COURT FILE NO.: FS-19-7714
DATE: 20210309
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bisrat Brown
Applicant
– and –
Alfred Henderson Brown
Respondent
Mesha Donaldson, for the Applicant
In person
HEARD: February 8th, 9th, 10th, 11th and 12th, 2021
Corrected REASONS FOR JUDGMENT
M. Kraft, J.
[1] This was a five-day trial, the primary focus of which was to determine which decision-making responsibility regime is in the children’s best interests; which parenting time schedule is in the children’s best interests; and what the appropriate child support arrangement is for the children.
[2] Specifically, the applicant, Bisrat Brown (”Bisrat”) sought, among other things, an order for sole custody of the two children to enable her to have final decision-making responsibility in relation to all major decisions affecting the children and a residential schedule where the children would reside primarily with her and spend time with the respondent, Alfred Henderson Brown (“Alfred”), on Thursdays, after school to 9:30 p.m.; Fridays, after school to 9:30 p.m.; and alternate weekends from Friday, after school to Sunday, at 8:00 p.m.
[3] Alfred sought an order for joint decision-making responsibility over the major decisions that impact the children, or sole decision-making responsibility in the alternative and/or a parallel parenting regime in the further alternative, whereby he is given sole decision-making responsibility over educational and extra-curricular/athletic decisions and Bisrat is given sole decision-making responsibility over medical and religious decisions. Alfred sought a parenting schedule where the children would reside with him on three set days during the mid-week, from 5:30 p.m. to 10:00 p.m.; an additional one-to-two “stop-in” visits on additional days per week; and alternate weekends from Friday, at 5:30 p.m. to Sunday at 10:00 p.m. Alfred did not specify the specific mid-week days the children would be with him because he wishes for his days to be based on the parties’ son’s basketball practice, training and game schedule, and “to be flexible to accommodate each child’s unique scheduling needs/desires and to facilitate the children’s divergent interests.”[^1] In asking for 3 set days during the mid-week with the children, along with one to two stop-in visits on an additional 1-2 days, and alternate weekends, Alfred is essentially asking for four to five days of parenting time during the week and alternate weekends, such that Bisrat would see the children after 10:00 p.m. during the week and on alternate weekends.
[4] At the time of the trial the parties had been following an ad hoc parenting schedule which was unpredictable and which Alfred arranged with the children directly without discussion or consultation with Bisrat. Although on March 4, 2020, Nishikawa, J., had made a temporary order setting out a parenting schedule, which provided Alfred with parenting time on alternate weekends, from Friday, after school to Sunday evenings, and three mid-week nights to allow him to take the parties’ son to basketball twice a week and one additional mid-week night with the parties’ daughter, to be agreed upon by the parties, Alfred had never spent overnight time with the children on the weekends, nor had he attempted to reach agreement with Bisrat as to the mid-week days he was to spend with the children. Essentially, the children have been spending Tuesdays, Thursdays and Fridays with Alfred most weeks, from after school until late into the evening (after 10:00 p.m.) and alternate weekends, during the days only, with no overnights.
[5] At the request of the Court, the Office of the Children’s Lawyer (“OCL”) prepared a Voice of the Child Report (VoC Report”) on the views and preferences of the parties’ children as to the parenting schedule.
[6] Prior to the trial the parties resolved their property division issues, including possession of the matrimonial home and its sale, equalization of net family property and post-separation adjustments to the equalization payment.
[7] The five issues for determination by the Court are as follows:
a. Which parent should have final decision-making responsibility in relation to the major decisions which impact the children?;
b. Which parenting time schedule is in the best interests of the children;
c. What is Alfred’s income for child support purposes?;
d. What is Alfred’s monthly child support obligation and how should the parties share the children’s s.7 expenses?; and
e. Whether Bisrat is obliged to pay occupation rent to Alfred from the date of the exclusive possession order onward, namely, from March 4, 2020 onward.
Procedural History
[8] Bisrat commenced an Application on January 29, 2019. Alfred did not file an Answer or Financial Statement within the time prescribed by the Family Law Rules (“FLRs”). As a result, Bisrat brought a motion before the Court seeking an order to enable her to advance her case.
[9] On May 24, 2019, Stewart, J. made an order for Bisrat to obtain six case conference dates and for her counsel to email Alfred the dates from which he was to choose one date to be the case conference date. If Alfred did not respond within 3 days of receiving the email from Bisrat’s solicitor, Bisrat was ordered to proceed with booking a case conference date from one of the dates provided by the Court. Costs of the motion before Stewart, J. were reserved. Alfred did not file an Answer or Financial Statement nor did he respond to the six case conference dates sent to him. Accordingly, Bisrat scheduled a case conference for December 4, 2019.
[10] On December 4, 2019, the parties attended a case conference before Akbarali, J., who ordered Alfred to deliver an Answer, Financial Statement and a Form 35.1 Affidavit in support of Custody and Access within 45 days. Alfred was authorized to file his Financial Statement without his 2018 Notice of Assessment (“NoA”), with the NoA to be served and filed upon his receipt of same from CRA. Bisrat was ordered to deliver a Request for Information from Alfred within 7 days and Alfred was ordered to respond to it within 45 days from December 4, 2019. The parties were to return for a continued case conference on December 13, 2019 at 10 a.m.
[11] Alfred filed his Answer, dated November 29, 2019, along with his Form 35.1 Affidavit in support of custody and access, at some point after the case conference. Bisrat filed a Reply on December 27, 2019.
[12] On January 2, 2020, Bisrat served a Request to Admit on Alfred through the solicitors. Alfred failed to respond.
[13] On February 6, 2020, Bisrat brought a motion for exclusive possession of the matrimonial home, primary residence of the children, a non-disparaging order and an order for the continuation of counselling for the children. Justice Shore heard the motion, at which Alfred sought an adjournment. The motion was adjourned to March 3, 2020. The Endorsement of Shore, J., dated February 6, 2020, sets out that she has concerns that there is too much conflict in home and that it is not in the best interests of the children to maintain the status quo pending the return of the motion. Accordingly, Shore, J., ordered the children to continue with counselling, the frequency of which was to be determined by the counsellor; a mutual non-disparaging order was made on consent; and she set out a parenting schedule for Alfred to reside in the matrimonial home on the weekends of Feb 14th, 21st and 28th only to spend time with the children on these 3 weekends, and at no other times, pending the return of the motion. Bisrat’s motion was returnable before the court on March 3, 2020.
[14] On February 19, 2020, the parties attended a further case conference with Akbarali, J., at which the parenting issues were conferenced. The parties were ordered to return for a two-hour combined Settlement Conference/ Trial Scheduling Conference (“SC/TSC”) on March 20, 2020.
[15] On March 4, 2020, Nishikawa, J. heard Bisrat’s exclusive possession motion. Nishikawa, J. made the following order:
a. Bisrat was grated exclusive possession of the matrimonial home;
b. The children were to reside primarily with Bisrat in the matrimonial home;
c. Alfred was to have access to the children on alternate weekends from Friday, after school to Sunday at 6:00 p.m.;
d. Alfred was to vacate the matrimonial home by March 5, 2020 at 6:00 p.m.;
e. The contents of the matrimonial home were to be remain in the home;
f. Bisrat was to pay for the ongoing carrying costs of the matrimonial home, without prejudice to her right to claim reimbursement later;
g. Neither party was to discuss the matter with the children, including the motion for exclusive possession;
h. Neither party was disparage the other to the children;
i. The parties were to communicate through our Family Wizard;
j. The children were to continue counselling with Kevin Joel Copeland;
k. In addition to alternate weekends, Alfred was to continue to take E.B. to basketball during the week on Tuesdays and Fridays and have access to R.B. on an additional weeknight to be agreed to by the parties, provided Alfred returned the children to the matrimonial home by 10:00 p.m.; and
l. Alfred was to pay Bisrat costs in the sum of $4,000.
[16] On September 28, 2020, Akbarali, J. conducted a combined SC/TSC. Her Endorsement indicates that the parties were to return before her for a TSC on October 26, 2020.
[17] On October 26, 2020, the parties attended a TSC before Akbarali, J. The trial was set for 7 days to commence the week of February 8th, 2021. Akbarali, J. provided Alfred with a blank Trial Scheduling Endorsement Form (“TSEF”) and the guide to self-represented litigants for conducting a trial. An Exit TMC was scheduled for January 25, 2021. Alfred was ordered to pay Bisrat $500 in costs within 30 days.
[18] On November 5, 2020, Bisrat filed an Amended Application. On November 9, 2020, Bisrat filed a Form 35.1, Affidavit in support of Custody and Access.
[19] On December 10, 2020, Bisrat served Alfred with a second Request to Admit. Alfred failed to respond to the Request to Admit.
[20] On December 11, 2020, the OCL delivered its VoC Report.
[21] On January 25, 2021, an Exit TMC was conducted by Hood, J. His Endorsement indicates that much of the time spent on the TMC resulted from Alfred having failed to comply with orders made by Akbarali, J. at the October 26, 2020 TMC including requirements that were set out in the TSEF. At the Exit TMC, the parties agreed to list the matrimonial home, municipally known as 1406-101 Subway Crescent, Etobicoke, for sale by June 28, 2021.
[22] I heard the five-day trial of this matter from February 8th-12th, 2021. The trial was conducted via video-conference. Both parties and counsel, along with three witnesses, participated using the Zoom platform. I reserved my decision. Below is my decision and the reasons for it.
Background Facts
[23] The parties were married on July 3, 2004. There are two children of the marriage, namely, E.B., born July 16, 2008 (age 12) and R.B., born November 19, 2009 (age 10).
[24] E.B. is in Grade 7 and he currently attends Bloorlea Middle School. R.B. is in Grade 6 and she currently attends Wedgewood Junior Public School.
[25] Bisrat is 49 years of age and Alfred is 50 years of age.
[26] Since the date of the parties’ marriage, they have resided in a two-bedroom condominium in Etobicoke, located at 1406-101 Subway Crescent, Etobicoke (“the matrimonial home”).
[27] Bisrat is employed by Blue Cross as an account associate. She earns an annual income of $80,000. Alfred is currently unemployed. He last worked as an independent consultant for Fairventures Inc., which contract ended in February 2019, earning about $100,000, paid to a numbered corporation he owns.
[28] Both E.B. and R.B. do well in school and are involved in after-school activities and sports. E.B. is a competitive youth basketball player and is considered an elite player in his age group. E.B. plays basketball for The Performance Group (“TPG”) Basketball Association, a youth non-for-profit basketball association that was co-founded by Alfred. As such, Alfred is very involved with E.B.’s basketball and has generally been the parent to take him to his practices, games, tournaments and weekly training sessions since his presence is required in any event.
