COURT FILE NO.: FS-17-415944

DATE: 20210714

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Aleksandra Dlacic

Applicant

– and –

Nenad Dlacic

Respondent

Nancy Iadeluca, for the Applicant

David Russell, for the Respondent

HEARD: November 17-20, 23-26, 30 and December 1, 2020

Shore, J.

[1] This trial was primarily about the custody and access (as it was referred to then) of the parties’ two children, namely K.L., age 14 and A.M., age 9 and, to a lesser extent, child support and spousal support. Specifically, the Applicant Mother was seeking an order for sole decision-making responsibility for the children, primary residence of the children, and a detailed residential schedule mostly in line with the recommendations of Ilana Tamari, the custody and access assessor. Ms. Tamari recommended that the Respondent Father’s time with K.L. would be subject to K.L.’s wishes. The Father was seeking an order for joint decision-making and equal time with the children.

[2] The other issues to be addressed at trial included determination of the parties’ incomes, child support, spousal support and contributions to the special and extraordinary expenses of the children. The parties resolved the property issues in June 2019 and the terms were incorporated into the Order of Justice Kristjanson, dated June 17, 2019.

[3] Some uncontested background information is required to provide context to the issues in dispute discussed in further detail below.

Background information

[4] The parties were married in Serbia on September 7, 2000, separated on August 9, 2016 and divorced on May 24, 2018. As set out above, the parties have two children of their marriage, K.L. (age 14) and A.M. (age 9).

[5] The parties met and were married in Serbia, having dated for approximately one year. When they married, the Mother was finishing off her residency program in anesthesiology and the Father had been working for a few years at Telecom Survey, as Serbian national telecom company, as an electrical engineer. After marriage, the parties lived in an apartment owned by the Mother’s parents. The parties disagree whether the Mother was earning an income while completing her program.

[6] The parties agree that they both wanted to emigrate from Serbia for political and financial reasons. The parties immigrated to Canada in November 2001 and lived in Hamilton for a few months, where they received assistance in settling in from the Mother’s very kind relatives. In January 2002 the parties moved to Toronto.

[7] In March 2002, the Mother secured a job providing short term child-care through an agency, earning $12 per hour. From the time the parties arrived in Canada, the Mother began the process of requalifying as an anesthesiologist, to be able to work in Ontario. The Father’s qualification as an engineer was recognized in Ontario, although he had to write two exams, on law and ethics.

[8] When the Father secured his job at the TTC, the mother was able to cut back on her own working hours and spend more time focussing on her exams. In addition to taking English exams, the mother studied for and took the theoretical and practical medical qualifying exams. The cost of each exam was approximately $1,000. She only failed one exam, which she was able to retake and passed the second time. Once the Mother passed her exams in 2004, she applied for and was accepted into a graduate program, designed to requalify international doctors to work in Ontario. She was admitted to the program at the University of Western Ontario and moved to London in September 2004. The Mother’s four-year residency program in London was “intense” and the Mother was working sixty hours a week. The Mother took some further exams during her residency and in 2008 she passed her final exams and was fully qualified to practice in Ontario. She moved back to Toronto in June 2008 and started a twelve-month fellowship in obstetric anesthesiology at Mount Sinai Hospital. Her salary was approximately $40,000.

[9] The Father was unable to secure a job in his field for the first several months after the parties moved to Canada in November 2001. The Father was not required to requalify as an engineer when moving the Canada. In in June 2002, the Father volunteered at the Toronto Transit Commission (“TTC”) to get his foot in the door until he was offered a full-time job. In September 2002, the Father secured a job at the TTC working as an engineer, where he continues to work to this day. The Father did not move to London with the Mother in September 2004, so that he could keep his job at the TTC. He remained living in their studio apartment.

[10] The parties’ first child was born in February 2006, while the Mother was still living in London. The Mother took a three-month maternity leave. The Father travelled to London every weekend by bus but remained working and living in Toronto during the week. From the time the child was born until June 2008, when the Mother and child moved back to Toronto, the parties’ mothers rotated living with the Mother and child in London, for just under six months at a time. Branka Kangrga, the Mother’s mother, testified that during this time, in addition to caring for the child, the mothers would cook and clean for the parties. The Mother was working approximately 60 hours a week during her residency, so I accept that the grandmothers were mostly caring for the child.

[11] When the Mother moved back to Toronto in June 2008, the parties started renting a two- bedroom condominium, which they subsequently purchased.

[12] The Mother’s salary increased significantly when she finished her fellowship and started a job in July 2009 at St. Michael’s Hospital. The Mother was earning a salary of approximately $300,000. Once she began her job at St. Michael’s the Father started taking K.L. (and then A.M.) to daycare each day but the parties would share picking K.L. up at the end of the day.

[13] In January 2011, the Mother started a job at North York General Hospital, where she continues to work to date.

[14] A.M. was born in April 2011 and the Mother again took a three-month maternity leave. The parties’ mothers started their six-month rotation again until A.M. started daycare in April 2013.

[15] In 2015, the parties purchased the matrimonial home, where they lived at the date of separation.

[16] The Mother’s hours in surgery are from approximately 7:30 am until 3:30 pm five-days per week, plus on-call once per week. The Mother does not have an assistant or other staff, so she does her own billing and paperwork, which adds some time to her day. The Father has more flexibility in his schedule. He can start work any time between 7am until 9am, so long as he is at work for eight hours.

[17] Following the parties’ separation on August 9, 2016, the parties continued living in the matrimonial home together with the children until the home was sold in March 2018.

[18] The parties’ jointly owned matrimonial home was purchased in 2015 and listed for sale following separation, pursuant to the court order of Justice Wilson, dated July 25, 2017. The matrimonial home sold for $2.299 million in March 2018. After some adjustments, the proceeds of sale were divided equally between the parties. The Mother received $431,570 and the Father received the benefit of $418,000 from the proceeds of sale. The matrimonial home had five bedrooms, four bathrooms and a powder room. It was approximately 3500 square feet.

[19] Following separation, the Father’s pay continued to be automatically deposited into the parties’ joint account until August 2016 and thereafter the Father started transferring money into the joint account until the closing of sale of the home in March 2018. In December 2016, the deposits by the Father were $3,000 per month. Some time after separation, the monthly mortgage payments were reduced from approximately $8,000 to $6,250 per month.

[20] The Mother purchased a home in 2018 for $1,930,000, where she continues to reside with the children. The Mother has her mother living with her to assist her with child-care and caring for the home. The home is in central Toronto near K.L.’s school, close to work and in a nice neighbourhood. She is carrying a large mortgage ($1,456,613) and her housing costs are close to $8,000 per month. The Father is renting a three-bedroom apartment, also in central Toronto but not close enough for K.L. to walk to school. His rent is $2,200 per month. The utilities are paid for by the landlord.

