Court File and Parties
COURT FILE NO.: FS-16-410074 DATE: 20200525 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Asad Melikov Applicant – and – Tatiana Galkina and the Office of the Children’s Lawyer Respondent
Acting in his personal capacity Acting in her personal capacity C. Bellinger, for the Office of the Children’s Lawyer
HEARD: December 16 – 20, 2019
REASONS FOR DECISION
Hood J.
Overview
[1] The parties married on February 14, 2003. They separated on January 16, 2014 and were divorced on November 24, 2017.
[2] They have four children. As at the time of the trial Ruslan was 14, Mikael was 12 and is now 13, Kamila was 11 and is now 12, and Eldar was 9. All four children reside with the respondent mother (RM). Ruslan is severely physically disabled with 1q24 deletion, intellectual disability, epilepsy, along with numerous allergies including a severe allergy to tree nuts. He is non-verbal. He is on numerous medications, has a restricted diet, and is often fed by a G-tube. He requires a great deal of assistance.
[3] Generally speaking, the applicant father (AF) wants joint custody, and access on alternating Saturdays between 10:00 a.m. and 8:00 p.m. but only with Ruslan, Kamila, and Eldar, having separate parenting time with Mikael in the evening. He also wants unspecified holiday time with the children. He wants a cap placed upon the monthly s. 7 expenses paid by him. He argues that there is no spousal support payable and that any equalization owed by him is minimal because of post separation credits owed to him by the RM.
[4] The RM wants sole custody. She is agreeable to the proposed parenting time but wants all four children to go with the AF. She is opposed to a cap on s. 7 expenses, asks for spousal support, and while she agrees with most of the numbers associated with the net family property so as to arrive at an equalization number, she argues that the number is higher and that there should be no post separation credits to the AF.
[5] The Office of the Children’s Lawyer (OCL) was involved pursuant to the order of Kristjanson J. of May 16, 2018. The OCL chose to provide an investigation and report under s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. The OCL gave suggestions on custody and access. The OCL supported the RM as to custody and was not opposed to the AF having parenting time on alternate weekends since the parties were in agreement on this. The OCL argued that for any parenting time with the AF that the children should go together.
[6] For the following reasons I order that the RM is to have sole custody of the children, that the AF is to have parenting time with all 4 children on alternating Saturdays between 10:00 a.m. and 8:00 p.m. and one consistent worknight per week from 5:00 p.m. to 8:00 p.m., that there be no cap on the s. 7 expenses, that he pay spousal support in the amount of $450 per month going forward with no retroactive support, and that he pay equalization in the amount of $7, 265 net of all set-offs.
Custody and Parenting
[7] Although two of the main issues between the parties were custody and parenting the AF gave very little evidence in chief about his children, his relationship with them, his concerns, and what his plans were for the children. Nor did he provide much in the way of evidence about his new wife, who he married on December 28, 2017, and step-daughter, and the interaction between his new family and his four children from his relationship with the RM. The majority of his evidence had to do with financial issues and primarily what he felt were improper s. 7 expenses.
[8] The AF did testify that he had difficulties with his access visits in early 2018 as his children often refused to come with him requiring the intervention of Kristjanson J. on May 16, 2018 on a case conference. Following her order that the RM was to encourage the scheduled access and Kristjanson J.’s request on that same day that the OCL become involved, AF’s access resumed. However, once his new family arrived from overseas in August 2019 the situation once again deteriorated and his children were not comfortable with his new wife and step-daughter and since October 26, 2019 he has had no access.
[9] Through cross-examination of the AF, the evidence of the RM, and especially from the evidence of Ms. Sharma, the clinical investigator from the OCL assigned to this case, a fuller picture developed of the children, their relationship together, and their relationship with the parties.
