Court File and Parties
COURT FILE NO.: FS-16-413590 DATE: 20200319 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Andrew Thomas Brennan Applicant – and – Karee Janet Lander Respondent
Counsel: Self-represented (Applicant) Evelyn Kohn Rayson, for the Respondent
HEARD: November 12, 13, 14, 15, 18, 19, 20, 21, 22, 25, and 26, 2019
BEFORE: E.L. Nakonechny, J.
Reasons for Decision
Background
1The parties began their relationship in 2005. They do not agree on the date they began cohabiting. The Applicant says it was in 2005. The Respondent says it was June 2006.
2The parties married on September 8, 2007. There are two children of the marriage, G., born May 27, 2008 (almost aged 12), and T., born September 18, 2012 (aged 7). G. has been diagnosed with ADHD and Dyslexia. He takes medication to assist with these conditions. G. attends grade 6 at Annette Public School. T. attends grade 2 at Runnymede Public School.
3The parties separated on August 15, 2016. At the time of separation, the Applicant was 34 years old and the Respondent was 43 years old. The Respondent earned significantly higher income than the Applicant throughout the marriage. She was employed by large companies in management positions and as a supply chain analyst. The Applicant worked as a graphic artist and in marketing positions. He had periods of unemployment during the marriage and since separation.
4During their cohabitation the parties resided in a condominium owned solely by the Respondent. In 2008, the Respondent sold the condominium and purchased a home known municipally as 16 MacGregor Avenue, Toronto (“the MacGregor home”), also in her name alone.
5From 2003 to 2013, the Respondent was employed by Bauer Hockey. She worked in Toronto and New Hampshire. For the period from 2008 to 2013, she commuted two to three days per week to the United States.
6In 2013, the Respondent was offered a position with Amazon in Luxembourg. The Applicant negotiated an arrangement with his then employer, the Toronto Dominion Bank (“TD”), which permitted him to work remotely from home in Luxembourg and return every few months to work in Toronto. The original plan was for a two-year stay abroad.
7The family moved to Luxembourg in September 2013. The MacGregor home was leased. Amazon provided the family with relocation assistance. There was some difficulty in finding a school for G., but the Respondent was able to source an English-speaking private school through a co-worker. In early 2014, T. began attending a crèche.
8The parties employed a nanny in Luxembourg to work part of the day. The Respondent worked full time and sometimes travelled for her work. The Applicant worked from home starting in the afternoon and into the evening to accord with the Toronto work day.
9In March 2015, the Respondent gave the Applicant a calendar setting out a plan for their return to Canada. It proposed that the Applicant would return in about September 2015 and the Respondent and the children would return in the summer of 2016 at the completion of the school year. The Respondent was entitled to Restricted Share Units (“RSUs”) through her employment with Amazon. She planned to use the extra time in Luxembourg to obtain a position with Amazon in Toronto, to maximize her financial position through receipt of RSUs, and to have Amazon contribute to the costs of the move to Toronto.
10In July 2015, the Applicant’s employment with TD ended. The Applicant states that the atmosphere at work became untenable. His co-workers were difficult and insulting because he had worked overseas. The Applicant says he was “forced out” in a restructuring. The Respondent says the Applicant quit his job for apparently no reason and refused to go back despite her efforts to make him do so.
11The Applicant spent time with the family in Luxembourg in the summer of 2015. He returned to Toronto from time to time while looking for work. He found a new job in Toronto in October 2015, which limited his ability to travel. He spoke to the children daily from Toronto through telephone and FaceTime.
12The MacGregor home was tenanted when the Applicant returned to Toronto. He resided in a leased condominium.
13The Respondent visited Toronto with the children in the fall of 2015 and March 2016. She began planning the move back to Toronto.
14During the time in Luxembourg, the parties’ relationship began to deteriorate. The Respondent became frustrated with the Applicant, particularly over money issues. She believed their agreement for the move was that the family would live on her salary (which was much higher than the Applicant’s) and would save the Applicant’s salary into a joint account.
15Instead, the Respondent believed the Applicant was spending his money on lavish electronics, gym equipment, cosmetic and dental surgery, and other extravagances while she was paying all of the family bills and responsible for the care of the children. The Respondent says the Applicant slept late, took long showers, stayed in his office playing video games, and was uninvolved with the children. His behaviour toward her became erratic and aggressive.
16The Respondent was offered a position with Amazon in Toronto, which included a payment toward the costs of relocation. It was then she decided to separate from the Applicant. She did not say anything to the Applicant at that time or when she and the children moved back to Toronto in the summer of 2016.
17The Applicant wanted to terminate the lease on his rental property so that the family could move back into the MacGregor home when the Respondent and the children returned from Luxembourg. The Respondent told him not to do so on the pretext that renovations were required for the MacGregor home before the family could move back in.
18The Respondent and the children moved into the Applicant’s rental property when they moved back from Luxembourg. The Respondent still had not told the Applicant of her intention to end the marriage. She says she was afraid to tell him because of what his reaction would be.
19The Respondent asked for the assistance of her long-time best friend, Lisa Smith, and Ms. Smith’s husband, Mark Bhattarcharya, to be part of an arranged “play date” in the park with their children and the parties’ children. While Ms. Smith and Mr. Bhattarcharya distracted the children, the Respondent, within their view, told the Applicant the marriage was at an end. The separation took place at that moment. The Respondent left the park with G., T., and her friends to stay with them at their home. The Respondent and the children eventually moved back into the MacGregor home.
20The Applicant was, understandably, shocked and shaken by this event. He felt he had been “blindsided”, and that the Respondent had orchestrated a scenario to separate him from his children, his home, and any financial benefit from the marriage. He saw Ms. Smith and Mr. Bhattarcharya as “co-conspirators”.
21From the outset of the separation, the Applicant has sought equal parenting time and joint decision making for the children. The Respondent has consistently opposed this and seeks sole custody and primary residence of the children. She says that the Applicant’s unsettling behaviour has escalated since separation and that she cannot communicate with him to make joint decisions. G., in particular, requires stability, consistency, and routine that only she can provide.
22In December 2016, the parties entered into a temporary agreement whereby the children would reside with the Applicant on alternating weekends from Friday after school to Monday morning return to school and alternate Thursdays overnight. The children reside with the Respondent the balance of the time. That schedule continues in place.
23On August 3, 2017, Paisley J. ordered an assessment under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). Dr. Helen Radanovich conducted the s. 30 Custody and Access Assessment. Dr. Radovanovic’s report, dated January 31, 2019, was filed at trial. Dr. Radovanovic referred the parties to Dr. Olga Henderson. Dr. Henderson conducted psychological assessments of the parties and provided a report to Dr. Radovanovic. Both doctors gave evidence at trial regarding custody, access, and parenting.
24The primary issue at trial was parenting time and decision making for the children, G. and T. The other matters at issue at trial were as follows:
i. equalization, including the Applicant’s claim to an interest in the MacGregor home based on unjust enrichment and/or joint family venture; ii. whether the Respondent’s Amazon RSUs are income or capital for purposes of support and property calculations; iii. child support and claims to retroactive s. 7 expenses for the children; and iv. retroactive and go forward spousal support.