[29] Bisrat supports E.B.’s involvement in basketball but feels that Alfred pushes E.B., sometimes to the detriment to his other needs and interests. Alfred is clear that he is the only parent that can ensure that E.B. continues to participate in basketball competitively in an appropriate manner. He discounts Bisrat’s ability to support E.B. in basketball. Alfred also has very strong views about the children’s education. He identifies himself as the children’s academic tutor and claims that since he has been out of the matrimonial home since March 4, 2020, the children’s schooling has suffered without his physical presence.
[30] Bisrat described the marriage as ideal in the beginning but according to her, over time, Alfred became increasingly verbally, emotionally and at times physically abusive. Alfred denies that he was ever abusive toward Bisrat, verbally or otherwise.
[31] In 2007/2008 when the market crashed, Alfred decided to return to school which Bisrat supported. Alfred attended the University of Toronto and enrolled in a Masters in Finance degree at the Rotman School of Management. He graduated in 2011. To do this, the parties depleted their savings and Bisrat supported the family with her income alone. As well, Alfred took out a student loan which Bisrat guaranteed.
[32] Alfred has held a number of employment positions as an investment analyst at TD Waterhouse, Scotia Bank, Propel Capital and Fairventures Inc. Alfred has admitted to the following facts set out in Bisrat’s Request to Admit, dated December 10, 2020[^2]:
a. He received a Master in Finance from the Rotman School of Management, University of Toronto;
b. He was registered with the Ontario Securities Commission;
c. He is a Chartered Financial Analyst (CFA) from the CFA Institute;
d. Someone with his qualifications could earn an income of $100,000 a year;
e. His previous contract for employment was terminated in February 2019.
f. At Propel Capital, his title was Vice President & Portfolio Manager;
g. At Scotia McLeod, his title was Product Analyst;
h. He is qualified to work at a private equity firm as well as an investment portfolio manager at a bank/investment firm. He can also work as an investment analyst;
i. He has worked at TD Waterhouse;
j. He has worked for AllVista Investment Management Inc.;
k. He has worked for Propel Capital Corporation;
l. He knew as of November 2018, that his previous employment contract (Fairventures Inc.) would terminate in February 2019;
m. He did not provide Bisrat with proof that he was attempting to find a job prior to his previous employment contract being terminated; and
n. He did not provide Bisrat with any proof of him attempting to find a job after his previous contract was terminated.
[33] In late 2017, prior to the separation, Alfred co-founded TPG with his cousin Elvis Davis. Alfred functions as the President of TPG, a coach and mentor to the youth involved in TPG. Currently TPG runs and manages six basketball teams for children ranging from Grade 3 to Grade 9. Alfred does not receive any compensation for running this club. His involvement, as well as Mr. Davis’, is strictly on a volunteer basis.
Alfred’s View of the Roles in the Marriage
[34] The evidence before me at trial indicates that Alfred has strong-held views about the roles each party is to play in the marriage, such that he expected to be viewed as the “head of the house” and expected Bisrat to look after the household and children, while she also worked full-time. In particular, Alfred admitted to the following facts set out in Bisrat’s Request to Admit, dated December 10, 2020:
a. During the marriage he considered himself to be the head of the matrimonial home; and
b. He sent an email to Bisrat on October 16, 2017 stating that he is the “big lion”.
[35] The Exhibits entered into evidence at trial make it clear that Alfred has very ingrained and rigid views about his role as the “head of the family” and Bisrat’s role to serve him. In particular, Alfred sent the following emails to Bisrat during the marriage, prior to the parties’ separation:
a. On July 19, 2017, he sent an email to Bisrat stating that “you are definitely one woman who has NOT embraced her duties as a homemaker! You have fought that EVERY step of the way! Unreal”.[^3]
b. On July 19, 2017, he sent a second email to Bisrat stating “Take some pride in the kitchen make sure it’s clean everyday like every other women out there that that says she’s a ”homemaker”. No one needs you to try and become some corporate woman that you obviously not cut out to be.”[^4]
c. On October 16, 2017, he sent an email to Bisrat stating, “Bis, unless you feel qualified to re-write the Bible or determine what in it is no longer applicable, I am the Head of this Home, the big lion if your [sic] prefer, and will certainly always be so for my children….Your only responsibility is to me and the kids…You and I don’t think alike and can’t handle the same things, so don’t tell me we’re equals”;[^5]
d. On January 21, 2018, he sent an email to Bisrat stating, “You expect others to acknowledge and honor covenant, but not you. “Slave” is your word….because that’s how you must feel whenever you “have” to fulfill a duty. You are “obligated” to be a wife. The moment you cashed me to “forsake all others” that was your duty. God expects that of you. You don’t get to choose not to fulfill that duty and still think you’re in line with God’s will.,,,You’re stubborn and likewise, I can’t change you. But you’re not irreplaceable. Me and the kids will be okay”;[^6] and
e. On January 21, 2018, he sent a second email to Bisrat stating, “I don’t have to bargain in my marriage relationship. Everything was established on July 3, 2004…and you know how this is supposed to work. I am the head of my home and there can only be one. I will not share that position with anyone..and I ain’t the one going anywhere, if in fact one of us does choose to leave. I’m not screwing up my life.”[^7]
[36] In 2017, Bisrat’s mother passed away fairly suddenly. In the Fall of 2018, Bisrat’s father came to stay with her and the family at the matrimonial home. According to Bisrat this is when the difficulties in the marriage intensified. Alfred agrees that it was difficult when Bisrat’s father came to live with them because there was insufficient space in the matrimonial home from his perspective.
[37] Bisrat’s father, Negussie Amare, testified at trial that when he saw the manner in which Alfred treated Bisrat, he decided to stay in Canada to be a support to his daughter. Specifically, Mr. Amare gave oral evidence that he witnessed Bisrat and Alfred fighting and Alfred holding Bisrat down physically in an attempt to prevent her from leaving a room while he yelled at her.
[38] The matrimonial home is modest, about 1000 square feet. There are two bedrooms in the condominium. The children live together in one room and sleep on bunk beds. Once Bisrat’s father came to stay with the family in the Fall of 2018, he slept in the bottom bunk and one of the children was displaced. The evidence at trial was that Bisrat slept on the couch and Alfred slept in the master bedroom with at least one child most nights.
[39] Despite having difficulties in the marriage, to celebrate the parties’ 20th wedding anniversary, Alfred and Bisrat vacationed in Jamaica from August 10th to 17th, 2018. This was the first vacation the parties had taken in over a decade. According to Bisrat, when the parties returned home, it became apparent to her that the pattern of abuse and conflict in the marriage would continue, despite promises from Alfred otherwise She claims that the parties separated on or about August 20, 2018. Alfred disputes this date of separation. Alfred claims that Bisrat sent him a letter on November 14, 2018, indicating her interest in separation. According to Alfred this came as a complete surprise to him. As a result, he claims the date of separation is November 14, 2018. In any event, the parties reached an agreement as to the division of their net family property and, as such, the date of separation is not an issue for determination at this trial.
Parenting During the Marriage
[40] During the marriage Bisrat describes that she was the primary caregiver to both children. She was the parent primarily responsible for organizing the children’s activities, taking the children to school, to their appointments and caring for the household. Bistra took maternity leave after each child was born.
[41] Alfred denies that Bisrat was the primary caregiver to the children. Instead, he claims that he was primarily involved and responsible for dealing with the children’s educational and extra-curricular activities. Again, Alfred prides himself on being a tutor for both children with respect to their school work and claims to have driven the agenda for the children’s athletic pursuits and appropriate dietary and nutritional needs. It is on this basis that Alfred seeks to have sole decision-making authority over the children’s education and extra-curricular activities and athletics if the Court does not see fit to granting the parties joint decision-making responsibility.
[42] The parties do not see eye-to-eye on the manner in which the children approach their school work, or on the intensity of E.B.’s basketball training. Bisrat believes that the children ought to be attempting to complete their homework on their own while she is available for assistance, if needed. Alfred, on the other hand, prefers to sit with the children and do their homework with them, believing that this is the only way a parent ought to approach homework. Alfred was clear in his testimony that he believes he is the only parent who can assist the children with their school work. The fact that Bisrat is available and that the children have been in her primary care since March 4, 2020 was completely discounted by Alfred. In fact, Alfred was insistent that the children’s academic performance has declined as a result of his absence from the home.
[43] E.B. has been on championship youth basketball teams for the past number of years and is considered to be a stand-out player. For example, Elvis Davis, the co-founder of TPG testified that E.B. is one of 20 children selected out of 140 children to play in the Canadian Basketball Youth League and is considered one of the more elite players amongst his peers. To play at this competitive level of basketball, E.B. has to attend practices, games and personal training weekly. According to Alfred, this amounts to E.B. participating in basketball-related activities at least 3-4 times a week.
[44] R.B. is also involved in extra-curricular activities. According to Alfred, R.B. has not yet chosen her athletic pursuit, but she is a talented athlete.
[45] With respect to basketball, Bisrat acknowledges that E.B. loves basketball and that he is an excellent and skilled player for his age. Bisrat supports E.B.’s continued involvement in competitive youth basketball, however, she believes that Alfred places basketball as a top priority for E.B., ignoring his other needs, such as sleep and rest. As with schoolwork, Alfred was clear in his testimony that he believes he is the only parent who can support E.B. in honing his basketball skills and future path in basketball. Since Alfred is the co-founder of TPG is follows that he has been the parent to take E.B. to and from his basketball practices, training sessions and games because his presence is required in any event. This, however, does not mean that Bisrat cannot support and be an active participant in E.B.’s basketball games and training as well.
Events Since the Separation
[46] Prior to commencing this Application, Bisrat tried to resolve the outstanding issues arsing from the breakdown of the marriage with Alfred by negotiation and settlement. However, Alfred was very angry with Bisrat for her decision to end the marriage and was unable to accept that the marriage was over. On November 14, 2018, Bisrat’s counsel sent Alfred an initial letter advising that she wanted to negotiate an overall resolution of the issues arising from the breakdown of the marriage. The evidence demonstrates that Alfred was unable to place the children’s needs ahead of his own need to create conflict with Bisrat when the parties resided in the same home together while separated, as well as his need to blame the end of the marriage on Bisrat and her father to the children.