[10] For example, the AF, as mentioned above, had testified in chief that he had had no access with the children since October 26, 2019. He failed in his evidence to explain as to why this might be, leaving the impression that this was simply an arbitrary and spiteful decision by the RM. In cross-examination by the OCL lawyer, the AF acknowledged that on October 26 he got into an altercation with the children in the RM’s apartment building lobby which included a physical tug of war over Ruslan sitting in his wheelchair, with him the AF on one side and his other three children on the other side and Ruslan in the middle each grabbing and pulling on the wheelchair. It started when the three children, other than Ruslan, indicated that they did not want to go with the AF. Rather than trying to find out why, to have a discussion, or even to seek the assistance of the RM, the AF said that he would just take Ruslan without them which resulted in the tug-of-war. It started with some of the children trying to kick him and one trying to grab his cell phone. The AF rather than attempting to de-escalate the situation used his phone to videotape the situation. He eventually called the RM and got her involved but by that point it was too late and it led to a 10 minute argument. The AF was asked to leave by the property manager. Matters never should have reached that level. It is inexplicable to me how an adult could think that it would be either reasonable or helpful to get into a physical tugging match with three children with the fourth, who is confined to a wheelchair and non-verbal, being the object of the physical altercation.
[11] While early and later school age children and early adolescents might have more of an inability to rationally deal with a situation such as this, the same should not be the case with an adult. Rather than de-escalating the situation he chose to elevate it to such an extent that the children have not seen him since then. Moreover, as opposed to seeing if there was a way to mend the relationship with his children the AF chose simply not to use his parenting time and decided not to tell anyone that he was no longer coming. To me this was a response perhaps expected of a child or early adolescent but certainly not from an adult and a parent who purportedly loves his children.
[12] Similarly, the AF gave his children just two weeks’ notice of his marriage to his new wife on December 28, 2017. He should have realized that this would be a major issue for his children, yet he kept it from them until the last minute. It most likely was partially the cause for the access problems he experienced in early 2018. The AF also had other problems that were revealed in cross-examination which I will not go into other than to say that many of them, to me, have to do more with his bad decision making, his strict and inflexible parenting style, his inability to parent his children when all of them are together, and his desire to separate Ruslan from his siblings.
[13] The AF acknowledged that his four children are close and supportive of each other and excluding one is bothersome to the others especially when it is Ruslan who is excluded. However, he believes that he has to limit his children’s activities, when he does see them, so as to include Ruslan. For example, he cited going to a waterpark as being problematic as Eldar cannot swim and Ruslan cannot be left alone. Because of this his suggestion is that Ruslan be left behind with the RM. The RM’s evidence was that she was able to involve all four children in activities and was able to manage when they all went to a waterpark.
[14] Ms. Sharma from the OCL gave evidence about her meetings with both the AF and RM, observational visits in their respective homes, meetings with the children’s teachers, meetings with the children both collectively and individually, and meeting the AF’s new family. I accept her evidence as coming from an experienced and impartial clinical investigator and social worker. She gave her evidence calmly without any colour and when cross-examined gave thoughtful non-argumentative answers often agreeing to propositions put to her when appropriate to do so.
[15] She was able to provide evidence about the children and their interaction, both among themselves together with their parents and with the AF’s new family.
[16] She found Mikael, Kamila, and Eldar to be polite, thoughtful, and articulate. She found Ruslan to be friendly and happy and well looked after. In her view, the stress between Mikael and the AF was causing problems or stress for the others especially Kamila who was concerned for her brother being singled out by the AF. Eldar also was concerned, fearing that eventually someone would get physically injured.
[17] All of the children were concerned with Ruslan and whether the AF was able to properly deal with Ruslan’s needs.
[18] The AF suggested to Ms. Sharma that Mikael was being influenced by the RM and that this was the cause of the problems between him and Mikael. Ms. Sharma disagreed. She believed that she had been able to obtain Mikael’s real point of view and that there was nothing to suggest that the RM was trying to influence any of the children including Mikael. If the RM had been trying then there would have been evidence of the same stories and language being used by the children and here there was none. In her view Mikael was simply very sensitive to the whole situation and worried, especially about his mother and Ruslan. The AF confirmed this in his own evidence saying that Mikael cared about his mother and the whole family.
[19] There is also no doubt, according to Ms. Sharma, that the children, perhaps excluding Ruslan, have been affected by the AF’s new family and that their relationship with AF has changed because of his new family, but that the AF does not really see this.
[20] I accept Ms. Sharma’s evidence that the AF needs to be more sensitive to the needs of his children and the added stress placed upon them through his new family. The AF has difficulty accepting responsibility for the difficulties with his children. He cannot ascribe blame to them. It is the AF who has to change not the children. He also needs parenting support. While I do not believe that I have the jurisdiction to order the AF to attend counselling on how to become a better parent it is something that I strongly believe the AF should consider.
