend A's and E's school and extra-curricular activities whenever they occur. If both Ms. Shigenobu and Mr. Kinsey are in attendance at any such activities, they shall maintain a respectful distance from one another.

iv. S shall be entitled to regular parenting time with Mr. Kinsey in accordance with S’s wishes.

v. Mr. Kinsey shall be entitled to attend S’s school and extra-curricular activities in accordance with S’s wishes. If both Ms. Shigenobu and Mr. Kinsey are in attendance at any such activities, they shall maintain a respectful distance from one another.

vi. The parties shall have parenting time with the children over the holidays in accordance with the following schedule:

i. Except as otherwise set out below, long weekends shall be in accordance with the regular parenting schedule. The parent in whose care A and E are for the weekend shall have care of them from pick up at school on Thursday, if the holiday is on a Friday, or until drop off at school on Tuesday morning, if the holiday is on a Monday. On long weekends, except as otherwise set out below, parenting time with S shall be in accordance with S’s wishes;

ii. A and E shall be in Mr. Kinsey’s care during the school March break for his regular weekend, and the TDSB’s scheduled holiday from Monday-Friday each year. Ms. Shigenobu shall have A and E for her regular weekend over the school March break. S shall have parenting time with Mr. Kinsey over the March break in accordance with S’s wishes.

iii. S, A and E shall be in the care of Mr. Kinsey every Easter weekend from pick up at school on Thursday until drop off at school on Tuesday morning;

iv. S, A and E shall be in the care of Mr. Kinsey on Thanksgiving weekend from pick up at school on Friday until drop off at school on Tuesday morning in even-numbered years. S, A and E shall be in the care of Ms. Shigenobu on Thanksgiving weekend from pick up at school on Friday until drop off at school on Tuesday morning in odd-numbered years.

v. S, A and E shall be in the care of Ms. Shigenobu on Mother’s Day from 9 a.m. until drop off at school on Monday morning.

vi. S, A and E shall be in the care of Mr. Kinsey on Father’s Day from 9 a.m. until drop off at school on Monday morning.

vii. S, A and E shall be in the care of Mr. Kinsey for the first half of the TDSB Christmas break, except that the children shall be in the care of Ms. Shigenobu on Christmas Day from 10 am to 3 pm. S, A and E shall be in the care of Ms. Shigenobu for the second week of the TDSB Christmas break.

viii. A and E shall be in the care of Mr. Kinsey for half of the summer break, and in the care of Ms. Shigenobu for the other half of the summer break. To determine the children’s summer schedule the parties will:

1. Identify what weeks A and E will be at sleep-away camp and exclude these weeks from their time-sharing;

2. In even-numbered years, Ms. Shigenobu shall be entitled to first choice of time with A and E. She shall identify blocks of time of no less than one week and no more than two weeks at a time, which together shall total half of the remaining summer holidays for A and E after their time at camp is excluded, and communicate these to Mr. Kinsey no later than May 15 of each year. In odd-numbered years, the same process will occur with Mr. Kinsey having first choice of time in the summer.

ix. S shall have parenting time with Mr. Kinsey in the summer in accordance with S’s wishes.

x. Both parents shall remain reasonable and flexible with respect to special occasions, family reunions or celebrations to facilitate the children spending time with each other’s extended family.

xi. The parties will celebrate their birthdays and the children’s birthdays during their respective parenting time.

xii. Mr. Kinsey shall have such additional parenting time with A and E as the parties agree.

c. I make the following additional orders with respect to the children’s travel and documentation:

i. Each party shall have the right to travel with the children within Ontario for up to two weeks at a time during their summer parenting time without the consent of the other. In the event either party wishes to do so, they will provide the other with a detailed itinerary, including contact information, at least thirty days in advance of travel. Notwithstanding this direction, Mr. Kinsey may travel with the children to his family cottage during his parenting time on two days’ notice to Ms. Shigenobu.

ii. Either party may travel outside of Ontario with the children with the consent of the other, or upon order of the court. Neither party shall unreasonably withhold consent to the other. The party seeking to travel shall request the consent of the other no later than 30 days prior to travel, except in the case of emergency.

iii. If any of the children seek to travel outside of Ontario without either parent, consent of both parents or court order shall be required. Neither party shall unreasonably withhold consent. The party seeking to arrange such travel shall seek the consent of the other no later than 30 days prior to travel, except in the case of emergency.