[21] On July 25, 2017, Justice Wilson also ordered that Ms. Tamari complete a Voice of the Child (“VOC”) Report, and make recommendations for therapy, if appropriate. The order also provided that “[i]n the event a clinical assessment is recommended by Ilana Tamari, then she will be the expert to conduct said assessment”.

[22] The VOC report was completed in October 2017. Ms. Tamari reported that K.L. desired to live primarily with the Mother and some limited time on the weekend with the Father, including one overnight, without having to commit to staying overnight. A.M. did not express any preference for a specific residential schedule.

[23] In February 2018, following the completion of the Voice of the Child Report, the Father brought a motion before Justice Corbett to have a different assessor appointed to conduct the s.30 assessment. The Father was not successful on his motion.

[24] In June 2018, Justice Faieta released a decision following argument of a motion, that included the following:

a. The parties were to comply with the parenting plan which included the children residing primarily with the Mother, and with the Father as follows:

i. Week 1: Wednesday from 5:00pm until Thursday at 8:30am; and

ii. Week 2: Tuesday at 5:00pm until Wednesday at 8:30am and Friday at 5:00pm until Sunday at 8:00pm.

b. The Father was ordered to attend counselling with “a professional parenting specialist of his choice”. The Father retained Ms. Parker in compliance with the order.

c. The Father was ordered to pay interim child support in the sum of $1,673 per month to the Mother, commencing April 1, 2018, based on an annual income of $116,500 for the previous year.

d. The parties were ordered to pay the children’s special and extraordinary expenses in proportion to their incomes, with the Mother’s income set at $492,119. The Father therefore paid the Mother an additional $1,689 per month from April 1, 2018 on a go forward basis. The expenses included private school tuition, school transportation, after school care, extra-curricular activities and day camp.

e. The Mother was ordered to pay the Father interim spousal support in the amount of $3,969 per month.

[25] From the time the Father moved out of the home, K.L. did not want to sleep at the Father’s home. Around October or November 2018, the Father insisted that K.L. sleep at his home in accordance with the Court order and refused to take her home at night. K.L. thereafter slept at her Father’s home during her scheduled time with him, until March 2019. As of March 2019, she started spending Tuesdays and alternate Fridays with her Father from after school until 8:30pm. A.M. followed the interim residential schedule as set out in Justice Faieta’s Order.

[26] Starting in September 2018, the family participated in a custody and access assessment with Ms. Tamari. Details of Ms. Tamari’s report are set out further below. Ms. Tamari recommended that the parties have joint custody of A.M., but that the Mother have sole custody of K.L. She also recommended that the current schedule remain in place but that K.L. should not be forced to sleep at the Respondent’s home.

[27] K.L. and A.M. are both in private school (albeit different schools), K.L. attends Havergal College with a tuition of $37,186, and A.M. attends Mabin School with a tuition of $26,900. The after-school care cost was $6,538 per year but afterschool care is no longer needed. Prior to COVID the children travelled on the school bus at an additional cost of $2,125. The children now go to school with their grandmother using Uber, at a similar cost. The children are both doing well in school, although A.M. is behind on his reading.

[28] K.L. takes piano lessons at a cost of $1,200 per year and A.M. took basketball lessons (pre-COVID).

[29] The parties had a cleaning lady once every two weeks.

[30] The mother paid for her niece to attend a private school in Belgrade and then to attend the University of British Columbia, at a cost of approximately $25,000 per year.

[31] The children usually spend most of their summer staying with family in Serbia. Prior to separation, the parties usually went on holiday over March break together and sometimes to Disney World in November or December. The parties rarely travelled without the children. The Mother has travelled for some conferences/exams, but her mother always came from Serbia to help with the children.

The Mother’s position on the issues:

[32] The Mother is agreeable to most of the recommendations made by Ms. Tamari in the assessment report. She is however seeking decision-making responsibility for both children or joint decision-making responsibility of A.M. and sole decision-making responsibility of K.L., but only if they retain a strong parenting coordinator. The Mother suggests retaining Dr. Helen Radovanovic. The Mother is agreeable to continuing the residential schedule as set out in Justice Faieta’s Order, but that K.L. not be obligated to sleep at her Father’s home. She is agreeable to sharing March Break and Christmas but would like the children (especially K.L.) to spend their summers in Serbia. She would like to attend parent-teacher interviews separately.

[33] The Mother’s evidence is that she was the primary caregiver for the children and the Father had minimal involvement with the children. The parties had the assistance of both their mothers following the birth of each child. The mothers would cook, clean and care for the children, until the children started daycare.

[34] When K.L. was born, the Mother was living in London, Ontario, completing her residency requirements. The Father was still working in Toronto during the week and travelled to London every weekend to be with the Mother and child. The Mother’s evidence was that the Father would come every weekend and take the child for walks when asked but otherwise had little to no involvement in caring for the child. She testified that he was unable to comfort the child. He would sometimes vacuum or do grocery shopping. She testified that either she or one of their mothers cared for K.L. The Father would bring his laundry to be done and plastic containers to be filled with meals for him to eat during the week.

[35] When the children were younger, the Mother alleges she took the children to and from daycare, and the father only assisted if she was on call or was otherwise not available. She acknowledged that it was easier for the Father to take time off work if either child was sick because he did not lose income.

[36] It is the Mother’s position that as the children got older the father assisted in taking the children to their activities or to school when she was on call and one of the grandmothers was not around, but was otherwise of little assistance when it came to raising the children. The Mother testified that the Father was subject to frequent anger outbursts and the children were afraid of his anger. She testified that the father did not play with K.L., and instead watched television or played on the computer with her. He did teach her to play chess and helped her learn her colours. They both encouraged the children in their activities.

[37] The Mother testified that following separation, the Father made no effort to communicate regarding the children, did not get help for his anger issues, and could not even be civil with her when dropping off the children. It is the Mother’s evidence that the Father started increasing the conflict in the home, starting arguments in front of the children and interrogating the Mother and the children. She testified that the Father would undermine the Mother’s role and he took steps to buy the children’s affection, including introducing hard candies, letting A.M. sleep in bed with him, not disciplining the children, allowing A.M. unlimited use of the iPad and encouraging the children not to listen to their mother. She also testified that the father was unable to properly bathe the children or maintain a proper hygiene routine.

[38] The Mother acknowledges that from December 2016, until the Father moved out of the home in March 2017, there was always a member of her family living with them in the home, whether her brother, sister-in-law or mother. The Father made them feel uncomfortable and was hostile towards them. The Mother testified that she did not think having her extended family in the home would make a bad situation worse.