[47] Bisrat testified that she felt she had no option but to commence the Court application because Alfred refused to participate in negotiations after they separated. Once he was forced to participate in the process, Alfred took every attempt to frustrate the Court process and consistently ignored court orders. He failed to respond to Bisrat’s Application. He failed to comply with timelines set out in Court Orders to deliver his Answer and Claim, Financial Statement and financial disclosure. He failed to pay the costs ordered by Nishikawa, J. on March 4, 2020. He failed to pay the costs ordered by Akbarali, J. on October 26, 2020. He sought adjournments and blamed his lack of compliance with court orders on the fact that he began representing himself. Whatever the reason, it is clear from the evidence that Alfred’s conduct throughout this proceeding was unproductive and unreasonable, causing increased legal fees to Bisrat and further conflict for the family.
[48] The living situation in the matrimonial home after the separation became so toxic that the children were being exposed to conflict, leading Bisrat to bring a motion for exclusive possession of the matrimonial home. On March 4, 2020, Nishikawa, J. made an order granting Bisrat exclusive possession of the matrimonial home. Since that date, Bisrat has carried the entire financial burden of the matrimonial home expenses, all child-related expenses and continued to service Alfred’s student debt (which she guaranteed), without any contribution whatsoever from Alfred. Alfred involved the children in the parties’ dispute, telling them that Bisrat is the reason Alfred had to leave the matrimonial home, which in turn, caused the children to feel sorry for Alfred and be caught in a loyalty bind between the parties. When Bisrat begged Alfred in emails to stop involving the children, Alfred insisted that he had not done so claiming that he will not lie to the children about his circumstances. It is clear from the emails between the parties, that Alfred has little insight into how his conduct negatively impacts the children.
[49] Alfred admitted during the trial, that he paid no child support to Bisrat once she was granted exclusive possession of the matrimonial home despite the fact that the children have been living primarily with her for about a year. Alfred also admitted that he has not had the children spend one overnight with him. Alfred admitted to the following facts set out in Bisrat’s Request to Admit, dated December 10, 2020:
a. During the marriage he was the person responsible for paying the household bills;
b. He received CERB benefits;
c. He did not make any payments towards his student loan since March 2020;
d. Bisrat is a guarantor on his student loan;
e. He did not remove his items from the matrimonial home on March 5, 2020 at 6:00 p.m. as per the March 4, 2020 Order of Nishikawa, J.;
f. Bisrat communicated with him on March 4, 2020, and March 5, 2020, to remove his items from the matrimonial home;
g. When he moved out of the matrimonial home, the common elements fee was in arrears;[^8]
h. When he moved out of the matrimonial home the Bell bill was in arrears;
i. Since March 2020, Bisrat has paid the monthly payments for his student loan;
j. Bisrat paid Alfred’s car insurance from March to July 2020;
k. In July 2020, a PayPal charge for an item he purchased went through the joint account;
l. In May 2020, he charged $345.92 for an investment court he took on the joint credit card;
m. Netflix was charged on the joint account from March to July 2020 in the amount of $84.95, for his Netflix account;
n. In July 2020, Alfred was no longer contributing to the parties’ joint account; and
o. Alfred still owes Bisrat costs for the motion for exclusive possession and the TMC.
Lack of Effective Communication between the Parties since Separation
[50] The parties have been unable to communicate effectively as a result of Alfred’s refusal to do so. Since the separation, Alfred made unilateral decisions regarding his parenting time with the children without speaking with or consulting with Bisrat, despite many attempts on her part to work cooperatively with him. The evidence demonstrates that there were many emails from Bisrat in which she makes attempts to co-parent with Alfred but Alfred’s anger and bitterness toward Bisrat prevented him from being able to do so. Alfred admitted to the following facts set out in Bisrat’s Request to Admit, dated December 10, 2020, which support the fact that he regularly makes parenting decisions without consultation with Bisrat and is generally dismissive of her parental role:
a. Bisrat has asked him to communicate directly with her regarding his access to the children;
b. Bisrat has consistently asked that he communicate changes to the schedule with her directly and not the children;
c. He has yelled at Bisrat in front of the children;
d. On September 12, 2020, he took E.B. to basketball and did not pick up R.B. at 5:00 p.m. as he had promised her;
e. On or about January 27, 2020, he booked and confirmed that E.B. would be attending a tournament in Ohio without discussing it with Bisrat;
f. He communicates changes to the access schedule with the children directly and not Bisrat;
g. On August 1, 2020, during the Covid-19 pandemic, he took the children to Orangeville to visit his family;
h. On August 1, 2020, he messaged Bisrat that the children would be spending the night in Orangeville;
i. On August 27, 2020, he picked R.B. up from the matrimonial home without first discussing this with Bisrat;
j. On August 27, 2020, R.B. was not returned to the matrimonial home by him until after 10:42 p.m.;
k. On September 11, 2020, E.B. did not arrive back to the matrimonial home until after 10:49 p.m.;
l. When E.B. injured his foot in September 2020, Alfred insisted that heat be applied to his foot;
m. E.B. was in pain during his basketball practice on September 18, 2020;
n. He did not agree with Bisrat taking E.B. to see the doctor because of his foot injury;
o. On October 11, 2020, he and Bisrat got into a dispute about the pick up time for the children;
p. He was in his car on October 11, 2020 and confronted Bisrat about picking E.B. up;
q. The children witnessed the confrontation on October 11, 2020 between him and Bisrat;
r. On October 22, 2020, he had E.B. on the phone until 11:43 p.m. working on his homework; and
s. On November 17, 2020, a school night, he returned the children to Bisrat after 10:27 p.m.
[51] Further to the above, Alfred has demonstrated an inability to place the children’s needs and best interests ahead of his own needs. Examples of Alfred’s inability to self-regulate after the parties’ separation and therefore, spare the children from parental conflict, include the following:
a. On September 13, 2019, Alfred wrapped a birthday present for Bisrat in her lawyer’s correspondence and gave the gift to R.B. to place in her mother’s room. The children saw the present wrapped in Bisrat’s lawyer’s correspondence. Alfred took pictures of the present, clearly unable to see how inappropriate this conduct was on his behalf. At trial, Alfred admitted that he did this and that the children saw their mother’s birthday gift wrapped in her solicitor’s correspondence. While Alfred indicated some regret for his actions, he did not show the kind of remorse one would expect;
b. In early November 2019, Alfred talked to the children about the separation in detail without consultation with Bisrat. Among other things, Alfred told the children the separation is Bisrat’s fault; that Bisrat “created the situation” the family is in; that he was forced out of his home by Bisrat and her father; that he wants to come home but Bisrat will not allow it, etc.;
c. In January 11, 2020, Alfred emailed Bisrat that he no longer wanted R.B. to continue with counselling, alleging he was concerned that R.B. was becoming dependent on a therapist. Alfred told Bisrat in this email that R.B. “should be parented by her parents and not a stranger”, equating her counselling with parenting[^9]. Alfred’s position on R.B.’s therapy required Bisrat to bring a motion before the Court seeking an order that R.B. could continue in counselling, which order was obtained by her on March 4, 2020;
d. Alfred regularly asks the children to retrieve his belongings and items from the matrimonial home, when he ought clearly to be making this request to Bisrat directly. For example, on February 7, 2020, at midnight, Alfred asked R.B. to get him a blank cheque from the matrimonial home complaining to her that he had nowhere to live. R.B. was crying and upset with Bisrat for putting her father in a position where he had no where to live[^10];
e. Alfred regularly brings the children home from parenting time late without advising Bisrat that he will be late, or even letting her know where the children are. There are emails on Our Family Wizard evidencing that the children have been out with Alfred as late as midnight without him letting her know their whereabouts, even when she has emailed him repetitively asking where they are;
f. Alfred makes plans directly with the children about the days and times he will spend time with them, without regard for Bisrat and plans she has made for the children and in complete contravention of the Order of Nishikawa, J., dated March 4, 2020; and
g. Alfred has attended on the floor of the matrimonial home despite the Order of Nishikawa, J., dated March 4, 2020, demonstrating his lack of regard for the Court Order which is bad modelling for the children, since they are aware that he is not permitted to do so because of the Court order.
[52] After the exclusive possession order was made, Alfred moved into his mother’s home in Brampton. His evidence is that he was unable to have the children on alternate weekends at his mother’s home, or even for one overnight, because his mother would not permit the children to sleep over at her house. Alfred’s mother testified and her evidence was that there is not sufficient room for the children to sleep at her house because there is only one other bedroom available in which Alfred was sleeping. It is hard to understand why Alfred could not have moved to the couch for one or two nights and had the children sleep in the bedroom, using a blow-up mattress to enjoy overnight time with them once in the past 12 months. Bisrat testified that Alfred’s brother stayed in his mother’s home in the basement. There was no explanation given as to why Alfred did not take steps a) to try and convince his mother to allow her grandchildren to spend some overnight time at her home, or b) to clear some of the items stored in other rooms in his mother’s home to make space for the children, especially since Alfred was awarded overnight time with the children a year ago and has not worked since February 2019.
[53] Bisrat seeks an order that the court impute an annual income of $100,000 to Alfred for child support purposes and that Alfred pay table child support to her for the two children in accordance with the Child Support Guidelines (“Guidelines”) in the sum of $1,471 a month. She also seeks an order that Alfred contribute equally to the children’s s.7 expenses. Bisrat seeks an order for retroactive table child support commencing March 1, 2020, when the children began living with her primarily. Bisrat asks the court to order Alfred to pay retroactive child support out of his share of the net proceeds of sale from the sale of the matrimonial home when it is sold.
[54] Alfred seeks an order that if he is imputed with an annual income that it be in the range of $85,000 to $90,000, and that he be ordered to pay child support in accordance with a set-off calculation under the Guidelines because he also seeks a “shared parenting” parenting schedule where the children will reside with him roughly equally, or at least over 40% of the time.
[55] Since the parties have agreed that the matrimonial home will be listed for sale at the end of the school year, and by no later than June 28, 2021, Alfred testified that he will either rent or purchase accommodation for himself in Toronto, hopefully near to the matrimonial home. Alfred is not working, however, and he was not able to explain to the court how he would qualify for a mortgage or other financing to purchase a home. Nor did Alfred offer an explanation to the court as to how he will be able to complete a rental application if he is not earning an income. If Alfred remains residing at his mother’s home in Brampton, it is clear that he will not be able to accommodate the children on an overnight basis.
[56] As a result of Alfred’s living circumstances, neither child has spent a night away from the matrimonial home or Bisrat, except for one night when the father took the children to his sister’s house overnight for a family visit.
