COURT FILE NO.: FC-17-1927

DATE: 20191227

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROSALIE MASTRANGELO Applicant

– and –

ANTONIO PIETRO PAOLO DI CRISTOFARO Respondent

Gil Rumstein, for the Applicant

Respondent, Self-represented

HEARD: November 25, 26, 27, 28 and December 12, 2019

REASONS FOR DECISION

Audet J.

1In this trial, the applicant mother, Ms. Rosalie Mastrangelo (“the mother”), seeks an order granting her sole custody of the children, age 10 and 8, and an order that the children have their primary residence with her, with access to their father every second weekend (from Friday after school until Sunday at 7:00 p.m. as well as every Wednesdays from after school to 7:00 p.m.). She also seeks child support and a contribution towards the children’s special and extraordinary expenses, retroactive to January 2017. Finally, she seeks compensation for expenses assumed while the parties continued to live separate and apart under the same roof, as well as other reliefs related to these issues.

2The respondent father, Mr. Antonio Pietro Paolo Di Cristofaro (“the father”), seeks an order granting the parties joint custody of the children, with an equal time-sharing schedule (from Friday to Friday with a mid-week evening access to the non-residential parent on Wednesdays), set-off child support in accordance with s. 9 of the Child Support Guidelines, S.O.R./97-175 as amended (“Guidelines”) and various other orders related to the issues raised in this case.

3It is to be noted that on the eve of trial, the parties were able to settle all property matters by way of Final Partial Minutes of Settlement to be incorporated into a final order. In these Minutes, they have also agreed to various provisions related to parenting, which will also be part of my final order, on consent. Both parties also consent to the issuance of a divorce.

Background

Background

4The parties were married on March 8, 2008 and separated on January 1, 2017. They continued to live separate and apart in the matrimonial home until May 31, 2017, at which time the home was sold, and each party relocated into their own separate residence.

5The parties are the biological parents of two children, namely, Antonio, who was born on October 27, 2009 (10) and Luciano, who was born on December 8, 2011 (8). Since the date of the parties’ separation, the parties have equally shared their time with the children on a week about basis (from Friday after school until Friday the next at school). Antonio and Luciano both attend the same French Catholic elementary school; Antonio is in grade 5 and Luciano is in grade 3.

6Both parents are employed on a full-time basis. The mother works at the Canadian Security Establishment (in the department of finances) and her current annual income from this employment is $86,636. The mother also owns a rental property which yields yearly gross rental income of approximately $12,000 per year. The determination of her income for child support purposes is an issue in this trial.

7The father has two jobs. He is employed on a full-time basis by Utility Structures Inc. through which he earns an annual income of $66,219. He is also self-employed as a paper delivery person through which he earns annual gross business income in the range of $7000, with a net declared income of $656 per annum (2018 figures). The father’s income for child support purposes is also an issue in this trial.

8On July 19, 2018, Ms. Sandra Elliott, clinical investigator from the Office of the Children’s Lawyer (“OCL”) completed an investigation pursuant to s. 112 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 and recommended sole custody to the mother, with access to the father every second weekend from Thursday after school to Monday morning, as well as every other Thursday overnight.

9Ms. Elliott also made many other recommendations with regards to holiday and summer access, communication between the parties, and so on. The factors that based her recommendations will be explored more fully below.

Parenting

Legal framework

Parenting

10In making a custody or access order with regards to a child, I am required by virtue of s. 16 of the Divorce Act, 1985, c. 3 (2nd Supp.) to consider the following legal principles:

Order for custody

16(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

Joint custody or access

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

Access

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

Factors

(8) In making an order under this section, the court shall take into consideration 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.

Past conduct

(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.

Maximum contact

(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.

11Ontario courts determining custody and access matters under the Divorce Act also refer to the criteria set out in s. 24(2) of the Children’s Law Reform Act, to define the concept of a child’s best interests:

Best interests of child

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, including a parent or grandparent, entitled to or claiming custody of or access to the child,

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

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

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

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

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

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

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

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

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

Credibility and Evidentiary Issues

Credibility and Evidentiary Issues

12At the outset, I wish to make the following comments about the parties’ overall credibility.

13I find that both parties lacked credibility on various (and different) issues. While the mother provided her testimony in chief in a very calm, matter-of-fact manner, I find that her credibility on certain key issues was significantly shaken in cross-examination. In particular, I find that she made several sweeping declarations about the father’s conduct and involvement in the children’s lives which turned out to be either untrue or exaggerated. Some part of her testimony contained exaggerations about the father’s behaviour and, generally speaking, I found the mother’s unwillingness to acknowledge any meaningful involvement by the father in the children’s lives somewhat troubling.

14As an example of the mother’s sweeping declarations, in her testimony she asserted that the father rarely attended any of the children’s medical appointments and rarely attended or drove them to their activities. While I find that the mother was indeed primarily responsible for the children’s health needs and medical appointments, she failed to mention (until in cross-examination) that the father had always been solely responsible for taking the children to their dentist during the parties’ marriage (the mother admitted to not even knowing who the children’s dentist was) and that while the mother took Luciano to his pediatrist most of the time, the father also took Antonio to his family doctor on occasions.

15The evidence also supports a finding that the father is very involved in the children’s extracurricular activities, especially hockey and baseball (although I acknowledge that baseball started only after the parties separated and was imposed unilaterally by the father), and in her cross-examination the mother was very reluctant to admit to the father’s significant involvement in these two activities.

16As one example of the mother’s exaggerations, in her evidence in chief she spoke on several occasions about how, on one occasion, the father had come home intoxicated, had been sick on the kitchen floor and had “ordered Antonio to pick up his puke!!”. The mother’s friend, Ms. Ngo-Lien, who was present on that day, testified that the father had actually asked Antonio to bring him paper towel after being sick on the floor. In her cross-examination the mother changed her testimony and admitted that the father had told Antonio to “come pick this up please”.

17The mother also asserted, in no uncertain terms, that the father had a criminal record. However, Ms. Elliott performed a criminal check as part of her investigation and confirmed that neither party had a criminal record. Further, during the course of the OCL investigation the mother never reported her belief in that regard to Ms. Elliott.

18The father also lacked credibility on many issues. I find that he tried to show himself in a much better light as it relates to various events involving the parties than what actually transpired in reality. He also completely failed to show any insight into how his behaviour had contributed to the significant and increased conflict between the parties. While he admitted to having struggled with a gambling addiction in the past, his attempts to minimize its seriousness and the dreadful consequences that his addiction has had on his family was disconcerting.

19The father’s abrupt and “all or nothing” personality, and his remarkable level of anger and resentment towards the mother was made unequivocal during this trial. This had an important impact on his credibility, generally.

20The father also lost credibility when, at trial, his testimony on some important events was completely different than the account of those same events he conveyed to Ms. Elliott during her investigation. For instance, at trial the father claimed to be fully supportive of the children attending French school. However, in Ms. Elliott’s report, she reported that the father had made it very clear that he did not support the children being educated in the French language given their academic struggles. To explain this inconsistency, the father responded dismissively that the clinical investigator “must have misquoted me”.

21As another example, during his interview with Ms. Elliott, the father stated very clearly that the mother’s drinking and memory loss were two major factors in the breakdown of their marriage. He reported that by January 2017, “he told her he had had enough with her drinking and memory loss”. The father’s evidence at trial, which was supported by the mother’s own evidence, is that the parties’ separation was in fact (clearly and unequivocally) caused by the father’s relapse into gambling.

22As a final example, while the father asserted that he had always been very involved with Dr. Shoemaker, Antonio’s treating physician for his ADD, Dr. Shoemaker reported to Ms. Elliott on April 6, 2018, that he had never had any contact with the father. This means that the father’s “significant” involvement with Dr. Shoemaker, if any, is only recent.

23To conclude on the parties’ credibility, I wish to add that while they were both able in their direct testimony to remember in quite some detail very specific events that shed them in a good light (or shed the other parent in a very bad light), in their cross-examination they both conveniently could not remember many significant events – events that ought to have been quite memorable – when those events negatively impacted their narrative.

24Although both parties initially intended to call a significant number of witnesses, ultimately each called very few witnesses to corroborate their testimonies. However, many of the witnesses who the parties originally intended to call were interviewed by Ms. Elliott, and the court was provided with the benefit of their input through Ms. Elliott’s report.

25Finally, although the OCL’s assessment was somewhat dated, the information it contained (as well as Ms. Elliott’s personal observations) was, to a very large extent, corroborated by the evidence adduced before me during this trial. Although there have been some changes in the circumstances of the parents and of the children since then, overall, I find that the assessment report was very useful to me in coming to my conclusions as to the needs and best interests of these children.

Analysis

Analysis

26I have come to the conclusion that the best interest of the children requires that one parent be primarily responsible for making final decisions about their well-being, and I find that this responsibility should be taken on by the mother. However, I am also of the view that the father should retain final decision-making authority in those areas where he has been primarily involved in the past, being the children’s dental care and some of their extracurricular activities, specifically, hockey and baseball (or any other team sport activity in which the children wish to be involved in replacement to hockey and baseball).

27I also find that the current parenting schedule is not in the children’s best interests. While I acknowledge the father’s heartfelt desire to spend an equal amount of time with the children, my role is to decide what is best for the children, not for the father. I am of the view that, at this time, the children desperately need the stability and consistency of living primarily in one home and that this should be their mother’s home, particularly during the school year. I am of the view that the father’s parenting time with the children should otherwise be maximized during the summer and other holidays.