Issue 1 – Decision Making and Schedule for G. and T.
25The evidence in this case demonstrates the parties’ struggle with each other and for control of parenting of G. and T.
26The court must determine how future major decisions for G. and T. are to be made. There is currently no temporary custody order. A sole custody order can empower a parent and may result in the non-decision-making parent having a less significant role in the children’s upbringing. A joint custody order requires some degree of cooperation between the parents, which does not exist here. The court must draw some lines for the parties to each have a meaningful role to play in the children’s lives and to avoid the diminishment of either parent.
27It is in the children’s best interests that both parents continue to play a significant role in their lives. The parenting regime must prevent the marginalization of either parent and their care of and input into decisions for the children.
The Applicant’s Position
28The Applicant states that the Respondent has unilaterally dictated the terms of the parenting schedule and sought to limit his involvement with the children. He feels that if the Respondent is given final decision-making powers, she will use it to further isolate him from the children.
29The Applicant argues that he was an involved parent to both children from their birth and throughout the relationship. He cared for the children with the Respondent, including feeding, bathing and bedtime routine, diapering, and playing with them. He took part in organizing the children’s activities and took them to medical and dental appointments. When the Respondent travelled for work, the parties employed a nanny during the day and the Applicant cared for the children in the evenings and on weekends.
30The Applicant denies the Respondent’s allegations that he did not care for the children while the family resided in Luxembourg. He acknowledges that the parties employed a nanny to care for the children while he was working during Toronto business hours. He and the Respondent cared for the children when the nanny was not working, and the nanny cared for the children while he and the Respondent were working.
31The Applicant states that he has always put his family and his children first. He sought accommodation from TD to priorize the Respondent’s career advancement. He moved back from Luxembourg first to ensure an easy transition for the children back to Toronto. He tried to ready the MacGregor home to return the children to a familiar place, but the Respondent prevented this. He tried to move close to the children’s rental home after separation. Rather than seeing this as a way to facilitate the Applicant’s access to the children, the Respondent opposed this as an aggressive “tactic” on his part.
32The Applicant states that he has continued to be involved with the children’s schools, organized activities, G.’s educational and medical appointments, tutoring, and programming such as Integra. He helps the children with their homework and plans outings and lessons during his time with them. The children get along well with his girlfriend, Ms. Watanabe, who spends time with them on the weekend and sometimes picks the children up from school.
33The Applicant has consistently asked for joint input into decision making. The Respondent, he states, has refused to cooperate with him. The Applicant said that Respondent has shown bad faith and attempted to cast him as a lesser parent; for example, she made allegations to the Toronto Police and T.’s kindergarten teacher that the Applicant has a “mental disorder”.
34The Applicant admits that on some occasions, he behaved toward the Respondent in ways that are not cooperative or constructive. While he denies any violence or aggression, he takes responsibility for his actions and comments. He acknowledges feeling betrayed by the Respondent. He sees her actions at the time of separation as an intentionally malicious, orchestrated plan to keep his children from him and leave him in a financially difficult situation. He was abruptly removed from his home (the MacGregor home) and the lives of his children with no opportunity for input or discussion. The Applicant has attended counselling, as recommended by Dr. Radovanovic, which he plans to continue after the completion of the trial.
35The Applicant agrees with the recommendation of Dr. Radovanovic that the parties should consult with one another to make major medical and educational decisions for the children together. He does not agree with the recommendation that if the parties cannot agree, the Respondent shall make the final decision. This, he says, will allow the Respondent to ignore his concerns and input, as she did when deciding to end the marriage. She will continue to make unilateral decisions for the children, as she has since separation.
The Respondent’s Position
36The Respondent’s evidence is that she has always been the children’s primary caregiver. She is the parent in the best position to provide consistency, routine, and stability the children require, and to assist G. with his special health and education needs. She called friends, family members, and nannies previously employed by the parties who she is in friendly contact with as witnesses. These witnesses supported her position that the Applicant was unstable, paranoid, isolated, aggressive toward her, did not participate in caring for the children, did not do work to renovate or repair the MacGregor home, fabricated or misrepresented incidents and events, and is, essentially, a chronic liar.
37The Respondent was reluctant to admit that the Applicant participated in any way with the care of the children or the home. She was quick to praise the children’s nannies and caregivers for their care of the children while minimizing the Applicant’s role in the home and family. It is her position that the Applicant’s active participation with the children only began after the s. 30 assessment was ordered and his parenting behaviour was under scrutiny.
38The Respondent gave evidence regarding numerous discussions she had with her friend Lisa Smith over the years regarding schools, health care providers, and activities for their children. The two of them decided together which preschool to send their children to. Ms. Smith recommended Dr. Murphy to assess G. when the family returned from Luxembourg.
39The Respondent gave evidence about her care of the children and management of the family both in Toronto and Luxembourg. It is clear that she is well-organized, efficient, and proactive. She has a demanding, time intensive career that involves travel and working long hours. She performs at a high level professionally while parenting two young children, one with special needs. She took charge of the family by planning and executing two international household moves and organizing the children’s schools, activities, caregivers and health professionals.
40The Respondent gave extensive evidence about the difficulties she has had communicating with the Applicant since separation, particularly regarding G.’s medical care, medication, and special educational and other needs. She states that the Applicant has fabricated and misrepresented versions of events, such as G. requiring dental work, and the Respondent not providing school password information. He accused Dr. Murphy of possible bias, which caused Dr. Murphy to resign from treating G. She states that the Applicant insists on receiving one half of G.’s medication, which has caused difficulty for her, but also accuses the Applicant of not consistently giving G. his medication when G. resides with him.
41The parties communicate through text messages and Our Family Wizard. The Respondent states that she is not comfortable speaking to the Applicant and has not done so for about three years. She does not believe the parties can ever repair their communication or make decisions cooperatively.
42The Respondent agrees with Dr. Radovanovic’s recommendation that she have final decision making regarding medical and educational decisions for the children. She does not agree with the recommendation that the Applicant’s parenting time with the children be increased. She believes the current schedule should remain in place.
Dr. Vincent Murphy’s Evidence
43Dr. Murphy is a registered clinical psychologist. He conducted a psychological assessment of G. in February 2016 and made recommendations to support his educational programming.
44Dr. Murphy’s report, dated March 2, 2016, set out his conclusions regarding G.’s learning strengths and difficulties, as indicated from the tests he conducted. It recommends supports and assistance G. will require at school, including assistive technology.
45Dr. Murphy attended G.’s IEP and IPRC meetings during the 2016/17 school year to discuss his recommendations with G.’s teachers. He met with G. about ten times. The Respondent brought G. to most of these appointments and was the primary contact with Dr. Murphy regarding G.’s educational issues. The Applicant attended some appointments.
46On March 7, 2018, Dr. Murphy had a meeting with both parents. G. was having difficulty sleeping and was not eating well. The parents sought Dr. Murphy’s input on whether G. should change schools. Dr. Murphy testified that the discussion between the parents was civil and that they were focussed on G.’s needs.