[57] Bisrat is seeking an order that Alfred’s prima facie 50% interest in the matrimonial home proceeds be held in trust as security for his child support obligation. Given Alfred’s failure to pay child support since the separation, Bisrat has no confidence that he will comply with a court order that he pay child support in the future. Further, Bisrat takes the position that Alfred is intentionally unemployed and, as a result, she believes security for the child support is necessary.
[58] Alfred is not agreeable to having his share of the net proceeds of sale being held in trust as security for his child support obligation. Instead, Alfred testified that he is agreeable to obtaining a life insurance policy to be maintained by him as security for his child support obligation, although he has taken no steps to make inquiries about obtaining such a term or whole life policy and has provided the Court with no evidence as to how he will maintain such a policy when he is not working or earning an income.
Voice of the Child Report
[59] Michelle, Nagy, a Clinician engaged by the OCL completed a VoC report, pursuant to a request by Justice Akbarali on October 26, 2020.
[60] Ms. Nagy was assigned to this matter on November 18, 2020. The VoC report sets out clearly that it is simply a summary of the child’s impressions from their frame of reference. No other contextual information was gathered by Ms. Nagy for the purpose of the report. The court requested to hear the children’s views and preferences regarding the family situation and parenting time.
[61] Ms. Nagy interviewed both children virtually on November 20, 2020 and November 27, 2020. Ms. Nagy testified that the children were at Bisrat’s friend’s condominium for the November 20th interview and were with their paternal aunt’s home for the interview on November 27th, 2020. Both children reported to Ms. Nagy that they were in private settings during the interviews.
[62] During Ms. Nagy’s testimony she gave evidence that while the views of the children were not necessarily consistent, both E.B. and R.B. were consistent in making it clear that they wanted their parents to reach a resolution and they wanted the parenting schedule to be predictable, having structure and routine. Specifically, Ms. Nagy testified that the children want to know in advance what their schedules will be to enable them to anticipate when they will be spending time with each parent and to be able to visualize what their weeks will look like.
[63] A summary of the views expressed by E.B. during both interviews are as follows:
a. He did not recall when his parents separated or why they separated;
b. Life was “fine” with his family and things changed only when his maternal grandfather moved in with them.
c. Things were “not as fine” anymore as there was not enough space for everyone in the home;
d. His parents would argue but he really would not pay much attention to the arguing;
e. Since his parents separated, he has remained living at this home with his mother and sister. He reported that he sees his father sometimes on weekends and sometimes during the week;
f. The current schedule is “fine” and he is “okay with it”, although he was not clear if there was an actual schedule and when visits are supposed to take place;
g. His father is no longer allowed to come into their home and he feels strongly that it would be better if his father could come inside their home again;
h. The fact that his father can not longer come into their home is what he finds the most difficult about the separation;
i. His mother helps him with homework and sometimes does activities with him. He described her as fun and nice, and indicated that she takes school seriously;
j. His father also does homework with him, takes him to basketball, and they work on his robot together. He described his father as nice;
k. His parents share the same family rules, which focuses on being respectful. If he gets into trouble, his parents would mainly take away privileges;
l. E.B. would like the judge to know that he wants his father to be able to come into his mother’s house again. He stated that sometimes he wants to be with this father but he also wants to be at his home at the same time. He stated that currently their visits are sometimes at his paternal grandmother’s home. His grandmother is “fine” and they relax at her home;
m. The amount of time that he sees his father now is “fine”;
n. All he really wants is for his father to visit him at his home and it’s all he cares about;
o. When asked what he would want if his father can no longer come inside his home, E.B. stated that then he wants to be able to choose when he goes with his father and when he stays home on a day to day basis. He stated that this would depend on how he feels that day and could not say how often he would want to see his father if the visits were not at his mother’s home;
p. When it comes to his mother, he likes that she is nice and takes away privileges when he does something wrong. He does not like that she sometimes gets upset for a long time and she will get really frustrated;
q. When asked about whom he goes to when he is sick, has problems or has something happy to share, he reported that he would tell both of his parents;
r. He has fun with his mother by going to the mall and playing basketball with her. He stated that he also enjoys playing Lego and Roadblocks with his father;
s. The separation does not make him cry. He reported that he does not prefer for his parents to be separated but he is also not that upset about it and indicated that he actually wonders about why it does not upset him. He is disappointed that his parents separated but he is not disappointed with anyone specifically;
t. He thinks his parents separated due to his grandfather moving in with them, his parents renovating and a lack of space in their home. His parents really do not tell him about their issues;
u. The biggest impact the separation has had on him is that after school he wants to go home and stay home and he has to go with his fathers on visits sometimes. He stated that he would rather stay home, as he gets tired after school. He is totally fine seeing his dad but he wants to stay home;
v. If his father had his own place to visit him at, he initially stated that he would want to go there three to four times per week and on the weekend. He then stated that perhaps he would want to go during the week and not weekends and would not want to sleep over. His biggest issue that he really just wants to stay at his house;
w. He indicated that his mother and father could make the situation better by getting along more and talking to each other more;
x. E.B. also stated that he likes to know where he is going to be and when. He would like to know the plans in advance and where he will go with his father during visits; and
y. He stated that he currently often finds out one or two days before that he will be going on a visit with his father. He stated that currently he thinks he sees his father three days per week, on Tuesday, Thursdays and on the weekend. He stated that the visits often take place in the car, a restaurant, or at his grandmother’s house. They often spend their visits watching television shows or eating dinner in the car.
[64] A summary of R.B.’s views and preferences from both interviews can be summarized as follows:
a. Her parents separated last year because they fought a lot;
b. Her parents did not really speak to each other and disagreed on a lot of things;
c. Her parents never told her why they were separating and they only told her as her father was about to leave the home;
d. It was sad and frustrating as she hates getting in the middle of their conversations and does not want them to get divorced;
e. They generally see their father on Tuesday, Thursday and alternate Saturdays but sometimes it gets “jumbled up”;
f. Sometimes her mother could not be home so their father may come over and sometimes their father is not available so they have to stay home with their mother;
g. She has no thoughts on the schedule other than the fact that it is not organized. She believes that her parents really need to look at the days they are free and tell each other ahead of time so that they can be more organized;
h. She likes that she still gets to see her father but she does not like that he no longer lives with them;
i. If she could make any changes in her family, her father would return home and they would all sort out the conflict between her parents. She stated that they would see where they do not agree on thigs and figure out how to make things work;
j. Her father says he wants to be back home and does not want conflict. He also told her he is trying to get a new work contract and move to Toronto so that they would to have to go to Brampton anymore and it would be easier for him to see them;
k. Her mother wants things to remain as they are now and for a proper schedule for visits to be followed;
l. E.B. has basketball on Tuesdays and Thursdays so their dad takes him to basketball and she goes with them. She stated that she gets to play basketball as well and afterwards they go shopping and watch a television show;
m. Her mother is very fun, very organized, hard working, strict and funny. Her father is hard working, very strict, fun, a joke teller and good at sports;
n. With respect to the current situation between her parents, she feels that they really should talk to each other and work things out between them so that they could see their father the same amount as they see their mother;
o. She would prefer to have equal time with her parents but she does not know how this would work. She also stated, however, that her thoughts are unclear about all of this;
p. R.B. would like her parents to get a message that they need a family schedule with routine everyday so they become closer as a family;
q. If she had a problem she takes to her mother, as she is more sensitive. If she were emotional she would talk to her mother but if she were hurt she would go to her father. If she were sick she would usually go to her mother as she has medical equipment due to her work. If she had something happy to share she would more likely to tell her father as he generally gives her more credit and her mother would be more likely to say that it was good but she should also learn something from what she accomplished. If she was sad, she would definitely go to her mother to talk as she would “get it” more. She stated that her father is more of a “tough it out” kind of person;
r. She is feeling frustrated and sad about her parents separation and she is concerned about how to “level it out” in terms of the time she spends with each of her parents. She state that she does not want to pick sides and wants to see each of her parents equally but feels that she needs to find a way to do this and she does not know how to make this work. She stated that perhaps it would work for them to see their father on Tuesdays, Thursdays, Fridays and alternate Saturdays. On holidays, she would want to spend the holiday with her mother and then always see her father the next day;
s. She would like a “repetitive system” so that things don’t happen at the last minute and she is always aware of her schedule; and
t. If she could talk to the judge she would ask the judge to make the schedule whereby one week she is with her mother and one week she is with her father. She then stated that this would be an issue because of where her father is living now so then she would ask the judge for just weekends in Brampton. She stated that if her father was living in Toronto she would want one week with each parent. R.B. stated that she does not talk to her brother about what he wants or the situation with their parents and reported that her brother is not very talkative.
Husband’s Income
[65] Again, Alfred is highly educated. His past employment positions listed on his resume, include, but are not limited to the following:
a. Alfred was an Associate Portfolio Manager at TD Waterhouse Private Investment Counsel In. from March 2007 to March 2010. He managed over $50 million of high net worth client investment assets on a discretionary basis.
b. Alfred was a Senior Investment Analyst at 13 Advisors Inc from March 2006 to October 2006, where he worked with investment counsellors to create and manage comprehensive wealth strategies and investment portfolios, with average assets of $23 million.
c. Alfred was a Senior Analyst at Scotia McLeod Inc., from January 2004 to March 2006, where he conducted Canadian and U.S. fund manager research and due diligence supporting recommendations to investment advisors.
d. Alfred was a Senior Analyst at TD Asset Management Inc. from 1997 to 2003, where he conducted investment fund research in various global regions.
[66] Alfred explained that when he worked for Fairventures Inc. he was required to incorporate a company and bill them as an independent consultant. Accordingly, Alfred incorporated 2500082 Ontario Inc. and is the only shareholder of this company. Although Alfred has been out of work since February 2019, he testified that he has not applied for any positions on LinkedIn, engaged with any Head Hunters and instead, that his approach has been to network. He was insistent when he gave his testimony that his approach of networking with people and doing work for free for various people is a better approach to finding work, than applying to positions that may be advertised online, or to work with a head hunter. This was Alfred’s position even though he has been out of the work force since February 2019, now for two years.
[67] Based on Alfred’s income tax returns, he historically reported earning the following levels of income:
a. In 2014, his line 150 income was $91,821.50[^11];
b. In 2016, his Notice of Assessment, shows that his line 150 income is $30,922.
c. In 2017, his line 150 income was $34,259; and
d. In 2018, his line 150 income was $61,919[^12], $48,720 of which was received by Alfred as dividend income, taxed at a lower rate.