[21] The AF wants access on alternating Saturdays between 10:00 a.m. and 8:00 p.m. and one evening. As mentioned previously he wants only some of the children for these two access visits. The RM is agreeable to the schedule being suggested but wants all of the children to go with the AF.
[22] In considering the questions of custody and access I have considered s. 24(2) and the factors contained in (a) to (h) along with s. 24(3) and (4) of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12. The RM alleged physical abuse by the AF in 2006. It was denied by the AF and the evidence presented of the photos was not sufficient to establish the allegation. The AF admitted that he had a physical altercation with the RM in 2013 and was arrested for domestic violence but testified with no contradictory evidence from the RM that the charges were withdrawn. There was also a November 2016 incident between the parties that resulted in the AF entering into a recognizance of bail. Those changes were also eventually withdrawn.
[23] Other than the aforementioned October 26, 2019 incident there was no evidence of violence towards the children which would perhaps lead to conclusion that the AF should not have access or that access should perhaps be supervised. The OCL however was not opposed to the access as suggested by the parties.
[24] As set out above and based upon the evidence of Ms. Sharma all of the children are to go with the AF. He is to have parenting time with all four children on alternating Saturdays between 10:00 a.m. and 8:00 p.m. He is also to have parenting time with all four children one night per week from 5:00 p.m. to 8:00 p.m.
[25] While Wednesday evening would be the most logical choice, I had no evidence as to the children’s activities and whether they would all be available on Wednesday evening. I leave it up to the parties to pick the weeknight that works best for the children. The parties should attempt to arrange one consistent weeknight so that there is stability for the children and the parties going forward.
[26] The AF will pick up the children and drop off the children from the lobby of the RM’s apartment. The RM shall make every effort to facilitate the AF’s parenting time and shall encourage the children to spend time with the AF. Each party will promote the children’s relationships with the other party and encourage the children to respect the other party. Neither party shall speak negatively about the other party in the presence of the children or ask the children to pick sides or communicate between the parties.
[27] I am not making any order to increase the AF’s parenting time as to include overnights. There was no evidence from the AF on this and no plan provided as to how this would be accommodated or how the parenting time could be gradually increased to perhaps work up to overnights.
[28] While the AF asked for holiday time with the children, he provided no plan and minimal evidence about this. I would hope that the parties are able to work out an appropriate plan for vacations and special days. I will make no order as to what is to happen on long weekends or March Break. These holidays are part of the regular Saturday and weekly schedule unless the parties agree otherwise.
[29] I make no order as to Christmas or summer vacation other than that the AF is to have his regular parenting time subject to the parties agreeing otherwise. At some point the parties have to take responsibility. The court can only go so far in giving direction. It is an impossible task for the court to delve into the minutiae of day-to-day living and to tell parties how to behave and in effect make orders compelling grown-ups to act as such. I would hope that the parties, over time, will be able to reach some agreement on overnights, travel, and holidays keeping in mind, as always, the best interests of their children along with considering the views of the children as they grow older.
[30] It is clear that the RM has been the primary care giver for the children, and especially Ruslan both before and after separation. She is acutely aware of Ruslan’s medical needs and has been his advocate and navigator through the medical world.
[31] The AF argues for joint custody because the RM’s language skills are not “the greatest” and she, in his view, has limited knowledge with respect to the education system. Because of this he wants to be involved in the children’s decision-making process. There was absolutely no evidence from the AF to support either position or that somehow this should result in a joint custody order. The RM conducted a five-day trial before me in English. Her language skills were good enough to accomplish that task. She was not asked by the AF about her knowledge of the education system. There was no evidence from the AF that he himself had any knowledge of the education system or that his knowledge was such that it would be in the children’s best interests to have joint custody.
[32] The RM has to date made nearly all the major decisions about the children. Ms. Sharma raised no issues in her evidence as to the RM’s decision making. What she did raise was her concern that the parties’ inability to effectively communicate would only lead to acrimony and increased stress for the children, which would not be in their best interests, and that as a result joint custody would be inadvisable.