28These are the reasons for my conclusions.

• The parents’ roles in the children’s lives before their separation

The Parents' Roles in the Children's Lives Before Separation

29I find that the mother was the primary caregiver to the children while the parties were still together. While the father tried very hard to convince me that he was an equal (if not a more involved) parent to the children during the parties’ relationship, the evidence as a whole makes it clear to me that the mother was primarily responsible for the children’s day-to-day needs, particularly since the father started his second job a few years before the parties separated.

30As a paper delivery person, the father wakes up in the middle of the night to deliver the paper (from 2:00 a.m. to 4:00 a.m.). As a result, he was usually in bed early or catching up on sleep when he arrived home in the morning or after work in the afternoon while the parties were still together. This left the mother responsible to care for the children both before and after work on weekdays, something that was supported to a certain extent by the testimony of Ms. Ngo-Lien – in particular – who spent quite a bit of time with the family during the 2-3 years before the parties’ separation. It was the mother’s evidence, which on this point I accept, that she was primarily responsible for preparing the children’s school lunches, preparing meals for the family, attending parent-teacher interviews (the father never attended any of those until very recently) and caring for the children before and after school. It is also the mother who was responsible for locating and securing services for the children and scheduling their appointments with their various treating professionals (except for their dentist).

31The mother’s evidence to the effect that she was primarily responsible for the care of the children before separation is supported by the children’s own statements to the clinical investigator about their relationship with each parent, which makes it evident that they are more closely connected emotionally to their mother than to their father. The mother is the more nurturing of the two parents, the father being more authoritarian in his approach to parenting, and the mother’s role as the children’s primary caregiver during the marriage is supported by the children’s expressed wish to Ms. Elliott to spend more time with her than with their father.

32Even though the father was involved, to a lesser degree, in the children’s day-to-day lives before the parties’ separation, I find that he was still an involved parent. This is supported by the fact that, throughout the years, he was solely responsible for taking the children to the dentist and to get their haircuts. I find that the father was and continues to be involved in the children’s extracurricular activities, most especially with their hockey and baseball. This is supported by the fact that he had a much better knowledge of, and close relationship with, the various coaches and the parents of the children’s teammates, and by the fact that he was an active volunteer in both sports. Since the parties’ separation, he has registered the boys in baseball (more will be said about this later), and he is actively engaged in the boys’ teams as a coach. In addition, and while I find that he was not primarily responsible for the children’s health needs, he was fully aware of them and involved in their treatment plans.

• The parents’ current roles in the children’s lives

The Parents' Current Roles in the Children's Lives

33Following the parties’ physical separation, they engaged in a mediation process with a local, non-accredited family mediator. It was the mother’s testimony, which on this point I accept, that she was led to believe by the mediator that a joint custody and equal time-sharing parenting regime was the norm in most cases, and inevitable in this one, and on that basis she felt compelled to agree with the implementation of this type of parenting regime. Although a separation agreement to that effect was drafted by the mediator (which also included a final financial settlement), ultimately the mother refused to sign it and, on September 14, 2017, she initiated this court action. Nonetheless, and although no written agreement was ever signed, the parties maintained this joint custody, equal-time sharing (week-on, week-off) parenting arrangement to the date of this trial.

34When the parties physically separated at the end of May 2017, the mother moved into a new home in Riverside South, which is approximately 5 kilometers from the children’s school and in their previous and present school district. This allowed the children to continue to attend the same school after the parties’ separation. The mother has not re-partnered.

35The father also moved into his own home, which he rents; and while it is not located in the children’s school district, it is within the same distance from the children’s school as the mother’s home. During the weeks that the children are in his care, his mother who is also the children’s paternal grandmother, Ms. Lina Di Cristofaro (“Ms. Di Cristofaro”), moves in with him for the entire week to assist him with the care of the children and look after them when the father is at work (including when he leaves during the night to deliver the paper). Ms. Di Critofaro told Ms. Elliott that she usually arrives on Sunday afternoon and leaves the next Saturday, in the afternoon.

36I find that the father’s evidence as to the extent of his mother’s involvement in the children’s care, while they are with him, lacked credibility. It is not disputed that the father needs to leave between 2:00 a.m. and 3:00 a.m. in the morning, from Monday to Friday and sometimes on Saturdays to do his paper route. He usually returns home around 4:30 a.m. He then needs to leave at 6:30 a.m. to go to his day job where his work day beginnings at 7:00 a.m. In between, he catches up on some sleep. His evidence was that the children wake-up around 6:30 a.m. to get ready for school.

37On occasion, the father is also required to work on Saturday mornings at Utility Structures Inc. during very busy times. I find that Ms. Di Cristofaro’s presence in the home is key to the father’s ability to have the children in his care during weekdays, and at times, on the weekends when he is required to work to deliver the paper or work at Utility Structures. Although the father asserted in his testimony that his mother’s role was limited to driving the children to school in the morning and to look after them during the night as he does his paper route, his evidence, in that regard, was contradicted by other, more credible evidence.

38The children’s own statements to Ms. Elliott about their routine when in the care of their father supports the conclusion that Ms. Di Cristofaro is primarily responsible to get them ready for school in the morning. This includes preparing and feeding them breakfast, making sure they have everything they need for their day (including final say on their choice of clothing), and driving them to school. Ms. Elliott’s notes from her observation visit at the father’s home, and the children’s own report to Ms. Elliott also support a finding that Ms. Di Cristofaro is primarily responsible for preparing meals for the family and other household work.

39The father stated in his testimony that his mother was thrilled to have the opportunity to spend more meaningful time with her grandchildren since he is separated. I have no doubt that this is true, and that Ms. Di Cristofaro adores the children. However, her interview with Ms. Elliott paints a very different picture than the one offered by the father; she shared with Ms. Elliott that, while she was prepared to do as much as she could for her son and grandsons, she found it difficult and, at 68 years of age, she was not sure how much longer she could continue to provide this level of support.

40The father’s ability to care for the children on a week-about basis without his mother’s assistance, in the present circumstances, is questionable. It is not disputed that when Ms. Di Cristofaro went on vacation for two non-consecutive weeks in the past, the father asked the mother to care for the children during those weeks. While it was undoubtedly the right thing for the father to seek assistance from the mother, I was surprised to hear that, during those weeks, he did not ask to see the children at all (this was not contested). Further, I share the mother’s counsel’s view that the father’s failure to call Ms. Di Cristofaro as a witness in this trial, given that his plan of care for the children involves her significantly, was perplexing.

• Ability to care for children

Ability to Care for Children

41I find that both parents are capable parents, and that both are able to meet the children’s general needs while in their respective care. During this trial, a lot of time was spent by the parties trying to undermine the other’s ability to care for the children. I find that most of the parties’ complaints against each other as parents were either trivial, the result of miscommunication or simply not supported by the evidence.

42The mother’s concerns about the father include the following:

• He allows the children to sit in the front seat of his car (something she believes is against the law) and has failed to always put the children in booster seats while driving them in his vehicle; While this appears to have happened on a few occasions, an extract from the Ontario’s Ministry of Transportation website provided to me by the father confirms that children are not required by law to sit in the backseat provided that there is no active airbag for the front seat. Regardless, I find that the father has not and would not intentionally put the children at risk while driving;

• One day, he sent one of the children to school with his shirt inside out, and on another occasion with an inappropriate shirt (which required the mother to drive to school on the father’s week to deliver another one);

• Ms. Di Cristofaro and/or the father have failed to allow the children to wear a pink shirt/a pyjama/a Halloween costume when this was encouraged by the school for a particular activity, or permitted to reward good behaviour;

• Ms. Di Cristofaro and/or the father have dropped off either child or both in the school’s parking lot, requiring them to walk through the parking lot unescorted by an adult instead of walking them to the school yard;

• The father failed to properly attend to a bee sting (by failing to apply antiseptic lotion);

• The father failed to notice a bump on one of the children’s neck (this turned out to be something quite benign, although it needed to be surgically removed).

43The father’s complaints about the mother were equally trivial and/or not corroborated by credible evidence. They included;

• The mother failed to properly supervise one of the children which led to the child breaking his leg while playing at a park in Italy. I have no evidence whatsoever that this was anything other than a simple accident;

• The mother failed to ensure that Luciano continued with daily light therapy (for his ADD) during the two weeks he was on vacation with her in Italy, and generally does not follow his treating doctor’s instructions as to the duration of the daily therapy and as to what Luciano is required to be doing during the last five minutes of his therapeutic treatment; While the mother might not be as draconian in her approach to this therapy as the father. I find that she is following Dr. Shoemaker’s recommendations just fine;

• The mother failed to insure the children’s safety while playing street or roller hockey in Montreal, which led to both children, at different times, getting hit by a stick in the face; Again, I find that these benign accidents were not caused by the mother’s negligence (these things happen);

• The mother failed to properly supervise three-year-old Luciano on Halloween night in Montreal, which resulted in the child leaving the home unnoticed and being brought back by the police. I find, as a fact, that a miscommunication between the parents led to each one believing Luciano was being looked after by the other.