[39] She expressed concerns about the Father badmouthing both her and her family and that he could not support her as a parent.

[40] The Mother described the Father as being asocial with limited communication skills. She says he is rigid, shows no empathy, is argumentative, quick to anger, oppositional and paranoid. During the marriage he yelled a lot and his reactions were sometimes disproportionate to the circumstances. She attributes the children having a fear of the father as a result of his yelling. She recalls an incident where the Father threw K.L. out of the condominium for spilling a glass of milk. She says he shows no attachment or warmth towards the children. She is concerned that A.M. is taking on an adult role, to meet the Father’s needs and that the Father’s love is conditional on A.M. confirming his dislike of the Mother’s family.

[41] She testified that following separation the Father did not know what to do with the children, so he took them to see the same movies over and over again. This did not make sense to the Mother as this is not how she would choose to spend her time with the children.

The Father’s position on the issues:

[42] The Father would like joint decision-making responsibility for the children, although given that the Mother is a physician, he is agreeable to the Mother making medical decisions, in consultation with the Father. The Father is seeking shared parenting of A.M. and that K.L.’s parenting time with him be the same as A.M., except the sleepovers to be at her discretion. He agrees to using Dr. Radovanovic as the parenting coordinator.

[43] The Father’ evidence was that he was a very involved parent and at times, the primary caregiver for the children. It is the Father’s position that he was the primary caregiver for the children from the time the Mother moved back to Toronto following her residency program in 2008 until separation.

[44] The Father alleges that the Mother worked long hours while completing her fellowship in Toronto and subsequently while on staff at various hospitals.

[45] The Father’s evidence was that he organized many of the children’s activities including swimming, cooking lessons, piano lesson, ballet, tennis, martial arts, skiing, snowboarding and skating, which they took at various times in their lives. He also took the children to numerous movies, an activity they all enjoyed, as well as day trips to several activities throughout the city.

[46] The Father testified that the parties divided the household chores between them. He would wash the dished while the Mother would do most of the cooking. The Mother would do the laundry, while the Father took care of the lawn/gardening and shovelling the snow.

[47] The Father acknowledged that he sometimes raised his voice, but it was it was a cultural form of expression in Serbia and nothing that would make the children scared of him.

[48] The Father alleged that following separation there was a campaign by the Mother and her family to minimalize his role in the children’s lives. Specifically, starting in December 2016, the Mother always had one of her family members residing in the home with the parties and the children, creating a stressful and hostile environment for the Father. The Father alleges that there was no conflict following separation until the arrival of the Mother’s family.

[49] The Father alleges that the confrontations with the Mother’s family were started by either the Mother’s brother or the Mother’s Mother. Following one incident in May 2017, the police were called, which triggered the involvement of the Children’s Aid Society of Toronto.

[50] K.L. is no longer willing to spend overnights at the Father’s home, although he continues to see her three times in a two-week period. The Father continues to see A.M. as per the interim order.

[51] The Father submits that Ms. Tamari was biased against him and disliked him from the start, following her initial meeting with the Mother. His testimony was that Ms. Tamari reached conclusions and made findings against him for which there was no support. He also submits that Ms. Tamari should not have conducted the assessment given that she had produced the Voice of the Child Report just prior to commencing the s.30 assessment.

Testimony of Branka Kangrga

[52] Ms. Kangrga, the Applicant’s mother, testified at trial. Other than a few specific incidents, her description of the roles assumed by the parties was that of an old-school traditional marriage. Ms. Kangrga talked about what she saw in the household when she lived with the parties for several months after the birth of each child. She described the Mother as being a very good mother, being very hands on with the children when she was not working and taking on most of the household chores. She described the Father as being more reserved, uncommunicative and not taking an overly active role in the children’s lives. There was no expectation on the Father to cook, clean or do laundry.

[53] Ms. B also gave her perspective on the conflict that existed between the parties after separation and particularly from Christmas time 2017 until the parties stopped living under the same roof in March 2018. She testified that after separation the atmosphere in the home changed a lot – there was a lot more tension, yelling and conflict - and there was a change in the Father’s attitude and behaviour. She felt that the Father was unwelcoming and was cold and hurtful towards her. She described the Father as undermining all the discipline and schedules implemented by the Mother with respect to the children and trying to buy the children’s affection. She overheard the Father insulting the maternal family to the children. She talked about an incident where both she and the Father spat on each other and the police were called. She acknowledged that the children witnessed many of these incidents.

[54] She acknowledged that the children love their father and that the Father loves the children but feels he is clueless on how to relate to the children.

[55] She testified that after the parties physically separated, A.M. returns from his Father more reserved and rebellious.

[56] Ms. B has been living with the Mother and children for the last year and helps care for the children and household.

Testimony of Carol-Jane Parker

[57] The Father called Ms. Carol-Jane Parker as a witness. Ms. Parker has been providing counselling to the Father, specifically with respect to his parenting. A therapeutic assessment was conducted at her direction to gain a better understanding of the Father’s strengths and weaknesses.

[58] The Mother also met with Ms. Parker four times, starting in December 2018, in addition to telephone calls, to assist in Ms. Parker’s work with the Father. The Mother filled out a questionnaire about the Father and his personality, which Ms. Parker used in her assessment. The Mother had ample opportunity to convey her parenting concerns to Ms. Parker.

[59] The children also met with Ms. Parker and the Father a few times between February and October 2019, using play structure to guide their sessions.

[60] I found Ms. Parker’s evidence to be reliable and credible and she was upfront about the Father’s shortcomings as a parent. She was not an advocate for the Father (as alleged by the other side) and had a good grasp on the Father’s limits as a parent, including his lack of interpersonal skills, oppositional tendencies (causing him to question everyone and everything) and his anger and resentment about the state of his relationship with the children.

[61] She talked about the Father struggling on how to deal with change, when his structure and routine changed following separation. The Father became preoccupied with his own hurt and pain. He needed to find a new way to parent the children. He became anxious on how to parent in this new regime and in setting limits for his son, afraid A.M. would stop wanting to spend time with him. Ms. Parker worked with the Father on these issues.

[62] In addition to her one on one work with the Father, Ms. Parker observed the children interacting with the Father approximately six times and debriefed with the Father afterwards, teaching him to observe and take cues from the children and how to be present in the moment. She described the children as being comfortable and relaxed in the Father’s care, but also about the difficulties in the age gap between the two siblings.

[63] Ms. Parker readily acknowledged that she erred in the approach she took at the October 12, 2020 meeting with the Father and the children, when she changed the casual structure of the meeting with the children to talk about why K.L. would not sleepover at the Father’s home. The meeting did not go well, and it was clear that the direct questions from the Father made the children uncomfortable. Thereafter, Ms. Parker continued to work with the Father as a parenting coach instead of family therapy.