[33] I agree. It is clear, that to date, the parties have had difficulty communicating on most things. Both parties professed an inability to communicate with the other. It was not as if one party was arguing an inability to communicate so as to support an order for sole custody. A hope that communication between the parties will improve once the litigation is over is no reason to make an order for joint custody. There must be some evidence that, despite their differences, the parties are able to communicate effectively with one another. See Kaplanis v. Kaplanis, at para. 11. There was no evidence here of effective communication.
[34] Nor does it appear that consultation would work. The AF was so dismissive of the RM’s abilities that I believe even simple consultation would lead to increased acrimony which would not be in the children’s best interests. Accordingly, the RM will make major decisions about the children’s health care, education, religion, and any other major decisions and will keep the AF informed of those decisions.
[35] During the time that the children are with the AF he can make the day-to-day decisions about the children and in a health emergency will make the treatment decision, on the advice of medical personnel, and will immediately notify the RM both of the emergency and the treatment decision.
[36] The AF has complained that he has little information about the children’s health and schooling. Under s. 20(5) of the Children’s Law Reform Act he has the right to make inquiries and to be given information as to the health, education, and welfare of his children. Both parties may ask for and be given information directly from the children’s teachers, other school officials, health care providers, including doctors and dentists and therapists, and any other person or institution involved with the children. If required, each party will sign all necessary consents for the other parent to receive such information.
[37] The AF also argued that he wanted joint custody to ensure that the RM was not able to turn the children against him. He was afraid that the RM would use sole custody to alienate the children against him. The AF misunderstands custody. I fail to see how the RM having the say about matters such as health, religion, and education can be used to alienate the AF. It is his parenting where the AF should be focused. It is through his proper parenting where he will have to repair his relationship with his children. He testified that he is proud of his children and that he loves them. He has to put aside his difficulties with the RM in the interests of his children.
Equalization
[38] The AF presented as Exhibit 10 a Net Family Property Statement which indicated that he owed the RM a total of $4,822. It included jewelry owned by the RM at separation valued at $15,000.
[39] Although the RM submitted that she had no issues with Exhibit 10 other than the value of jewelry attributed to her, which she argued should be valued at $5,000, she presented various documents and cross-examined the AF about them and other alleged financial interests of his presumably to argue that the AF had other assets to equalize or had a larger income than reported. She seemed to argue that the AF had financial interests with a variety of investors including some family members in a number of companies such as Bai Ordo, Laser Weld, Global Microfinance Fund LLC, and MKK Finance Partner.
[40] Whatever the reason for this evidence might have been, I am not satisfied based upon the RM’s own evidence, her cross-examination of the AF, or the exhibits presented, such as Exhibits 16, 17, 18, 40, and 41 that the AF had any financial interest in any companies or businesses so as to impact on equalization between the parties or his income. While the AF admitted he was aware of two companies, Global Microfinance and MKK Finance, having either relatives or friends at these two companies, he denied any personal financial involvement in these companies and the RM did not prove otherwise.
[41] The RM also argued that the AF had interests in various condominium properties in Toronto. It is unclear whether this was for the purpose of equalization or to prove a higher post separation income, but the RM presented no corroborative evidence of ownership, such as at a minimum real estate searches of the properties she alleged he owned.
[42] With respect to the jewelry neither party provided any evidence of value. While the onus of proving a deduction or an exclusion is on the person claiming it pursuant to s. 4(3) of the Family Law Act, R.S.O. 1990, c. F.3, there is no similar onus for the valuing of assets. It is to AF’s advantage to increase the value and to the RM’s advantage to decrease the value. With no evidence from either side I will pick the mid-point in value as $10,000 which results in an equalization payment from the AF to the RM of $7,322.
[43] The AF testified that post separation he made three payments towards the RM’s Mastercard in August 2015 totaling $2,417 and in August 2016 paid her tuition for George Brown College of $1,564 for a total of $3,981. This amount he says should be deducted from any equalization owing by him.
[44] The RM testified that she in turn made a number of payments to the AF following separation as evidenced in Exhibit 30. These payments totaled $3,924. Whether they are repayments of the amounts which the AF said be paid to the RM or separate payments does not really matter for the purposes of the equalization amount.
[45] The AF, in his reply evidence, did not deny being paid this amount by the RM post separation. While he suggested to the RM in her cross examination that some of this money was her repayment for airline tickets to Russia, she did not agree and he called no evidence in reply to prove this. I am satisfied each made payments to the other. The difference is $57 which is deducted from the $7,322 for a net payment from the AF to RM of $7,265.