44The parties’ expressed concerns about the other’s ability to care for the children also included a mutual allegation of excessive drinking. Again, and as Ms. Elliott did before me, I found no credible evidence to support these allegations, although clearly both parents at times overindulged in alcohol, as many other adults, with and without children, sometimes do.

45While I find that both parents are fully capable of caring for these two active boys, it is clear from the evidence that the parents not only have two very opposite personalities, they also have two very different parenting styles.

46Ms. Elliott described her visit at the mother’s home as “often chaotic”. She observed the mother having difficulty getting the children to comply with her requests without frequent and continuous prompting. In contradiction, she described her visit at the father’s home as consisting primarily of “the father consistently requiring them to follow his various and many rules”. She stated: “Each home appeared to represent opposite ends of the rules spectrum - with one having a significant lack of structure and the other a rule for everything”.

47Ms. Elliott was very concerned about the two very different parenting styles placing the boys under a great deal of stress, as they shift from one home to another, from one set of expectations to another. She tried to impress on the parties that what was required was a balance between the two and a consistency between homes. The evidence before me during this trial did not allow me to conclude whether either parent had gained any insight about this issue since receiving Ms. Elliott’s report, and whether they had implemented any sustainable changes.

48Despite these completely opposite parenting styles, Ms. Elliott’s observations during her visits at both parents’ homes support a finding that the children love both parents very much and are comfortable in both parents’ presence.

• The father’s gambling

The Father's Gambling

49It is not disputed that the father has struggled, and in my view continues to struggle, with a gambling addiction. From very early on in the parties’ relationship, the father was regularly borrowing money (or asking to borrow money) from the wife’s brother-in-law and other individuals to repay his gambling debts. It is the mother’s evidence, which on this point I accept, that the father’s “bookie” has called at the matrimonial home on a few occasions seeking the repayment of money owed to him. I also accept the mother’s evidence that the father has chosen, after the parties’ separation and while they were still living in the same home, to prioritize the payment of his debts to his bookie over the household expenses as a mean to ensure his family’s safety.

50While the father sought help for his gambling addiction during the marriage and again during the early months of 2017 by engaging in therapeutic treatment with Rideauwood and attending a support group, by his own admission, his participation in these stopped at some point in the later months of 2017. Ms. Jane Aston, the father’s addictions counsellor at Rideauwood, reported to Ms. Elliott that she would be concerned if the father was not attending a support group on an ongoing basis because without it, the risk of relapse would increase.

51I find that the father’s addiction to gambling has not only caused this family significant financial hardship, it has also put the children and the mother at risk. While I have no evidence whatsoever before me that would lead me to conclude that the father has relapsed into his gambling addiction since his last admitted relapse in 2017, if he was to relapse again in the future, it could have a very negative impact on the amount of parenting time he is allowed to enjoy with the children.

• The children

The Children

52Unfortunately, as is often the case in these high conflict parenting trials, the parties spent a significant amount of time in their testimony trying to establish, or defend against, allegations of improper conduct made by the other parent and not enough time – almost none as far as the father is concerned – talking to me about their children. Much of the evidence about the children’s personalities, challenges, likes and dislikes was found in Ms. Elliott’s assessment report.

53I understand that Antonio is a quiet child who seeks attention in a subtle manner. He is polite, respectful and a people pleaser. He can be a little shy in new situations and is quieter and more of an introvert. His grade 3 teacher described him as a very sweet kid and a happy child who is very relaxed and rarely in a bad mood. She noted no behavioural concerns and stated that he had no conflict with other kids and enjoys a good circle of friends. Antonio was diagnosed with mild ADD and has been prescribed light therapy by his treating physician, Dr. Shoemaker. His lack of focus and attention has been clearly observed at school and he is provided with additional help from a special education teacher.

54His mother says that Antonio has a stutter and she worries that he might be suffering from anxiety, which she fears is increased by his having to go from home to home every week. The father denies that Antonio has a stutter or any other speech impediment or that he suffers from anxiety. Both parents agree that Antonio has suffered from nightmares and that he regularly wakes up during the night, seeking his parents’ comfort (which he told Ms. Elliott he gets from his mother but not his father).

55Luciano is a much more vocal boy who is very social. He was described by one of his former teachers, Ms. Musafiri, as a happy kid who has lots of friends. During the OCL investigation in 2018, Luciano was described by his mother as doing well in school, working hard and being motivated (he was in grade 1 then). Luciano has a speech impediment (he has difficulty pronouncing his “r’s” correctly) for which he is currently receiving speech therapy.

56Over the past year or so, there has been noticeable changes in Luciano’s behaviour, both at home and at school, and he is currently undergoing a psycho-educational assessment through Delta Psychologists, including testing for ADD. He was described by Ms. Elliott as loud, active, rambunctious, rebellious and especially defiant and disrespectful to his mother, although he was also observed to be defiant to his father as well during her observational visit at his home. Ms. Elliott reported that he was engaging in attention-seeking behaviours, which was a concern to her:

The level of defiance, disrespect and noncompliance with the mother’s direction is concerning. The following factors likely have contributed to this: 1) the above-noted inconsistency between homes, 2) the father’s disparaging comments about the mother, in front of the children and 3) the mother’s reluctance to employ clear boundaries and expectations.

It appears likely that Antonio’s needs are overshadowed by his brothers’ demands for attention, either directly or by the aforementioned attention-seeking behaviours. Such behaviours are often employed when children’s emotional needs are unmet. The fact that Antonio is quiet and seeks attention in a subtle manner, if at all, presents a risk factor for Antonio. His comments to this writer that he is hardly ever happy, is significant and should not be ignored.

57During her testimony and cross-examination, the mother was unable to acknowledge that Luciano’s bad behaviour (such as slapping a daycare provider on the butt twice one day) could be attributed to anything other than the father’s own inappropriate behaviour, which Luciano was simply modelling in her view. In her report, Ms. Elliott noted that neither parent expressed any concern whatsoever with Luciano’s behaviour but rather were solely focused on Antonio’s ADD. This was a concern to her, and she asked the parties to consider this very worrisome behaviour which, if left unaddressed, would likely worsen as Luciano aged.

58Information provided by the children’s teachers makes it very clear that both boys are struggling academically. Antonio’s report cards confirm that he has difficulty focusing and he presently struggles in school. His grades are below average, all-around, and he requires tutoring in Math. The same has now become true for Luciano who was reported having difficulty concentrating in class. Luciano’s grade 1 teacher, who was also Antonio’s grade 2 teacher, is of the view that Luciano is struggling even more than Antonio did in grade 1. She believes that Luciano might have a learning disability. His grades are also quite below average, and he gets extra tutoring in Math now.

59The children’s teachers from last year both reported to Ms. Elliott, unequivocally, that in order to be successful academically both boys required a great deal of support at home. Their collective experience has been that the father has not provided this support to the boys. Attempts to engage the father have been repeatedly unsuccessful. Of particular note is Antonio’s teacher’s statement to the effect that it was very difficult to reach the father. She stated that he does not respond to phone calls, emails or messages on the Class Dojo (the online communication tool for teachers and parents), and that when he came to the school the week before her interview with Ms. Elliott, she asked him if he could please respond to the Class Dojo messages, to which he replied “it’s a lot” but that he would try. Both teachers reported that in their few interactions with the father, he was abrupt and seemed angry.

60Even more concerning are the teachers’ reports to the effect that when the school requires items or permission slips from the parents, the forms are usually not sent home if the boys are in their father’s care (as they do not expect him to return them). Also concerning is that their homework is usually not completed when the boys are with their father, which led Luciano’s teacher to give homework based on who he was with that particular week. Both teachers confirmed that the father had never attended any parent-teacher meeting throughout the years, and while the father had participated in two school outings in the past, he never attended school events, which were always attended by the mother, even on dad’s weeks with the boys.

61On the other hand, the children’s teachers had nothing but positive comments to make about the mother. They reported that homework was always completed when the boys were in her care, that she was very engaged and responsive with the school, that she attends every parent-teacher meeting, and that she always responds appropriately to concerns raised by the school and follows through.

62Neither party called the children’s current teachers as witnesses in this trial. Although the father intended to do so at the beginning of trial (proper summons to witnesses were prepared with my assistance in the court room), ultimately, he chose not to call them. I draw an adverse interference from the father’s decision not to call those witnesses and conclude that his engagement with the school and with the boys’ homework is no different than what it was a year ago. Alternatively, if these teachers had reported an increased degree of participation on his part, in my view their evidence would have confirmed that such participation was only recent (and likely done for the purpose of this trial).

• Ability to communicate and cooperate

63I find that the parties’ marriage was fraught with conflict and lacked meaningful communication. This is not surprising given the parties’ very different personalities and the marital difficulties that flowed from the father’s gambling addiction. The parties’ conflict, both before and after the parties’ separation, is also fully supported by the children’s statements to Ms. Elliott to the effect that their parents “yelled at each other all the time”.

64Postseparation, the parties’ relationship became a high conflict parenting situation. It is uncontested that the parties do not communicate except on logistical issues (such as the time or location the children will be picked up at). The father’s confrontational personality and angry stance toward the mother led her to send him a non-trespass notice precluding him from setting foot on her property and requiring him to wait for the children at the end of her driveway at exchanges. The mother is also refusing to have any verbal conversation with the father and insists on all communication being in writing.

