introduction

[1] The applicant father and respondent mother were married on August 17, 2013. They have one child born on September 24, 2016. They separated on October 15, 2018.

[2] The parties have settled many of the issues in dispute. Pursuant to the consent order of Justice Boucher dated July 27, 2020, the unresolved issues proceeded to a trial in writing. The parties filed affidavits and agreed not to conduct any cross-examinations.

[3] On September 1, 2020, counsel attended before the court for the purpose of further submissions. In addition, the parties testified under oath to clarify evidence about the choice of school for the child.

[4] The following issues must be decided:

The school and daycare that the child will attend as of September 8, 2020.
Completion of the Parenting Plan
The respondent mother’s income for the purpose of deciding spousal support and child support.
Child support and the set off issue.
The respondent mother’s claim for spousal support
Equalization of net family property (settled but for the applicant’s claim that he owes his parents money)

The School/Daycare Issue

[5] Given the time sensitive nature of the school/daycare decision, the court’s decision was communicated to the parties in an endorsement dated September 3, 2020 with reasons to follow. The order is as follows:

The child, Maxmilian Tigran Kasperski born on September 24, 2016 shall attend Wilkinson Public School and the Dandylion Daycare for the school year commencing September 8, 2020.
The child shall remain at this school until graduation, unless the parties agree in writing to a change or a court orders otherwise.
The child shall remain at Dandylion Daycare for as long as he attends Wilkinson Public School and requires before and after school daycare, unless the parties agree in writing to a change or a court orders otherwise.

[6] The reasons for this order are as follows.

[7] In September 2019, the parties reached a temporary agreement concerning daycare and primary school (“September 2019 agreement”). Pursuant to the September 2019 agreement, the child was enrolled in the Church Street School Child Care Center (“Church Street Daycare”) and the parties agreed to equally share the cost of the daycare.

[8] The September 2019 agreement states that neither party “shall terminate the child's enrolment from the daycare without the consent of the other party” and “[b]oth parties must re-evaluate the child's enrollment in this daycare in February 2020, as well as discuss his options for kindergarten”.

[9] The child starts junior kindergarten in September 2020. The parents do not agree on the school and daycare that the child should attend. Both parents live in the downtown area but in different school districts. The father lives in Regent Park and the mother lives near the intersection of Wellesley Street and Church Street. They do not want their son to attend the schools that are in the districts where they live. Neither explains why an “in district” school is not an option. They each propose an out of district school/daycare for the child.

[10] The father followed the September 2019 agreement and the mother did not. The father investigated options for kindergarten and re-evaluated the child’s enrollment in the Church Street Daycare. For the last year, the father has tried to discuss and resolve the choice of school and daycare with the mother and she has ignored him.

[11] Based on the father’s investigation, he decided that Wilkinson Public School was a good choice. Dandylion Daycare provides a before and after school program for this school. The school is on Donlands Avenue, a block from Danforth Avenue and a subway stop.

[12] The father attempted to discuss this school/daycare option with the mother. He sent her emails inviting a dialogue about the school and daycare choice. His May 19, 2020 email explained why, in his view, Wilkinson Public School and the Dandylion Daycare are good choices:

Valerie, I have just received word that Max has been accepted to Dandylion Daycare for the before and after school program, commencing September 8, 2020. This daycare is connected to Wilkinson Public School. I have been working tirelessly since last September to ensure Max gets the best education possible in a safe, engaging, and nurturing learning environment. I have met with principals, put in optional attendance applications, and done ample research. Speaking to the Director, she has assured me that Max would be able to attend Wilkinson Public School. There are many positives to Max attending this school. It is located in a respectable and safe neighbourhood, their EQAO scores are incredible, the daycare is well reviewed, and it is not far from either one of our residences. The commute for you would be less than 20 minutes via TTC. I cannot explain how difficult it is to get into this school and how incredible of an opportunity it would be for Max. The daycare is also subsidized which would allow you to take advantage of that if you so wish.

It is important that we move forward with Max's education and enrollment in Junior Kindergarten for September 2020. Please understand that regardless of the pandemic, Max needs us right now and it is critical that we move forward to do what is best for him both now and for his future. I look forward to hearing from you.

[13] On May 26, 2020, the father sent the mother another email and stated:

Valerie, Wilkinson Public School is offering a “Welcome to Kindergarten” parent session, virtually. This will be taking place on June 4. It will comprise of a short presentation and an opportunity to ask any questions. If you are interested, please let me know and I can send you the link.

[14] On May 30, 2020, the mother replied, simply stating “No. I am not consenting to [the child] being withdrawn from daycare.” No explanation was provided.

[15] On May 31, 2020, the father sent the mother another email and stated:

Valerie, I have made every attempt to work collaboratively with you regarding important decisions for [the child] (i.e. daycare and school). Unfortunately, you have not [replied] and my emails have continued to go unanswered. When I approach you to discuss these matters in person, you laugh at me and refuse to communicate. This has been consistent for several months now. I do realize that these important matters require discussion and thought and this is why I sent you multiple emails regarding daycare and schooling. Once again, my questions and invitations for discussion went unanswered. My lawyer and I have also continued to try to resolve the matter outside of court and begin discussions. There has been zero willingness on your end to partake.

If you are serious about your new intention to work collaboratively in the best interests of Max, I am happy to discuss his daycare and school options on Wednesday at drop off. I have sent you an email regarding a virtual Kindergarten information session. This has also gone unanswered. Max’s future cannot be put on hold. There are decisions that we need to make, regardless of a pandemic or a pending court date. His enrolment in Kindergarten is time sensitive and requires our attention. Your lack of communication thus far does not show a willingness to provide Max with a stable future. I want to provide Max with every opportunity to thrive and be prepared for Kindergarten, a big milestone.

Regarding Max’s enrolment in Church Street Daycare, I do not need daycare for Max anymore, and prior to the pandemic, you were not using the daycare even though Max’s teachers recommended you do so. Because your fee is covered by a subsidy and mine is not, I would have to pay for a daycare neither of us require. It is unclear as to why you need Max enrolled in this daycare. Simply saying “no” continues to show your unwillingness to work together. Again, if you are serious about working collaboratively, I am happy to discuss daycare and school options on Wednesday or alternatively, through email (in a time sensitive manner). I have also sent you an email requesting Max’s birth certificate, passport and immunization record. Please ensure that these documents are with Max so that I can make a copy.

[16] On June 3, 2020, the father sent the mother another email and stated:

Valerie, Max seeing his parents working collaboratively and discussing his future is something positive for him to be exposed to. However if you are still concerned about speaking in front of Max, I will have someone with him while we speak privately at 12pm. As mentioned in my previous email, this a time sensitive matter that requires our immediate attention so that we can best prepare Max for September. Please ensure that Max’s passport and birth certificate is present with him at drop off.

[17] The mother refused to speak to the father at the drop off. The father sent the mother an additional email that day and stated:

Valerie, Just to be very clear, I have again reached out to discuss Max’s education and school options with you, which is a time sensitive matter, and you have once again refused. I even gave you the option of discussing the matter without Max present. It is clear that your words, specifically those in your previous email, are inconsistent with your actions and intentions. It is clear that you have no desire to work with me and your words, specifically those in your email last week, was a ploy to feign cooperation and appear reasonable.

You also refused to provide me with Max’s passport and birth certificate, documents I am entitled to have as Max’s legal guardian. I requested these documents multiple times and there is no justifiable reason or legal precedent as to why you are withholding them from me. Once again, your actions are inconsistent with your apparent desire to work collaboratively. I’m trying to provide Max with a stable future and by continuing to refuse to discuss his education among other matters, you are demonstrating highly irresponsible behaviour. Your inability to collaboratively make important decisions that affect Max and act in his best interests is something that will be discussed in court.

[18] The mother ignored the father’s emails. As a result, it was necessary for the dispute to return to court. On July 27, 2020, the parties and counsel attended a case conference before Justice Boucher. As a result of this case conference, a consent order was issued directing this in writing trial.

[19] In compliance with Justice Boucher’s order, the father served the mother with his detailed August 4, 2020 trial affidavit. In this affidavit, the father described his efforts to discuss the school/daycare options with the mother, including the above emails and the mother’s refusal to comply with the September 2019 agreement.

[20] Since September 2019, there has been ample time for the mother to communicate with the father about the school/daycare options. Even after receipt of the father’s trial affidavit, the mother chose not to communicate with him.

[21] The mother filed her August 11, 2020 trial affidavit. In this affidavit, the mother states that she wants the child to attend Church Street Public School. This is the school associated with the daycare the child has been attending. Like Wilkinson Public School, it is an out of district school.

[22] The mother says that the father “was well aware” that she “did not agree with [his] position”. At the same time, she states that she “struggled” to respond to the father, which suggests that she knows she did not comply with the September 2019 agreement.