[46] The AF also asks based upon Exhibit 8, being two letters from the Ministry of Children, Community and Social Services from September 2018, that the $2,055.77 he paid pursuant to the Ministry’s demand should be deducted from any equalization amount. The letters from the Ministry refer to sponsorship of his three oldest children Ruslan, Mikael, and Kamila. Apparently, according to the letters his children had received some social assistance and because of his sponsorship agreement he was obligated to pay it back.
[47] Other than the letters there was no other evidence about this. There was no evidence that the children had received any social assistance. There was no evidence that either party had applied for it. There was no evidence as to who any social assistance went to or when. I am not prepared based upon the limited evidence presented to deduct this amount from the net equalization payment of $7,265.
Section 7 Expenses
[48] On November 16, 2017 the parties entered into a consent order whereby the AF agreed to pay 95% of the special or extraordinary expenses of the children. Based upon their current respective 2018 incomes of $122,082 and $7,069 both parties are agreed that the AF is to continue to pay 95% of the special or extraordinary expenses of the children. The AF currently has an excellent health plan that covers most of the medical expenses for the children. Pursuant to an order of Justice Faieta the AF’s s. 7 expenses are capped at $577 per month. The AF wants to reduce this to $250 per month or $3,000 per year.
[49] As best I can understand the AF’s position, he is arguing that the RM is claiming excessive s. 7 expenses such as food supplements and vitamins for Ruslan and that since items such as these are not covered by his health plan he should not have to pay anything towards them. In his view if any expense is rejected by his insurer then he should not have to pay towards that expense.
[50] While the RM submitted s. 7 expenses for the children for activities such as basketball, gymnastics and skating in 2017 and March 2018 as set out in Exhibit 36, it would appear, based upon the subsequent Exhibits 37, 38, and 39 that the RM has stopped seeking reimbursement for any activities such as those for the children for the balance of 2018 or for 2019.
[51] The RM gave evidence, unchallenged by the AF, that the children were enrolled in activities such as swimming, skating, and basketball. The expense associated with each is not excessive. Ten sessions of swimming costs $90 per child, 10 sessions of basketball costs $100 per child, and 10 sessions of skating costs $247 per child. Programs for Ruslan are either covered by insurance or are free. Not all of the children are enrolled in all of the programs. The RM recognizes that while the children may want to take part in more activities than they do at present, that may not be financially possible to do.
[52] These sorts of activities for Mikael, Kamila, and Eldar are in my view appropriate and the AF shall pay 95% of the cost associated with same upon provision of appropriate documentation showing enrolment and proof of payment for the current activities of the children. No further activities shall be arranged by the RM, with the expectation of payment from the AF, without prior written consent.
[53] Nor should the health and dental expenses be capped at $250 per month or at $577 per month. The expenses for Ruslan such as food supplements, vitamins, diapers, creams, washcloths, and non-prescription drugs although not covered by the AF’s health plan are appropriate due to the unusual circumstances surrounding Ruslan and in my view fall within para. 7(1)(c) of the Federal Child Support Guidelines. The AM does not seek these sorts of payments for the other three children. The AM also acknowledges and deducts a $900 annual subsidy from the Easter Seals Society for Ruslan’s diapers. These expenses are incurred as part of the necessary treatment of the unusual health complications and severe disabilities faced by Ruslan. They are in my view extraordinary within the very particular needs of Ruslan. They are necessary in relation to Ruslan’s best interests and are reasonable considering his and the family’s circumstances. The RM has found that the vitamins, supplements, and non-prescription drugs help in Ruslan’s treatment.
[54] The monthly numbers seem to vary. In November 2017, Justice Mesbur made her consent order that the AF was to pay $3,365 for s. 7 expenses for an 11-month period, mostly for Ruslan’s expenses. This amount works out to approximately $306 per month. It was set out in Exhibit 34 and included items such as calcium, washcloths, Benadryl, Advil and Tylenol, diapers, and other items not covered by the AF’s health plan, although this number also included dental expenses for the children of approximately $680, which would reduce the monthly average to approximately $244 per month.