47On March 21, 2018, the Applicant sent an email to Dr. Murphy questioning his impartiality and suggesting that the doctor had made comments that showed “bias” toward the Respondent. Dr. Murphy stated that in light of the Applicant’s comments he could not continue to work with the family. He advised the parents he was resigning from G.’s care on March 28, 2018.
48Dr. Murphy stated that G.’s learning disabilities and ADHD were properly identified and understood by his parents and his school. The assistance G. is receiving is helping him progress. G. will continue to require ongoing support and accommodation and careful monitoring of his treatment and medication as he moves into high school.
49In Dr. Murphy’s view, based on his interactions with G. and the parties, the most important thing for G. going forward is for his parents to get along and stop hating each other. G. should not be put in the middle of adult conflict. This will affect his confidence and create additional anxiety, which will make managing his ADHD more challenging.
Dr. Tara Gelman’s Evidence
50Dr. Gelman has been the children’s paediatrician since their births.
51The discussion around medication for G. started in about September 2016. The Respondent states that the Applicant refused to consent to the medication when it was initially proposed and insisted on a second opinion. This delayed the medication’s benefit to G.
52The Respondent brought a motion, returnable August 3, 2017, to dispense with the Applicant’s consent and giving her sole decision making for medical and educational issues for the children. Paisley J. dismissed the Respondent’s motion for that relief. His Honour held that the Applicant should have notice and be permitted to attend all medical and school appointments for the children.
53Dr. Gelman has prescribed biphentin as medication to treat G.’s ADHD. The medication is taken once per day on school days to assist with G.’s attention and behaviour. The medication is used along with other classroom strategies and G.’s individual education plan.
54Dr. Gelman states that both parents are in agreement with the medication and she has no concerns with compliance. Dr. Gelman sends G.’s prescription to a pharmacy in her building for 45 days’ worth of medication and the pharmacy splits the script between the parties. G.’s ADHD symptoms are improving with the medication, but he still requires accommodation and assistance from the school.
Dr. Olga Henderson’s Evidence and Report
55Dr. Olga Henderson conducted psychological testing of both parents on referral by Dr. Radovanovic. Dr. Radovanovic sought an evaluation of each party’s personality and psychological functioning. The assessments took place in March 2018.
56Dr. Henderson found that the Applicant was dedicated to the well being of his children and that his parenting knowledge was sound. He has a strong desire to be involved in their care. Any lapses in judgment are not due to lack of understanding of the children’s needs but his current emotional state and the stresses he is experiencing. He has some problems modulating his emotions and may behave irrationally or erratically. Dr. Henderson’s assessment suggested the Applicant could be suffering from a mood related disorder. She recommended the Applicant attend psychotherapy with a consultation for medication to help him better manage his stress and related reactions.
57Dr. Henderson found that the Respondent demonstrated sound knowledge of parenting skills. Her parenting style was supportive and caring, and she provided the necessary structure, guidance, and security for the children’s development. Dr. Henderson found that the Respondent appeared distressed, somewhat anxious, and depressed. In stressful circumstances she can display demanding and manipulative behaviours. Dr. Henderson recommended that the Respondent consider personal counselling to assist her in managing the underlying issues fueling the family conflict.
Dr. Radovanovic’s Evidence and Report
58Dr. Radovanovic last saw the children and the parties in about April 2018.
59Dr. Radovanovic confirmed that the children have a close bond and a positive relationship with both parents. They were eager to spend time with each parent and looked to both of them for support and guidance. Both parents were appropriate, affectionate, and nurturing with the children.
60Dr. Radovanovic states that although the dispute focussed in part on how much each parent was involved in caregiving before the parties’ separation, the more important issue now is the current quality of parenting and each parent’s ability to meet the children’s needs going forward.
61Dr. Radovanovic’s Parenting Plan Recommendations take into account her observation that, at the time of her report, there was still ineffective communication, mutual animosity and power/control issues between the parents. The Applicant, in particular, still displayed animosity toward the Respondent, which created stress for the children. The Applicant continues to blame the Respondent, which impacts the parties’ ability to communicate and to work cooperatively for the children.
62The parental conflict especially impacts G. He is very aware of his father’s sadness and believes his father thinks badly of his mother. G. “closes off” this anxiety so as not to upset either his mother or his father. This may prevent the parents from understanding the depth of G.’s feelings and providing him with necessary support.
63For these reasons, Dr. Radovanovic recommends a parenting schedule that maximizes stability during the school week and recognizes that the children miss being with the Applicant and also need individual attention with each parent. In her view, individual time for each child with each parent would be highly beneficial for both boys. The doctor proposes a four-week schedule:
Week One: The children shall reside with their mother from Monday after school, or 9 a.m. on a non-school/camp day to Thursday morning at 9 a.m. The children shall reside with their father on Thursday from after school or 9 a.m. on a non-school/camp day, to Friday morning at 9 a.m. The children shall reside with their mother on the weekend, from Friday after school, or 9 a.m. on a non-school/camp day, to Monday morning at 9 a.m.
Week Two: The children shall reside with their mother from Monday after school, or 9 a.m. on a non-school/camp day to Thursday morning at 9 a.m. Each parent shall have individual time with one child, beginning on Thursday after school, or 9 a.m. on a non-school camp day, to Friday at 9 a.m. Each child shall spend individual overnight time with each parent on the alternate Thursday evening once a month. Both children shall reside with their father on the weekend, from Friday after school, or 9 a.m. on a non-school/camp day, to Monday, morning at 9 a.m.
Week Three: Once a month, on the Friday preceding the children spending the weekend with their mother, each child shall spend individual overnight time with one parent. Each child shall thus spend individual time on a Friday after school and overnight to Saturday at 9 a.m. (or other mutually agreed time on Saturday morning) with their father every other month. Both children will then spend the remainder of the weekend together with their mother. In the event that Mother wishes to travel with the children over her regular weekend, both children will be available to her as of Friday after school.
Week Four: The children shall reside with their mother from Monday after school, or 9 a.m. on a non-school/camp day to Thursday morning at 9 a.m. Each parent shall have individual time with one child, beginning on Thursday after school, or 9 a.m. on a non-school/camp day, to Friday at 9 a.m. Each child shall spend individual overnight time with each parent on the alternate Thursday evening once a month. Both children shall reside with their father on the weekend, from Friday after school, or 9 a.m. on a non-school/camp day, to Monday morning at 9 a.m.
Both parents will fully cooperate with pick-ups and drop-offs in the children’s best interests. When required (i.e., there is no school or camp etc.), the children should be “dropped off” to the receiving parent’s home.
64Dr. Radovanovic recommends an equal sharing of the Christmas and March Break School holidays and a two-week summer holiday block for each parent with the regular schedule to continue outside of the block holiday time. Dr. Radovanovic believes that the parties should maintain consistency in the children’s camps and other summer activities to ensure a comfortable routine. She also recommended school support for G., such as the Integra programme over the summer.
65The recommended holiday schedule also includes a sharing of specific long weekends. It provides that non-specified long weekends be spent with the parent who has had the children for the adjoining weekend.
66Dr. Radovanovic believes that joint decision making for medical and educational matters cannot work for these parties because of their problems with communication and the conflict in their relationship. She recommends that the parties attempt to make decisions jointly in consultation with the children’s professionals and that the Respondent have final decision making in medical and educational matters if they cannot agree.