[23] The mother’s affidavit does not explain how or when she communicated her position to the father or what her “position” involved. There is no evidence that she ever replied to the father’s emails. The father’s evidence is clear and detailed, and he repeatedly asked for the mother to respond and engage in a discussion about the school/daycare decision. Despite the father’s efforts, the mother never discussed school/daycare options with the father.

[24] The mother says that she was “struggling” to respond to the father and his lawyer because she was looking for a new lawyer and had to care for her grandmother who lived with her from April 9, 2020 to mid-July. This does not excuse the mother’s obligation to comply with the September 2019 agreement. The mother did change lawyers early in 2020. Her current lawyer was retained and received the file from the former lawyer on March 4, 2020. She may well have had responsibilities to care for her grandmother, but there is no reason to believe that this care was so onerous that it prevented her from considering the important and time sensitive school/daycare decisions and discussing them directly with the father. The facts are that the mother had ample time to email the father many times about the child’s medical appointments and whether the child should receive a flu shot and yet ignored the school/daycare decisions.

[25] I reject the mother’s evidence that she communicated her “position” to the father. Such evidence is vague and internally inconsistent with her evidence that she “struggled” to respond. I accept the father’s evidence as fact. His emails reveal the mother’s refusal to communicate.

[26] I find that the mother’s trial affidavit was the first time she communicated her choice of school. There is no evidence that she had ever previously suggested this school choice to the father or responded to his school/daycare option.

[27] The mother accuses the father of “unilaterally” removing the child from the Church Street Daycare and enrolling the child in Wilkinson Public School. She says that he acted contrary to the September 2019 agreement. I disagree. There is no evidence to support this criticism. The child was not removed from the Church Street Daycare. In the face of the mother’s refusal to discuss the school/ daycare options, the father secured a place for the child to attend Wilkinson Public School and the Dandylion Daycare Centre. In the circumstances, the father’s decision to go ahead without the mother’s involvement was reasonable.

[28] It is the mother who has refused to abide by the September 2019 agreement. The facts are uncontested. The father tried to engage the mother in the choice of school and daycare, and she refused to respond as required by their agreement.

[29] The father believes Wilkinson School is the best choice for the following reasons.

[30] Wilkinson Public School is a dual track elementary school, offering an extended French option in grades 4, 5 and 6. The Fraser Institute has rated Wilkinson Public School a 7.9/10 and has ranked the school 346 out of 3047 schools in Ontario. The most current EQAO Results have the school’s academic performance ranging from 80-95% in Reading, Writing and Mathematics. These scores are significantly above the School Board and Province averages. There is an integration of information technology into all classrooms and an enriched Music program. The Physical Education program includes teams in Softball, Basketball, Hockey, Cross-Country and Track and Field.

[31] Wilkinson Public School has an Award-Winning Platinum Eco Schools Status, a Wildlife-Friendly Habitat Certification and a nationally recognized Healthy Eating Program. The school offers an inquiry driven, literacy-rich learning environment that fosters globally competent individuals. In providing all of these different opportunities to their students, they are nurturing the whole child through a meaningful and engaging program.

[32] The father believes that the child would benefit from being exposed to such enriching programs and unique learning opportunities, as well as a high level of academic excellence.

[33] The father also says that this school is located in the safe and reputable Danforth/Donlands community that is rated one of the top neighbourhoods in Toronto. The school is rich in cultural diversity, with students speaking over 15 different languages and this provides their child with an opportunity to learn about and celebrate many different cultures.

[34] Wilkinson Public School is easily accessible. It is a 16-minute TTC ride for the mother, with a subway station conveniently located across the street from the school. For the father, it is on the way to work. This is important for him because he has a fulltime teaching job in Scarborough that he relies on to support himself and the child.

[35] The mother states that she will not use public transit during the COVID pandemic, and it would take an hour to walk to Wilkinson Public School. The father says that the parties consistently commute using public transit. They do not own a car. The mother’s sworn financial statement reveals that she uses transit and has qualified for subsidized transit. Based on this evidence, I accept that they use public transit and can continue to do so to take the child to and from school, while wearing masks.

[36] Dandylion Daycare Centre is the on-site childcare centre at Wilkinson Public School. The City of Toronto rates this daycare at 4.18 out of 5 and it is highly recommended. The father states that Patrina Stathopoulos, the Director of Dandylion Daycare has been very knowledgeable, upbeat and excited to welcome Max in this new milestone. He describes her as a consistent presence at this daycare for years and for this reason he says that she can speak to the incredible staff and engaging program that is provided.

[37] The father explains that Ms. Stathopoulos has been sensitive and supportive with the child’s family dynamic. She has made thorough inquiries to best support the child and provide him with a seamless transition. Based on the father’s discussions with the Principal of Wilkinson Public School, it is clear to him the daycare and school work closely and collaboratively. As a result, he believes this will offer consistency and a positive learning environment for the child.

[38] The father researched the mother’s school and daycare choice and believes that it is not the best option for the child. His reasons are as follows.

[39] The Fraser Institute has rated Church Street Public School a 6/10 and ranked it 1617/3047 of the schools in Ontario. The most current EQAO Results have academic performance ranging from 65-77%. These scores are lower than the School Board and Province averages.

[40] The father describes the Church Street school as visibly run down. That said the Wilkinson school is also an older school building.

[41] From September 2019 through March 2020, the child attended Church Street Daycare. The City of Toronto has rated this daycare a 3.64 out of 5.

[42] The parents do not agree on whether the Church Street Daycare has been a positive experience for the child. The mother says that the child is happy here and should not be moved from this familiar setting.

[43] It is the father’s evidence that the child has not consistently attended the daycare during the mother’s time and as a result the child’s experience has been negative. He states that the child has not formed a sense of community at the daycare or meaningful relationships with his peers and caregivers. The child frequently asks why he has to go to daycare. The father also points to the high turnover of Directors at the Church Street Daycare. In the past few months, there have been 3 different Directors, all visibly unhappy.

[44] The mother has not addressed the daycare turnover and does not dispute the father’s evidence about the child’s inconsistent attendance.

[45] The mother’s evidence about the Church Street Public School is based on her on-line review of the school website, her occasional work as a lunch room supervisor at the school and what another parent told her. The mother believes that this school has many programs to offer the students. These programs are reflected in the school brochure. Like Wilkinson, this school also offers a diverse cultural experience. Indeed, many schools in Toronto are culturally diverse.

[46] The Church Street school is within walking distance of the mother’s apartment and 2km from the father’s apartment. The Wilkinson School is a short subway ride from the mother’s home and is on route to the school where the father’s works as a teacher.

[47] In her reply trial affidavit, the mother states for the first time, that she “visited the school” (Church Street School) and “spoke to parents” who send children to the school. No details are provided.

[48] There is no evidence that the mother has spoken to the principal or anyone associated with running the Church Street School. The mother has not addressed the father’s concerns with the Church Street Daycare.

[49] Church Street School, like Wilkinson Public School, is an out of district school for the child. The mother assumes that because the child attends the Church Street Daycare that he will be permitted to attend the Church Street School. This might be the case but there is no evidence to support this assumption. The father’s evidence is that during his search for a school, he met with principals and made “attendance applications” to out of district schools. The child has been accepted at Wilkinson Public School. In contrast, I have no evidence that the mother has spoken to anyone at the Church Street Public School or made an application for the child to attend this school. It is unknown if this school is full or if it has room to accept out of district children.

[50] I accept that both schools have positive attributes and offer a variety of programmes to the students.

[51] It is regrettable that the mother did not follow the September 2019 agreement. There should have been a meaningful discussion about what is best for the child. If they had investigated school options together in a timely way, as the father requested, they may have reached an agreement. Since this did not occur, the court must decide where the child will attend school and daycare.

[52] In reaching a decision, I do not rely on the Fraser Institute school ratings or the EQAO scores. Numerous courts have stated that such ranking systems are not a reliable indicator of what is in a child’s best interests. Rankings, without expert evidence to provide context and an explanation, are of little assistance to the court. Further, as presented in this case it is hearsay. (Hancock v. Hancock 2003 BCSC 1089 at para. 23; Hart v. Mascarin, 2014 ONSC 6045 at paras. 20-22; Wilson v. Wilson, 2015 ONSC 479 at paras. 110-125; N.P. v. D.B., 2019 ONCJ 291 at paras. 281-284).

[53] The school and daycare decision is a matter of discretion. In exercising this discretion, the court must make a decision that is in the best interests of the child “as determined by reference to the condition, means, needs and other circumstances of the child” (s. 16 (8) of Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.))

[54] On balance, sending the child to Wilkinson Public School and the Dandylion Daycare Centre is in the best interests of the child. The school and daycare have agreed to admit the child, and this provides certainty for the child who is starting his first year of school. The daycare is the onsite childcare centre at the school. The father has met with Director of the daycare and she has been a consistent presence at this daycare for years. The father’s evidence is that the daycare is a stable and welcoming place, has incredible staff and an engaging program for the children.