[55] For the 9-month period from June 2018 to March 2019 based upon Exhibit 37, the s. 7 expenses, again primarily for Ruslan, with some dental expenses for the children amounted to $5,197 or $577 per month. The dental amounted to $1,900 which would reduce the monthly average to approximately $366.
[56] For the one month of March to April 2019 based upon Exhibit 38 the numbers were $1,016 with $200 for dental or $816 in total.
[57] For the 6-month period from July 2019 to December 2019 based upon Exhibit 39 the s. 7 expenses, again primarily for Ruslan, with some dental expenses for the children amounted to $2,393 or $399 per month. The dental and other non s. 7 expenses for the other children amounted to $130 which would reduce the monthly average to $377.
[58] The AF argues that there must be a cap upon the s. 7 expenses so as to avoid there being unlimited payments by him. To date that has not been the case. The RM recognizes that there is a limit upon the activities for the children and that this will have to continue. The majority of the medical expenses are covered by his health plan. The expenses incurred by the RM for Ruslan’s benefit have historically not been excessive ranging from an average of $244, $366, $816, and $377 per month. The RM in all likelihood would have been better ahead financially to ask that Justice Faieta’s interim order of $577 per month remain in place. She did not do so. She only asked for what in my view is fair and within the Guidelines for Ruslan, who is severely physically disabled.
[59] Commencing June 1, 2020 the AF will pay to the RM 95% of the special or extraordinary expenses in accordance with s. 7 of the Federal Child Support Guidelines. Medical and dental expenses not covered by the AF’s benefit plan through his employment, which include Ruslan’s diapers, washcloths, TENA cream, vitamins, calcium, Benadryl, supplements, Joey pump sets, syringes, extension kits, feeding tubes, Tylenol and Advil constitute some of the special or extraordinary expenses. The AF’s claim for reimbursement of s. 7 expenses paid by him, which includes many of the above-mentioned items is dismissed.
[60] The RM shall deduct the annual subsidy currently at $900 from the Easter Seals Society from any s. 7 claim made by her.
Spousal Support
[61] Under s. 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) the court may order a spouse to pay such lump sum or periodic sums that it deems reasonable for the support of the other spouse. Under s. 15.2(4), the court shall take into consideration the condition, means, needs, and other circumstances of each spouse including the length of time they cohabited, the functions performed by each during cohabitation, and any agreement relating to support of either spouse.
[62] Pursuant to s. 15.2(6) of the Divorce Act, an order should, among other things, recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown, relieve any economic hardship of the spouses arising from the breakdown of the marriage and in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[63] Section 33 of the Family Law Act has slightly different wording than what the Divorce Act sets out in terms of spousal support. Section 33(a) states that in determining support, the court shall consider all of the circumstances of the parties. The provision then sets out a list of items to be considered, including each party’s current assets and means.
[64] Pursuant to the case law, there are three grounds for entitlement to spousal support, compensatory support, non-compensatory support, and contractual support. In this case the latter does not apply. There is no single basis of support that supersedes the other and many claims involve compensatory and non-compensatory principles. The court does not decide on the basis of support to the exclusion of the other, but rather is called upon to apply relevant factors and to strike the balance that best achieves justice in the particular case (See Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at paras. 15, 35, 36, 41, and 42; and Moge v. Moge, [1992] 2 S.C.R. 813, at p. 849, 864, and 881-882).
[65] Under the compensatory approach the court is to consider the loss of economic opportunity to the RM resulting from the roles adopted during their relationship. As has been commented upon in the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) by Carol Rogerson and Rollie Thompson, the compensatory approach is often difficult to implement as it requires evidence of earning capacity loss. This can be costly to obtain as it requires expert evidence and is, at the end of the day, hypothetical. There is no evidence of earning capacity loss in this case. However, in my view such evidence is unnecessary considering the RM’s past and current child care responsibilities.
[66] There is also a disparity between the RM’s needs and means and those of the AF. There is a great income disparity. The RM is on ODSP. Since separation her lifestyle has declined dramatically. While his lifestyle may also have declined due to the fact that there has been a separation and now there are two households to run, it has not declined to the same extent.
[67] The AF did not argue that there was no entitlement to spousal support. It would have been difficult for him to do so in the circumstances considering that the RM was 18 when they married, and although apparently trained as a hairdresser, has never worked outside the home but has instead raised and continues to look after their four children including Ruslan, who is severely physically disabled. There is in my view a clear entitlement to spousal support on both a compensatory and non-compensatory basis.