Analysis
67The Respondent states that she has tried but cannot co-parent with the Applicant due to his erratic and aggressive behaviour toward her. She also provides various examples that she states show the Applicant not putting the children’s needs first: the Applicant’s accusations against Dr. Murphy that caused the doctor to withdraw from G.’s care, his false accusation about a purported phone call between the Respondent and a doctor at the Willow Centre that did not occur, his failure to support G. receiving medication for his ADHD and then insisting he receives half of the medication from Dr. Gelman, even though he does not have G. one half of the time.
68The Applicant states that if he is not granted joint custody, the Respondent will continue to diminish and marginalize his role as a parent. He states that the Respondent has made unilateral decisions that directly impacted on his residential time with the children. He states that there is only confrontation between the parties when the Respondent tries to limit his time with the children and does not include him in discussions regarding major decisions, such as her recent proposal that G. attend private school.
69In determining best interests under s. 16(8) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (“Divorce Act”), courts have routinely referred to the best interest of the child test set out in the CLRA, s. 24(2)(a) to (h). This test sets out a list of needs and circumstances the court shall consider in determining the child’s best interests. The list is not exhaustive:
24(2) Best Interests of Child – 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 any familial relationship between the child and each person who is a party to the application.
70I am troubled by the Respondent’s lack of insight into how some of her behaviours may have contributed to the difficulties between the parties. The Respondent blames the Applicant for the difficulties between the parties without considering how her own actions may have provoked the frustration and added to the Applicant’s negative reactions.
71The parties had never discussed separation prior to August 2016. Rather than speaking to the Applicant privately or suggesting a therapeutic professional, the Respondent planned a scenario involving her own friends and the children. It left the Applicant completely taken aback, standing alone in a public park watching his family walk away. He never returned to the family home except to pick up his belongings from the curbside.
72After separation, the Respondent initially agreed with the Applicant’s request that the parties share time equally with the children. She testified that she did this to “de-escalate the situation”. She said she could not deal with the Applicant, so she told him what he wanted to hear. This was not her actual intention, and she did not carry out the equal time schedule. The Respondent did not appear to consider how this could have added to the Applicant’s feelings of mistrust and betrayal. She cannot have imagined it would improve the already fractious relationship between the parties.
73The Applicant, for his part, has expressed his frustration inappropriately in negative and sometimes offensive communication with the Respondent and others involved with the children. He has displayed negative emotions and anger toward the Respondent in front of the children, which has caused them stress. This has been especially difficult for G., who feels put in the middle of adult conflict.
74The Applicant has also behaved uncivilly toward professionals involved with G., such as Dr. Murphy and Mr. Bednarski, the principal of Humberside Montessori where G. attends an after-school programme. The Applicant’s conflict with these professionals had impacted the children’s stability in their school and community.
75This ongoing conflict has led to hurt feelings and harsh words by both parties. The conflict and communication problems are not, however, unsalvageable. The parties each gave evidence that they wished they could communicate co-operatively with one another for the sake of the children. Dr. Murphy, Dr. Gelman and Dr. Radovanovic gave evidence that the parties were child focussed and recognized the importance of the children’s needs.
76Both parents have worked hard to provide loving and supportive homes for G. and T. The children’s best interests are served by continuing to live primarily with the Respondent and having a strong relationship with the Applicant. I have considered all of the relevant factors in s. 24(2) (a) to (h) and applied them to the facts as found by me in this case. In viewing the totality of the evidence and observing the parties over the course of the trial, I find that an order for final medical and educational decision-making to one parent would not be in the children’s best interests.
77I am mindful of the decision of the Ontario Court of Appeal in Kaplanis v. Kaplanis (2005), 249 D.L.R. (4th) 620 (Ont. C.A.). In that case, the court held that an order for joint custody may not be appropriate in some cases where the parties are not able to communicate or engage in joint decision making. However, in the context of these parties and G.’s particular medical and educational needs, I find that it is in both children’s best interests that both parents are involved in their major decisions. In this case, an order for joint custody will ensure that the Applicant is involved in all major decisions for G. and has direct communication with his school and medical professionals.
78To be an effective joint custodial parent, the Applicant must put aside his anger toward the Respondent and learn to resolve any parenting conflicts he has with her in a civil and cooperative way. He must communicate with the Respondent in a respectfully. While I recognize the Applicant’s historic behaviour, I am satisfied that he is motivated by his wish to be an involved and effective parent to his children. G. and T. will benefit by seeing their parents working together.
79This will not be an easy co-parenting relationship. But this is not sufficient in my view to demonstrate the criteria necessary for an order for sole custody under s. 24 of the CLRA. I encourage the parents to continue to use Our Family Wizard to communicate and exchange information. The Applicant must let go of his anger and resentment toward the Respondent and show that his intention to co-operate with her is genuine. The Respondent must be open to working with the Applicant.
80The parties shall retain an agreed upon parenting coordinator to assist them with decision- making issues as they arise and to help them with scheduling and communication issues. The parties shall share the cost of the parenting coordinator proportionate to their respective incomes as a s. 7 expense (discussed further, below).
81The Applicant must attend his own counselling to deal with his emotional issues arising from the breakdown of the marriage and his negative emotions toward the Respondent.
82I agree with Dr. Radovanovic that consistency and stability are important for the children during the regular school schedule. The four-week schedule the doctor has recommended will meet the children’s needs for additional time with the Applicant overall and individual time with each parent.
83I am not persuaded by the Respondent’s argument that the current schedule should remain in place. Dr. Radovanovic made her recommendations based on an assessment of all of the needs and circumstances of the children after a comprehensive review of information gathered from many sources. In my view, it is in the children’s best interests to spend more time with the Applicant in a structure that provides the stability of block time in the Respondent’s home on consistent days during the school week. The regular schedule recommended by the doctor achieves this.
84I do not agree with the recommendation that if the Respondent wishes to travel with the children over her weekend in Week Three that the children shall be available to her as of Friday after school. It will create friction if the Respondent is able to unilaterally choose to cancel the Applicant’s Friday overnight with G. or T. If the Respondent wishes to travel with the children for the weekend of Week Three in the schedule and the Applicant does not agree to forgo the overnight, the Respondent may travel with both children that weekend and Applicant shall have make up overnight access with G. or T. on Friday of the following Week One from after school until Saturday morning at 9 a.m. or other mutually agreed upon time on Saturday morning.
85I agree with the equal sharing of holiday time as recommended by Dr. Radovanovic in her report, except for the Summer Holidays. The regular school schedule is to preserve consistency over the school year. In my view, the parents should each have more block time with the children during the Summer Holiday period. This is an opportunity for the children to spend less structured time in each parent’s home, away from the city or with extended family.
86In 2020, the parents shall each have three weeks of holiday time with the children in addition to the regular residential schedule. The three weeks shall be taken either as three seven-day periods, not consecutive, or one 14-day period and one seven-day period, not consecutive. In 2020 only, the Respondent shall select her summer vacation periods no later than April 15, and the Applicant shall select his summer holiday period no later than April 30.