[55] The father has also met the Principal of the school and she has been sensitive and supportive of the child joining the school. The school and daycare will work closely and collaboratively.

[56] The child does not have solid ties to the Church Street Daycare. He has only attended the daycare for seven months. During this time his attendance was inconsistent and not always positive. There is no evidence that the child has an established group of friends at this daycare that he will leave behind.

[57] While I appreciate that the Wilkinson school is further from the mother’s home, the distance is but one factor to consider. The subway ride for the mother is a short one and it is always open to the parents to move closer to the Wilkinson school neighbourhood in the future.

[58] On balance I find that it is in the child’s best interests that he attend Wilkinson Public School and Dandylion Daycare effective September 2020.

Miscellaneous Parenting issues

[59] The parents have agreed to joint and shared custody of the child. They have also agreed to parenting principles and a parenting schedule, subject to a few items that require a court decision. The consent items are included in the orders at the end of these Reasons

[60] The current parenting schedule was agreed to and incorporated into the temporary order of Justice Akbarali dated July 15, 2019. To accommodate the equal shared parenting plan, the father moved from his parents’ home in Oshawa and rented an apartment in Regent Park, 5 minutes from the mother’s apartment. The child is happy and has adjusted well to this schedule.

[61] The joint and shared custody and equal parenting time agreement is reflected in the father’s proposed order. This order is attached to these reasons and marked as Appendix A. I make orders on consent as reflected in paragraphs 1-2 of Appendix A.

[62] I will now consider and decide the remaining parenting matters.

A Holiday and Summer Schedule

Holidays

[63] The current parenting plan does not address holidays, long weekends and special occasions such as Mother’s Day and Father’s Day (holidays). There is also no specific plan for summer.

[64] The father seeks a final order that provides clarity and consistency as to how the holidays will be shared. The mother agrees that holidays should be shared, but does not want to share the days by “carving up the calendar”. Going forward, she wants the child to share every special day with both parents and for him to be able to move back and forth between the parents on any given day.

[65] While the parents have made meaningful progress in settling some of their differences, there is still friction between them and some difficulty cooperating.

[66] A schedule that lacks specificity invites disagreement between the parents about where the child should be on a special day. The best interests of a child are served by a parenting plan that clearly sets out when the child will spend time with each parent during the year.

[67] The parenting plan that the father requests provides the level of clarity, certainty and specificity that the child need. It avoids having to discuss what will happen on each day and most importantly, if followed, it should avoid disagreements between the parents.

[68] This holiday schedule is set out in paragraphs 7-13 and 15-20 of Appendix A.

[69] I make the orders as set out in paragraphs 7-13 and 15-20 of Appendix A.

Summer Schedule

[70] The parents cannot agree on a summer schedule. The mother wants to follow the regular schedule with the following variation. In 2021 and 2022, each parent will have 10 consecutive days with the child and, in 2023, this will increase to 14 consecutive days.

[71] The father is a school teacher and will have time in the summer to spend with the child. He wants to have more consecutive blocks of time with the child during the summer months so he can plan vacations and share more uninterrupted time.

[72] The father proposes that each parent will have 3 uninterrupted weeks with the child. For the remaining summer weeks, the child will spend alternating weeks with each parent with exchanges occurring on Monday at 6 p.m..

[73] The father’s proposal is best for the child. It will give each parent more flexibility and opportunity to plan holidays and events with their son during the summer and these experiences will be in the child’s best interests.

[74] I make the order for summer schedule as set out in paragraph 14 of Appendix A.

School Trips

[75] The parties cannot agree on who may attend the child’s school trips and events (assuming the school allows parental attendance). The father says that the parent who has the child on the day of a school trip or event should be the only one who attends. He is concerned that if both parents are present there may be conflict between them that their child will observe. The mother wants both parents to have the right to attend.

[76] School trips are special events for most children. Understandably both parents wish to be present, if the school permits parents to attend. To date, the parents have managed shared parenting and with a few exceptions (i.e. choice of school), it has been a positive experience.

[77] There is no reason to exclude one parent from a school trip if they can both attend. If they are unable to get along in the presence of their son on a school trip, then they will have failed to honour their parental obligation to their son. Their child should not be exposed to such behaviour. While they have had some difficulty co-parenting, they have generally shown that they can work together for the benefit of their child. They must continue to do so, without exception. This is what their child expects and is entitled to.

[78] The best interests of the child are served by the following order. If the school allows both parents to attend a school trip or event, then both parents shall be entitled to attend with the child. If the school limits parental attendance to one parent, then the parent who the child is with that day may attend. If that parent is unable to attend for any reason, that parent will notify the other parent and that parent may attend instead.

Medical and Dental Appointments

[79] This is an area where there has been some conflict between the parents. The parents agree that they need an order that specifies who is responsible. They disagree on whether both parents have the right to be present at a medical or dental appointment.

[80] Attending a medical or dental appointment is arguably more important than a school event. There is no reason to exclude one parent from an appointment if both can attend.

[81] To avoid confusion going forward, I make the following orders. These orders distinguish between routine and non-routine appointments. A routine medical appointment is one that can be scheduled well in advance, such as a yearly medical check up. Dental visits, absent an emergency, are all routine appointments because they can be scheduled in advance.

[82] On a yearly basis, the parents shall rotate who is responsible to schedule the child’s routine medical and dental appointments. Routine appointments shall be scheduled as far in advance as possible. If the doctor and dentist allow, these appointments shall be scheduled at the beginning of the calendar year.

[83] It is the responsibility of the scheduling parent to take the child to the routine appointments in that year. As soon as the routine appointments are made, the scheduling parent shall notify the other parent of the dates by email. If the other parent can attend the routine appointment, then he/ she may do so. The scheduling parent does not have to schedule the routine appointment with the other parent’s availability but is encouraged to do so.

[84] For the year 2020, the mother shall be the scheduling parent and the father shall be the scheduling parent in 2021. They shall rotate this role every year.

[85] If the child needs any other medical or dental care that is urgent and not routine, the parent who the child is with when the need arises shall be responsible for taking the child to a doctor or dentist. That parent shall immediately notify the other parent of the child’s need and any appointment that is made. If available, the other parent may attend the appointment.

Travel Consents and Child’s Passport

[86] The parties have agreed to some terms. First the travelling parent must give the other parent notice of all vacation plans and the itinerary in advance. Second, travel outside Canada requires a written consent from the other parent. The remaining issue is whether a travel consent is required if the parent travels with the child outside of Ontario but within Canada. During submissions, the parties agreed that the travel consent is not required for travel within Canada.

[87] The agreement is reflected in paragraphs 31-36 of Appendix A and I make these orders.

Moving a Residence

[88] The parties do not agree on whether the consent of the other party is required to move from their current residence. The issue is the distance to the school, if one party moves to a new residence. For shared parenting to work, the parties should continue to live in close proximity to the other.

[89] The mother suggested a 3 km limit from the school be maintained, but she was assuming that the child would attend the Church Street school when setting this limit. Her current home is about 3.9 km from Wilkinson Public School. The father is 5 km from this school.

[90] Neither party provided a workable proposal. They recognize that one or both of them might choose to move closer to the school their son is attending.

[91] Any moving limitation must be clear and practical, otherwise it can cause problems in the future. For example, if the limit is 5 km and the father finds a less expensive rental a few blocks south, then he would be outside the 5km limit if he moved. Such a move would not interfere with the shared parenting and it would be unreasonable to expect him to seek the mother’s consent. Similarly, a move to a home located near the east west subway line may for example be 6 km away from the school and may not interfere with the shared parenting.

[92] In contrast, a decision to move outside of the GTA without the consent of the other parent would clearly interfere with their shared parenting and would not be in the child’s best interests.

[93] In the absence of better evidence from the parents, I decline to make an order that sets a limit on where a parent can move, without the other parent’s consent. They have an obligation to ensure that if they move it does not interfere with the shared parenting and the best interests of the child. A decision to move further away than is reasonable may result in a material change in circumstances, allowing the other parent to seek relief in court.

Name Change

[94] The mother seeks an order permitting her to add her surname to the child’s legal name. The father does not agree. The mother has not requested this relief in her pleading and so I decline to make the order.

Equalization of Net family property

[95] The equalization has been agreed to but for one item. The father claims there is an outstanding loan from his parents. It is his evidence that the original loan was $8,000 and $3,000 has been paid, leaving a debt of $5,000.

[96] The mother disputes this debt. She says that they each received monies from their families and there was no expectation that the money would be repaid.

[97] There are no documents that support the existence of this loan or any payments that have been made. It is simply the father’s evidence that such loan exists.

[98] If the loan is accepted, the father owes the mother an equalization payment of $2,268.84. If the loan is not accepted, he owes her $5,034.34.