Testimony of Ilana Tamari:

[64] Ms. Tamari first completed a Voice of the Child Report and then conducted a custody and access assessment. I am not going to comment on the appropriateness of Ms. Tamari playing both roles which was raised by the Father, as her roles were dictated by a prior court order that was not appealed.

[65] I am also not going to repeat the findings, recommendations or context of both reports, except as it relates to the weight, I am prepared to place on the Assessment Report. The VOC report and the full assessment report both formed part of the trial record.

[66] I have concerns about the report and testimony given by Ms. Tamari. The reasoning behind Ms. Tamari’s recommendations were undermined during cross-examination. At some point during the assessment, her opinions were based on her own dislike of the Father and not objective. An expert is required to give evidence that is fair, objective and non-partisan, otherwise, it is of little assistance to the court. For the reasons set out below, I find that Ms. Tamari entered the assessment with a preconceived perception of the Respondent and therefore was not able to approach the assessment in an objective and unbiased manner.

[67] During her testimony, Ms. Tamari was critical of the Father, describing him as being “annoying and extremely aggressive”. Both adjectives give me concern. The word “annoying” is a reaction to another person or thing, in that the subject person was annoying to someone, in this case, to Ms. Tamari. It was an interesting adjective used by Ms. Tamari in her evidence. Ms. Tamari further testified that in all of her years of doing this work, she has never had a more aggressive and confrontational parent in her office, “including a parent who tried to murder another parent in front of the kids”. This is a very strong comment, another description of the Father personalized by Ms. Tamari. The examples given by Ms. Tamari of the Father being “extremely aggressive” were undermined during cross-examination.

[68] On page 6 of her 65-page report, Ms. Tamari describes an event that took place on October 11, 2018.

An incident occurred during the Interview with the Father on October 11 which this author feels is relevant to this report. The session was due to run between 5pm and 7pm. At approximately 6pm, this author received word that her daughter had been in an accident, and was en route to the hospital in an ambulance. At this juncture, this author informed Mr. Dlacic that there has been an emergency with her daughter, and she therefore needed to end the session early to go to the hospital. The author asked him to please call her office to reschedule. Mr. Dlacic then became confrontational and aggressive, saying that he would not call and reschedule, seeing as he felt this was this author’s responsibility…This incident is being recalled due to call attention to the fact that the Father acted insensitively to this emergency situation. [emphasis added]

[69] During cross-examination I permitted counsel for the Father to use a recording of the abovementioned conversation that the Father had with Ms. Tamari. My reasons for allowing use of this recording were provided to the parties in a separate endorsement following a voire dire held during the trial.

[70] Ms. Tamari was first asked about the transcript produced by the Father because the transcript did not show aggressive behaviour on the Father’s part. Ms. Tamari testified that the transcript did not capture how confrontational the Father was, including his demeanor, his stance and his gaze. The audio was then played in court. The audio did not convey aggressive or confrontational behaviour by the Father.

[71] In explaining her description as set out in her report, Ms. Tamari testified that the Father would not afford her privacy for her call because he came back into her office. She testified that in the past, when she has had to cut sessions short with other parents for personal reasons, they have always immediately acquiesced and were accommodating and showed empathy towards her circumstances. Her evidence was that the Father did not have that reaction and is missing basic social graces and niceties (emphasis added). She acknowledged that she used this incident to inform her work but did not factor it into her recommendations.

[72] However, the evidence of the Father, supported by the audiotape, tells a different story. Ms. Tamari asked the Father to wait in the waiting room for her because her daughter was being taken to the hospital. The Father left her office but realized that he left his binder in her office, apologized for interrupting, and went back in to retrieve his binder. The Father then waited for a while in the waiting room, when Ms. Tamari emerged to advise that she had to end the session and reschedule. The Father’s response was “No problem. I am sorry”. Ms. Tamari then raises the issue of rescheduling and the Father advises that the times she has offered in the past are not good for him, but he will pick something. The transcript then ends with:

MS. TAMARI: Okay. That’s fine. Okay. Thank you very much.

MR. DLACIC: Okay. Thank you. Have a nice day.

MS. TAMARI: You too.

[73] The discrepancy between the description provided by Ms. Tamari in her report and testimony and what was heard on the audio caused me concern.

[74] Ms. Tamari sent a letter with questions to Ms. Parker for her attention. After reading Ms. Parker’s response to the questions, and having spoken to Ms. Parker, Ms. Tamari gave evidence that she concluded that Ms. Parker was sympathetic towards the Father, was intimidated by the Father and was trying to avoid conflict. I did not see any of this reflected in Ms. Parker’s evidence or in her cross-examination. As set out above, I found Ms. Parker to be even handed, readily identifying the Father’s weaknesses as a parent. Ms. Parker did not waiver in her position or testimony and held up to cross examination.

[75] During cross-examination, Mr. Russell was successful several times in bringing out inconsistencies in Ms. Tamari’s evidence and what she had written in her notes or what actually occurred. Although only a small issue, I will give one example of the type of inconsistencies. The Father brought a motion to remove Ms. Tamari as the assessor, claiming she was biased against the Father. Ms. Tamari denied knowing about the motion prior to completing her assessment. However, Ms. Tamari’s notes, dated September 26, 2018, stated that she discussed this very issue with the Mother during the first interview. As another example, Ms. Tamari described an incident where the Father asked the Mother for money in exchange for his consent for the Mother to take the children on holiday. She referred to it as a “bombastic” request and that she had never heard something like that in all of her years of practice. She subsequently acknowledged that she has misunderstood the situation and sees that the Father was asking for support, given the large income differential between the parties, so that he too could afford to take the children on vacation.

[76] While each individual inconsistency may not be significant, when looked at in their totality, I conclude that Ms. Tamari entered into the assessment with a preconceived notion of the Father which shadowed her interpretation of or conclusions on the information before her. As such, I assign little weight to the assessment report.

[77] But in any event, it is well-established law that if the assessor makes a recommendation as to parental decision-making responsibility or a parenting plan, it is only one factor in the judge’s decision. I am not bound to follow the assessor’s recommendations and must come to my own conclusions as to the children’s best interests: see Singer v. Davila-Singer, [2003] O.J. No. 3231 (Ont. C.A.) at par 6. Even though I have given very little weight to Ms. Tamari’s recommendations, I have still arrived at a similar order for the reasons that are set out in detail below.

Analysis:

[78] The Divorce Act was amended on March 1, 2021. Section 35.3 of the amended Divorce Act provides a transitional provision that the amended provisions of the Divorce Act apply to matters that were commenced prior to the amendments coming into force on March 1, 2021 but were not finally disposed of before March 1, 2021. The matter before me was heard at the end of 2020 but was not disposed of until after the amendments came into force on March 1, 2021. Accordingly, my consideration of this matter will be governed by the Divorce Act as amended on March 1, 2021.