[68] Alfred testified that his contract with Fairventures Inc. was for $100,000 a year, however the funds were paid to his corporation and not to him directly. The income Alfred reported in 2017 through to 2019 (when his contract with Fairventures Inc. terminated) on his personal income tax return at line 150, must also be considered with the income of his numbered corporation. For example, in 2017, when Alfred’s line 150 income was $34,259, the net income for his corporation was $66,405 and the retained earnings for the corporation were $46,683.[^13] This accounts for the income of $100,000 a year Alfred was earning from Fairventures Inc.
[69] Again, in 2018, Alfred worked as an independent consultant for Fairventures Inc. He continued to bill Fairventures Inc. through his numbered corporation and then pay himself dividends from the corporation at a lower income tax rate. As stated above, in 2018, Alfred’s line 150 income on his personal income tax return was $61,919. The net income for his corporation was $49,004 and the retained earnings for the corporation were $45,558.[^14] Again, this accounts for the income Alfred was earning from Fairventures Inc.
[70] As stated above, Alfred has been unemployed since his contract with Fairventures Inc. terminated in February 2019. During his examination in chief, Alfred indicated that he was in the midst of a potential opportunity with a new company, NordStar Capital. He acknowledges that he has been assigned an email address with this company and that he has been doing pro bono work for the company but that as of the date of the trial, he had not yet received an offer of employment. He seems very hopeful that he will be offered a position with NordStar Capital but he was unable to specify the details of what position he would hold or what income he could expect to earn if he were employed. Alfred did, however, testify that if the Court were going to impute income to him, the income figure it ought to impute should be $85,000 a year, as opposed to $100,000 a year, as proposed by Bisrat.
[71] Elvis Davis, Alfred’s cousin and co-founder of TPG testified at the trial. He explained that TPG is a competitive basketball association he and Alfred founded. Alfred is the acting President and Elvis is a coach and trainer. Elvis further explained that TPG is an incorporated non-for-profit organization. This past Covid season, TPG has run seven teams, with Grade 3 being the youngest team and Grade 9 being the oldest team. Elvis explained that a total of 90 kids are registered with TPG. Elvis confirmed that neither he nor Alfred have received any income for the work they do for TPG. I am satisfied that that is the case and that Alfred ought to be imputed with income from the work he performs for TPG,
Analysis
Parenting of E.B. and R.B.
Sole Decision-Making Authority vs. Joint Decision-Making Authority
[72] Effective March 1, 2021, the terms “custody” and “access” in the Divorce Act were repealed and replaced with the terms “decision-making responsibility” for a child and “parenting time”. In addition to a change in the terminology, the amendments to the Divorce Act provide the Court with an enumerated set of factors to consider when determining which parenting order is in a child’s best interests. Until these amendments were in force, Courts and litigants would often refer to the enumerated list of “best interests” factors set out in s.24 of the Children’s Law Reform Act, as guidance. This will no longer be necessary for married parents.
[73] The relevant sections of the amendments to the Divorce Act relating to parenting are reproduced below:
Best interests of child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Primary consideration
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things
Factors relating to family violence
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
Parenting time consistent with best interests of child
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
Parenting order
16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by
(a) either or both spouses; or
(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.
Contents of parenting order
16.1(4) The court may, in the order,
(a) allocate parenting time in accordance with section 16.2;
(b) allocate decision-making responsibility in accordance with section 16.3;
(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and
(d) provide for any other matter that the court considers appropriate.
Day-to-day decisions
16.2(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-today decisions affecting the child.
Allocation of decision-making responsibility
16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.
Entitlement to information
16.4 Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.
Parties to a Proceeding
Best interests of child
7.1 A person to whom parenting time or decision-making responsibility has been allocated in respect of a child of the marriage or who has contact with that child under a contact order shall exercise that time, responsibility or contact in a manner that is consistent with the best interests of the child.
Protection of children from conflict
7.2 A party to a proceeding under this Act shall, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding
[74] Bisrat seeks an order granting her sole decision-making responsibility over the major decisions that impact the children. Alfred is seeking an order for joint decision-making responsibility or, alternatively, sole decision-making responsibility over all parenting decisions or, alternatively, an order for parallel parenting awarding him decision-making responsibility over educational and extra-curricular/athletic decisions and awarding Bisrat decision-making responsibility over medical and religious decisions impacting the children.
[75] Bisrat’s position is premised on the fact that Alfred has demonstrated that he will not cooperate with her in making decisions concerning the children since separation. In fact, the evidence supports Bisrat’s concern as it demonstrates that Alfred not only does not consult with Bisrat, but that he makes unilateral decisions for the children without considering Bisrat. Further, Bisrat maintains that Alfred discounts or devalues her input with respect to education and the children’s extracurricular activities. I agree. It is clear that Alfred entirely discounts Bisrat’s involvement, opinion, or advice in relation to the children. He prefers to be in control over how the children complete their homework, what activities and athletics in which they are enrolled, how and what the children eat, and the medical treatment they receive.
[76] It is also clear from the evidence that Bisrat has tried repeatedly to co-parent with Alfred. She sent him countless emails asking him not to make sole decisions without her and to speak with her first before moving forward.
[77] There is no question both Bisrat and Alfred are good parents and that they both love E.B. and R.B.. It is also clear that E.B. and R.B. are bonded to both parents and want to spend time with them. In the VoC Report, the children describe Bisrat as being nurturing, organized, fun and loving. Similarly, the children describe Alfred as being loving and committed to them.
[78] The question for the Court is whether joint decision-making responsibility for the decisions impacting the children is appropriate? The amendments to the Divorce Act demonstrate that there remains only one applicable standard: the best interests of the child. The interests of the parents are entirely secondary. They come into play only in terms of their relevance to the best interests of the child. In determining the best interest of the child, the court is to give primary consideration to the children’s physical, emotional and psychological safety, security and well being.
[79] The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275, sets out the following principles in determining whether a joint custody order is appropriate:
a. There must be evidence of historical communication between the parents and appropriate communication between them.
b. Joint custody cannot be ordered in the hope that it will improve communication.
c. Just because both parents are fit does not mean that joint custody should be ordered.
d. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
e. No matter how detailed the custody order, there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
f. The younger the child, the more important communication is.
[80] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests: see Graham v. Butto, 2008 ONCA 260 and Roy v. Roy, 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872 (CA).
[81] Courts require evidence that the parties are able to communicate effectively, since joint custody requires that they make long-term decisions together regarding the child. A standard of perfection is not required, and is obviously not achievable: see Grindley v. Grindley 2012 CarswellOnt 9791 (SCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis: see Warcop v. Warcop 2009 CanLII 6423 (ON SC).
[82] Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour: see Geremia v. Herb 2008 CanLii 19764 (ON SC).
[83] A mere statement by one party that there is an inability to communicate will not preclude an order for joint custody. The court must carefully consider the parties’ past and present parenting relationship as a whole, and not place undue emphasis on their allegations of conflict, or on the conflict existing at the time of trial: see Grindley v. Grindley, supra at para. 211.
[84] The best interests of E.B. an R.B. will obviously not be fostered if the parents are unable to communicate and cooperate in making decisions that affect the children. However, as the cases demonstrate, a standard of perfection is not required, and is obviously not achievable. As set out in Warcop v. Warcop, supra, the issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. In making this assessment, the Court must be governed by the evidence that has been presented as to the communication and cooperation between the parties to date; the mechanisms that are in place to ensure that it will continue; and the assessment of the judge as to the capabilities of the parties to do so in the future: Warcop v. Warcop, supra.
[85] Joint custody allows each parent authority to make decisions concerning his or her children. Absent a demonstrated ability by parents to cooperate in making those decisions an order for joint custody has the potential to increase conflict between parents. That potential must be carefully weighed and considered in relation to the specific circumstances of each case. Parental conflict is a significant risk factor for children, particularly when the conflict is long standing and progressive: Antemia v. Divitor, 2019 ONSC 678, at para. 91.
[86] In this case, the conflict between the parties was evident prior to separation and only increased after the parties’ separated. Alfred has repeatedly involved the children in the parental conflict, claiming to have done so because he refuses to lie to his children. It is clear that Alfred cannot see the impact of his conduct on the children. Alfred has essentially brought E.B. and R.B. into his dispute with Bisrat, which places both children in a loyalty bind between their parents. This is evident in R.B.’s comments to the OCL clinician and in her feeling responsible to resolve the conflict between her parents. Both E.B. and R.B. told the clinician from the OCL that they want a resolution and that their parents could make things better if they could talk to one another more. Bisrat has demonstrated an ability and willingness to work with Alfred. Regrettably, Alfred has demonstrated an inability on his part to work with Bisrat, a refusal to cooperate with her and/or to communicate productively on any issues relating to the children.
[87] In this case, Bisrat demonstrated from the outset that she would facilitate maximum contact between the children and Alfred. To the contrary, Alfred has been hypercritical of the Bisrat. Bisrat sought input from Alfred on issues such as basketball, school and counselling in courteous and civil communication by emails but she did not receive the same degree of civility and cooperation in return from Alfred. This is a genuine high conflict situation.
[88] I am not confident that the parties’ ability to communicate and cooperate will improve over time. As set out in Cameron v. MacGillivray, 2005 CarswellOnt 8095, joint custody requires a basic level of respect and civility between the parents so that meaningful communication regarding the children can occur. Both parents must have the opportunity to express their views and have meaningful input into the decisions that have to be taken. It is only in this way that the best interests of the child can be fostered. However, communication of this caliber will not occur in an environment or verbal abuse or intimidation. What happens is that the views of the bullying parent prevail,. Whether or not they are in the child’s best interests. No parent should be expected to subject himself or herself to the bullying of a former spouse in the name of joint custody; Cameron v. MacGillivray, ibid, at para. 48.
[89] I find that Alfred remains upset and angry with Bisrat. The fact that Bisrat ended the marriage clearly still upsets him. Bisrat is obviously bothered by the criticisms leveled against her by Alfred concerning homework and her commitment to E.B. and the children in general. Her testimony was clear that she remains frustrated and saddened by what she sees as her inability to communicate with Alfred, and what she considers to be his controlling behavior, both of which she attributes to his antiquated views of marriage and the roles each parent ought to play in terms of the household and children.
[90] I find Alfred to be rigid and inflexible. He holds strong opinions about the validity of his parenting style and about education, both children’s athletic abilities and their health and nutrition. Those opinions do not allow for other, more moderate views. He was critical of Bisrat being lax in terms of the children’s homework when it is very common and, in fact, appropriate for parents of a 12-year old and 11-year old, to encourage independence in children approaching homework and school projects. Alfred was adamant that he has been the children’s tutor every day and that the children are suffering by his absence in the matrimonial home. Alfred was also critical of Bisrat in not being sufficiently supportive of E.B.’s basketball. It appears that Bisrat has not had a complete opportunity to have input with E.B.’s basketball because Alfred discounts and/or possibly totally dismisses Bisrat’s views about basketball and E.B., as he sees himself as the only parent who is fit to make these decisions.