[99] It is the father’s obligation to prove on a balance of probabilities that he has this $5,000 debt. Simply saying that a debt exists as part of equalization does not meet the burden of proof. It is easy to say that one owes money and therefore the equalization payment is altered. More is required for the court to accept this debt as fact.

[100] Since the debt has not been proven, I order that the father owes the mother an equalization payment of $5,034.34.

spousal support and child support

[101] As noted, the parties have agreed to equal parenting time.

[102] The parties also have an agreement on sharing of extra-curricular activates, other special and extraordinary expenses and medical and dental insurance. This agreement is reflected in paragraphs 29-30 and 44-45 of Appendix A and I make these orders.

Position on child support

[103] The mother seeks $672 for monthly guideline child support, retroactive to September 1, 2019. This is based on her income of $7,029 and the father’s income of $67,266.

[104] It is the father’s position that no child support should be paid by either party. This position is premised on the equal parenting time and $50,000 to $60,000 of income he seeks to impute to the mother.

[105] From November 2018 to August 2019, the father paid $605/month for child support for a total of $6,050. After he rented an apartment to facilitate shared parenting, he was no longer able to afford child support and stopped paying.

[106] It is the father’s position that while he was paying $605/month for child support, the mother should have been working and earning $60,000. On this basis, he should have paid a set off amount of $71/ month. This position assumed shared parenting that triggers s. 9 of Federal Child Support Guidelines. The father seeks a retroactive adjustment for this time frame. The father says that he overpaid child support and is owed a credit of $5,340. He proposes that there be a set off between what he owes for equalization, $5,034.34 and what the mother owes him for his overpayment of child support.

[107] From September 2019 forward, the father relies on s. 9 of the Federal Child Support Guidelines and asks that no child support be paid.

Position on spousal support

[108] The mother seeks mid-level spousal support of $825 a month retroactive to October 15, 2018, the date of separation. It is her position that she is entitled to compensatory and need based spousal support while she works towards financial independence. She describes the basis for her claim as follows: that she withdrew from the workforce during pregnancy and deferred her career and economic dependency, that she contributed to the father’s education and career development, that the father’s standard of living far exceeds her standard of living and she has a physical limitation that prevents her from working full-time.

[109] It is the father’s position that no spousal support should be ordered. He says that the mother has earned from $40,000 to $60,000 a year in the film and television industry and ought to be working and earning this income. He asks the court to impute $50,000 to $60,000 of income to the mother.

[110] The father’s income is not in dispute. He is a full-time teacher and earns $67,266.

Should Income be Imputed to the Mother?

[111] The starting point is whether income should be imputed to the mother and if so when and how much. There must be an evidentiary basis to impute income (see Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 219 D.L.R.(4th) 319; Lawson v. Lawson, 2006 CanLII 26573 (ON CA), [2006] O.J. No. 3179).

[112] I start with a consideration of the affidavit evidence that has been provided.

Father’s Evidence

[113] The father says that the mother has “historically worked on per diem and freelance contracts in the film and television industry earning between $40,000 to $60,000 per year”. Since separation he says that she has made no effort to become employed and has no plans to do so now.

[114] The father has no doubt that the mother can earn at least $60,000 a year and share in the cost of raising their child. He has provided many examples of jobs that are posted in the film and television industry. These are positions that the mother is qualified and capable to perform.

[115] The posted positions show that a 3rd and 4th Assistant Director and Production Assistant can earn between $47,000 and $85,000 per year. These jobs are also posted as weekly or daily positions. The job postings show that at a minimum, a daily Assistant Director earns approximately $330-$357 per day, a 4th Assistant Director can earn $1,620 per week and a 3rd Assistant Director can earn $1,810 per week.

[116] The mother has also worked as a Director and Producer, and as a Writer, Editor, Translator, and Consultant on various private ventures. The father explains that these jobs are available through “home assignment”. These positions can be full-time, or part-time to supplement other employment. The jobs pay between $33,000 and $83,000 per year.

[117] The mother also has numerous contacts in the film industry that she has established during her years working in this field. One contact is a close friend who has hired the mother many times in the past to work on productions.

[118] The father says that a combination of Assistant Director and home assignment positions will allow the mother to earn at least $60,000 per year and will provide childcare flexibility.

[119] In the mother’s two affidavits, she does not respond to the father’s evidence concerning what she historically earned and could earn based on the job postings (except to say she is physically unable to work full-time). She also does not respond to his evidence that a combination of Assistant Director and home assignment positions will allow her to earn at least $60,000 per year and that this will provide childcare flexibility.

[120] As a result, I accept the father’s evidence and find as a fact that the mother historically earned between $40,000 to $60,000 per year and can earn a salary in this range given the available jobs. The mother’s evidence set out below shows that she has the expertise to obtain one of these jobs. She has not proven that she is physically unable to do so.

Mother’s Evidence

[121] The mother completed her Honours Bachelor of Arts degree in 2001. During 2003 and 2004, she completed one year of a Masters degree in Fine Arts.

[122] The mother’s resume shows that she has earned income in the film and television industry (“industry”) as an actor, director, writer, producer, camera operator and editor. She has also taken various workshops to advance her expertise. The resume shows that she has been working in this industry since 2000.

[123] Between 2009 and 2016, the mother worked as an assistant director while making her own films, volunteering and working on film projects. She explains that this eventually allowed her to find work as a paid assistant director on several television projects. The mother also says she secured competitive mentoring opportunities shadowing with television directors on two well known shows (Schitt’s Creek and Murdoch Mysteries).

[124] The mother has not worked full time since becoming pregnant in early 2016.

[125] There is a surprising lack of evidence to show what the mother earned before she became pregnant and what she has earned since then. In her affidavit, the mother states that she earned the following income in the years 2015-2019:

2015 $24,644

2016 $7,119 ($6948 of this was EI)

2017 $4,992 (all EI)

2018 $2,451

2019 $7,029

[126] The mother has not produced any income tax returns, notices of assessment or any other documents to show that she earned this income.

[127] There is no evidence of her income before 2015, even though her resume shows that she has been working in her field of expertise since 2000.

[128] The mother took no steps to return to work until after they separated on October 15, 2018. For two years after the child’s birth, neither parent had a full-time job. The father was looking for a full-time teaching position while he worked at some supply and long-term occasional teaching jobs. The father did not find a full-time teaching job until the end of 2018.

[129] After the birth and until separation, the mother did not work at all. During this two-year period, the mother could have worked. Jobs were available and they had daycare. Like so many parents, she and the father could have juggled their work schedules.

[130] The mother says that since separation on October 15, 2018, she has been working to re-establish her career. There is limited evidence of her efforts.

[131] In 2019, the mother’s resume lists three projects in “pitch development” that she worked on. She describes her role on these projects as a writer, director, producer, editor and pitch consultant.

[132] In her first affidavit, the mother states that from January 2019 to June 2019, she did some freelance work helping to develop a new televisions series. She did not continue with this work because the litigation took too much time away from her work. The mother has maintained her contact on this job and hopes to return to it once the litigation is over.

[133] The mother does not reveal what freelance work she is referring to. She does not link this affidavit evidence to the three projects in her resume. There is no evidence about her 2019 work hours and what she was paid for any of the above work. There is no evidence of any job searches, applications for work or interviews she attended.

[134] I do not accept that the litigation interfered with the mother’s ability to work. The application was not issued until May 30, 2019. There is nothing about this application to suggest that it could have interfered with the mother’s ability to work. She had daycare for the child and the parenting time is equally shared.

[135] In August 2019, the mother says she “asked for and received an [unpaid] opportunity to shadow in the writer’s room” for a shadow on the Murdoch Mysteries television show. She thought it would open other doors for her and provide parent friendly hours. She does not reveal the days and hours that she spent on this opportunity.

[136] In November 2019, the mother did two days of “on-set work” while the child was not in her care. She filled in for another person. She says that the physical demands of this job were less than a typical production set. She does not identify the employer, the hours worked or what she was paid.

[137] From January 2020 until March 2020, the mother worked in two schools as an on-call lunchroom supervisor. This job ended when the schools closed due to the COVID-19 pandemic. The hours worked and money earned is not revealed.

[138] While the mother says that her 2019 income was $7,029 this is not documented or proven in any way.

[139] In her affidavit, the mother states that “currently” her “only income” is $660 a month from Ontario Works and $685 a month for the child tax credit. No proof beyond this bald statement is provided.

[140] The mother says she has “physical limitations that affect the type of job she can accept”. She relies on a one paragraph note dated August 9, 2019 from Dr. David Lawrence, a sports medicine physician. This note states that the mother “should not be performing work duties involving prolonged standing or working secondary to an ongoing right meniscal tear. She is adherent to all treatment and recommendations to date”.