iv. The travelling party, or the party arranging the travel, shall provide the consenting party with a travel consent at least ten days in advance of travel, except in the case of emergency, and the consenting party shall execute and return it at least five days in advance of travel.

v. If either party travels without the children, she or he will ensure the other party has contact information for the travelling parent in the event of an emergency.

vi. In the event Mr. Kinsey requires the children’s passports for travel, Ms. Shigenobu shall provide them at least ten days in advance of travel, and he will return them to Ms. Shigenobu within ten days of the child returning to the jurisdiction.

d. I make the following additional orders with respect to parenting:

i. Ms. Shigenobu shall be the custodian of the children’s documents. She shall promptly provide Mr. Kinsey with copies of the children’s health cards. The parties shall cooperate to renew any government documents for the children and share the cost of the renewal of the documents equally.

ii. The parties shall communicate with each other via email or text messaging. In an emergency, the parties may communicate with each other via telephone. At all times the parties shall communicate with each other respectfully.

iii. The parties may each make enquiries of the children’s schools, teachers, health care professionals and others involved with the child without the necessity of a consent, direction or authorization from the other. However, should any person or organization involved with the child require a consent, direction or authorization from the other, that parent shall provide one promptly.

iv. Each party may attend individually-arranged parent-teacher meetings.

v. Each party will obtain his or her own school calendar and school notices.

vi. Either party may make routine appointments with a professional for the child and will be the parent responsible for attending such appointments. Routine appointments will be made with the child’s regular professional only, absent agreement by the parties. If a party makes a routine appointment for a child, they will inform the other party within one day, and after the appointment, will advise the other party in writing within one day as to the information obtained and the appointment, the outcome and any follow-up.

vii. Emergency medical appointments may be made by the party in whose care the children are. That party shall update the other parent as soon as practicable in the event of an emergency appointment.

e. I make the following orders with respect to property:

i. Ms. Shigenobu shall have exclusive possession of the matrimonial home until July 15, 2021. During the period of exclusive possession, which began on July 1, 2019, she shall be solely responsible for the upkeep of the matrimonial home, including the costs of the mortgage, home insurance, and property taxes.

ii. The parties shall cooperate to renew the mortgage for a period that ends no earlier than July 15, 2021.

iii. Absent agreement between the parties that would let one buy the other’s interest in the matrimonial home, the following provisions shall govern the sale of the home:

1. The home will be listed for sale no later than March 30, 2021, with a closing date no earlier than July 15, 2021.

2. If the parties cannot agree on a realtor to list the property for sale, a listing price, or the appropriate sale price, either one may apply to the court to determine the issue or issues.

iv. Ms. Shigenobu shall pay to Mr. Kinsey an equalization payment of $25,921.73.

v. Mr. Kinsey shall pay to Ms. Shigenobu post-separation adjustments, in the total amount of $230.10.

f. I make the following orders with respect to child support and s. 7 expenses:

i. Based on an imputed income of $45,000 annually, Mr. Kinsey shall pay monthly table child support for three in children in the amount of $888 per month, commencing December 1, 2019. SDO to issue.

ii. Mr. Kinsey shall pay retroactive table child support for the period up to November 30, 2019 in the amount of $4,440, by December 1, 2019.

iii. Based on their respective incomes, Ms. Shigenobu shall be responsible for 29% and Mr. Kinsey shall be responsible for 71% of the children’s s. 7 expenses.

iv. No amount shall be payable to or by either party for retroactive s. 7 expenses.

v. Mr. Kinsey shall designate Ms. Shigenobu as the irrevocable beneficiary of life insurance in the amount of $68,336 for as long as he has an obligation to pay child support. He shall keep the life insurance of $68,336, of which Ms. Shigenobu is the irrevocable beneficiary, in full force and effect, with premiums paid. He shall provide written proof of the beneficiary designation within thirty days. He shall not encumber the policy of which Ms. Shigenobu is the beneficiary and shall not borrow, withdraw, or otherwise take any steps to reduce the cash surrender value of the policy.

vi. Ms. Shigenobu’s claim for prospective and retroactive spousal support is dismissed.

g. Ms. Shigenobu’s request for a divorce is granted.

J.T. Akbarali J.

Released: November 04, 2019