[79] I have considered the relevant provisions of the Divorce Act including, but not limited to the following:

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.

(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.

(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,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(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.

(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.

[80] The Father acknowledges that the Mother is a good mom and that the children are closely bonded to her. For him, the trial was not about taking time away from the Mother for any reason other than he also wants to spend time with the children. He did express concern that the Mother was trying to alienate the children from him and was not supportive of his relationship with the children, but I will address that in more detail below. The Father, otherwise, had no real concerns about the Mother’s abilities as a parent.

[81] On the other hand, the mother expressed some serious concerns about the Father’s ability to care for the children, which I will also address in more detail below. However, after hearing all of the evidence, I conclude that for the Mother it was about her being the better parent, not about serious concerns for the Father’s ability to care for the children. Further, despite her expressed concerns, the Mother was agreeable to leaving the current residential schedule for A.M. but wants to curtail the overnight obligation for K.L. because it is against K.L.’s wishes.

[82] In considering the best interest of the children and the factors set out in the amendments to the Divorce Act, the evidence presented at trial weighs in favour of the children continuing to spend the majority of their parenting time with the Mother, but with generous and liberal parenting time with the father and for the parents to have joint decision making responsibility for the children.

[83] The parties have done more than just okay by their children. With little exception, the children have thrived in their care, both during the marriage and after separation. The parties have similar goals and aspirations for their children. Although they have very different personalities and parenting styles, the parties seem to have a similar set of core values that they wish to instill in their children. Further, the parties both prioritize education, whether formal or informal, to ensure that the children are well-rounded.

Meeting the physical needs of the children:

[84] I find that both parents are able to meet the physical needs of the children, given their ages. The children do not have any special needs.

[85] The Father spent some time criticizing the Mother, and specifically her actions following separation. It was clear that he was angry and resentful at the way things unfolded following separation. The Father was not really critical of the Mother as a parent, but more in the way in which she treated him following separation. I found no evidence that the Mother was not able to meet the physical needs of the children. I find that the Mother was more than capable of meeting the needs of the children.

[86] A lot was said by the Mother about the Father’s inability to properly care for the children but specifically with respect to bathing the children and maintaining a proper hygiene routine. Neither child is of an age where they should still need bathing by a parent. Time was spent by both the Mother and her mother giving evidence about the Father not properly wiping A.M.’s bottom after he has gone to the washroom, suggesting that he caused A.M. to have rashes. I question why a nine-year old still needs someone to clean him after going to the washroom or why the Mother did not consider that there is no one at school wiping this child after going to the washroom, and perhaps this was the source of his rash.

[87] The Mother also blamed the Father for one of the children having two cavities and for not brushing the child’s teeth properly. Again, given the age of the child, I question why the child has not been taught to brush his own teeth. Further, the children spend the majority of time in the Mother’s care. She did not show a direct link between the father’s care (or lack thereof) and the children having cavities. As the children get older, the children become more independent on meeting their own needs.

[88] The Mother also described the Father as being lazy, unmotivated and unambitious but in reference to securing a job when they first arrived in Canada, before either child was born. I did not find this relevant in determining what is currently in the best interest of the children. The Mother talked about the Father not getting down on the floor and playing with the children when they were little and taking them to see movies instead of parenting them. Initially the Mother’s evidence was that the parties shared driving the children to and from their extracurricular activities. During cross-examination she acknowledged the Father drove them to many of their activities but placed no value on parenting the children during this time, referring to him merely as a “chauffer”. I find that the Father was involved in the children’s lives, albeit not to the extent of the Mother and that he played a different role than the Mother.

[89] As set out above, the Mother does not express concern about A.M. spending time with the Father. The Father and A.M. went to Disney World for March Break in 2020 while the Mother went with K.L. to London. The Mother is agreeable to the current access schedule continuing for A.M. and despite some of her complaints set out above.

[90] I find that both parents are able to meet the physical needs of the children.

[91] As for the Father’s ability to meet the emotional needs of the children, I have addressed that further below.

Nature and Strength of Relationships:

[92] As set out above, the Mother is agreeable to the current schedule remaining with respect to A.M. The real question before this court is what to do with K.L.

[93] There is no dispute that the Mother and K.L. have a strong relationship. There is no dispute that the Father’s relationship with K.L. is not as close. But the Father plays a different role than the Mother in parenting these children.

[94] The Mother expressed concerns about the Father’s ability to meet the emotional needs of K.L. But I am not sure that his relationship is much different than many father’s experience with their teenage daughters. I accept his relationship is not as strong as K.L.’s relationship with the Mother and that the nature of their relationship is different. I have explored this issue below.

[95] It is also important that the siblings spend time together with both parents, and not that A.M. and K.L. have very different schedules to one another. Both children need to maintain a relationship with each parent and with each other, without a strong sense of one sibling being treated differently than the other.

Views and Preferences:

[96] Again, the issue here is with respect to K.L. A.M. and both parties are agreeable with continuing the current parenting arrangement. It is clear that K.L. would prefer to spend more time with her Mother and currently does not want to spend overnight time at her Father’s home.

[97] The Father accuses the Mother of trying to alienate the children from him and being responsible for K.L.’s refusal to spend overnights with him. The Father was not trying to limit the Mother’s time with the children but trying to increase his own time. This trial was really about K.L. and her relationship with the Father. Even though it took a while, after expressing concerns about the Mother trying to alienate K.L. from him and the Mother not being supportive of K.L.’s relationship with the Father, the Father did recognize that his behaviour played a role in his strained relationship with his daughter.

[98] I do not find that the Mother has tried to alienate the child from her father, although I do not think either parent has done a good job at protecting these children from their own feelings about the other parent. Given K.L.’s age, I will give weight to her views and preferences when deciding this issue.

Ability and Willingness to Communicate:

[99] I find that both parties are committed to acting in the best interest of the children. The parties were able to continue living separate and apart under the same roof, with limited conflict for several months after separation, until the Mother’s family moved into the matrimonial home, at which time the conflict increased. During cross-examination, the Mother acknowledged that a lot of the conflict arose after separation. The Mother’s evidence was that she only started these proceedings because the Father would not agree to the sale of the matrimonial home, not because of increasing conflict.

[100] The tension and conflict between the parties increased when the Mother’s extended family moved into the matrimonial home for four months. The Mother recognized that it may have been hard for the Father but said he should have realized that them moving into the home was not about him but about providing distraction for the children. The Mother did not accept responsibility for increasing the stress in the household and, although she initially denied it, she ultimately accepted that her family argued back and forth with the Father. She cannot recall having a conversation with her family asking them to refrain from this behaviour.