65I can hardly blame her for that. During this trial, the father’s cross-examination of the mother (he was self-represented) was particularly aggressive and often turned into a confrontation between them. He was equally aggressive towards Ms. Elliott who did not support his position. Looking at the many emails and text messages led in evidence during the trial, I find that the father’s communication with the mother has generally not been respectful or child-focused, and often contained unnecessary accusations and derogatory remarks. I do acknowledge, however, that at times, he was able to communicate in a respectful manner.

66I have noted no similar patterns in the mother’s communications with the father, which have generally been brief, informative, child-focused and devoid of unnecessary accusations.

67The parties’ ability to cooperate on matters pertaining to the children has also been minimal. I find that both parties have behaved unreasonably at times, although I find that the father’s behaviour, overall, was much more problematic.

68Although the mother has been more cooperative in sharing information about the children with the father, she has, at times, failed to notify the father of important matters affecting the children. One such example is when she chose to take the children to Montreal, without notice to or consent from the father, on a weekend when the children were to be in their father’s care (that was back in June 2017). Another example is when the mother received a call from the children’s dentist, Dr. Tanyan, asking to reschedule an appointment that she was not aware the children had (she did not even know who Dr. Tanyan was), and proceeded to cancel the appointment and immediately schedule an appointment with another (new) dentist without notifying the father of both the cancellation and the new appointment.

69The father, on the other hand, has engaged in this type of behaviour much more frequently. Of particular note is the following unilateral decisions he made, without prior notice to, or consent of the mother:

• He stopped bringing the children to Italian school on Saturday mornings, although the children had been continuously attending these classes with both parents’ consent since long before the parties’ separation. The father states that the children no longer wanted to go, and so he simply went along with their (alleged) wishes. The mother only found out about the father’s unilateral actions when she received the children’s report cards which confirmed that no grades had been given to the boys because they had missed half their classes;

• the father enrolled both children in baseball. The mother was presented with the fait accompli and expected to bring the boys to their baseball practices and games at least twice a week from spring to fall;

• the father enrolled Antonio in baseball camps with Carleton University;

• the father withheld the boys’ hockey equipment and told the mother that she had to buy her own hockey equipment for them. As a result, the children now have one hockey equipment at each of their parents’ home (which is, frankly, utterly senseless).

70Since the parties’ separation, I find that the father has been unable to set aside his feelings of anger and resentment towards the mother and shift his focus to the children’s well-being. Both children reported to Ms. Elliott that their father spoke negatively to them about their mother. The father also has denied the mother’s reasonable requests for changes in the parenting schedule to allow the children to attend important family events, denying them of great opportunities to participate in those events, on the basis that his time with his children was important too. This was noted by Ms. Elliott in relation to the mother’s request to take the boys to their first cousins’ communion in Montreal, which happened to occur during the father’s week. The father refused to change his mind in that regard despite Ms. Elliott’s significant efforts to encourage him to reconsider his approach.

71The father also refused to deviate from the regular schedule over the Christmas 2017 holidays, which resulted in the mother being unable to spend any meaningful time with the children on Christmas Eve or Christmas Day, as both days happened to fall on “his week”. The father’s inability to compromise in any meaningful way with the mother’s reasonable requests for changes, unless he gets his way with other demands, was made clear during this trial. This was not reciprocated by the mother who, without fail, always accommodated the father’s requests for changes in the parenting schedule.

72In cross-examination, the father also admitted that he had not always followed the interim order that he consented to, which required each parent to offer the other the opportunity to drive the children to their extracurricular activities if they were unable to do it themselves. He also did not consistently abide by the provisions requiring the parents to ensure telephone access between the children and the non-residential parent during their parenting time.

73Of significant concern to me is the father’s statement to the effect that, if he was not successful at obtaining “50-50 custody”, he would no longer be involved in the children’s extracurricular activities, including as their baseball coach (as this would be “too hard for him”). Not only does this show a remarkable lack of concern about the children’s feelings, and a complete inability to put the needs of the children before his own, this also tells me that the father is more interested in winning this case than in fostering a healthy and strong relationship with his children.

74Although to a much lesser extent, I find that the mother has also contributed to the increasing conflict between the parties in her own ways. Of particular note is the extent to which she went out of her way to take pictures of the father and of Ms. Di Cristofaro (while the children were in their care) to prove their alleged lack of parental skills, going as far as hiding to take those pictures, oblivious to how the children might feel if they saw her do this.

75As stated earlier, the mother has also been quite reluctant to acknowledge any contribution from the father to the children’s care or involvement on his part in the children’s lives and activities, even in areas where this ought to have been readily acknowledged (such as hockey and baseball). She has continuously referred to the children in her testimony as “her” children (“my child” and “my children”), and she has made several complaints against the father to the police, none of which were sufficiently serious or credible as to lead to police intervention.

76Nonetheless, I find that the mother has been much more reasonable and cooperative in her approach to parenting and in her communication with the father, and there is no evidence before me that would suggest that the mother is speaking ill of the father to them or in their presence. I find that she is more likely to promote and foster the father’s relationship with the children than the other way around.

Decision-making authority

77In Jackson v. Jackson, 2017 ONSC 1566, Chappel J. reviewed the factors that must be taken into consideration in assessing which decision-making arrangements would be in a child’s best interest. She stated:

65 The decision as to whether an order for sole custody or joint custody is in a child's best interests is ultimately a matter of judicial discretion. However, a number of general principles have emerged from Kaplanis, Lawson and the subsequent case-law to assist in the decision-making process. These can be summarized as follows:

1. There is no default position in favour of joint custody. Each case is fact-based and discretion-driven (Kaplanis; Ladisa v. Ladisa, 2005 1627 (ON CA), 2005 CarswellOnt 268 (Ont. C.A.); Rubinov-Liberman v. Liberman, 2014 ONSC 5700 (S.C.J.); Palumbo v. Palumbo, 2017 CarswellOnt 236 (Ont. S.C.J.)).

2. Joint custody should only be considered as an option if both parents are fit parents and able to meet the general needs of the children. This is a threshold issue before the court considers the question of whether the parties are able to effectively communicate on issues relating to the children (Kaplanis; H. (T.E.), at para. 446).

3. The quality of past parenting and decision-making, both during the parties' relationship and post-separation, is a critical factor in determining whether joint custody is appropriate (Milford v. Catherwood, 2014 CarswellOnt 7879 (Ont. C.J.)).

4. However, the mere fact that both parents acknowledge that the other is a "fit" parent does not mean that it is in the best interests of the child for a joint custody order to issue. The decision regarding the appropriate decision-making arrangement must take into consideration all factors relevant to the child's best interests (Kaplanis, at para. 10).

5. Although some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents' ability to work together. As Quinn, J. remarked in Brook v. Brook, 2006 12294 (ON SC), [2006] O.J. No. 1514 (Ont. S.C.J.), "the cooperation needed is workable, not blissful; adequate, not perfect."

6. The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint custody order. The court must carefully consider the parties' past and current parenting relationship and reach its own conclusions respecting the parties' ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties (Kaplanis, at para. 11; Ladisa). The existence of conflict and strife between the parties from time to time, and at the time of trial, will not necessarily preclude the court from making an order for joint custody. The question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that it is impacting or likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to shelter the child from the conflict reasonably well and put the child's interests ahead of their own when necessary, an order for joint custody may be appropriate (Ladisa). The question for the court to determine is "whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis" (Warcop v. Warcop, 2009 6423 (ON SC), 2009 CarswellOnt 782 (Ont. S.C.J.); Lambert v. Peachman, 2016 ONSC 7443 (Ont. S.C.J.)).

7. Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of the child before their own, joint custody is not an appropriate order (Hildinger v. Carroll, 2004 CarswellOnt 444 (Ont. C.A.); Kaplanis; Ladisa). In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making an order of joint custody (Kaplanis). There must be a clear evidentiary basis for believing that joint custody would be feasible (May-Iannizzi v. Iannizzi, 2010 ONCA 519 (Ont. C.A.), at para. 2).

8. In cases involving very young children, the court must take into consideration the fact that the child is unable to easily communicate their physical, emotional, developmental and other needs. Accordingly, the need for effective communication between the parties in a joint custodial arrangement will be particularly pressing in such circumstances (Kaplanis, at para. 11).

9. The wishes of the child will also be relevant to the decision respecting the appropriate custodial disposition in cases involving older children. Although a child's wishes in such circumstances do not necessarily synchronize perfectly with the child's best interests, "the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child's wishes" (Kaplanis, at para. 13).

10. Evidence as to how an interim custody and access order has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate custodial regime.

11. In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole custody in their favour on the basis of lack of cooperation and communication (Lawson; Ursic v. Ursic, 2004 CarswellOnt 8728 (Ont. S.C.J.), aff'd Ursic v. Ursic, 2006 18349 (ON CA), 2006 CarswellOnt 3335 (Ont. C.A.); Andrade v. Kennelly, 2006 CarswellOnt 3762 (Ont. S.C.J.), aff'd Andrade v. Kennelly, 2007 ONCA 898, 2007 CarswellOnt 8271 (Ont. C.A.)). Where the parties are both competent and loving parents, but one of them is the major source of the conflict, this factor may support an order for sole custody in favour of the other party (Alqudsi v. Dahnus, 2016 ONCJ 707 (Ont. C.J.)).