[68] The AF does argue however that based upon his income, the table amount of child support paid, the s. 7 expenses paid at a fixed number of $475 per month, and after making deductions for his Registered Pension Plan and his Registered Retirement Savings Plan, that the SSAG calculation shows that there is no spousal support payable despite entitlement. During argument the AF provided the court with a SSAG calculation dated December 16, 2019 in support of his position.
[69] This calculation includes a RPP deduction of $6,314 and a RRSP deduction of $5,776. The SSAG calculation also points out that this deduction of the RPP is contrary to the SSAG and raises a caution. The use of the $475 as a fixed number for the s. 7 expenses also raises a caution on the SSAG. It is also an amount higher than the fixed amount of $250 being asked for by the AF. The AF has also apparently deducted a “cash flow adjustment” of $1,008 which appears to be based upon the RPP and RRSP deductions. The AF has also included the RM’s ODSP payment. The net effect of all of this is that there is no spousal support owing on the AF’s SSAG calculation.
[70] It would appear that the AF has manipulated the SSAG calculation to result in there being zero spousal support for the RM. The RM did not provide the court with her own calculation.
[71] Neither party made any argument as to range or duration of spousal support. The AF presumably did not make any argument because on his calculation there was no spousal support in any event. The RM simply stated that it should be in the high range with no argument as to why.
[72] Using an income of $122,083 for the AF, an income of $0 for the RM, considering that her sole income is social assistance, and using a figure of $6,000 for s. 7 expenses results in a monthly SSAG calculation of $11 at the low end, $264 at the mid-point, and $527 at the high end, with the net disposable income for the RM and the 4 children being respectively 57.7%, 59.6%, and 61.5%.
[73] The duration of spousal support is indefinite with a range from 5.5 years to 11 years from the date of separation. There was no evidence from the RM, such as a demand letter from her or from counsel on her behalf, that she had sought spousal support from the AF. She also agreed that the AF had made all the mortgage payments on the matrimonial home prior to its sale. In the circumstances I am not prepared to make an order for retroactive spousal support. Spousal support is to be paid on a go forward basis.
[74] With no argument as to where the spousal support should be within the range, I have considered the Spousal Support Advisory Guidelines referred to previously and some of the factors mentioned. The factors considered are as follows:
a) in a case where the recipient has limited income and/or earning capacity, because of age or other circumstances, the recipient’s needs may push an award to the higher end of the ranges for amount and duration (para. 9.2). b) a child with special needs will usually demand more time and resources from the care-giving parent, thus reducing that parent’s ability to earn in the paid labour market and pushing spousal support towards the upper end (para. 9.3). c) while not deducted from the payor’s income, mandatory pension deductions may become an important factor to select a lower amount within the ranges at lower income levels (para. 9.4). d) the payor’s remarriage usually is not grounds for a reduction in spousal support (para. 14.6).
[75] In my view the RM has clear need, has income from social assistance along with four children, and with one of them being severely disabled has little if no ability to earn an income. There is a clear disparity in living standards. There was no evidence from the AF as to how his pension contributions impact on his cash flow. He has remarried but there was no evidence as to the financial circumstances of his second family other than that the AF had bought a new home for $950,000, as disclosed on his November 22, 2019 Financial Statement marked as Exhibit #25, although it did have a sizeable mortgage of approximately $672,000.
[76] These considerations point to the higher range of spousal support. The major factors for me are need and the RM’s inability to earn income while looking after Ruslan. I fix spousal support at $450 per month which is slightly over the mid-point between the mid and high amounts. The AF is to commence paying monthly spousal support on June 1, 2020. A support deduction order shall issue.
[77] Finally, the AF wishes to change para. 6 of the consent order of Mesbur J. of November 16, 2017 to change who can claim the federal and provincial non-refundable tax credit for the children and the eligible dependent credit for the children.
[78] I am not prepared to do so. This consent order was entered into with the advice of counsel for each party. There was no evidence as to why it should now be changed nor what the overall net effect of the change suggested by the AF would be. Without this evidence I am not prepared to change the previous order.