[101] I find that shared parental decision-making is unlikely to perpetuate the conflict.

Ability and Willingness to care for and meet the needs of the child

[102] Both parents are willing to meet the needs of the children. There was concern expressed that the Father could not meet the emotional needs of the children.

[103] The Father acknowledged that he did not always chose the right course of action, that he may have acted out of a feeling of desperation and this further harmed his relationship with K.L. Every witness who testified described the Father as being persistent and incessant in asking questions. He is linear in his thinking and is very direct in his approach to issues. He does miss social cues and is socially awkward. He does much better with structure and routine, which has the effect of making him appear rigid. The Father is aware of these traits and how it affects his relationships with other people and his children. When his routine at home was disrupted as a result of the separation, he struggled to deal with the children.

[104] The Father went through a therapeutic assessment as part of his work with Ms. Parker that suggested, amongst other things, that he is an “insecure, hyper-responsible, conscientious, overly sensitive man who feels a sense of duty and responsibility to get things done and to be productive.”. There was no evidence of any serious mental health issues but he was exhibiting symptoms of depression and anxiety. The test results did suggest that close interpersonal relationships were a challenge for him. Ms. Parker gave evidence that the Father questioned everything and needed/wanted things to make sense. He was aware of how he could be perceived by others and seemed aware of his strengths and weaknesses, all of which bodes well for the effectiveness of his therapy.

[105] During his evidence in chief, the Father acknowledged his shortcomings, “I am who I am”. He testified that he did what he could, the best that he could. His way of interacting and parenting was trying to expose the children to many different experiences and activities. The parties were both committed to the children participating in new experiences and activities.

[106] The Father was brought up by strict parents. He has learned from his own experience and from his work with Ms. Parker that there are different ways to parent and that he does not need to be strict with the children. He continues to seek the advice of Ms. Parker to adjust his parenting skills. He was able to articulate and particularize the ways in which he has adjusted his interaction with the children, to foster a stronger and better relationship with them. The Father expressed regret for his role in the conflict with the Mother’s family during the time that the they were all living under the same roof. He consents to an order that he not speak badly about the Mother or her family to the children.

[107] While the Father has made commendable efforts to address the concerns with respect to his parenting, he still has work to do before I would consider making an order for equal parenting time.

The history of care of the children

[108] A lot of time at the trial was spent going through the history of the marriage and who assumed what role within the marriage and with the children. Both parents played a role in raising the children, albeit different roles. I accept that the mother took on more of the traditional child caring roles when the children were younger. But the parties separated in 2016, over four years ago. The children’s lives and routines have changed since that time, the children have grown older and their needs have changed. Although there are some minor differences in the parties’ positions with respect to A.M., they are not insurmountable. The real issue is K.L. and, as set out above, her views and preferences as well as the Father’s shortcoming in his ability to meet the emotional needs of the children, will weigh in on my ultimate decision.

Family Violence:

[109] I reviewed the evidence regarding family violence raised by the Mother. I accept that the parties had different parenting styles, the father initially being a stricter parent. However, I am not satisfied that any family violence occurred, and if it did, not sufficiently to have an affect on the children or to the extent that it would affect my decision regarding the best interest of the children. I do not find that there was any coercive of controlling behaviour.

[110] I do not find that the nature, seriousness and frequency of any family violence would negatively impact joint decision-making responsibility: see for example Pereira v. Ramos, 2021 ONSC 1737 at par 32 and McBennett v. Danis, 2021 ONSC 3610. Further, as set out above, both parents are committed to the children and have a history of making joint decisions during the relationship and even for a time following separation.

Decision Making Responsibility:

[111] The Father is seeking joint decision-making responsibility but concedes that the Mother is the best person to make medical decisions for the children because she is a doctor. The Mother is seeking sole decision-making responsibility for both children. I find that the parties shall have joint decision-making responsibility for both children, with the Mother to have sole decision-making responsibility on medical issues after consultation with the Father.

[112] Despite the submission of the Mother, the parties do have a history of making major decisions together. What is clear from the evidence of both parties is that they both have high expectations from their children. They both prioritize education and raising well rounded, well-adjusted children. I appreciate that the parents may have different parenting styles, largely related to their very different personalities, but they have been able to make decisions in the best interest of the children in the past.

[113] As set out above, following separation, the parties were able to continue communicating with respect to decisions involving the children. The conflict arose when the Mother’s family moved into the matrimonial home.

[114] I see no reason to take away either party’s decision-making responsibility. It would be in the best interest of the children to have both parents involved in making major decision.

[115] The Father acknowledged that given the Mother’s vocation, she is in a better position to make medical decisions for the children. This should be done in consultation with the Father so that he is kept involved in this aspect of the children’s lives as well.

Parenting Time

[116] The vast majority of the parenting issues between the parties relate to K.L.’s time with the Father. But for this issue, it is likely the other parenting issues could have been resolved without a trial.

[117] There is a presumption that maximum contact with both parents is beneficial. But the maximum contact principle only obliges the judge to respect to the extent that such contact is consistent with the child’s best interests.

[118] The Mother does not object to A.M. continuing with the current schedule. A.M. is finishing grade 4 at The Mabin School and has been described as a caring, sociable and friendly child, who needs to work on improving his reading skills. As set out above, I have concerns about the Father being able to meet the emotional needs of the children and I am therefore not prepared to order equal parenting time.

[119] K.L is fourteen years old and is finishing grade 9 this year. She has been described as a good student (she received stellar marks in her report cards) and responsible.

[120] The best interests of a child are to be ascertained from the perspective of the child, rather than that of the parents, and would include considering the views and preference of a child. While I may not have given weight to Ms. Tamari’s testimony, there was other evidence presented at trial indicating that K.L. wants to spend more time with her Mother. K.L.’s wishes are one factor, but the other factors lead me to make an order in the best interest of the children that is consistent with K.L.’s wishes, including the Mother having a stronger relationship with K.L. and the Mother’s strength in meeting the needs of the children. It is important for K.L. to have a meaningful relationship with her father, but in these circumstances, that relationship may be harmed if she is forced to spend significant time with her father, against her wishes. The Father would be wise to continue working with Ms. Parker to become more responsive to the needs of the children, and to ensure he has the tools for a more seamless relationship with the children as they reach the teenage years.

[121] It is also important for an adolescent to have some autonomous decision-making capabilities, to grow into a healthy adult. It is in the best interest of K.L. to respect and promote her autonomy. However, I am not prepared to significantly curtail her time with her father because it is still important that she have a relationship with her father in order to develop into a healthy adult. Ms. Parker reported that when she observed the children with their father, they seemed comfortable and relaxed. On the other hand, she also stated in her report to Ms. Tamari that “[i]t is as if the three of them have been arbitrarily stuck together with none of them feeling free to be themselves”. Finally, it is important for the siblings to remain together and continuing forming their own bonds.