12. There has been an increasing willingness in recent years to order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties (Habel v. Hagedorn, 2005 ONCJ 242, 2005 CarswellOnt 3863 (Ont. C.J.); Garrow v. Woycheshen, 2008 ONCJ 686, 2008 CarswellOnt 8193 (Ont. C.J.); Bromley v. Bromley, 2009 ONCA 355, 2009 CarswellOnt 2210 (Ont. C.A.); K. (R.K.) v. M. (B.M.), 2009 CarswellYukon 38 (Y.T. S.C.); Hsiung v. Tsioutsioulas, 2011 CarswellOnt 10606 (Ont. C.J.); Sinclair v. Sinclair, 2013 ONSC 1226 (Ont. S.C.J.); Caverley v. Stanley, 2015 ONSC 647 (Ont. S.C.J.); Ferreira v. Ferreira, 2015 ONSC 3602 (Ont. S.C.J.); H. (T.E.)).

66 While the foregoing comments outline the various factors and considerations which the courts have taken into consideration in deciding between sole vs. joint custody, the analysis must at all times remain firmly grounded in the best interests of the child before the court. Even if both parents are attentive and loving, a joint custody order may not coincide with the child's best interests. As Pazaratz, J. stated in Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (Ont. S.C.J.) at para. 504, "[I]n the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children-particularly children already exposed to the upset of family breakdown-look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

78It is quite clear to me that these parents have not, and will not, be able to co-parent jointly. Each parent has cared for the children in their own individual silos, both before and after their separation, often without consulting the other parent before making decisions and often without any form of consultation or communication with the other parent.

79I am of the view that granting these parents joint custodial rights will only increase and perpetuate the conflict between them, a conflict that the children have often been exposed to, and will leave the children in a state of indecision and turmoil. The parties’ conflict resolution skills during their marriage was quite poor, and the evidence before me confirms that they have not improved since. There is simply no evidence upon which I could hope that a reasonable measure of communication and cooperation between them will be achievable in the future.

80Based on all the evidence before me, I find that it is in the children’s best interests that final decision-making authority be granted to the mother. She has been primarily responsible for making decisions about the children’s academic and health needs before and after the parties’ separation, and she has shown an ability to be respectful and flexible in her approach to parenting, putting the children’s best interests above her own feelings of resentment and anger towards the father. Given the father’s confrontational and uncompromising ways, his lack of commitment to the children’s academic success, and his demonstrated inability to put aside his anger and resentment towards the mother in the children’s best interests, I am unable to trust him with sole custodial authority.

81This said, I have some concerns that giving the mother final decision-making authority in all areas of the children’s care may result in the father being completely marginalized as a parent. The father has been solely responsible for the children’s dental care before the parties’ separation, and I have no evidence to show that he has not fulfilled that role well. Further, the father has been the most closely involved parent in relation to the children’s hockey and baseball, and I am of the view that he should continue to be the lead decision-maker in relation to the children’s involvement in these two sports, or in any other team sports that the children wish to engage in in the future in replacement for hockey or baseball.

82For those reasons, I conclude that the mother should be given sole and final decision-making authority over all areas of the children’s care, including but not limited to their schooling (including the choice of their school and the language in which they are to be educated), their religious upbringing and their overall health, with the exception of the following areas for which the father will retain final decision-making authority:

− the children’s dental care;

− the children’s involvement in hockey and baseball.

83This is the type of parenting situation which requires a detailed multidirectional parenting order to avoid future conflict as much as it is reasonably possible. The parties had already consented to a number of provisions that they wish to have added to any parenting order that I make, and I have incorporated those in my final order which is attached as Schedule “A” to this decision.

Time-sharing

Time-Sharing

84I do not believe that the current equal week-about time sharing schedule is in the best interests of the children.

85First of all, given the children’s academic struggles and special needs, I share Ms. Elliott’s views that they have a heightened need for stability, consistency, and more importantly, a life free of parental conflict. I find that the parents’ very different parenting styles are, in fact, placing the children under a great deal of stress as they transition from one home to the other. Although the children were observed to lack proper structure in their mother’s home, they are still provided with a proper routine and all their needs, including their academic needs, are met in their mother’s home.

86I find that during the weeks that they are in their father’s care, the children’s academic work is not properly supported. Remaining in an equal time-sharing regime could have a significantly detrimental effect on their ability to succeed at school. I also find that while they are in their father’s care, an important share of the children’s needs is being met by Ms. Di Cristofaro on a day-to-day basis. This means that the children are subjected not to two, but rather three, different parenting styles. This, in my view, adds to the level of stress that they are subjected to in an equal time-sharing regime.

87I am of the view that the parenting plan proposed by the mother, whereby the children would be in her primary care during the school year, is reflective of the status quo that existed before the parties’ separation and is in the children’s best interests at this time. It is also consistent with the children’s wishes and preferences, expressed to Ms. Elliott, to spend more time in their mother’s home than in their father’s home. Antonio, in particular, appears to have a much closer emotional connection to his mother and has made his wish to spend more time with her quite clear.

88As I am required to do by virtue of s. 16(10) of the Divorce Act, I have considered the ways in which I could maximize the boys’ contact with their father to ensure that their relationship continues to grow and flourish. I am of the view that this can be better accomplished during the summer time and other holidays. During the school year, I am of the view that it is in the children’s best interests that they have their home-base with their mother, and that they spend every second weekend, from Friday after school until Monday at school, with their father, as well as one evening per week not including overnight.

89Although I acknowledge that the father’s ability to care for the children on Monday mornings is limited to about 30 minutes (leaving the balance of the children’s care that morning to Ms. Di Cristofaro), keeping the children overnight on Sundays affords the children an opportunity to spend more time with their father by sharing an extra evening with him. It also has the benefit of reducing contact between the parents, and therefore, to limit the children’s exposure to their parents’ hostility and conflict.

90As I have mentioned earlier, the children are engaged in hockey during the winter and in baseball during the spring, summer and fall. They attend these activities at least twice a week, sometimes three times a week, with at least one such event occurring on a week night. Given the father’s involvement in both sports as a coach or a volunteer, he will have frequent contact with the boys during weekdays even if the children are not in his care on those days. That is, of course, only if the father does not follow through with his stated intention to discontinue his involvement in those sports if not granted shared custody. I am encouraging the father to seriously consider taking a different approach to my decision in that regard and to focus on the incredible benefit that his involvement in the children’s sports team is providing them.

91Finally, the concerns which support the children having their primary residence with their mother during the school year are significantly diminished during the summer months and other holidays. In my view, the children should spend an equal amount of time with each parent during the summer vacation, Christmas holidays and March break. Therefore, an order will issue that during these times, the children will share their time equally between the parties, in accordance with the order enclosed as Schedule “A”.

Italian school

Italian School

92The mother seeks an order that the children be registered in Italian school, and that the father be required to take them there every weekend that they are in his care.

93Italian school runs every Saturday morning, from 9:00 a.m. to noon. As stated above, when they were still together, the parties had agreed that the children would be attending Italian school, and they did. Both parties share an Italian heritage and the mother, especially, appears to have maintained close ties with her extended family in Italy. The children both understand Italian well and speak the language to a certain level.

94While I do acknowledge the importance of this activity from the mother’s perspective, I am not prepared to make an order to that effect at this time. I share the father’s view that the children are already struggling in school and that they are engaged in extracurricular activities that require their attendance several days per week, throughout the year. Given the changes that I have made to the school year parenting schedule, the children’s time with their father is going to be more limited. I feel that imposing upon him and obligation to take the children to yet another activity on his weekend, which takes the best of every Saturday morning, would unduly interfere in his parenting time with the children.

Child Support

Child Support

95Before looking at the parties’ respective child support obligations since the date of their separation, I must determine their true income for support purposes.

• The mother’s income

The Mother's Income

96As stated before, the mother is employed by the Communication Security Establishment and her yearly income from that source is easy to ascertain. But the mother also earns income from a rental property owned by her (and that she brought into the marriage) which yields approximately $13,000 of gross yearly rental income (before expenses).

97In their testimony, both parties confirmed that the mother usually broke even (income minus expenses) during the years they were married. However, since 2017, the mother has been required to invest important sums of money to repair the property and replace the furnace, the air conditioning system, the roof, the water tank and more. Since 2017, her total taxable income has been reduced by her yearly rental loss in the amount of approximately $3000 each year. She takes the position that her income for child support purposes should reflect the loss that she incurs as a result of her real estate rental activities.

98The courts have shown a marked reluctance to allow employees to deduct business losses from employment income for child support purposes and have frequently refused to deduct the loss from their income (see Proulx v. Proulx 2009 19938 (ON SC); Burrell v. Robinson, 2009 33027 (ON SC), 78 R.F.L. (6th) 351 (Ont. Sup. Ct.); Luke v. Richards, 2018 ONSC 1695; Hargrove v. Holliday, 2010 ABQB 70; Thomas v. Thomas, 2019 NLCA 32). This is because it would be unreasonable to ask the other parent to assist in financing a business venture by accepting a lesser amount of child support (Boak v. Boak, 1999 CarswellBC 2876 (B.C.S.C.))