[91] Can these two parents work cooperatively in E.B.’s and R.B.’s best interests? Can they communicate appropriately? Most importantly, would joint decision-making responsibility over major decisions impacting the children be in the best interests of E.B. and R.B.? I find it would not.
[92] I am not troubled by the ability of Bisrat to move beyond her upset and frustration. I accept that she will be able to do so. However, although I do not doubt that Alfred has E.B.’s and R.B.’s best interests at the forefront, his rigid and inflexible personality and his strong opinions about the validity of his parenting style and what is in his children’s best interests do not bode well for cooperative communicative parenting with the mother of his children.
[93] For the reasons set out above, Bisrat shall have sole decision-making responsibility over all decisions affecting the children. I decline to separate out areas of decision making as Alfred has proposed. I do not have the confidence that the parties are more able to communicate or work cooperatively in one area of decision making than another. Rather, if Alfred is granted sole decision-making responsibility over the children’s education and extra-curricular/athletic abilities, I have tremendous concerns that he will use this decision-making responsibility and authority to control the children and eliminate Bisrat from all aspects of the children’s schooling and activities. I do not share these same concerns with Bisrat, as she has demonstrated since the separation, that she continues to promote Alfred’s involvement with E.B.’s basketball and his assistance with the children relating to their school work. Bisrat shall consult with Alfred on all major decisions for the children, including health, medical, dental, educational decisions and decisions affecting the children’s extra-curricular activities and athletics. However, if the parties cannot agree, Bisrat shall make the final decision.
Parenting Time
[94] In terms of a parenting schedule, Bisrat seeks a schedule that is reliable and predictable and upon which both children and she can rely. She gave evidence that she will support E.B.’s basketball and that she is prepared to take him to his regular practices, training and basketball games even on days when he is in her exclusive care. Bisrat has proposed a parenting schedule where the children reside with her primarily and spend parenting time with Alfred as follows:
a. Every Thursday, from after school to 9:30 p.m.;
b. Every Friday, from after school to 9:30 p.m.; and
c. Alternate weekends from Friday, after school to Sunday at 8:00 p.m.
[95] Alfred, on the other hand, has proposed a parenting schedule which offers no predictability or defined schedule, despite him having heard the clinician for the OCL testify and him having read the VoC Report which sets out clearly that both E.B. and R.B are desperate for predictability and stability. Alfred’s proposed parenting schedule is as follows:
a. The children will be with him for 3 set mid-week days, such as Tuesday, Thursday and Friday, from 5:30 p.m. to 10:00 p.m., the days being dependent on E.B.’s basketball practices and games;
b. The children will be with him for an additional 1-2 “stop-in” visits to allow for flexibility and for him to support the children varied interests; and
c. Alternate weekends from Fridays at 5:30 p.m. to Sundays at 10:00 p.m.
[96] If the Court awards Alfred the parenting schedule he has proposed, the children would end up having parenting time with him 4 to 5 days mid-week every week and alternate weekends with Bisrat. This is clearly not an appropriate parenting schedule and demonstrates how insignificant Alfred considers Bisrat to be in terms of the children and parenting roles. Essentially, Alfred is looking for a parenting schedule where Bisrat looks after the children after school and feeds them dinner, while he gets to attend the children’s extra-curricular and athletic activities and so that he can do school work with them daily. This proposed parenting schedule demonstrates to the Court that Alfred does not seem to appreciate that the parties have separated and, as a result, the children are now to have two homes with each of their parents, which is in their best interests.
[97] Alfred cannot control or dictate to Bisrat how she approaches homework or extra-curricular activities. Just because the two parents differ in their approaches does not equate to one parent’s viewpoint or approach to being discounted entirely.
[98] The children have spent on average, three mid-week nights with Alfred since the physical separation, generally on Tuesdays, Thursdays and Fridays. However, the days have not been consistent or predictable and have depended entirely on Alfred. Further, the children have not been able to fully enjoy their alternate weekend time with their father because Alfred has not been able to have them overnight. Again, the children have not spend a single overnight away from Bisrat or the matrimonial since the separation, with the exception of the one night they went with Alfred to visit their cousins in Orangeville.
[99] Until Alfred moves out of his mother’s home in Brampton, the children will reside with him on Thursdays and Fridays from after school to 9:30 p.m. and on alternate weekend days on Saturdays from 11:00 a.m. to 9:30 p.m. and Sundays from 11:00 a.m. to 9:00 p.m.
[100] When and if Alfred moves into his own residence, the children will reside with the parties pursuant to the following schedule:
a. Thursdays, after school to 9:30 p.m.;
b. Fridays, after school to 9:30 p.m.;
c. Alternate Mondays or Tuesdays, from after school to 9:30 p.m., the day to be chosen by Bisrat, to enable R.B. to have time with Alfred alone; and
d. Alternate weekends from Friday, after school to Sunday at 9:00 p.m.
[101] In terms of a holiday schedule, both parties submitted draft orders to the Court about how the children ought to share their time with both parents during the major holidays and they agreed on these issues.
Child Support
[102] Bisrat seeks an order imputing an annual income to Alfred in the sum of $100,000, such that he be obliged to pay child support to her for E.B. and R.B. in the sum of $1,471 a month as per the tables set out in the Guidelines. Additionally, Bisrat seeks an order that obliges Alfred to contribute to the children’s s.7 expenses equally.
[103] During the trial, Alfred proposed that he be imputed with an income of $85,000 a year. However, in the draft order that Alfred submitted to the court, he proposes that he be imputed with an income of $90,000 a year. Alfred seeks an order where his child support obligation for the two children be “set-off” against Bisrat’s child support obligation based on her annual income of $80,000 a year, since he is seeking a “shared parenting” schedule where the children will reside with him for 40% of the time or more, as per s.9 of the Guidelines.
[104] Given the parenting order I am making, this is not a shared custody or shared parenting time regime as contemplated by Alfred and thus, s.9 of the Guidelines does not apply.
[105] Bisrat has asked the Court to impute income to Alfred pursuant to s.19(1) of the Guidelines based on the fact that Alfred is intentionally under-employed or unemployed.
[106] It appears that Alfred is agreeable to the Court imputing income to him as he recognizes that he has been unemployed since February 2019 and that he could be employed given his past employment experiences, his skills and education. Accordingly, it is not necessary for the Court to complete a s.19(1) Guideline analysis of imputation of income.
[107] Rather, the issue to determine is whether the court will impute Alfred with an annual income of $100,000 or $90,000.
[108] At $100,000 of income, Alfred would be obliged to pay table child support of $1,471 a month. At $90,000 of income, Alfred would be obliged to pay table child support of $1,351 a month. The difference is $120 a month. Given the difference $120 could make to E.B. and R.B., I find that Alfred ought to be imputed with an annual income of $100,000 a month and that he ought to pay table child support of $1,471 a month for E.B. and J.B. commencing March 1, 2020.
[109] Bisrat also seeks an order that Alfred pay her retroactive child support to March 1, 2020 to March 1, 2021, in the total sum of $19,123. This sum amounts to a child support obligation of $1,593 a month. Bisrat did not make submissions at trial explaining the discrepancy between the prospective child support she is seeking with the retroactive lump sum support she seeks. On my calculations, if the court were to impute Alfred with an income of $100,000 a year, his child support obligation would be $1,471 a month, which would result in a retroactive amount owing in the sum of $17,652 as opposed to the $19,123 she seeks.
[110] Accordingly, Alfred owes Bisrat retroactive child support of $17,652 ($1,471 a month X 12 months), for the period March 1, 2020, to and including February 28, 2021, which sum shall be paid from his half-share of the net proceeds of sale from the matrimonial home.
[111] In terms of the children’s current s.7 expenses, the parties agree that they should share these expenses equally.
Occupation Rent
[112] Alfred seeks an order granting him occupation rent for the period commencing March 4, 2020 when Nakonechny, J. granted Bisrat temporary exclusive possession of the matrimonial home.
[113] According to Alfred he has to pay rent to his mother, even though he was not able to demonstrate to the court or provide any evidence that there is an official arrangement between him and his mother as to this rental obligation. He also testified that as of the date of the trial, he had not paid any rent to his mother.
[114] Alfred also testified that he has incurred significant travel expenses as a result of the fact that he is residing at his mother’s home in Brampton and that he has had to drive from Brampton to Toronto to spend time with the children. His estimate is that he has had 200 visits with the children, since March 4, 2020 when Bisrat was granted exclusive possession of he matrimonial home. According to Alfred, 200 visits with the children, amounts to 390 one-way trips between Brampton and Toronto and more than 12,000 kilometres on his car, since he calculates that each trip is 3,100 km each way.
[115] Alfred referred to the case of Higgins v. Higgins 2001 CanLII 28223 (ON SC), in support of his claim against Bisrat for occupation rent.
[116] In Higgins v. Higgins, supra, the non-occupying spouse sought occupation rent from the occupying spouse, citing s. 24(1) of the Family Law Act as the statutory basis for this claim, which says, in part:
24(1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,
(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs …
(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse; (Emphasis added)
[117] As Quinn, J. points out in paragraph 43 of Higgins,
“an award under s. 24(1)(c) is available only where an order for exclusive possession has been made under s. 24(l)(b) and the common law remedy of occupation rent is not saddled with such a prerequisite. Nonetheless, when determining whether to make an award under s. 24(1)(c), I think a court is likely to consider the same factors as are applicable on a claim for occupation rent. This is because payments under s. 24(1)(c) are in the nature of occupation rent”
[118] In Higgins v. Higgins, supra, Quinn, J. reviewed the considerations that must be taken into account by a Court when determining the appropriateness of an order for occupation rent:
a. the conduct of the non-occupying spouse, including the failure to pay support;
b. the conduct of the occupying spouse, including the failure to pay support;
c. delay in making the claim;
d. the extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home;
e. whether the non-occupying spouse moved for the sale of the home and, if not, why not;
f. whether the occupying spouse paid the mortgage and other carrying charges of the home;
g. whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support;
h. whether the occupying spouse has increased the selling value of the property;
i. ouster is not required, as once was thought in some early decisions.