[122] Parents are not perfect, virtually all parents have faults. This Father is not perfect, but if the parties had remained together, the children would adapt and accept and love their father with faults and all.

[123] I am not going to force K.L. to spend overnights at her father’s except for holiday time. However, I find that it is still in K.L.’s best interest to accompany her brother on the daytime residential schedule. The specifics of my order are set out in detail at the end of this decision.

Support

Income of the parties:

[124] The Mother is an anesthesiologist at North York General Hospital. She is self-employed and therefore does not earn a salary. However, the vast majority of her income comes directly from billing OHIP. The Mother’s income has dropped by approximately $200,000 from 2015 to date. The Mother attributes the drop in her income to the following:

a. The hospital added three more anesthesiologists to the operating room (OR) roster, so she has fewer OR days;

b. The newer hires are getting the better paying operations;

c. OHIP has been clawing back on doctors’ incomes from OHIP;

d. One of the hospitals busiest obstetricians left and they lost a significant amount of their obstetric business;

e. The hospital has dedicated ORs now for emergencies which means more surgeries are taking place during the day. The Mother would be paid a premium for surgeries after 5:00 pm; and

f. All elective surgeries were cancelled from March until the middle of August in 2020 due to the pandemic.

[125] I accept the Mother’s explanation as to why her income has dropped and I see no reason to impute income to her.

[126] The Applicant earned $435,800 from OHIP as of November 2020. She will have had one more payment coming in before the end of the year, which would bring her income up to approximately $475,418. In addition, she has some income from the hospital for work done that is not covered by OHIP of approximately $22,666 and some income from insurance companies, of approximately $6,300. Her business expenses are expected to be approximately $30,000. There is no dispute with respect to the appropriateness of the deduction of her business expenses.

[127] The Respondent continues to work at the TTC. There is no dispute with respect to his income.

[128] The parties’ incomes have been as follows:

Applicant’s income

Respondent’s income

2013

$557,636

$94,528

2014

$655,714

$104,004

2015

$640,044

$110,374

2016

$522,066

$111,097

2017

$492,031

$117,347

2018

$495,405

$120,206

2019

$483,503

$125,651

2020

$474,384

$124,905

Spousal Support:

Legislative framework:

[129] The relevant legislation for determining spousal support is set out at s.15.2 of the Divorce Act as follows:

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

Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

Factors

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

(a) the length of time the spouses cohabited;

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

(c) any order, agreement or arrangement relating to support of either spouse.

Objectives of spousal support order

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

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

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

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

Entitlement

[130] Is the Respondent entitled to spousal support? The Applicant submits the Respondent is not entitled to spousal support because he did not assume any role in the marriage that impacted his ability to earn income, his career was not interrupted and he did not experience any disadvantage as a result of the marriage or its breakdown. I disagree.

[131] There are three bases under which a person may be entitled to support: compensatory, non-compensatory and contractual. Compensatory support is based on economic advantages and disadvantages enjoyed or suffered during the marriage as a result of roles assumed during the marriage. Non-compensatory support is based on the needs and means of the parties. Contractual support is based on a contractual obligation arising as a result of an agreement between the parties.

[132] In this case, neither party has a contractual obligation to pay support to the other. There is some evidence that the Husband supported the Wife while she updated her qualifications, which potentially could create some entitled to compensatory support, but I do not find that the is a compensatory basis for the Husband’s support claim. The parties both worked during the marriage. Within a year of arriving in Canada, the Respondent was able to find employment with the TTC (in September 2002), where he continues to work until this day. The Respondent submits that he supported the Applicant while she completed her pre-requisites to apply for a residency program, which she secured in 2004. However, I do not see an economic disadvantage suffered by the Father as a result of the roles assumed during the marriage.

[133] The Respondent’s strongest (and only) ground for entitlement to support would be non-compensatory support.

[134] As set out above, non-compensatory support is based on the means and needs of the parties, taking into account the needs, means and other conditions as mandated by s.15.2 of the Divorce Act (which is set out above)

[135] As set out section 15.2(6) of the Divorce Act, the objective of a spousal support order is to:

a. recognize any economic advantages or disadvantages to the spouse arising from the marriage or its breakdown;

b. apportion between the spouses any financial consequences arising from the care of any child over and above any obligation for the support of any child;

c. relieve economic hardship of the spouses arising from the breakdown of the marriage; and

d. promote economic self-sufficiency of each spouse within a reasonable period of time.

[136] The court has to consider all of the statutory objectives set out in the Divorce Act and no single objective is paramount. However, trial judges have discretion to determine the weight that should be placed on each factor in the particular circumstances of the case.

[137] The loss to the Father of a higher standard of living and greater financial security when the marriage ended and his inability to maintain that standard of living is a disadvantage. This disadvantage is addressed in the third spousal support objective as set out in the Divorce Act. The third objective of spousal support is to relieve any economic hardship arising from the breakdown of the marriage. By reason of the breakdown of the marriage, the Father lost the sharing of a higher standard of living and a level of financial security. It is this loss which forms the basis of his non-compensatory claim.

[138] Many of the cases relied on by the Mother relate to compensatory support. I have found the Father is only entitled to non-compensatory support and therefore the cases relied on by the Mother do not apply to this case. The Mother did rely on de Gobeo v. do Gobeo, which discusses the “needs and means” test and specifically that when considering the lifestyle to which a person was accustomed to during the marriage, it must be limited or enhanced by the length and exposure of the more affluent lifestyle: 2005 MBQB 261. In de Gobeo, although the husband earned a nice income, he was servicing significant business debt and the parties did not live a ‘lavish’ lifestyle during the marriage as a result of the debt and continued to live a modest lifestyle following separation.

[139] Griffiths, another case in the Mother’s Brief of Authorities, is also distinguishable in that in that in Griffiths the disparity in income post separation was a result of how the parties chose to invest their respective shares from the proceeds of sale of the matrimonial home post separation: Griffiths v. Griffiths, 2011 ABCA 359 at par. 12. Kay v. Kay, also included in the Mother’s Brief of Authorities, is also easily distinguishable in that the husband in Kay did not establish an entitlement to spousal support because there was not a large disparity in the parties’ incomes and the children were living with the wife, who would have been the payor of spousal support. Gordon J. found that “requiring Ms. Kay to pay spousal support would cause an undue hardship for the children”: 2014 ONSC 6274 at par. 40.