87In all following even numbered years, the Respondent shall select her summer vacation periods no later than March 1, and the Applicant shall select his summer holiday period no later than March 15. In odd numbered years, the Applicant shall select his summer vacation periods no later than March 1, and the Respondent shall select her summer holiday period no later than March 15.
88Commencing in 2022, the parents shall each have four weeks of holiday time with the children, in addition to the regular residential schedule. The four weeks shall be taken either as four seven-day periods or two 14-day periods, no more than two weeks consecutive.
89The parties shall have joint custody of the children, G. and T., pursuant to the terms set out in Dr. Radovanovic’s Parenting Plan Recommendations in paragraphs 1 to 34 of her report, dated January 31, 2019, as amended by me above and attached hereto as Schedule “A”.
Issue 2 – Equalization
90The Applicant filed a Form 13C Comparison of Net Family Property Statements. Based on that document, it is his position that the Respondent owes him an equalization payment of $352,079. This figure includes the agreed upon value of the MacGregor home at the date of separation of $1,030,000. The Respondent paid $185,000 toward equalization.
91The Applicant is seeking an interest in the MacGregor home by way of a constructive trust or joint family venture. He states that the Respondent originally agreed that the property would be purchased in their joint names but then purchased it in her name alone without his knowledge or consent. When the Applicant voiced his objection, he says the Respondent threatened to take G. and separate from him. The Respondent denies this occurred.
92The Applicant states that he paid the Respondent $1,000 per month toward the monthly mortgage payments on the MacGregor home. He states he was actively involved in extensive renovations to the home, including electrical work, drywall, design, landscaping, and overseeing contractors. The Applicant paid for windows, kitchen cabinets, and plumbing. He gave the Respondent $22,500 toward the cost of renovations.
93The Respondent concedes that the Applicant paid for windows for the home, $9,600; kitchen cabinets, $7,000; plumbing $5,000; and some materials for smaller renovations he conducted himself, $5,000; and property taxes, $2,000, for a total of about $28,600. She agrees that he paid $1,000 per month when the parties resided in Toronto but states that this was not specifically for the mortgage. It was payment for his own living expenses, not contribution to MacGregor or the family. She argues that his monetary and non-monetary contributions were minimal.
94The Respondent denies the $22,500 payment from the Applicant was for the cost of renovations. She states it was for the purchase of Bauer stock in 2011. The Respondent repaid the Applicant $18,000 when the stocks were sold at a loss.
Analysis
95The Applicant did not produce a current value of the MacGregor home. He had a valuation done in 2017 by a real estate appraiser, Mr. Kolos. The property had increased in value since separation.
96The Applicant relies on Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, to argue that he is entitled to a constructive trust interest in the MacGregor home. He states that the Respondent has been enriched by his money and monies’ worth contributions and that he has suffered a corresponding deprivation.
97The Applicant states that there is no juristic reason for the enrichment but does not specify the evidence he relies on as proof of this. He also does not specifically argue what remedy he seeks if unjust enrichment is found. I take his argument to be for a proprietary remedy to share in the appreciation of the value of the MacGregor home after the date of separation.
98The Respondent argues that the Applicant has not met the test for unjust enrichment in Kerr because his monetary and non-monetary contributions to the home were minimal. There is not a sufficiently substantial or direct link between the contributions and the property over which the trust is claimed, as required by paragraph 51 of Kerr.
99Section 10(1) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), provides that a person may apply to the court for a determination of title of a property, including a beneficial interest arising from a constructive trust. These questions of title must be determined before the equalization calculation under s. 5 of the FLA.
100Kerr was a case between common law spouses who have no rights to equalization. The principles of unjust enrichment set out in Kerr must be considered in that context. The Supreme Court in Kerr confirmed that where unjust enrichment is found, a monetary remedy should be considered before the proprietary remedy of constructive trust. The proprietary remedy should only be granted where the court is satisfied that a monetary remedy would be insufficient in all of the circumstances.
101The decisions of the Supreme Court in Rawluk v. Rawluk, [1990] 1 S.C.R. 70, and the Ontario Court of Appeal in McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, both leave open the possibility of a constructive trust claim between married spouses.
102In Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, the Ontario Court of Appeal analyzed the application of the principles in Kerr to a claim by married spouses for constructive trust or joint family venture as they relate to the equalization provisions of the FLA. Hoy, A.C.J. references s. 5(7) of the FLA, which states that the express purpose of the equalization provisions is to address the unjust enrichment that would otherwise arise upon marriage breakdown:
The purpose of [the equalization] section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection 5(6): at para. 63.
103In Martin, the Court of Appeal held that if unjust enrichment is found in a case of married spouses and the court determines that monetary damages can suffice, the court must then calculate the spouse’s entitlement to equalization. The court must still determine ownership before embarking on the equalization calculation, but it is not necessary to examine joint family venture issues because the remedy lies in an equalization payment rather than a monetary award for unjust enrichment: at para. 66.
104Hoy, A.C.J. cites McNamee at para. 64: “in the vast majority of cases, any unjust enrichment that arises as the result of a marriage will be fully addressed through the operation of the equalization provisions under the Family Law Act.”
105The Applicant’s evidence does not support a claim for unjust enrichment. The Applicant made no contribution to the acquisition of the home. He did make some money and monies’ worth contributions to the expenses of, and renovations to, the home between 2008 and 2013. He did not make any financial or other contributions after the parties moved to Luxembourg in 2013. The carrying costs of the home between 2013 and 2016 were mostly paid by the rental income. The Respondent paid for repairs that were required during the rental period without contribution from the Applicant.
106This was not a situation where the parties pooled their resources during the marriage in a joint account to pay expenses for the home. The Respondent paid the mortgage and other costs of the home directly with some monthly contribution by the Applicant. I do not find that the Respondent was unjustly enriched by retaining sole title to the home.
107Even if I had found that the Applicant proved his claim for unjust enrichment, the monetary award under the equalization provisions of the FLA would satisfy the Applicant’s claim for unjust enrichment. This is not a rare case as envisioned by the court in Martin, where monetary damages for unjust enrichment are not adequately addressed by the equalization payment: at para. 67.
108I have no evidence of the current value of the MacGregor home. The Respondent’s financial statement, sworn October 10, 2019, uses the same current value for the home for as the date of separation. This cannot be correct. The home has appreciated in value since separation. This increase may create an unfairness to the Applicant, but it is not a basis for a finding of unjust enrichment: Cerenzia v. Cerenzia, 2015 ONSC 7305, 68 R.F.L. (7th) 333, at para 83.
109The Applicant is entitled to an equalization payment of $352,079 plus pre-judgment interest. He received an advance payment of $100,000 pursuant to the Order of Croll J., dated May 29, 2017, and $85,000 pursuant to the Order of Kristjanson J., dated December 4, 2018. The balance owing before the calculation of prejudgment interest is $167,079.
Issue 3 – Treatment of the Respondent’s Amazon RSUs for Property and Support Calculations
110The Respondent received Restricted Stock Units (RSUs) as a benefit of her employment with Amazon. The RSUs vested over four years and were received and sold in U.S. dollars. At the date of separation, the Respondent owned 448 unvested units.