Costs
[79] Arguably, the RM was overall more successful than the AF and would be presumptively entitled to costs. I would hope that the parties would be able to reach an agreement on costs. They shall attempt to do so. If unable to do so, the RM may file brief submissions, not to exceed two typed double-spaced pages, together with a Bill of Costs, and any necessary documents, such as offers to settle and receipts for disbursements or lawyer fees, on or before June 19, 2020. Any responding submissions from the AF, subject to the same directions, are to be filed, on or before July 3, 2020. There are to be no reply submissions. Any submissions are to be filed at Toronto.SCJ.FamilyIntake@ontario.ca.
Conclusion
[80] Based upon the foregoing I order as follows:
the RM is to have sole custody of the children Ruslan Melikov, born July 5, 2005, Mikael Melikov, born December 31, 2006, Kamila Melikov, born January 8, 2008 and Eldar Melikov, born September 8, 2010.
the RM will make the major decisions about the children’s health care, education, religion, and any other major decisions and will keep the AF informed of those decisions.
the AF is to have parenting time with all four children on alternating Saturdays between 10:00 a.m. and 8:00 p.m. and one consistent weeknight per week, to be agreed upon by the parties from 5:00 p.m. to 8:00 p.m. The AF will pick up the children and drop off the children from the lobby of the RM’s apartment.
during the time that the children are with the AF he can make the day-to-day decisions about the children and in a health emergency will make the treatment decision, on the advice of medical personnel, and will immediately notify the RM both of the emergency and the treatment decision.
both parties may ask for and be given information directly from the children’s teachers, other school officials, health care providers, including doctors and dentists and therapists, and any other person or institution involved with the children. If required, each party will sign all necessary consents for the other parent to receive such information.
the RM shall make every effort to facilitate the AF’s parenting time and shall encourage the children to spend time with the AF. Each party will promote the children’s relationships with the other party and encourage the children to respect the other party. Neither party shall speak negatively about the other party in the presence of the children or ask the children to pick sides or communicate between the parties.
the AF shall pay to the RM as child support for Ruslan, Mikael, Kamila and Eldar on June 1, 2020 and on the first day of each month thereafter:
a) the table amount of $2,698 based upon the AF’s 2018 annual income of $122,083 from June 1, 2020 and every month thereafter;
b) 95% share of the special and extraordinary expenses in accordance with s. 7 of the Child Support Guidelines including the current swimming, basketball and skating sessions for Mikael, Kamila and Ruslan upon provision of documentation showing enrolment and proof of payment with no further activities to be paid for by the AF without prior written consent;
c) 95% of the medical and dental expenses for all the children not covered by the AF’s benefit plan through his employment, including Ruslan’s food supplements, vitamins, diapers, Tena cream, washcloths, calcium, Benadryl, Joey pump sets, syringes, extension kits, feeding tubes, Tylenol and Advil; and
d) the parties shall deduct from the cost of Ruslan’s diapers the annual subsidy from the Easter Seals Society which is currently $900.
the RM may claim the Canada Child Benefit, Canada Child Tax Benefit (including the National Child Benefit Supplement and Child Disability Benefit, if applicable) and the refundable children’s GST/HST credits. Either party can claim the federal and provincial non-refundable tax credit amount for the children under 18, and the eligible dependent credit for the children. If the AF receives these credits, he will deposit the same amount into RESP or RDSP accounts for the children. These benefits/credits shall not affect the table amount of child support as ordered.
the AF shall pay the RM spousal support commencing on June 1, 2020 and on the first day of each month thereafter in the amount of $450 per month.
the AF shall forthwith pay the RM an equalization payment in the amount of $7,265.
this order will accrue interest at the post-judgment interest rate set pursuant to the Courts of Justice Act, R.S.O. 1990, c. C. 43 on any payment or payments in respect of which there is a default, from the date of the default.
unless this order is withdrawn by the Director of the Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
for as long as child or spousal support is to be paid, the AF and the RM, must provide updated income disclosure to the other each year, within 30 days of the deadline for income tax filings, in accordance with s. 24.1 of the Child Support Guidelines (Ontario) and the child or spousal support payments shall be adjusted accordingly with the spousal support being the midpoint between the mid and high amounts.
costs are reserved in accordance with the reasons given at para. 79 hereof.
this order is effective immediately.
Hood J.
Released: May 25, 2020