[119] As stated n Foffano v. Foffano, (1996), after adopting the comments of Hill J. in McColl, the court states, at p. 407:
“I conclude that where the property in question is a matrimonial home, a claim for occupation rent by one spousal co-tenant against the other will be granted only in the exceptional case.”
“In order to succeed in a claim for occupation rent respecting a matrimonial home, it must be shown by a spouse not in possession that the remedies to gain possession of the property, to receive payments from the spouse in possession or support from him or her under the Family Law Act, are either not available or insufficient to render justice between the parties.”
[120] In this case, Bisrat, the occupying spouse, has been paying for the carrying costs of the matrimonial home without contribution of Alfred. The household bills were in arrears when Bisrat obtained the exclusive possession order and she paid the arrears off on her own. The children have been in her primary care since the exclusive possession order was made and Alfred, the non-occupying spouse has not paid child support to Bisrat. Furthermore, Alfred did not make a claim for occupation rent in his Answer and Claim dated November 29, 2019. He did not seek to amend his Answer and Claim at any point, despite having ample opportunity to do so.
[121] It is Bisrat who has made every attempt to move this case forward. The parties have agreed to list the matrimonial home for sale by the end of the academic year by June 28, 2012 and Alfred will receive his share of the equity from the home at that time, after paying Bisrat retroactive child support, outstanding costs owing to her by Alfred in these proceedings, and after reimbursing Bisrat for the matrimonial home expenses she paid on Alfred’s behalf from March 1 2020 onward. In my view, this is not a case where the non-occupying spouse is entitled to occupation rent.
[122] Finally, Alfred has not met his onus to demonstrate that he has paid rent to his mother or that he has a debt to his mother on account of unpaid rent. Further, the additional costs to Alfred in exercising his parenting time with the children has nothing to do with a claim for occupation rent, nor are these expenses reimbursable by Bisrat as occupation rent. In all of the circumstances, the balance of the equities do not support an order for occupation rent in these circumstances.
Property Settlement and Post-Separation Adjustments
[123] As stated above, the parties have consented to a property settlement which includes the following:
a. Bisrat shall pay Alfred an equalization payment of $8,337.09 in satisfaction of any and all property claims he may have against her under Part I of the Family Law Act. This payment will be made by her from her share of the net proceeds of sale from the sale of the matrimonial home;
b. Bisrat and the children shall continue to have exclusive possession of the matrimonial home until the matrimonial home is sold;
c. Alfred will pay the following amounts to Bisrat from his half share of the net proceeds of sale from the sale of the matrimonial home:
i. The sum of $19,826.88 as his 50% share of the matrimonial home expenses paid by her solely from March 1, 2020 to February 1, 2021;
ii. 50% of the matrimonial home expenses and payments she will make toward the joint debt from February 1, 2021 onwards, including payments that need to be made toward condominium fees, mortgage, home insurance and Alfred’s student loan with Scotia Bank until the home is sold, from his share of the net sale proceeds;
iii. 50% of the cost of whatever work is needed to ready the matrimonial home for sale as recommended by the real estate agent, from his share of the net proceeds; and
iv. Costs owing to her pursuant to the Orders of Nishikawa, J., dated March 4, 2020, and Akbarali, J., dated October 26, 2020, in the sum of $4,500.
d. Alfred has agreed to discharge his student loan with Scotia Bank upon the sale of the matrimonial home from his share of the net proceeds of sale from the sale of the matrimonial home.
Conclusion and Order
[124] Based on all of the above, this Court makes the following order:
Decision-Making Responsibility
a. Pursuant to 16.1 of the Divorce Act, the Applicant shall have sole and final decision-making responsibility over all major decisions that impact E.B., born July 16, 2008 and R.B., born November 19, 2009 (“the children”), including but not limited to, medical decisions, educational decisions, religious decisions, and decisions relating to the children’s extra-curricular activities and athletics. The Applicant shall consult with the Respondent about all significant decisions that have to be decided by sending him an email and taking into consideration his position and opinion on the issue(s). However, if the parties cannot agree on the decision, the Applicant alone shall make the decision.
b. Health-related decisions include, but are not limited to, all decisions regarding the children’s physical and emotional health, such as wellness appointments, illness-related appointments, dental appointments, orthodontic appointments, eye doctor appointments, vaccinations, flu shots, prescriptions for coughs, colds, nausea, constipation, diarrhea, eye infections, skin infections, prescriptions for any mental health condition; treatment for any bodily infections, appointments with specialists; therapeutic supports, individual counselling, group counselling, in-person or virtual therapy, brief or long-term. Prior to consulting with the Respondent, the Applicant shall first consult with the physician(s) and/or other professionals assisting the child in relation to the issue and obtain his/her/their input on the issues. The Respondent shall sign any and all required consent forms required by a health-related professional dealing with the child(ren). The Applicant shall provide information to the Respondent about any health-related appointments a child has, by email and shall provide information about the reason for these appointments at least 24 hours before they occur. The Applicant shall hold E.B.;s and R.B.’s health card and provide a copy of both cards to the Respondent.
c. Significant education-related decisions for the children, include such things as school placement, psycho-educational assessments, class placement, tutoring, etc. Prior to consulting with the Respondent on an education-related decisions, the Applicant shall consult with and obtain the advice of the school-related professionals involved in the issue. The Respondent shall sign any and all required consent forms required by a education-related professional dealing with the child(ren). The Applicant shall provide information to the Respondent about any education-related issue a child has by email. Both parents are entitled to obtain copies of all communications between the school and parents, including, correspondence, updates, school reports, school calendars, from the school directly.
d. Significant extra-curricular/athletic-related issues, include such things as a child’s enrollment in activities, such as sports, summer camps, or lessons that would overlap each parent’s time with a child. If an extra-curricular/athletic-related issue has to be decided the Respondent will present to the Applicant in writing his proposed decisions, intended decision, taking a child’s views and preferences into account. If an issue arises with respect to E.B.’ basketball, the Respondent shall attempt to have someone other than himself discuss E.B.’s progress and the proposed plan for E.B. with the Applicant. Both parents are entitled to copies of all communications between any organization or person teaching the child a sport or extra-curricular activity or running a program in which, the children are involved.
Parenting Time
e. Pursuant to s.16.3 of the Divorce Act, until the Respondent moves into his own residence and for as long as he resides at his mother’s home in Brampton, the children shall reside with the parents pursuant to the following two-week rotation as follows:
i. During week one,
R.B. will reside with the Respondent on either a Monday or Tuesday, from after school to 8:30 p.m., the day to be chosen and fixed by the Applicant, to enable R.B. to have time with the Respondent without having to accompany him to E.B.’s basketball;
Both children will reside with the Respondent on Thursdays, after school to 9:30 p.m.;
Both children will reside with the Respondent on Fridays, after school to 9:30 p.m.; and
Both children will reside with the Applicant at all other times.
ii. During week two,
Both children will reside with the Respondent on Thursdays, after school to 9:30 p.m.;
Both children will reside with the Respondent on Fridays, after school to 9:30 p.m., Saturdays, from 11;00 a.m. to 9:30 p.m.; and Sundays, from 11:00 a.m. to 9:00 p.m.
Both children will reside with the Applicant at all other times.
f. If the Applicant is agreeable, the Respondent shall be permitted to pick up E.B. for basketball on Tuesdays or any other day on which basketball is scheduled other than Thursday or Friday and the Applicant shall pick E.B. up from basketball, if she wishes to do so.
g. Both parties shall be permitted to spend time with the children on the children’s birthdays.
h. If the Respondent is unable to make a visit at the start time of his visit then his visit shall be cancelled.
i. The Respondent shall give the Applicant 24 hours notice if he is unable to make a visit
j. If Alfred has a residence in Toronto and is no longer residing in Brampton with his mother, the parenting schedule referred to (e.) above shall remain in force except that in week two, the children’s weekend time with the Respondent shall be from Friday, after school until Sunday, at 9:30 p.m.
k. The parties shall have the following Holiday Schedule, which shall take precedence over the regular residency schedule above:
i. Orthodox Christmas: The children shall spend Orthodox Christmas with the Applicant each year.
ii. Easter weekend: The parties shall rotate Easter weekend with the children being in the Respondent’s care in odd numbered years and the Applicant’s care in even numbered years, from Friday after school at 5:00p.m. to Monday at 8:00p.m.
iii. Thanksgiving weekend: The parties shall rotate this weekend with the children being in the Respondent’s care in even numbered years and the Applicant’s care in odd numbered years, from Friday after school at 5:00p.m. to Monday at 8:00p.m.
iv. Summer Vacation: The children shall spend two consecutive weeks with each party, at which point the other parent’s time with the child shall not proceed. The Respondent shall have his first choice of weeks in odd numbered years and shall provide the Applicant with his weeks no later than June 1st. The Applicant shall have her first choice of weeks in even numbered years and shall provide the Respondent with her weeks no later than June 1st .
v. Christmas Break: In odd-numbered years, the children will reside with the Applicant on Christmas Eve/Morning until Christmas day at noon, and with the Respondent from noon on Christmas day until 9:30p.m. pm on Boxing Day. In even-numbered years, the children will reside with the Respondent on Christmas Eve/Morning until Christmas day at noon, and with the Applicant from noon on Christmas day until 9:30pm on Boxing Day.
vi. Mother’s Day: If the children are not otherwise with the Applicant on this weekend, the children will stay with the Applicant on Mother’s Day weekend, from Saturday at 7:00p.m until their return to school on Monday.
vii. Father’s Day: If the children are not otherwise with the Respondent on this weekend, the children will stay with the Respondent on Father’s Day weekend, from Saturday at 7:00p.m until Sunday at 9:30p.m.
l. Neither party shall discuss this Court action or the contents of these Reasons or Order with the children.
m. All communication between the parties shall be limited to our Family Wizard. The parties shall only text or call one another in the event of an emergency with the children or a child.
n. The children’s extra curricular activities including the location of their games/practices shall be posted in our Family Wizard.
o. The Applicant shall not need the Respondent’s consent or signature to renew the children’s passport.
p. If either party plans a vacation with the children, 30 days prior to travelling he/she will give the other with a detailed itinerary including the name of any flight carrier and flight times, accommodations, including address and telephone number and details as to how to contact the children during the trip. The travelling party will provide the other with a draft letter authorizing he/she to travel with the children for the other party to execute and have notarized and retuned within 3 business days. If the non-travelling parent does not cooperate in signing the travel consent then the travelling parent may proceed with an urgent motion to be able to travel with the children and the non-travelling parent’s permissions shall be dispensed with.
q. The Respondent shall not travel with the children without the Applicant’s consent, such consent not to be unreasonably withheld.