[141] The mother explains that this condition started in the spring of 2019 and “has improved” with considerable effort. The condition is managed with physiotherapy massage and non-impact exercise.

[142] The mother says that COVID-19 has “changed everything in the industry”. In particular, she says there are now fewer people on set and “fewer job opportunities outside of full-time work”. I emphasize this because the mother does not say that full time opportunities are limited. She says that she cannot handle full-time work because of the “demands of a 14-hour day on set, five days a week, on [her] feet”.

[143] The mother has not proven on a balance of probabilities that she has physical limitations that limit the type of job she can accept. The brief note of a doctor that is not current is insufficient proof. It is not known how often the doctor has treated the mother and whether he knows about the type of work she does. The note does not address the mother’s own admission that her condition has improved and there is no consideration of ergonomic aids to assist a person while working with a knee condition. There is no evidence that a full-time job in the industry actually requires a 14-hour day commitment, and no evidence that the mother has even tried to work full-time, since 2019 when her knee problem started.

[144] In summary, based on the facts, there is an evidentiary basis to impute a yearly income to the mother in the range of $40,000 to $60,000. I impute the mid-point of $50,000 to the mother as income.

child support

[145] There are two time periods to consider: father’s claim of overpayment during November 2018 to August 2019 and September 2019 onward when no child support has been paid

[146] I will start with the alleged overpayment and explain why I reject the claim. The father’s position that he overpaid is premised on an assumption that there was equal parenting during these months and there should have been a set off under s. 9 of the Federal Child Support Guidelines. There is no question that the father was vigorously pursuing shared parenting following separation, but it was not implemented until the father moved back to Toronto in the summer of 2019. Before that he was living with his family in Oshawa.

[147] When the father moved back to Toronto, he rented an apartment and shared parenting began. The father stopped paying child support because of his increased costs.

[148] There is no basis for adjusting child support from November 2018 to August 2019 because the shared parenting, necessary to trigger s. 9, had not yet begun.

[149] As of September 2019, onward, the parties have been sharing parenting time equally pursuant to their agreement. This triggers s. 9 of the Federal Child Support Guidelines. The father relies on this section and asks that there be no child support order.

[150] Section 9 provides as follows:

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

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

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

[151] In this case of equal parenting time, the Spousal Support Advisory Guideline calculations (“SSAG”) provide what is known as a set off amount for table child support. This is the starting point for determining child support.

[152] The SSAG show that the father owes a set off amount that varies slightly depending on the income that is imputed to the mother. In each variation, no spousal support is owed for the low and mid-points (spousal support is addressed below):

Mother’s Imputed Income /Child support

$60,000 – child support is $71/month

$50,000 – child support is $166/month

$45,000 – child support is $209/month

$40,000 – child support is $268/month

[153] The father asks the court to order no child support as of September 2019 because of the costs he incurs to provide a home for himself and the child. His expenses exceed his income and his monthly deficit is growing. In contrast, the mother has subsidized rent, daycare, dental care and free medications. Section 9(b) and (c) direct the court to consider these factors.

[154] The court has the discretion under s. 9 to determine the amount of child support and in this case whether no child support should be ordered. This is a discretionary decision. The staring point is the set off amount and from there the court must consider the factors in s. 9(b) and (c). The weight to be attached to each factor will vary depending on the facts of the case (See Contino v. Leonelli-Contino, 2005 SCC 63).

[155] The father’s affidavit evidence and his sworn financial statement are not contested.

[156] After separation the father moved in with his parents and was no longer close to the mother’s apartment. The distance between the parties made it impossible to implement shared parenting. As a result, the father rented an apartment in Toronto close to the mother’s apartment. This increased his living costs in addition to his debt burden. He does not have the financial ability to absorb the increased costs. He states:

The Respondent collects the full Child Care Benefit of $685.50 per month, or $8,225 per year. This is tax-free. She also collects $827 in social assistance per month, or $9,924 per year. Before she even leaves her home, she earns $18,149 per year – tax-free. She received subsidized rent, subsidized daycare, subsidized dental and optical care and free medications. Of course, under her second Legal Aid Certificate, she pays zero for legal representation. After her minimal expenses, she has a monthly surplus of $1,000 each month. From this, she spends $500 per month or $6,000 per year on cigarettes.
Conversely, my monthly net income is $3,700. After my expenses of rent and insurance ($1,970.82), bills ($201.89), daycare ($561), and transportation ($200), I have $766 left to spend. From this, I need to pay off my staggering debt including student loans ($46,000) and legal fees ($51,800+++ and climbing). My interest payments alone are $250 per month. My debt level has been steadily rising and I cannot afford my living expenses, let alone to provide Max with any luxuries.
In order for me to survive, I have to take on additional part-time employment with a second and third job.
The Respondent, on the other hand, is not even willing to have one job.
If I am forced to pay support, I will not have money to put food on the table for Max.
This dichotomy is unfair.

[157] The mother has not incurred any increased costs as a result of shared parenting. She continues to live in a subsidized apartment and has other subsidized relief. Unlike the father, the mother has no debt.

[158] The mother’s rent is $170/ month and the father’s rent is $1,950/ month. Her transit expense is subsidized, and the father pays $100/month. Her debts total $5,900.75 and she has no monthly debt payment. The father has debts of $101,963.28. About half of this amount is a student loan. He pays $500 a month towards the debts. The mother’s monthly daycare cost of $561 is subsidized and the father’s $561 cost is not.

[159] The father’s yearly expenses of $82,597.32 are reasonable. They exceed his income by about $1,000 each month.

[160] The mother’s yearly expenses total just over $20,000. She has social assistance income and child tax benefits that total $16,146 a year. She is clearly capable of earning an income as noted. She has been earning some income although the amount has not been documented. On the mother’s incomplete evidentiary record and given her ability to work, I do not accept that her expenses exceed her income.

[161] The mother says that she has depleted all savings since separation, but this is not apparent in her financial statement. Equalization in this case is minimal. Neither party has accumulated much in savings. They have modest spending patterns. It is the mother’s subsidized housing and benefits that distinguishes their financial circumstances.

[162] The father’s standard of living is modest and necessary to provide a home for himself and the child. It is also necessary to facilitate the shared parenting that is in the child’s best interests. He has no ability to absorb any further increases in his expenses.

[163] Based on this analysis, I find that no child support is payable as of September 2019 forward.

SPOUSAL SUPPORT

[164] I now turn to the mother’s claim for spousal support.

Legal Framework

[165] The Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) provides the legal framework for determining the claim for future spousal support. Section 15.2 states:

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) 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;

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[166] The Supreme Court of Canada in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.J. No. 14 confirmed that there are three conceptual bases for entitlement to spousal support: contractual, compensatory, and non-compensatory. The first does not apply in this case.

[167] Compensatory support is grounded in the need to compensate a spouse for a reduction of his or her ability to be self-supporting, due to functions performed during marriage. Often this includes child care or domestic duties assumed to assist the other spouse to pursue career opportunities. In this case, the mother says that she has not worked full time since becoming pregnant with their child. Since then she has focused on the needs of the father and child and has been a stay at home parent. Having put her career aside, the mother says that she needs spousal support while she works to become self-sufficient.

[168] Non-compensatory support arises from s.15.2 (6) (a) and (c) of the Divorce Act and relates to the concept that, particularly in longer marriages, both parties should exit the marriage with similar standards of living. When there is a significant gap in income between the two spouses, a spousal support award will generally be made to redistribute the available income after separation, and relieve the economic hardship arising from the breakdown of the marriage for the spouse with the lower income. The mother also seeks non-compensatory support.

[169] As the Supreme Court of Canada stated in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, no single objective, including economic self-sufficiency, is paramount. All four of the objectives defined in s. 15.2(6) must be considered when spousal support is claimed.

[170] Finally, the parties have provided SSAG calculations to support their positions. In Fisher v. Fisher, 2008 ONCA 11, the court recognized that, while not replacing the need for an individual analysis of the appropriate award for spousal support, the SSAGs provide a useful “litmus test” of the range of spousal support that might be generated on the basis of the ages and incomes of the parties, along with the length of the marriage.

Basis for the mother’s spousal support claim

[171] The mother’s claim for spousal support is premised on her evidence that the parties agreed she would be the primary parent and the father would focus on his career. As a result, she says she gave up her career as it was gaining momentum and has not worked since. The mother says that but for her support, the father would not “be in his present situation, earning a good and stable income”. Finally, she relies on the gap in their income.

[172] The length of the relationship is unclear. They were married for just over five years. Their relationship began in 2008. At some point they started to live together in the mother’s subsidized apartment. There is no evidence when that happened. The best evidence is the duration of their marriage and I accept this as fact.

[173] The mother has not proven a need for compensatory or non-compensatory support. My reasons follow.

[174] The mother states that with her “financial, academic and emotional support” the father obtained his degree, began to work as a supply teacher and at the end of 2018 found a full-time job in teaching. The “financial” support that the mother provided to the father is not explained.