111Neil Maisel of Crowe Soberman calculated the net after tax value of the unvested units at $223,304 at the date of separation. This figure forms part of the equalization calculation set out above. The Applicant does not dispute Mr. Maisel’s valuation.
112The value of the Amazon shares has increased significantly over the years. When the Respondent received the first grant of shares in 2013, the price was about $278 per share. At the time of separation in 2016, the price was $715.62. In 2018, the stock price had doubled to $1,400.
113While the Respondent’s base income of $177,700 CND did not increase after the date of separation, her Line 150 income has increased substantially as a result of her sale of the Amazon shares.
114The Respondent receives Federal Foreign Tax credits for income earned and tax paid in Luxembourg for the relevant years. The Respondent’s Line 150 income for the years since separation is as follows:
i. 2016 - $226,692 ii. 2017 - $572,610 iii. 2018 - $417,046
115The Respondent’s RSU income for the years since separation is as follows:
i. 2016 - $228,337 ii. 2017 - $394,910 iii. 2018 - $238,189
116The Applicant’s Line 150 income for the years since separation is as follows:
i. 2016 - $64,574 ii. 2017 - $65,753 iii. 2018 - $66,736
117The Applicant argues that the Respondent misrepresented the value of her Amazon stock to him before he returned to Canada. She deliberately ended the marriage one month before a large portion of the RSUs vested. He says it would be unfair to consider the RSUs only as property at their lowest unvested value and not consider the substantial increase in their value as income received by the Respondent after separation.
118The Respondent states that the RSUs are an extraordinary incentive paid to the employee to remain with the company. The income received on the sale is not income paid for work performed. It is non-recurring income. This income should not be taken into account in determining the Respondent’s income for support purposes.
Analysis
119The case law regarding whether to categorize RSUs and other similar income producing assets such as Restricted Share Awards and stock options as property or income for calculating child and spousal support is not settled. The main argument against counting RSUs as part of equalization and as income for support purposes is the concern for double dipping. The Supreme Court of Canada in Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413, held that it is generally unfair to permit a support recipient to benefit from their former spouse’s pension both as an asset and as a source of income. The Supreme Court held at para. 64: “To avoid double recovery, the court should, where practicable, focus on that portion of the payor’s income and assets that have not been part of the equalization or division of matrimonial assets when the payee spouse’s continuing need for support is shown.”
120While Boston dealt with double dipping in the context of pensions, RSUs can also be considered as an asset for equalization purposes and as income for support purposes in the year they are realized. Some courts have drawn a distinction between child and spousal support obligations when determining whether other considerations should outweigh double dipping concerns.
121In Patterson v. Patterson (2007), 36 R.F.L. (6th) 310 (Ont. S.C.), the court considered when restricted share awards (“RSAs”) received by the payor spouse should be included in the calculation of income for child support purposes. The experts called by both parties agreed that RSAs should be included as income for support but disagreed as to what year the RSAs should be included in income.
122The court held that the RSAs should be included as income in the year that they vest, in accordance with s. 19(1) of the Federal Child Support Guidelines, SOR/97-175 (“the Guidelines”). The income should be imputed in the year it was available. It was within the employee’s control to sell the shares when they vested. It would be inappropriate to deny the income available for child support purposes if the employee chose to defer the exercise of the shares. The spouse receiving the RSAs would receive a significant portion of income from dividends or capital gains, which are taxed at a lower rate than employment income.
123In Patterson the court was clear that its decision was restricted to calculating the payor’s income for child support, not spousal support:
In order to comply with my judgment on child support, the husband will likely have to commence exercising stock options and dealing with his restricted share awards on a rather regular basis. It is one thing to require him to do so in order to meet his child support obligation. It is quite another to expect him to do so in order to equalize household incomes: at para. 37.
124In Hillman v. Letchford, 2015 ONSC 3670, aff’d 2017 ONCA 117, leave to appeal dismissed, , Braid J. recognized that case law on stock options is contradictory and unsettled. In that case, the parties lived in a common law relationship for 14 years and, after separation, entered into Minutes of Settlement that were incorporated into a final court order. The wife sought to set aside the agreement based on the husband’s alleged non-disclosure of information with respect to his stock options. The wife argued the options were relevant to determine the husband’s income for support purposes. The court declined to set aside the agreement:
It is notable that the treatment of stock options in the family law context is somewhat unsettled. In this case, the wife provided the court with the decision in Patterson v. Patterson, [2006] O.J. No. 5454 (Ont. S.C.J.), in which the court held that stock options should be treated as income. The court in Gibson v. Gibson, [2011] O.J. No. 3380 (Ont. S.C.J.) followed the reasoning in Patterson. However, in Ross v. Ross, [2006] O.J. No. 4916, the Ontario Court of Appeal treated stock options as property that should be considered in the equalization of net family property. Although the Court of Appeal decision did not specifically address the issue of whether the options are property rather than income, the decision appears to be binding authority for the proposition that stock options must be treated as property. It is therefore unclear what affect the disclosure of all stock options and restricted shares could have had on the settlement: at para. 123.
125The Court of Appeal affirmed the trial judge’s decision but did not speak directly to the issue of stock options. The Court held that the that the trial judge’s analysis was correct based on the fact that it was not clear that stock options would be treated as income for support purposes: at para. 18.
126In Boulanger v. Hebert‐Boulanger, 2017 ONSC 482, Van Melle J. held that, pursuant to the FLA, the husband’s unvested stock options existing at the date of separation were property and their value (with a deduction for income tax liability) formed part of the husband’s net family property for equalization: at para. 20. Based on this finding, Van Melle J. did not include the income from the options in his income in the relevant year for spousal support purposes: at para. 26.
127Section 15 of the Guidelines provides that a payor’s annual income is to be determined in accordance with ss. 16 to 20. Section 16 provides that a parent’s annual income is their Line 150 income on their income tax return, subject to ss. 17 to 20 and adjusted in accordance with Schedule III.
128The Respondent takes the position that I should disregard her Line 150 income, which includes the income from her RSUs, and not rely on it to determine her income for support purposes. I agree with the Respondent’s position as it relates to spousal support, because the RSUs, which generated part of her income, have been equalized. That income should be deducted from the Respondent’s income for calculating spousal support and retroactive spousal support.
129However, I do not agree with the Respondent’s position as it relates to child support. The Respondent had significantly higher income available to her as a result of the increase in the value of the stock. Her Line 150 income is a fair determination of her income to calculate her ability to contribute her proportionate share of the children’s expenses in the relevant years. Each party’s Line 150 income in the relevant tax year will be used to calculate their respective proportionate share of the children’s s. 7 expenses.
130For the calculation of spousal support, the Respondent’s RSU income will be deducted from her Line 150 income in calculating her ability to pay under the SSAGs. This income for the years since separation is as follows:
i. 2017 - $177,700 ii. 2018 - $178,857
131The Respondent’s Line 150 income in 2016 was $226,692. Of this, $224,995.91 is employment income on her T4 from Amazon Canada and $1,697 is net rental income. The Respondent’s evidence is that she had RSU income of $228,337 in that year. The Respondent was a non-resident for Canadian tax purposes for part of the year. Her foreign source income for the period of time she was not a resident of Canada was $343,752. The RSU income should not be deducted from the Respondent’s Line 150 income for 2016 because it appears this income was not taxed in Canada.