Child Support
r. Pursuant to s.15.1 of the Divorce Act, the Respondent Alfred Brown shall be imputed with an annual income of $100,000.00, for child support purposes.
s. Pursuant to s.15.1 of the Divorce Act, commencing March 1, 2021 and on the first day of each following month, the Respondent shall pay child support to the Applicant in the amount of $1,471 per month, based on an income of $100,000 for the children E.B., born July 16, 2008 and R.B., born November 19, 2009.
t. Pursuant to s.15.1 of the Divorce Act , the Respondent and Applicant shall share the costs of the children’s section 7 expenses equally.
u. Pursuant to s.15.1 of the Divorce Act, the children’s current section 7 special or extraordinary expenses include but are not limited to medical and dental expenses not covered by a benefits provider, orthodontics, glasses, school supplies, transportation to school, summer camp, march break camp, the children’s cell phones (up to a maximum of $30 per child), up to two activities per child per season. Future special or extraordinary expenses shall include the postsecondary education expenses of the children.
Retroactive Child Support
v. Pursuant to s.15.1 of the Divorce Act, the Respondent shall pay retroactive child support to the Applicant in the amount of $1,471 for the period March 1, 2020 to and including February 28, 2021. The Respondent shall pay the retroactive child support in the sum of $17,652 to the Applicant for this period from his half-portion of the net proceeds of sale of 1406-101 Subway Crescent, Etobicoke (“the matrimonial home”).
Security for the Respondent’s Child Support Obligation
w. Pursuant to s.15.1(4) of the Divorce Act, as security for his child support obligation, the Respondent shall take immediate steps to obtain a life insurance policy with sufficient face value to secure his child support obligation as follows:
i. He shall take any medical examinations or tests required to obtain the policy;
ii. He shall pay all policy premiums when due. If he does not and the Applicant pays any premiums, interest or penalties to prevent the lapse of the policy, those amounts shall be considered lump sum child support and enforceable against the Respondence. If the policy lapses because the respondent failed to pay the premiums, the Respondent shall also pay all necessary costs incurred by the Applicant to reinstate the policy.
iii. As long as the Respondent is obliged to pay child support to the children in accordance with this order, he shall keep the policy in force; not borrow against the policy and shall ensure that the policy remains unencumbered; and irrevocably designate and maintain the Applicant as the beneficiary in trust for the children of the proceeds of the policy.
iv. Within 30 days, the Respondent shall:
Provide the Applicant with a copy of the policy and the irrevocable beneficiary designation of the Applicant as the beneficiary in trust for the children of the policy;
Sign an Authorization and Direction permitting the Applicant to confirm directly with the Respondent’s insurer that the policy is unencumbered and in force;
v. Within 14 days of each anniversary date of the policy, the Respondent shall give proof to the Applicant that he has paid the premium.
vi. When the Respondent’s obligation to pay child support terminates, his obligation to maintain the policy and to maintain the Applicant as the irrevocably beneficiary in trust for the children of the policy ends. The Applicant shall execute any documentation necessary to release the irrevocably beneficiary designation.
vii. If the Respondent’s life insurance policy cannot be maintained for any reason, he shall immediately obtain replacement coverage at a reasonable cost, ensuing no gap in coverage. If the Respondent learns that there may be a change in insurance coverage, he will advise the Applicant of the proposed change in coverage and the reason for the change.
viii. When the respondent dies, his estate will pay child support to the Applicant as if he were still alive, until the children receive the insurance proceeds.
ix. If the policy or the full amount of the policy is not in force on the Respondent’s death, the Respondent authorizes a lien and first charge against his estate for the full amount of the policy proceed and all of the Applicant’s rights and remedies against the Respondent’s estate shall be preserved.
x. Pursuant to s.15.1(4) of the Divorce Act, the parties shall only contribute to additional special or extraordinary expenses for the children if the parties consent to the expenses in advance, in writing. Neither party shall unreasonably withhold consent.
y. Pursuant to s.15.1 of the Divorce Act , commencing on May 1, 2022, and every May 1st thereafter, the parties shall exchange the financial disclosure as required by the Child Support Guidelines. If the Respondent becomes employed and is earning in excess of the income imputed to him by this Court of $100,000 a year, the child support shall be adjusted to reflect his actual earnings.
Annual Disclosure Obligation for Child Support
z. Pursuant to s.15.1(4) of the Divorce Act, both parties shall, in writing, provide the following information to the other:
i. the documents required in s. 21(1) of the Guidelines that have not previously been provided, which includes:
ii. a copy of every personal income tax return filed by the party for each of the three most recent taxation years;
iii. a copy of every notice of assessment and reassessment issued to the party for each of the three most recent taxation years;
iv. where the party is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not provided by the employer, a letter from the party's employer setting out that information including the party's rate of annual salary or remuneration;
v. where the party is self-employed, for the three most recent taxation year,
the financial statements of the party's business or professional practice, other than a partnership; and
a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the party does not deal at arm's length;
vi. where the party is a partner in a partnership, confirmation of the party's income and draw from, and capital in, the partnership for its three most recent taxation years;
vii. where the party controls a corporation, for its three most recent taxation years
the financial statements of the corporation and its subsidiaries; and
a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm's length;
viii. where the party is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust's three most recent financial statements; and
ix. in addition to any income information that must be included under paragraphs (iii) to (vii), where the party receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information.
x. current information about the children's special or extraordinary expenses;
xi. current information about a party's claim of undue hardship, if any, and his or her household's standard of living;
xii. details of Canada Child Benefit or other child benefits received in the previous year and anticipated in the coming year; and
xiii. any other information needed to review child support.
Spousal Support
aa. Pursuant to 15.2 of the Divorce Act, there shall be no spousal support payable by either party
[125] This Court orders on consent,
Matrimonial Home & Net Family Property
a. Pursuant to s.24(3) of the Family Law Act ,the Applicant shall continue to have exclusive possession of the matrimonial home and its contents.
b. Pursuant to s.24(3) of the Family Law Act , the Respondent is not permitted to enter the floor of the matrimonial home, all drop offs and pickups of the children shall occur in the lobby of the condo building where the matrimonial home is located.
c. The parties shall use Karen Nolan as the real estate agent to sell the matrimonial home. The parties shall complete all recommended work to the matrimonial home that Ms. Nolan requires to sell the home for the best price possible.
d. The matrimonial home shall be listed for sale by no later than June 28, 2021.
e. The amount of $5,653.12 shall be placed in the Applicant’s solicitor’s trust account to be released upon the Applicant providing her solicitor with a receipt for the flooring work that needs to be completed in the matrimonial home.
f. As the matrimonial home is in need of renovations, including new flooring and any work needed to assist with the sale, the Applicant shall be placing items including the Respondent’s items in a storage unit. The Respondent shall be given three days to attend the storage unit to retrieve his items. The Applicant shall provide the Respondent with information for the storage unit within 15 days of this Order. The Respondent shall then provide the Applicant with three days and times when he will be attending the storage unit and leaving the storage unit.
g. The parties shall direct the lawyer on the sale to pay these expenses from the matrimonial home sale proceeds:
i. Real estate commission;
ii. Adjustments for taxes, utilities, municipal fees or levies;
iii. Amounts required to discharge registered encumbrances;
iv. Legal fees and disbursements relating to the sale;
v. The sum needed to discharge the Respondent’s Student loan with Scotia Bank; and
vi. All other sale adjustments.
h. After paying the amounts set out in g. above, the remaining proceeds shall be divided equally between the parties as follows:
i. 50% to the applicant, less the equalization payment owing by her to the Respondent in the sum of $8,337.09;
ii. 50% to the respondent, less the following amounts:
$19,826.88, as reimbursement for his 50% share of expenses borne by the Applicant for the carrying costs of the matrimonial home from March 2020 until February 1, 2021;
50% of all payments made by the Applicant towards the matrimonial home and payments made towards joint debt from February 1st, 2021 onwards, including any payments she makes towards the condo fees, mortgage, home insurance and the Respondent’s student loan with Scotia Bank.
If the Respondent is unable to contribute to the costs of the work recommended by the real estate agent that is needed to prepare the matrimonial home for sale, then 50% of whatever the Applicant contributes toward the expenses needed to ready the home for sale; and
$1,500 on account of costs owing by the Respondent to the Applicant as per the Orders of Nishikawa, J., dated March 4, 2020 and Akbarali, J., dated October 26, 2020.
i. The Respondent shall, within 10 days, cooperate with transferring the vehicle currently in both parties name to his sole name, the Respondent shall be responsible for all costs associated with the transfer. The Respondent shall be responsible for all 407 bills he has incurred.
j. The Applicant shall be permitted to choose the real estate solicitor to close the sale of the matrimonial home.
k. If the Respondent interferes with the sale of the matrimonial home, including not attending the real estate solicitor’s office to sign the documents to complete the sale of the home or accepting the first reasonable offer as recommended by Karen Nolan then the Applicant shall then be permitted to solely execute any and all documents necessary to close the sale of the matrimonial home. If necessary, the Applicant may be able to proceed with a motion on short notice to execute the terms of this paragraph.
Costs
l. The Applicant shall make written costs submissions by March 29, 2021 of no more than 3 pages, not including a Bill of Costs and Offers to Settle. The respondent shall have five to file responding written costs submissions by April 2, 2021 at 5:00 p.m. of no more than 3 pages, not including a Bill of Costs and Offer to Settle. Reply cost submissions, if any, shall be filed by April 7, 2021 and shall be no longer than 1 page.
M. Kraft, J.
Released: March 9, 2021
COURT FILE NO.: FS-19-7714
DATE: 20210309
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bisrat Brown
Applicant
– and –
Alfred Henderson Brown
Respondent
REASONS FOR JUDGMENT
M. Kraft, J.
Released: March 9, 2021
[^1]: Husband’s draft order, dated February 12, 2021. [^2]: Exhibit #1. [^3]: Exhibit #2. [^4]: Exhibit #3. [^5]: Exhibit #4. [^6]: Exhibit #5. [^7]: Ibid. [^8]: Exhibit #28 shows the Notice of Lien to Owner that there were unpaid common expenses of $1,895.43 as at April 18, 2019. [^9]: Exhibit #11. [^10]: Exhibit #12. [^11]: Exhibit #40. [^12]: Exhibit #42. [^13]: These figures are taken from the Corporate income tax return for 2500082 Ontario Inc., Exhibit #44. [^14]: This figure is taken from the corporate income tax return for 2500082 Ontario Inc., Exhibit #45.