[175] The father does not contest the evidence that they lived in a subsidized apartment while he worked to obtain his degree and then looked for a teaching job. He also does not contest the evidence that the mother provided him with her “financial, academic and emotional support” during this time frame. I accept this as fact, although the nature of the financial support is not explained. The father had the benefit of her subsidized apartment. Beyond this there is no evidence of “financial support”.

[176] There is no evidence that the mother’s career suffered in any way because of the support she gave the father. I would not expect any disadvantage to flow from the type of support she gave him. Her “support” involved editing and proof reading his work at school and helping him to draft his application to OISE. She used her contacts to help find volunteer positions to build his resume and encouraged him as he worked to finish school and find a job. It is hard to imagine how this support interfered with her career or ability to become self-supporting and I find that it did not.

[177] It is the mother’s evidence that she suffered a miscarriage at some point and then became pregnant with the child. At this point, she says that her career was gaining momentum, although there is no evidence beyond this bald statement.

[178] According to the mother, the parties agreed she would stay home to focus on her pregnancy and be the primary parent after the birth, while the father pursued his career. The father does not agree. Even if true, the mother has only been out of the workforce since 2016. The evidence shows that there are plenty of full-time jobs available and she could easily return to full time employment.

[179] The father says that from the outset of their relationship they discussed having children. They agreed that both parents would be very active in the child’s life and involved in the daily childcare. When the child was born, they were both active parents, together and individually. Immediately after separation, the father tried to negotiate shared parenting. He persisted because this is how they had raised the child before separation. He suggested that they hire a parenting coordinator. Eventually the parties reached an agreement on shared parenting.

[180] I reject the mother’s evidence that there was an agreement for her to give up her career and stay home to be the primary parent. When the child was born in September 2016, the father did not have a teaching job. He did not find a full-time job until late 2018. It is highly unlikely that they would have agreed to depend solely on the father’s income when he did not yet have a full-time teaching job. Furthermore, his pursuit of shared parenting immediately after separation, suggests that he was just as much a primary parent as the mother.

[181] When the father rented an apartment to facilitate shared parenting, it ought to have been clear to the mother that the parties both needed to work. The father told her that he could not afford to pay child support and daycare.

[182] The mother should have returned to work in September 2017, after a reasonable maternity leave of one year. Based on this finding, the mother would have been working full time when the parties separated and should have continued to do so.

[183] I have rejected her reasons for not working full-time and have found that jobs are available in her area of expertise. I have also found that she historically worked on per diem and freelance contracts in the film and television industry earning between $40,000 to $60,000 per year. This work and level of income is available now and the mother can take on assignments that will provide childcare flexibility.

[184] In summary, the mother has not proven entitlement to spousal support and the claim is dismissed.

Conclusion

[185] In summary, many of the issues between the parties were resolved before the trial and are reflected below as consent orders. Those issues not resolved have been decided by the court and are reflected in these Reasons for Judgment. All orders are set our below.

[186] A final order dated September 2, 2020 sets out school and daycare decision. That order states:

The child, Max Kaspereski born on September 24, 2020 shall attend Wilkinson Public School and the Dandylion Daycare for the school year commencing September 8, 2020.
The child shall remain at this school until graduation, unless the parties agree in writing to a change or a court orders otherwise.
The child shall remain at Dandylion Daycare for as long as he attends Wilkinson Public School and requires before and after school daycare, unless the parties agree in writing to a change or a court orders otherwise.

[187] I make the following additional final orders, with and without consent:

On consent, the parties shall have joint and shared custody of the child of the marriage, namely, Max Kasperski, born on September 24, 2016.
On consent, the parenting schedule for the child shall be as follows:

(a) The child shall reside with the Applicant every Wednesday after school until Friday morning drop off at school and on alternate weekends from Friday after school until Monday drop off at school.

(b) The child shall reside with the Respondent every Monday after school until Wednesday drop off at school and on alternate weekends from Friday after school until Monday drop off at school.

(c) During the summer and holidays, unless otherwise specified, and any other time that the child is not in school, exchanges of the child shall take place at 8:00 a.m. on an exchange day.

(d) Each party shall be responsible for picking up the child after school when it is their time with the child. However, aside from after school pick-up, it shall be the responsibility of the party that has the child to transport him to the residence of the other party whenever an exchange of the child must take place when the child is not in school.

(e) In the event that the child is sick, it will be the responsibility of the party who has care of the child to care for him until end of school at which time the exchange will take place in accordance with paragraphs 2(a) and 2(b) above.

(f) Drop-offs and pick-ups will be at the child's school, daycare or camp. On the days the child is not in school, daycare or camp, exchanges shall take place either outside the party's residence or in the lobby of the residence or such other place that the parties agree to in writing in advance.

(g) Each party shall be responsible for the child's transportation when the child is in their care.

On consent, both parties shall ensure that the child attends school regularly with minimal absences (no more than 5 days per school year excluding illnesses) and that every effort is made to support and prioritize his education.
On consent, each party will keep the other informed of their residential address and telephone number(s).
On consent, neither party shall make an application to change the name of the child, nor shall he or she otherwise change the name of the child without the written consent of the other party.

Holidays - Schedule

The holidays parenting schedule in paragraphs 7- 17 below is in addition to the regular parenting time schedule above and shall override the regular schedule in the event of a conflict.

Family Day Weekend

The child shall spend Family Day Weekend with the Applicant in odd numbered years and with the Respondent in even numbered years, from Friday after school until the return to school on Tuesday.

March Break

The child shall spend March Break with the Applicant in even numbered years and with the Respondent in odd numbered years, from Friday after school until the return to school on Monday immediately following the March Break.

Easter Weekend

The child shall spend Easter weekend with the Applicant in odd numbered years and with the Respondent in even numbered years, from school on the Thursday before the Easter weekend until his return to school Tuesday immediately following Easter weekend.

Victoria Day Weekend

The child shall spend Victoria Day weekend with the Respondent in odd numbered years and with the Applicant in even numbered years, from Friday after school until his return to school on Tuesday.

Mother's Day

If the child is not otherwise with the Respondent on Mother's Day, the child shall spend the day with the Respondent from 10:00 a.m. until his return to school on Monday morning.

Father's Day

If the child is not otherwise with the Applicant on Father's Day, the child shall spend the day with the Applicant from 10:00 a.m. until his return to school on Monday.

Labour Day Weekend

The child shall spend Labour Day weekend with the Applicant in odd numbered years and with the Respondent in even numbered years from 4:00 p.m. on Friday until his return to school on Tuesday.

Thanksgiving Weekend

The child shall spend Thanksgiving with the Applicant in even numbered years and with the Respondent in odd numbered years leaving school on Friday until his return to school on Tuesday.

Halloween

The child shall spend Halloween with the Applicant in odd numbered years and with the Respondent in even numbered years leaving school until his return to school the following morning.

Christmas Break

In even numbered years, the Applicant shall have care of the child from the last day of school to December 25 at 1:00 p.m. The Respondent shall have care of the child from December 25 at 1:00 p.m. to December 27 at 1:00 p.m. The Applicant shall have care of the child from December 27 at 1:00 p.m. to New Year's Day at 1:00 p.m. The Respondent shall have care of the child from 1:00 p.m. on New Year's Day until his return to school the day following Christmas Break.
In odd numbered years, the Applicant shall have care of the child from the last day of school to December 25 at 7:00 p.m. The Respondent shall have care of the child from December 25 at 7:00 p.m. to New Year's Day at 7:00 p.m. and the Applicant shall have care of the child from 7:00 p.m. on New Year's Day until his return to school the day following Christmas Break.

Summer Schedule

The child shall spend the summer vacation equally with each party. The child shall spend alternating weeks with each party during the summer vacation with the exchanges occurring on Mondays at 6:00 p.m. except for a period of 3 consecutive weeks per party (6 weeks in total) when the child will be with one party uninterruptedly. The parties shall consult and agree by April 1 of each year as to their chosen weeks, with the Respondent to have first choice in odd numbered years and the Applicant to have first choice in even numbered years.

Child's Birthdays

The child's birthday shall be celebrated in accordance with the regular parenting schedule.

Other Occasions

The parties shall be reasonable and flexible regarding minor changes to the parenting schedule such that both parties shall attempt to accommodate the other's family plans, celebrations and unanticipated special events. If a party requests a change to the parenting schedule, the party requesting the change shall provide at least 48 hours' notice in writing and the other party shall provide a response in writing within 24 hours. If a party does not agree to a change, then the parenting schedule, as set out herein, shall be followed.