Issue 4 – Child Support and Claims to Retroactive s. 7 expenses for the children
132Akbarali J. made Orders, dated February 22, 2018 and April 17, 2018, for interim child and spousal support and contributions to the children’s s. 7 expenses. The Orders provide that, based on an income of $29,276 for the Applicant (who was unemployed at the time) and the Respondent’s base salary of $177,000, the Applicant would pay the Respondent child support for the two children in the amount of $449 per month and the Respondent would pay the Applicant spousal support in the mid range of the SSAG calculation, taking into account s. 7 expenses for child care and summer camp paid by the Respondent of $17,169 and a date of cohabitation of June 30, 2006.
133In November 2019, the Applicant obtained new employment with total remuneration of $80,000. He receives health and dental benefits but no bonuses or other remuneration.
134In March 2019, the Respondent obtained new employment with Bauer. Her base salary is $200,000. She received a $10,000 one-time payment for future taxes. She is eligible for a 25% target bonus but could receive more or less. As at October 2019 she had not received a bonus because she was only employed for part of the year. In May 2023, the Respondent will be entitled to participate in a Long Term Incentive programme. She may also be eligible for an additional bonus based on her own performance.
135The Applicant has provided invoices for payments he made for the children’s camps: in 2018, $1,010, and in 2019, $1,528.
136The Respondent has provided invoices for payments she made for the children’s camps and daycare: 2016, $6,831; 2017, $16,680; 2018, $15,149; and 2019, $12,038. The Respondent received a corresponding tax deduction in those years.
137There are no retroactive s. 7 expenses for 2016. Based on their respective incomes as found by me above, the parties shall share the children’s retroactive s. 7 expenses, net of tax, as follows:
i. 2017 - 90% to the Respondent and 10% to the Applicant; ii. 2018 - 86% to the Respondent and 14% to the Applicant; and iii. 2019 - 72% of the Respondent and 28% to the Applicant.
138The total cost of the s. 30 assessment that took place between December 2017 and May 2018 was $42,145. Of this amount the Applicant shall pay 14%, or $5,900, and the Respondent shall pay 86%, or $36,2456.
139The parties shall exchange their income tax returns and Notices of Assessment by June 1 of each year. Their proportionate obligation to contribute to agreed upon s. 7 expenses for the children shall be based on their respective Line 150 incomes for each year.
140The Applicant should have paid child support commencing September 1, 2016 for the two children. Based on his income as set out above, the amount of support he should have paid is as follows:
i. 2016 - $984 x 4 months = $3,936 ii. 2017 - $987 x 12 months = $11,844 iii. 2018 - $1,017 x 12 months = $12,206 iv. 2019 - $1,211 x 12 months = $14,532
141The Applicant will be credited for all child support payments he has made pursuant to the Orders of Akbarali J. Commencing January 1, 2020, he shall continue to pay child support for the two children based on his income of $80,000, in the amount of $1,211 per month.
Issue 5 – Spousal Support
142In making a spousal support Order under s. 15.2(4) of the Divorce Act, the court shall take into consideration the condition, means, needs, and other circumstances of each spouse, including
i. The length of time the spouses cohabited; ii. The functions performed by each spouse during cohabitation; and iii. Any order, agreement or arrangement relating to support of either spouse.
143The objectives of a spousal support order under s. 15.2(6) of the Divorce Act are as follows:
- recognize any economic advantages and disadvantages to the spouses arising from the marriage or its breakdown;
- apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
- relieve any economic hardships of the spouses arising from the breakdown of the marriage; and
- in so far as is practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
144There are three conceptual bases for entitlement to spousal support, as outlined in Bracklow v. Bracklow, [1999] 1 S.C.R. 420:
- Compensatory: this is grounded in the factors and the objectives in s. 15.2(6) (a) and (b) of the Divorce Act. In considering the means, needs, and circumstances of the spouses, the court must recognize that a spouse’s inability to support him or herself may relate to foregoing career opportunities during the marriage to care for home and family;
- Contractual: this is grounded in s. 15.2(4) (c) whereby the parties may have made an agreement before or during the relationship, which creates or negates a support obligation; and,
- Non-compensatory: this is a need-based claim, which is grounded in the objectives in s. 15.2(6)(c) and (d) in the Divorce Act.
145The Respondent argues that the Applicant is not entitled to spousal support. She says that he did not suffer economic detriment as a result the marriage or its breakdown. His employment was not limited by his role as caregiver to the children. The Respondent states that she was the primary caregiver to the children as well as the primary breadwinner.
146The Respondent argues that the Applicant chose to quit his job at TD and refused her entreaties that he try to negotiate a return. Although he had a period of unemployment, he returned to work after a short time at an income level similar to his earnings at TD.
147If there is to be an order for spousal support the Respondent states it should be at the low or mid range of the SSAGs and either lump sum or time limited to one-half the length of the relationship (4.5 years). This takes into account the length of the parties’ relationship (about 10 years), the Applicant’s age at separation (34), and the fact that the Applicant has essentially recovered from any economic disadvantage arising from the marriage or its breakdown.
148The Applicant states he is entitled to spousal support, both need-based and compensatory, based on his role as a caregiver to the children and the fact that the Respondent’s career was always the family’s first priority. He negotiated with his employer to work from Luxembourg to allow the Respondent to advance her career. This, he says, contributed to the loss of his own employment, which he held for eight years, as well as his pension benefits and stock purchase plan.
149The priority of the Respondent’s career prevented the Applicant from furthering his education, which would have improved his future employment prospects. He cannot attain the lifestyle the parties enjoyed together as a result of the Respondent’s substantially higher income. He also has not benefitted from the appreciation in the value of the MacGregor home after separation or shared in the increase in the value of the Respondent’s RSUs. The Applicant seeks spousal support retroactive to the date of separation and ongoing.
150Akbarali J. found that the Applicant had made out a prima facie case of entitlement to need-based support. At the time of the interim motion, he was unemployed.
151I find the Applicant is entitled to spousal support, both need-based and compensatory, to redress the economic disadvantages and the financial hardship he suffered arising from the marriage and its breakdown. These disadvantages are his time out of the workforce due to loss of employment related to the move to Luxembourg, his periods of unemployment, his employment at a reduced income, and the reduction in his lifestyle from the one that the parties enjoyed for ten years.
152The Applicant moved to Luxembourg to support the Respondent’s opportunity to advance her career. The family would not have moved but for this opportunity. His own employment, as well as his entitlement to pension and other benefits, was impacted as a result.
153The Respondent furthered her career and income earning ability in Luxembourg. This enabled her to advance to her current employment, where her base income has increased, and where she has prospects for generous bonuses and stock incentives. On his current income, the Applicant cannot achieve the lifestyle the family enjoyed during the marriage, or the increased lifestyle that the Respondent will enjoy in the future.