99In Burrell, Justice Eberhard disallowed rental loses that the payor had deducted against his employment as a pilot. In paragraph 5, Justice Eberhard wrote:

The respondent father also argued that it would be unfair to disentitle his reliance on these losses since the income he may someday derive from these rental properties will certainly be required to be included. At such time as there may be such income, the cost of earning same may well become relevant but at the moment the rental properties are merely an investment into which he has decided to put his available resources. Once support is determined this court does not dictate how individuals spend their resources. The increase in equity is testament to the good sense of the Respondent Father's choice. That does not relieve him of the obligation to pay support in accordance with the income available to him.

100Justice Eberhard’s reasoning seems to be that, since the payor’s assets will ultimately be enhanced, the deductions against his employment income should not be allowed.

101In Richards, Justice Timms concluded that legitimate hard costs - such as mortgage interest, insurance, utilities, and municipal taxes - are acceptable deductions against employment income for the purposes of determining a payor's income for child support purposes.

102In this case, the cause of the mother’s net rental loss since 2017 is that she has been required to re-invest important capital to maintain the value of her rental property and its income producing capacity. In my view, there is no reasonable expectation of profit from this property in the short or mid-term, other than the fact that the mother is building herself a solid capital asset. This is supported by the fact that it has not generated any appreciable profits in the past. While the mother is most certainly free to continue to invest in this property with a view to building her net worth, it should not be to the detriment of her child support obligations.

103Therefore, I find that the mother’s income for child support purposes is the following:

• 2017: $86,588;

• 2018: $89,350;

• 2019 $89,350 (based on 2018 until 2019 income tax return and notice of assessment are available)

• The father’s income

The Father's Income

104The father’s income from his employment with Utility Structures Inc. is also easy to ascertain. However, the net business (self-employment) income that he declares in his income tax returns each year needs to be adjusted to take into consideration that many of the business expenses that he deducts are personal in nature (in accordance with s. 19(g) of the Guidelines).

105The father has earned gross business income of $10,008 in 2017 and $7,162 in 2018 delivering the paper each week. In his evidence, he confirmed that $7,000 was a reasonable estimate of his gross business income for 2019. The father’s net taxable income after deduction of business expenses was $3,653 in 2017 and $656 in 2018. Expenses include office supplies, professional fees (the preparation of his income tax returns), utilities (office-at-home deduction), motor vehicle expenses and capital cost allowance, which total approximately $6500 each year.

106As argued by counsel for the mother, the father does not get up at 2:00 a.m. every day to earn less than $3,653 or $656 per year. In my view, the only business expenses that are true business expenses for child support purposes are his motor vehicle expenses which include a depreciation allowance related to the use of his vehicle, but not to the extent claimed in his tax returns (approximately $5,500 per year).

107Having regard to all the evidence before me, I find that it is reasonable to add back to the father’s net business income all his business expenses, with the exception of $2,500 on account of proper motor vehicle and depreciation costs. Once the added expenses are grossed up and added-back to his income, the father’s income for child support purposes is the following:

• 2017: $71,269

• 2018: $73,616

• 2019: $73,616 (based on 2018 until 2019 income tax return and notice of assessment are available)

(As per support calculations attached as Schedule “B”)

June 1, 2017 to December 31, 2019 – Shared Custody

June 1, 2017 to December 31, 2019 – Shared Custody

108The mother seeks to retroactively adjust child support from the date of the parties’ physical separation which occurred on May 31, 2017 (or in other word, from June 1, 2017 to present). Throughout that time, the parties shared their time equally with the children.

109On January 26, 2018, the parties consented to an order which provided that the mother would pay to the father $1,360 per month as table child support for the children based on her income of $87,281, and that the father would pay to the mother $1,087 per month as Table child support for the children based on his income of $71,339. This resulted in a set-off amount payable by the mother to the father in the amount of $273 per month, commencing on February 1, 2018. No child support was ever paid by either party prior to that date.

110In light of the parties’ shared parenting arrangement from June 1, 2017 to present, I am required to fix child support based on s. 9 of the Guidelines, which reads as follows:

Shared custody

9 Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

111The Supreme Court of Canada in Contino v. Leonelli-Contino, 2005 SCC 63, 3 S.C.R. 217 set out comprehensively the various factors that the court is required to consider when determining the amount of support to be paid in a shared custody situation under s. 9 of the Guidelines. In G. (C.N.) v. R. (S.M.), 2007 BCSC 822, 38 R.F.L. (6th) 137 at paras. 21 to 26, the court summarized the principles established in Contino as follows:

The objective of the Guidelines underlies this analysis — namely, that a fair standard of living be provided for the children and that there be a fair contribution from both parents. To achieve this objective in shared custody situations, the language of s. 9 “warrants emphasis on flexibility and fairness” (para. 39). It requires “the acknowledgement of the overall situation of the parents (conditions and means) and the needs of the children. The weight of each factor under s. 9 will vary according to the particular facts of each case” (para. 39).

Specifically, under s. 9(a), the court is required “to take into account the financial situations of both parents (instead of the sole income of the spouse against whom the order is sought, as in s.3)” (para. 40). The calculation of this set-off amount is the starting point, not the end of the inquiry.

This set-off amount “does not take into account actual spending patterns as they relate to variable costs or the fact that fixed costs of the recipient parent are not reduced by the increased spending of the payor parent” (para 48). The Guideline amounts “are an estimate of the amount that is notionally being paid by the noncustodial parent; where both parents are making an effective contribution, it is therefore necessary to verify how their actual contribution compares to the Table amount that is provided for each of them when considered payor parents” (para. 50). To do this analysis, full consideration must be given to the last two factors under s. 9.

At para. 51, the Supreme Court of Canada provided that “[t]he court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another”.

Under s. 9(b), the court is to consider all of the payor parent’s costs (including housing, food, and any other expense of the child). This section recognizes that the “total cost of raising children in a shared custody situation may be greater that in situations where there is sole custody” (para. 52). Under this section, the court will “generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally. Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes” (para. 52). Furthermore, the court must consider what are the additional costs incurred by the payor parent. Specifically, the court must consider “the budgets and actual child care expenses of each parent. These expenses will be apportioned between the parents in accordance with their respective incomes” (para. 53).

As far as s. 9(c) is concerned, factors such as the ability of each parent to bear the increased costs of shared custody (which entails consideration of assets, liabilities, income levels, and income disparities) and the standard of living for the children in each household must be considered.

112Analyses pursuant to Contino, which at the stage of s. 9(c) requires a review of the children’s budgets in each home, can be complex and quite arbitrary. In his submissions, counsel for the mother referred me to Revised User Guide written in conjunction with the Spousal Support Advisory Guidelines (“SSAG”) and, in particular, the body of case law which supports choosing an amount of spousal support that leaves the children in each household with roughly similar standards of living in shared custody situations. In Ontario, there is effectively a strong trend to equalize net disposable incomes in these cases when spousal support is payable (see for instance Kochar v. Kochar, 2014 ONSC 5211; Neilipovitz v. Neilipovitz, 2014 ONSC 3889; Lafazanidis v. Lafazanidis, 2014 ONSC 3287, to name only a few).

113Counsel for the mother argued that in this case, making a child support order that would effectively equalize the combined net disposable income of the parties between the two homes for the period that the children shared their time equally between them, would result in a fair and just outcome.

114While this approach is attractive, as it makes the whole Contino analysis unnecessary, I find that it contains many pitfalls. As one example, the mother in this case has mandatory pension contributions each month in the amount of $808. The Table amount that she would be required to pay pursuant to the Guidelines is not reduced because her available income is less due to the payment of mandatory pension contributions. Dividing the net disposable income between the parties, which in her case is lowered by her mandatory pension contributions, would result in a decreased monthly child support obligation than that required by the Guidelines, based on her gross income. In some cases, this method could potentially result in the children subsidizing the acquisition of an asset (for instance a pension plan) in which they have no interest.

115Similarly, while s. 7 of the Guidelines provides that each parent is to contribute to the children’s special and extraordinary expenses in proportion to their respective income, using the net disposable income split method proposed by the mother could result in an indirect deviation from the principle set out in s. 7. This is clearly illustrated in this particular case.

116Here, the children’s special and extraordinary expenses amount to almost $12,000 per year (in 2019). Since the mother has a greater income than the father, she is required by virtue of s. 7 of the Guidelines to pay a higher proportion of those expenses. This, coupled with her mandatory pension contributions, leaves her with a lower net disposable income than the father. As a result, despite the fact that she earns approximately $10,000 more than the father (gross), to equalize the parties’ combined net disposable income the father would end up paying her $32 a month in child support. In fact, by dividing equally the parties’ combined net disposable income, the father ends up paying a much higher proportion of the children’s s. 7 expenses than he would otherwise be required to do pursuant to s. 7.

117I am not saying that equalizing net disposable income is necessarily a bad idea in all cases; when spousal support is also payable, there may be stronger justification to do so in a shared parenting regime particularly when none or both parents are contributing to a pension plan. However, in this particular case, I find that it would not be appropriate.

118At the first stage of the s. 9 analysis, the court is required to consider the amounts set out in the applicable tables for each of the spouses. In this case, the set-off between the parents’ respective Table amount, based on their income for each of the past three years, would be $206 in 2017, $212 in 2018 and $212 in 2019, payable by the mother to the father.

119I have been provided with no evidence that would suggest that the shared parenting regime in place results to increased costs for one of the parents.