Parenting Principles- Orders on Consent (paragraphs 21-26)

If the parent who has care of the child must be absent, that parent shall be responsible for choosing who will look after the child. If they wish, they may request that the other parent care for the child in their absence, but they are not required to do so.
The parents will not communicate, either directly or indirectly, any negative views about the other parent, in front of the child, or allow others to do so. The parents shall not expose the child to any adult matters such as the legal and financial issues between them.
The parents shall respect the other parent’s right to privacy regarding their personal life.
The parents shall use their best efforts to encourage the child to have the best possible relationship with the other parent and shall not give the child reason or suggestion to choose between them.
The parents shall not ask the child to pass messages between the parents.
The parents shall maintain separate clothing and basic necessities for the child in each of their residences. Each parent shall ensure that any belongings be returned to the original party.

Extra-curricular Activities

On consent, each parent may select up to 2 extra-curricular activities for the child per year that do not impede on the other parent’s parenting time. The parents may enroll the child in additional activities, which may fall on either parent’s time, if the parties both agree in advance.
On consent, the costs associated with the extra-curricular activity are the responsibility of the parent who has enrolled the child in that activity.

S. 7 Expenses

On consent, the parents shall equally share all special and extraordinary expenses for the child that they agree upon in advance. This does not include extra-curricular activities in paras 27-28.
On consent, the parents shall maintain the child as a beneficiary under their respective extended medical health and dental care plans that are available to them through their employers for as long as it is available.

Child’s Passport and Travel Orders on Consent (paras. 31-36)

Either parent may apply for a Canadian passport for the child without the written consent of the other parent.
The Respondent shall hold the child’s passport in even numbered years, and the Applicant shall hold the child’s passport in odd numbered years. The party holding the child’s passport shall release it to the other party when the other party requires it for travel. The other party shall return the passport promptly upon return from such travel.
If either party plans a vacation with the child, that party shall give the other party a detailed itinerary at least 14 days before it begins, including the name of any flight carrier and flight times, accommodation, address and telephone numbers at the residence of the destination and details as to how to contact the child during the trip including telephone number and Facetime. Any changes to the itinerary will be promptly communicated to other party.
If either party plans a vacation without the child, that party shall give the other party a telephone number where he or she can be reached in case of emergency, or if the child wishes to contact that party.
If either party plans a vacation outside Canada with the child, the traveling party shall provide the other party with a draft travel consent, authorizing the child to travel, and the non-traveling party shall execute it within seven 7 days of receipt. The non-traveling party shall promptly sign and return the travel consent to the travelling party. Any travel outside of Canada with the child shall only occur during the child’s holidays or summer vacation period.
If either party plans an overnight trip outside of Ontario with the child, that party shall notify the other party of such plans in writing at least 48 hours in advance of the trip.

Records and Right to Information Orders on Consent (paras. 37-39)

Both parties shall have the right to make inquiries as to the health, education and welfare of the child.
The child’s legal documents, such as his passport, SIN card, birth certificate and immunization record shall be held by the Respondent in even numbered years, and by the Applicant in odd numbered years, and shall be exchanged annually on December 1. The party holding the documents shall release them promptly to the other party when the other party requires it. The other party shall return the documents promptly.
The child’s OHIP card shall travel with the child between the parties’ residences and shall accompany him at all times. Each party shall maintain a copy of the child’s OHIP card.

Decision-Making Protocol Orders on Consent (paras. 40-42)

Each party shall participate and cooperate in all major decisions pertaining to the child’s health, education, religious training and upbringing.
The parties shall heed to the advice of the child’s doctors and teachers.
In case of any disagreement that the parties have regarding a major issue concerning the child they will attend for mediation with a mutually agreed upon mediator or the court-connected meditation service.

School Events and Trips

If the school allows both parents to attend a school trip or event, then both parents shall be entitled to attend with the child. If the school limits parental attendance to one parent, then the parent who the child is with that day may attend. If that parent is unable to attend for any reason, that parent will notify the other parent and that parent may attend instead.

Medical and Dental Appointments

A routine medical appointment is one that can be scheduled well in advance, such as a yearly medical check up. Dental visits, absent an emergency, are all routine appointments because they can be scheduled in advance.
On a yearly basis, the parties shall rotate who is responsible to schedule the child’s routine medical and dental appointments. Routine appointments shall be scheduled as far in advance as possible. If the doctor and dentist allow, these appointments shall be scheduled at the beginning of the calendar year.
It is the responsibility of the scheduling parent to take the child to the routine appointments in that year. As soon as the routine appointments are made, the scheduling parent shall notify the other parent of the dates by email. If the other parent can attend the routine appointment, then he/ she may do so. The scheduling parent does not have to schedule the routine appointment with the other parent’s availability but is encouraged to do so.
For the year 2020, the mother shall be the scheduling parent and the father shall be the scheduling parent in 2021. They shall rotate this role every year.
If the child needs any other medical or dental care that is urgent and not routine, the parent who the child is with when the need arises shall be responsible for taking the child to a doctor or dentist. That parent shall immediately notify the other parent of the child’s need and any appointment that is made. If available, the other parent may attend the appointment.

Equalization

The Applicant owes the Respondent an equalization payment of $5,034.34.

Child Support

Neither party shall pay child support to the other party.
The claim for a retroactive adjustment to child support is dismissed.

Spousal Support

An income of $50,000 is imputed to the Respondent.
The Respondent’s claim for spousal support is dismissed.
If the parties cannot agree costs, they shall exchange brief costs submissions with a Bill of Costs and shall file them with the Court by October 19, 2020. A copy shall be emailed to the trial coordinator.

C. Horkins J.

Released: October 1, 2020

ONTARIO

Court File Number

Superior Court of Justice

FS-19-010274

(Name of Court)

361 University Avenue, Toronto, Ontario

Form 25: Order (General)

(Court office address)

Temporary

Applicant(s)

Final

APPENDIX A

(Full legal name & address for service: street, number, municipality, postal code telephone & fax numbers & e-mail address (if any).

Lawyer’s name & address: street, number, municipality, postal code, telephone & fax numbers & e-mail address (if any).

JAKUB KASPERSKI

STEVEN BENMOR Benmor Family Law Group Barristers & Solicitors 1836 Bathurst Street Toronto, Ontario M5P 3K7 Tel: (416) 489-8890 Fax: (416) 489-8852 steve@benmor.com

Respondent(s)

Judge (Print or type name)

Full legal name & address for service: street, number, municipality, postal code telephone & fax numbers & e-mail address (if any).

Lawyer’s name & address: street, number, municipality, postal code, telephone & fax numbers & e-mail address (if any).

Date of order

VALERIE POLITIS

KATHARINA JANCZARUK Barrister and Solicitor 47 Warland Avenue Toronto, Ontario M4J 3G1 Tel: (416) 924-8492 Fax: (416) 924-0001 kjanczaruk@sympatico.ca

Children’s Lawyer

Name & address of Children’s Lawyer’s agent for service (street & number, municipality, postal code, telephone & fax numbers and e-mail address (if any)) and name of person represented.

The court heard an Application made by (name of person or persons)

the Applicant,

The following persons were in court (names of parties and lawyers in court)

by written submissions,

The court received evidence and heard submissions on behalf of (name or names)

by affidavit material from both parties,

THIS COURT ORDERS THAT:

Custody

The parties shall have joint and shared custody of the child of the marriage, namely, Max Kasperski, born on September 24, 2016.
The parenting schedule for the child shall be as follows:

a. The child shall reside with the Applicant every Wednesday after school until Friday morning drop off at school and on alternate weekends from Friday after school until Monday drop off at school.

b. The child shall reside with the Respondent every Monday after school until Wednesday drop off at school and on alternate weekends from Friday after school until Monday drop off at school.

c. During the summer and holidays, unless otherwise specified, and any other time that the child is not in school, exchanges of the child shall take place at 8:00 a.m. on an exchange day.

d. Each party shall be responsible for picking up the child after school when it is their time with the child. However, aside from after school pick-up, it shall be the responsibility of the party that has the child to transport him to the residence of the other party whenever an exchange of the child must take place when the child is not in school.

e. In the event that the child is sick, it will be the responsibility of the party who has care of the child to care for him until end of school at which time the exchange will take place in accordance with paragraphs 2(a) and 2(b) above.

f. Drop-offs and pick-ups will be at the child’s school, daycare or camp. On the days the child is not in school, daycare or camp, exchanges shall take place either outside the party’s residence or in the lobby of the residence or such other place that the parties agree to in writing in advance.

g. Each party shall be responsible for the child’s transportation when the child is in their care.

Commencing September 2020, the child shall be enrolled in Wilkinson Junior Public School or such other school that the parties later agree upon.
Both parties shall ensure that the child attends school regularly with minimal absences (no more than 5 days per school year excluding illnesses) and that every effort is made to support and prioritize his education.
Each party will keep the other informed of their residential address and telephone number(s).
Neither party shall make an application to change the name of the child, nor shall he or she otherwise change the name of the child without the written consent of the other party.