154A DivorceMate calculation using the Applicant’s current income of $80,000, the Respondent’s current income of $200,000, and child support of $1,211 shows a SSAG support range of $938, $1,095 and $1,251.
155The SSAGs recommend a duration of support of 5 to 10 years. The Applicant has been receiving spousal support since April 2018, or about 24 months. This support has been taxable to the Applicant and deductible to the Respondent.
156In Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, the Court of Appeal upheld the trial judge’s finding that a time limited duration of support was appropriate, based on the recipient’s age, good health, and the fact that she had no dependants, no significant debt, and employment opportunities. The court also considered that the recipient’s dependency on the increased marital standard of living was based on the payor’s increased income mostly in the later years of the marriage: at paras. 85-86.
157Here, the family has been supported by the Respondent’s higher income throughout the relationship. The Applicant is paying support for two children primarily in the Respondent’s care. He will have some increased expenses for the children residing with him in his home. Based on the length of the marriage, the Applicant’s age, his income earning ability, and the costs he will incur for the children, spousal support at less than the midrange of the duration, 6 years and 9 months, is appropriate.
158The Applicant’s employment has been less secure since he left TD. In my view, a lump sum payment of support would not be appropriate because it does not account for the fact that the Applicant could lose his employment, be unemployed, or be employed at a reduced salary.
159Commencing January 1, 2020, the Respondent shall pay spousal support to the Applicant in the amount of $1,095 per month, based on his income of $80,000 and the Applicant’s income of $200,000. The support shall be payable up to and including December 1, 2024, subject to material change and annual cost of living adjustment. There is no retroactive spousal support owing prior to the interim Order of Akbarali J.
160Order to go:
The parties shall have joint custody of the two children of the marriage, G., born May 27, 2008, and T., born September 18, 2012, pursuant to the terms set out in Dr. Radovanovic’s Parenting Plan Recommendations in paragraphs 1 to 34 of her report, dated January 31, 2019, as amended below and attached hereto as Schedule “A”.
The amendments to Dr. Radovanovic’s report are: i. The parties shall make all major decisions for the children jointly in cooperation with one another. Neither party may make a unilateral decision except in the case of emergency. If an emergency decision must be made, the other parent shall be advised as soon as practicable in the circumstances. ii. If the Respondent wishes to travel with the children for the weekend of Week Three in the schedule and the Applicant does not agree to forgo the overnight, the Respondent may travel with both children that weekend and Applicant shall have make up overnight access with G. or T. on Friday of the following Week One from after school until Saturday morning at 9 a.m. or other mutually agreed upon time on Saturday morning. iii. In 2020, the parents shall each have three weeks of holiday time with the children in addition to the regular residential schedule. The three weeks shall be taken either as three seven-day periods, not consecutive or one 14- day period and one seven-day period, not consecutive. In 2020 only, the Respondent shall select her summer vacation periods no later than April 15, and the Applicant shall select his summer holiday period no later than April 30. iv. In all following even numbered years, the Respondent shall select her summer vacation periods no later than March 1, and the Applicant shall select his summer holiday period no later than March 15. In odd numbered years, the Applicant shall select his summer vacation periods no later than March 1, and the Respondent shall select her summer holiday period no later than March 15. v. Commencing in 2022, the parents shall each have four weeks of holiday time with the children in addition to the regular residential schedule. The four weeks shall be taken either as four seven-day periods or two 14-day periods, no more than two weeks consecutive.
The parties shall retain an agreed upon parenting coordinator to assist them with decision making, scheduling, and communication issues. The parties shall share the cost of the parenting coordinator proportionate to their respective incomes as a s. 7 expense. The parenting coordinator may reapportion the cost of parenting coordination in the case of arbitration.
The Applicant shall attend counselling to deal with his emotional issues arising from the breakdown of the marriage and his negative emotions toward the Respondent.
The Respondent shall pay the Applicant an equalization payment of $352,079 plus pre-judgment interest calculated from the date of separation. The Respondent shall be credited for the advance payments of $100,000 pursuant to the Order of Croll J., dated May 29, 2017, and $85,000 pursuant to the Order of Kristjanson J., dated December 4, 2018. The balance owing is $167,079 plus pre-judgment interest.
The Applicant shall pay the Respondent retroactive child support for the two children owing as of December 31, 2019 in the amount of $32,640. This takes into account a credit for all interim child support payments he has made pursuant to the Orders of Akbarali J. to December 31, 2019.
There are no retroactive s. 7 expenses owing for 2016.
The parties shall share the children’s after-tax retroactive s. 7 expenses as follows: i. 2017 - 90% to the Respondent and 10% to the Applicant; ii. 2018-86% to the Respondent and 14% to the Applicant; and iii. 2019 - 72% of the Respondent and 28% to the Applicant.
The Applicant shall pay 14%, or $5,900, and the Respondent shall pay 86%, or $36,2456, of the total cost of the s. 30 assessment, which was $42,145.
Commencing January 1, 2020, the Applicant shall pay child support for the two children based on his income of $80,000 in the amount of $1,211 per month.
Commencing January 1, 2020, the parties shall share the children’s agreed upon s. 7 expenses, including the cost of the parenting coordinator (subject to reapportioning as set out above): 72% to the Respondent based on her income of $200,000, and 28% to the Applicant based on his income of $80,000. Neither party shall unreasonably withhold consent.
The parties shall exchange their income tax returns and Notices of Assessment by June 1 of each year commencing June 1, 2020. Their proportionate obligation to contribute to agreed upon s. 7 expenses for the children shall be based on their respective Line 150 incomes for each year.
Commencing January 1, 2020, the Respondent shall pay monthly spousal support to the Applicant in the amount of $1,095 per month, based on the Applicant’s income of $80,000 and the Respondent’s income of $200,000. The support shall be subject to material change. Spousal support shall be paid up to and including December 1, 2024.
The spousal support shall be indexed and shall increase annually in accordance with the Consumer Price Index for Toronto for the month of December of the previous year, effective on the date of this Order and on each anniversary of that date.
There is no retroactive spousal support owing prior to the interim Order of Akbarali J. The Order of Akbarali J. is terminated.
The divorce was severed from the corollary relief as per the Order of Kiteley J., dated August 20, 2018. Either party may proceed to obtain the divorce on an uncontested basis. The motion for divorce may be sent to my attention for signature.
A Support Deduction Order shall issue.
161If the parties cannot agree on costs, the Applicant shall serve and file submissions on costs within seven days from the release of these Reasons. The Respondent shall have seven days thereafter to serve and file her submissions. The submissions shall be no more than three pages, exclusive of any costs outline, case law, and offers to settle. The Applicant may serve and file Reply submissions of two pages seven days after the Respondent’s submissions have been served. Submissions may be served between the parties by email: andrewbrennan@icloud.com, erayson@raysonlegal.ca, and sent to my clerk, Patrizia.Generali@ontario.ca.
E.L. Nakonechny, J.
Released: March 19, 2020
COURT FILE NO.: FS-16-413590 DATE: 20200319 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Andrew Thomas Brennan Applicant – and – Karee Janet Lander Respondent
REASONS FOR JUDGMENT E.L. Nakonechny, J.
Released: March 19, 2020