120Under s. 9(c), I am required to consider each of the parent’s costs (including housing, food, and any other expense) as well as the budgets and actual expenditures of both parents in addressing the needs of the children. Both parents have indeed provided me with children’s budgets. While I acknowledge that the mother’s monthly child budget shows much higher expenses than the father’s, it is evident to me that this is because the mother has chosen to offer the children a standard of living which far exceeds her current ability to pay. For instance, she has chosen to purchase a new family home even though the proceeds from the sale of the matrimonial home were not yet available to her. This has resulted in very high mortgage payments, which she has chosen to repay on a shorter amortization period rather than the maximum allowed in order to repay her mortgage faster. The father has chosen to rent a smaller family bungalow, at a monthly rent of $1,000. Being the owner of a home that she owns and, therefore, must repair, maintain and insure, the mother’s housing and utility expenses are significantly higher than the father’s housing and utility expenses.

121Other than the children’s special and extraordinary expenses they have each assumed for the past three years, which I will discuss in more details below, the amounts that each party spends on a monthly basis for the benefit of the children are relatively similar. For that reason, I am of the view that using the set-off method represents an appropriate distribution of financial resources in each home to meet the children’s needs.

122Therefore, the parties’ respective child support obligations from June 2017 to and including December 2019 are as follows:

1- From June 1, 2017 to and including December 1, 2017:

a. the mother shall pay to the father child support in the amount of $1,292 per month based on her income of $85,566 per annum;

b. the father shall pay to the mother child support in the amount of $1,086 per month based on his income of $71,268 per annum;

2- From January 1, 2018 to and including December 1, 2018:

a. the mother shall pay to the father child support in the amount of $1,330 per month based on her income of $88,327 per annum;

b. the father shall pay to the mother child support in the amount of $1,118 per month based on his income of $73,616 per annum;

3- From June 1, 2019 to and including December 1, 2019:

a. the mother shall pay to the father child support in the amount of $1,330 per month based on her income of $88,327 per annum;

b. the father shall pay to the mother child support in the amount of $1,118 per month based on his income of $73,616 per annum.

By virtue of a consent order effective February 2018 to present, the mother has paid child support to the father in the amount of $5,796 ($252 per month for 23 months). She should have paid a total of $6,530 ($1442 from June to December 2017, $2,544 in 2018 and $2,544 in 2019), and therefore she owes the father arrears of child support, as of December 31, 2019 in the amount of $734.

Ongoing

Ongoing

123As of January 1, 2020, the children will be in their mother’s primary care during the school year and will share their time equally between each parent during the months of July and August, as well as during the Christmas Holidays. In accordance with this schedule, the father will not have the children in his care for at least 40% of the time over the course of the year. As a result, he will be required to pay the full Table amount required by the Guidelines, being $1,118 per month, beginning on January 1, 2020, in accordance with the order attached as Schedule “A”. The mother will then become liable to pay for all of the children’s day-to-day expense such as clothing, footwear, school expenses and so on.

Special and extraordinary expenses

Special and Extraordinary Expenses

124Following the parties’ physical separation, the parties have each assumed the following special and extraordinary expenses for the children:

Mother Father

2017:

• Child care expenses $6,596 $883
• child’s portion of medical expenses $50
• tutoring $360
• extraordinary extracurricular expenses $2,657

2018

• child care expenses $4,802 $2,842
• extraordinary extracurricular expenses $880

2019

• child care expenses (including camps) $4,876 $3,876
• child’s portion of medical expenses $15
• tutoring $650 $650
• extraordinary extracurricular expenses $1,758 $1,708

125It is to be noted that I have not imposed to the mother the obligation to contribute to the cost of the boy’s baseball equipment which was paid by the father. As stated above, at some point, the father withheld the boys’ hockey equipment (purchased by both of them during the marriage) and required that the mother purchase her own. This was unreasonable and resulted in the mother being required to purchaseentirely new hockey equipment for the children. I find that a proper way of compensating her for this is to require the father to assume on his own the baseball equipment he purchased up to December 2019 for the boys.

126Having regard to the various tax credits available for some of these expenses, and in accordance with the support calculations enclosed as Schedule “B”, the father owes the mother the total sum of $1,931 in retroactive adjustments for the period of June 2017 to and including December 2019, calculated as follows:

• June to December 2017: the father owes the mother $3,250

• 2018: the mother owes the father $996

• 2019: the mother owes the father $323

Post-Separation Adjustments

Post-Separation Adjustments

127The father does not deny that the extent of his contribution to the family expenses, while the parties lived separate and apart under the same roof (January to May 2017), consisted of his payment of the second mortgage and the joint mortgage line of credit, as well as a total cash contribution of $1,000 for that period.

128The mother seeks an order that the father be required to pay 50% of all expenses related to the family which she was required to assume on her own during that time (mortgage and housing expenses, utilities, property taxes, as well as all costs related to the children such as school lunches, activities and daycare).

129I accept the mother’s undisputed evidence that in 2011, a second mortgage and line of credit were obtained in order to repay the father’s debts (approx. $60,000). I find that most, if not all, of that debt was accumulated by the father as a result of gambling.

130The parties’ agreement was that the mother would continue to make the monthly payments towards the first mortgage, whereas the father would assume the second mortgage and line of credit on his own. After the parties separated, and while they continued to reside in the matrimonial home, the parties continued to honor this arrangement. I do not see why this Court should now impose on the father an obligation to pay one half of the first mortgage in addition to assuming the second mortgage and line of credit on his own.

131The father does not dispute his obligation to pay 50% of all other expenses assumed by the mother from January to May 2017, including property taxes, utilities and children’s expenses, and I so order. What he disputes is his obligation to share the cost related to the mediator’s drafting of a separation agreement ($4,000) which was assumed by the mother. The evidence before me makes it clear that both parties gave instructions to the mediator to draft the agreement. The fact that it was ultimately not signed does not mean that the party who ultimately refused to sign should bear 100% of the costs associated with its preparation. I find that the father should pay his 50% share of that cost.

132The total amount paid by the mother on account of the above expenses (minus all mortgage payments) was $14,274.08, and the father’s 50% share is $7,137.04.

133Finally, the uncontested evidence is that, after the parties’ separation, the father sold the mother’s engagement ring for $770. His testimony to the effect that he did so with the mother’s consent and that the parties had agreed that he would keep the proceeds from its sale was not believable. The value of the engagement ring ($710) was included in the mother’s net family property statement and was taken into account in the calculation of the equalization payment. The father shall pay to the mother the amount of $710 in reimbursement of the value of the ring.

Method of payment of adjustments and arrears

Method of Payment of Adjustments and Arrears

134The parties have agreed that the mother will pay the father $65,183.79 as an equalization payment. From that amount, the following adjustments will be made:

• Amount owed to the mother pursuant to the parties’ marriage contract: ($40,000.00)

• Arrears of child support as of December 31, 2019: $734.00

• Adjustments for s. 7 expenses: ($1,931.00)

• Father’s share of housing expenses for the period of January to May 2017: ($7,137.04)

• Engagement ring: (710.00)

For a total owing by the mother to the father: $16,139.75

Divorce

Divorce

135A divorce shall issue.

Costs

Costs

136If the parties are unable to reach an agreement on the issue of costs, they may serve and file written cost submissions in accordance with the following timelines:

• The mother shall provide her submissions on or before January 24, 2020;

• The father shall provide his submissions on or before February 14, 2020;

• The mother is permitted to file a brief reply, should she so choose, on or before February 21, 2020.

137Cost submissions shall not exceed 15 pages in length, not including Offers to Settle and Bills of Costs.

Madam Justice Julie Audet

Released: December 27, 2019

SCHEDULE “A”

THIS COURT ORDERS THAT:

Schedule A

1. Rosalie Mastrangelo and Antonio Pietro Paolo Di Cristofaro who were married in Ottawa, Ontario on March 8, 2008 be divorced and that the divorce take effect 31 days after the date of this order.

PARENTING

Decision-making authority

1. The Applicant shall have final decision-making authority over all matters pertaining to the children of the marriage, namely, Antonio Junior Giovanni Di Cristofaro born October 27, 2009 and Luciano Leo Di Cristofaro born December 8, 2011 (hereinafter referred to as “the children”), except for matters pertaining to the following, for which the Respondent shall have final-decision making authority:
   1. The children’s dental care;
   2. The children’s hockey and baseball, or any other team sports that the children wish to participate in in the future in replacement of hockey or baseball.
2. Before making final decisions with respect to any matters which are within their respective areas of decision-making authority, the parties shall consult with the other parent and obtain the other parent’s input. A final decision shall only be made once the other parent’s input has been received and considered, unless the consulted parent fails to provide such input within a reasonable amount of time or in the case of an emergency.

Parenting time – Regular schedule (school year)

3. Beginning on the first day of school in January 2020, the children will maintain their primary residence with the Applicant.
4. The Respondent shall have access with the children as follows:

(a) Every second weekend from Friday after school until Monday at school (or to daycare or their mother’s home if it is a PD day, or until Tuesday at school if Monday is a holiday);

(b) Every Wednesday from after school until 7:30 p.m. or as mutually agreed.

Parenting time – Holidays (including summer)

6. The following Holiday schedule takes precedence over the parties’ regular schedule. The parties may mutually agree to other special occasions.

7. In even numbered years, the children will reside with the Respondent on Easter weekend from Friday at 9:00 a.m. until Sunday at 9:00 a.m. and with the Applicant on Easter weekend from Sunday at 9:00 a.m. until Tuesday at the start of school. This schedule is reversed in odd numbered years.