Holiday Schedule

The below holiday parenting schedule is in addition to the regular parenting time schedule above and shall override the regular schedule in the event of a conflict:

Family Day Weekend

The child shall spend Family Day Weekend with the Applicant in odd numbered years and with the Respondent in even numbered years, from Friday after school until the return to school on Tuesday.

March Break

The child shall spend March Break with the Applicant in even numbered years and with the Respondent in odd numbered years, from Friday after school until the return to school on Monday immediately following the March Break.

Easter Weekend

The child shall spend Easter weekend with the Applicant in odd numbered years and with the Respondent in even numbered years, from school on the Thursday before the Easter weekend until his return to school Tuesday immediately following Easter weekend.

Victoria Day Weekend

The child shall spend Victoria Day weekend with the Respondent in odd numbered years and with the Applicant in even numbered years, from Friday after school until his return to school on Tuesday.

Mother’s Day

If the child is not otherwise with the Respondent on Mother’s Day, the child shall spend the day with the Respondent from 10:00 a.m. until his return to school on Monday morning.

Father’s Day

If the child is not otherwise with the Applicant on Father’s Day, the child shall spend the day with the Applicant from 10:00 a.m. until his return to school on Monday.

Summer Vacation

The child shall spend the summer vacation equally with each party. The child shall spend alternating weeks with each party during the summer vacation with the exchanges occurring on Mondays at 6:00 p.m. except for a period of 3 consecutive weeks per party (6 weeks in total) when the child will be with one party uninterruptedly. The parties shall consult and agree by April 1 of each year as to their chosen weeks, with the Respondent to have first choice in odd numbered years and the Applicant to have first choice in even numbered years.

Labour Day Weekend

The child shall spend Labour Day weekend with the Applicant in odd numbered years and with the Respondent in even numbered years from 4:00 p.m. on Friday until his return to school on Tuesday.

Thanksgiving Weekend

The child shall spend Thanksgiving with the Applicant in even numbered years and with the Respondent in odd numbered years leaving school on Friday until his return to school on Tuesday.

Halloween

The child shall spend Halloween with the Applicant in odd numbered years and with the Respondent in even numbered years leaving school until his return to school the following morning.

Christmas Break

In even numbered years, the Applicant shall have care of the child from the last day of school to December 25 at 1:00 p.m. The Respondent shall have care of the child from December 25 at 1:00 p.m. to December 27 at 1:00 p.m. The Applicant shall have care of the child from December 27 at 1:00 p.m. to New Year’s Day at 1:00 p.m. The Respondent shall have care of the child from 1:00 p.m. on New Year’s Day until his return to school the day following Christmas Break.

In odd numbered years, the Applicant shall have care of the child from the last day of school to December 25 at 7:00 p.m. The Respondent shall have care of the child from December 25 at 7:00 p.m. to New Year’s Day at 7:00 p.m. and the Applicant shall have care of the child from 7:00 p.m. on New Year’s Day until his return to school the day following Christmas Break.

Child’s Birthdays

The child’s birthday shall be celebrated in accordance with the regular parenting schedule.

Other Occasions

The parties shall be reasonable and flexible regarding minor changes to the parenting schedule such that both parties shall attempt to accommodate the other's family plans, celebrations and unanticipated special events. If a party requests a change to the parenting schedule, the party requesting the change shall provide at least 48 hours’ notice in writing and the other party shall provide a response in writing within 24 hours. If a party does not agree to a change, then the parenting schedule, as set out herein, shall be followed.

Parenting Principles

If a party who has the child must be absent, that party shall be responsible for choosing who will look after the child. If they wish, they may request that the other party care for the child in their absence, but they are not required to do so.
The parties will not communicate, either directly or indirectly, any negative views about the other party, in front of the child, or allow others to do so. The parties shall not expose the child to any adult matters such as the legal and financial issues between them.
The parties shall respect the other parties’ right to privacy regarding their personal life.
The parties shall use their best efforts to encourage the child to have the best possible relationship with the other party and shall not give the child reason or suggestion to choose between them.
The parties shall not ask the child to pass messages between the parties.
Each party may attend all school activities and school sporting events for the child. Regarding school trips, only the party in which the child resides with on that specific day may choose if they wish to volunteer.
All non-emergency doctor and dentist appointments shall be mutually coordinated by the parties. All routine appointments shall be rotated between both parties and be scheduled in accordance with their own schedule, not impeding on the other party’s parenting time. In the event that the child is ill and the child requires urgent medical attention, then that party shall notify the other party as soon as possible with the details of the issue and the location of the doctor or healthcare provider attending to the child.
The parties shall maintain separate clothing and basic necessities for the child in each of their residences. Each party shall ensure that any belongings be returned to the original party.

Extra-curricular Activities

Each party may select up to 2 extra-curricular activities for the child per year that do not impede on the other party’s parenting time. The parties may enroll the child in additional activities, which may fall on either party’s time, if the parties both agree in advance.
The costs associated with the extra-curricular activity are the responsibility of the party who has enrolled the child in that activity.

Child’s Passport

Either party may apply for a Canadian passport for the child without the written consent of the other party.
The Respondent shall hold the child’s passport in even numbered years, and the Applicant shall hold the child’s passport in odd numbered years. The party holding the child’s passport shall release it to the other party when the other party requires it for travel. The other party shall return the passport promptly upon return from such travel.

Travel

If either party plans a vacation with the child, that party shall give the other party a detailed itinerary at least 14 days before it begins, including the name of any flight carrier and flight times, accommodation, address and telephone numbers at the residence of the destination and details as to how to contact the child during the trip including telephone number and Facetime. Any changes to the itinerary will be promptly communicated to other party.
If either party plans a vacation without the child, that party shall give the other party a telephone number where he or she can be reached in case of emergency, or if the child wishes to contact that party.
If either party plans a vacation outside Canada with the child, the traveling party shall provide the other party with a draft travel consent, authorizing the child to travel, and the non-traveling party shall execute it within seven 7 days of receipt. The non-traveling party shall promptly sign and return the travel consent to the travelling party. Any travel outside of Canada with the child shall only occur during the child’s holidays or summer vacation period.
If either party plans an overnight trip outside of Ontario with the child, that party shall notify the other party of such plans in writing at least 48 hours in advance of the trip.

Records and Right to Information

Both parties shall have the right to make inquiries as to the health, education and welfare of the child.
The child’s legal documents, such as his passport, SIN card, birth certificate and immunization record shall be held by the Respondent in even numbered years, and by the Applicant in odd numbered years, and shall be exchanged annually on December 1. The party holding the documents shall release them promptly to the other party when the other party requires it. The other party shall return the documents promptly.
The child’s OHIP card shall travel with the child between the parties’ residences and shall accompany him at all times. Each party shall maintain a copy of the child’s OHIP card.

Decision-Making Protocol

Each party shall participate and cooperate in all major decisions pertaining to the child’s health, education, religious training and upbringing.
The parties shall heed to the advice of the child’s doctors and teachers.
In case of any disagreement that the parties have regarding a major issue concerning the child they will attend for mediation with a mutually agreed upon mediator or the court-connected meditation service.

Child Support & Section 7 Expenses

Neither party shall pay child support to the other party.
The parties shall equally share all special and extraordinary expenses for the child that they agree upon in advance.
The parties shall maintain the child as a beneficiary under their respective extended medical health and dental care plans that are available to them through their employers for as long as it is available.

Spousal Supprt

Neither party shall pay spousal support to the other.

Property Division

The Applicant owes the Respondent an equalization payment in the sum of $2,266.84. After deducting the overpayment of past child support in the sum of $5,340, the Respondent owes the Applicant the sum of $3,073.16, which shall be waived such that neither party shall pay the other any sum for either retroactive child support or equalization payment.
Unless the order is withdrawn from the Director's Office at 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.
This order bears post-judgment interest at the rate of 3% per annum, effective from the date of the order. Where there is a default in payment in default shall bear interest only from the date of default.

Put a line through any blank space left on this page.

Date of signature

Signature of judge or clerk of the court

COURT FILE NO.: FS-19-010274

DATE: 20201001

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAKUB KASPERSKI

Applicant

– and –

VALERIE POLITIS

Respondent

REASONS FOR JUDGMENT

C. Horkins J.

Released: October 1, 2020

Kasperski v. Politis, 2020 ONSC 5839

Case Summary

introduction

The School/Daycare Issue

Miscellaneous Parenting issues

A Holiday and Summer Schedule

Holidays

Summer Schedule

School Trips

Medical and Dental Appointments

Travel Consents and Child’s Passport

Moving a Residence

Name Change

Equalization of Net family property

spousal support and child support

Position on child support

Position on spousal support

Should Income be Imputed to the Mother?

Father’s Evidence

Mother’s Evidence

child support

SPOUSAL SUPPORT

Legal Framework

Basis for the mother’s spousal support claim

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 1