8. Annually, the children will be in the Applicant’s care on Mother’s Day weekend from Sunday at 10:00 a.m. until the start of school the following day.

9. Annually, the children will be in the Respondent’s care on Father’s Day weekend from Sunday at 10:00 a.m. until the start of school the following day.

10. In even numbered years, on Thanksgiving weekend, the children will reside with the Applicant from Friday after school until Sunday at 9:00 a.m. and with the Respondent from Sunday at 9:00 a.m. until the start of school on Tuesday. The opposite schedule applies in odd numbered years.

11. The children have a two-week school break at Christmas each year. In even numbered years, the children will reside with the Respondent from December 24th at 9:00 a.m. (5:00 p.m. if it falls on a work or school day) until December 25th at 10:00 a.m. They will reside with the Applicant from December 25th from 10:00 a.m. until December 26th at 10:00 a.m. In odd years the schedule will be reversed.

12. Beginning on the first weekend of July (if the 1st falls on a Saturday or Sunday, it shall be considered the first weekend of July) the children will share their time equally between their parents, on a week-about basis (from Friday at 5 p.m. to Friday next at 5 p.m.). The parent who is scheduled to have the children that weekend in accordance with the regular schedule will have the children for that first full week.

13. The summer holiday schedule shall end on the last weekend of August. If August 31st falls on a Saturday or Sunday, this shall be deemed the last weekend of August, such that the children are returned to the Applicant’s care on the Monday morning following the last weekend of August, as per the regular schedule.

14. Each parent shall be solely responsible to schedule and pay for day care and summer camps required for the children during their parenting week with the children during holiday time.

15. In the summer, each party will be entitled to a two-week holiday with the children, such holiday to begin on the Friday at 5 p.m. The holiday will be scheduled in such a way that the non-vacationing parent will not be without the children for a period of more than 14 days.

16. The Applicant will be the “first choice parent” in even numbered years and the Respondent will be the “first choice parent” in odd numbered years.

17. The first-choice parent shall advise the other parent of their preferred weeks of summer holidays by no later than April 30th of each year. The second choice parent will advise the first choice parent of their preferred weeks of summer holidays by no later than May 15th of each year. If either parent misses their deadline, they will forfeit their right to extended summer vacation time that year. If both parents miss their deadlines, the regular holiday schedule applies.

18. If either parent is travelling outside Canada and the U.S. for their vacation their allowable holiday time will be extended to 21 days and the other parent will be afforded make up time for the loss of any of their parenting time as a result of the extended summer trip.

19. Neither parent requires the other parent’s written consent to travel with the children in the United States or in Italy.

Parenting - Other

20. Both parents shall have access to any information pertaining to the children which are within the control of third parties involved in their care, including their school, dentist, treating physicians, counsellors, sports coaches, or any other professionals.

21. The parties shall utilize “Our Family Wizard” to minimize the opportunity for conflict and to encourage timely and appropriate communication. The cost of the program shall be shared.

22. In the event that the mother decides that counselling is necessary for the children to assist them in mitigating further impact from parental separation, or for any other reason, and the father’s consent is unreasonably withheld (his input shall be sought and considered), the mother is authorized to involve the children in counselling without the father’s consent.

23. Neither party shall speak negatively about the other or allow any person to do so in any situation in which the children might overhear the conversation.

24. Neither party shall criticize the other’s parenting ability, parenting style, value system, or perspective or allow any other person to do so in any situation in which the children may overhear the situation;

25. Neither party shall discuss any issues relating to the separation with the children including but not limited to, the reasons for the breakup, financial issues, legal issues, or parenting issues.

26. Neither party shall emotionally burden the children, or undermine their relationships with the other, by discussing with the children any issue which is, or may be, the subject of conflict between the parties.

27. The parties shall each be responsible to take the children to their extracurricular activities on their respective parenting time. This includes, but is not limited to, hockey, soccer and baseball.

28. Where either party is unable to personally take the children to an extracurricular activity, medical appointment or other scheduled activity during their parenting time, they shall contact the other parent in writing 48 hours before the event to give the other the opportunity to take the children to that activity in priority to any third party. This does not apply to Ms. Di Cristofaro (the children’s paternal grandmother) or to situations where the children are invited to go to a friend’s home before/after an activity and that friend’s parent offers to pick them up and transport them to and from the activity. The other parent shall confirm in writing, within 24 hours of the initial contact, their availability to take the children to the event. If the other parent does not confirm their availability, the residential parent may make their own arrangements.

29. If a party is unavailable to care for the children for a period of 24 hours or more, the other parent shall have the right of first refusal to care for the children in priority to any third party.

30. Each parent shall notify the other, in writing and as soon as it is scheduled, of any medical and/or any appointment that is scheduled for the children, including, but not limited to, doctor, dentist or counselling appointments, and the other parent shall have the right to participate in that appointment.

31. Each parent shall be responsible to download school notices, report cards, or schedules for extracurricular activities on the Our Family Wizard website if they are provided in either electronic or paper form; Any information available online need not be posted.

32. Each party shall be responsible to ensure that telephone access occurs between the children and the non-residential parent during their respective residential week. The residential parent will initiate the telephone call between 7:00 – 7:30 p.m. each evening. If either parent is unable to make the call, he/she will notify the other parent as soon as practicable and will offer another time.

CHILD SUPPORT

Ongoing child support and s. 7 expenses

33. Commencing on the 1st day of January 2020, the Respondent will pay to the Applicant One Thousand One Hundred and Eighteen ($1,118.00) per month for the support of the children based on his Guideline income of $73,616 (estimated 2019 income).

34. The parties shall share the children’s special and extraordinary expenses under s.7 of the Child Support Guidelines on the basis that the Applicant pay 55% of such expenses and the Respondent pay 45% of such expenses.

35. The children’s current s. 7 expenses are the following:

36. Before and after school daycare;

37. Baseball, hockey and/or soccer;

38. Tutoring (including Kumon).

39. The Respondent shall pay his proportionate share of the children’s net (after tax) day care costs up front and directly to the day care provider. The Applicant will deduct 100% of the cost from her income for tax purposes. The parties will pay their proportionate share of the children’s sports’ registration, tournament expenses and tutoring expenses directly to the providers as well. A parent’s failure to contribute to those costs up front, at the time the payment is due to the third party, will result in that party becoming liable to pay 5% monthly interest on any unpaid amount which had to be assumed by the other parent.

40. Annually, on or before July 1st of each year, commencing in 2020, the parties shall exchange income disclosure in accordance with s. 25 of the Child Support Guidelines.

Retroactive adjustments of child support and s. 7 expenses

38. The Respondent owes the Applicant the net amount of $1,197.00 as a combination of shortfalls in the payment of s.7 and joint children’s expenses and adjustments in Table Child Support for the period of June 2017 to and including December 2019. This sum shall be repaid by way of set-off against the net equalization payment owed by the Applicant to the Respondent, in accordance with paragraph 42 below.

Life insurance and benefits

39. The Respondent shall maintain the Applicant as irrevocable beneficiary “in trust for the children” of his union local 257 Life Insurance Policy. He shall purchase a private policy within 30 days to bring the total insurance coverage to $200,000. He will provide immediate proof of compliance with this provision.
40. Both parties shall maintain health, medical and dental insurance coverage for the children for so long as the children are entitled to be supported by the Respondent. Benefit claims shall be processed as follows:

(a) Claims for the children will be submitted to the Respondent’s insurer first. If there are forms that can be signed to allow the Applicant to submit and receive reimbursements directly, those forms shall be signed immediately;

(b) The Respondent will remit the insurance reimbursement to the party that incurred the medical, health or dental expense within 5 days of receipt along with a copy of the Statement of Benefits he receives from his insurer;

(c) The Applicant will submit the Statement of Benefits to her insurer and will remit the Statement of Benefits and such other documentation required to substantiate the health, medical or dental claim to her insurer and will remit any insurance reimbursement to the party that incurred the medical expense;

(d) The parties will share the uninsured portion of the expense in proportion to income;

(e) The failure by either party to pay the reimbursement received from his or her insurer to the other party (who paid for the expense) within 5 days of receipt will result in that parent becoming liable to pay 5% monthly interest until the payment is made.

EQUALIZATION PAYMENT

41. The proceeds from the sale of the matrimonial home shall be immediately released to the Applicant.
42. The Applicant shall pay to the Respondent an equalization payment in the amount of $65,183.79, subject to the following post separation adjustments:
43. Amount owed to the mother pursuant to the Parties’ marriage contract (deduct $40,000.00)
44. Arrears of child support as of December 31, 2019: (add $734.00)
45. Adjustments for s. 7 expenses: (deduct $1931.00)
46. Father’s share of housing expenses for the period of January to May 2017: (deduct $7137.04)

For a net payment owing by the Applicant to the Respondent in the amount of $16,139.75.

43. The Applicant’s obligation to pay the equalization payment is suspended until such time as the issue of costs is agreed to or assessed and shall become immediately payable at that time.

COURT FILE NO.: FC-17-1927

DATE: 20191227

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROSALIE MASTRANGELO Applicant

– and –

ANTONIO PIETRO PAOLO DI CRISTOFARO Respondent

REASONS FOR DECISION

Audet J.