[140] The Mother submitted that the cost of carrying the matrimonial home was $90,000, not including any other daily expenses, plus a further $80,000 per year for the children’s special expenses (including school tuition). The Mother is in a home that is now worth over $2 million, with a carrying cost of approximately $8,000 per month. The Father cannot afford similar accommodations or expenses on his own income. The Father is living in a three-bedroom apartment, paying rent of $2,200 per month. The parties travelled as a family three to four times per year. The Father cannot afford to continue that lifestyle on his income alone. The Father suffered an economic disadvantage as a result of the breakdown of the marriage and I find is entitled to non-compensatory support.

[141] On the evidence before me, I have no trouble inferring that the Husband’s standard of living decreased following separation and specifically following his moving out of the matrimonial home. The Father went from living a lifestyle supported by a combined income of over $600,000 to living on an income of $125,000, after a 16-year marriage. Given the large discrepancy in their incomes, the Father was not able to afford a reasonable standard of living, comparable to that enjoyed during the marriage.

Child Support and s.7 Expenses:

[142] Pursuant to the Federal Child Support Guidelines (CSG), the Father should be paying child support for two children in the sum of $1,772 per month based on his 2020 income of $124,905. The issue before the court is what to do with respect to payment for the children’s s.7 expenses.

[143] Section 7 of the Child Support Guidelines provides as follows:

7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

(a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

[144] The parties agree on what expenses were incurred for the children prior to separation. The Father does not dispute any of the s.7 expenses were incurred. These expenses included private school tuition of approximately $64,000 total for the two children per year, school transportation costs of approximately $2,125, after school care which is no longer needed, and extra-curricular activities including piano at $1,200 per year and camp at $2,000 per year. In the past, the children have participated at various times in swim, skiing, skating, basketball, Serbian School and piano lessons.

[145] Ordering expenses to be paid under s.7 of the CSG is permissive and not mandatory. There are a number of factors to be taken into consideration including:

a. the necessity of the expense in relation to the child’s best interests;

b. the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation

[146] In Oliver v. Oliver, Gilmore J. states that “[s]ection 7 is permissive and allows the court considerable discretion to determine what expenses fall within the enumerated s. 7 categories as well as what payment should be made towards those expenses by a party.”: 2018 ONSC 712 at par 99. In that case, the husband did not object to the amounts submitted by the wife, but only that he could not afford them given his income. Justice Gilmore held that on an income of $48,000 it was difficult to justify requiring the husband to contribute to some of the s.7 expenses and ordered that the husband contribute an amount that was lower than his proportionate share given the nature and amounts involved.

[147] Both children attend private school, A.M., at Mabin and K.L. at Havergal, for a total net cost of $64,000. The children have been attending private school since they started school. This was a decision made jointly by the parties during the marriage. However, the question is whether the cost of private school tuition is reasonable on the Respondent’s post-separation income. The tuition and related expenses are almost equal to the Respondent’s entire net disposable income from employment.

[148] In Toscano, the children attended private school and/or university, one child took dance lessons and they both attended therapy: Toscano v. Toscano, [2015] O.J. no. 315. The judge found the expenses reasonable in relation to Mr. Toscano’s means (he was “a multimillionaire” and his income was $493,335 for support purposes) but Ms. Toscano had no income. The judge made an order that she need not contribute to the children’s special or extraordinary expenses, however the expenses would be considered in calculating spousal support: Toscano par 108 and 109. I am exercising my discretion and making a similar order. The Father cannot afford tuition and related expenses in his current income. This expense should be borne by the Mother, but the Mother’s payment of these expenses will be taken into account when considering the appropriate quantum of spousal support.

Quantum and Duration:

[149] The quantum of spousal support under the SSAGs ranges from $2,844 in the low range, $3,318 in the mid-range and $3,793 in the high range, after taking into account the approximately $1,600 the Respondent would owe the Applicant for his proportionate share of s.7 expenses for the children. If the Applicant is responsible for all of the children’s special and extraordinary expenses without reapportionment, the SSAGs provide for spousal support in the range of $1,662 (low), $1,939 (mid) and $2,216 (high), leaving the Applicant with between 26-27% of the NDI of the parties. However, some adjustments need to be made.

[150] The Applicant’s income is greater than $350,000 so the SSAGs may not apply. In Fisher, the Ontario Court of Appeal states that in particular the SSAGs do “not apply to certain enumerated circumstances, including where spouses earn above $350,000”: see Fisher v. Fisher, 2008 ONCA 11 at par 96 and Toscano v. Toscano, [2015] O.J. No. 315 at par 138. In Toscano, Justice Blishen found the payor’s income to be $493,335 and based on that income did “an individualized, fact-based analysis” to determine the appropriate quantum of spousal support. The SSAGs are used as part of the decision-making process.

[151] I considered the following facts to determine the quantum and duration of spousal support: the objectives of the Divorce Act, the SSAG calculations, the length of the marriage (16 year cohabitation/marriage), the non-compensatory entitlement to spousal support, the discrepancy in the lifestyles of the parties following separation, the Respondent’s 2020 income at $124,905, the Applicant’s 2020 income at $474,384, the Respondent’s child support obligation under the Child Support Guidelines of $1,772 per month, the Applicant paying 100% of the children’s special and extraordinary expenses of $5,812 per month without any reapportionment and that this is a final award and not a temporary order for spousal support.

[152] In this case I find it appropriate to adjust the spousal support amount to leave the Respondent with 30% of the NDI of the parties. If the Applicant pays the Respondent spousal support of $3,346 per month and pays 100% of the s.7 expenses, this will leave the Applicant with 70% of the Respondent with 30% of the net disposable income of the parties. I find this to be fair and justified in the circumstances.

[153] Under the Spousal Support Advisory Guidelines (SSAGs), the Respondent would be entitled to support payable for a duration of between 8 to 16 years. Based on the length of the marriage, the large discrepancy in the parties’ incomes during the marriage, the discrepancy in lifestyle following separation, and spousal support being non-compensatory, I find that spousal support should end with the last payment to be made on August 1, 2028.

Retroactive Support:

[154] Neither party spent a lot of time on their calculations for retroactive support. The parties remained in the jointly owned matrimonial home until the closing of sale in March. The expenses for the home were paid from a joint account. The Respondent contributed money into this account following separation in declining amounts, starting with his entire pay, down to $3,000 per month until the closing of sale. The Applicant was paying the bulk of the expenses for the home leading up to the sale, but she was also earning significantly more money than the Respondent and not paying any spousal support. The mortgage payments on the home decreased between separation and sale of the home.

[155] Pursuant to a court order, as of April 1, 2018, the Respondent was paying the Applicant $1,673 per month in child support, plus $1,689 per month as his proportionate share of the s.7 expenses and the Applicant was paying spousal support in the sum of $3,969.

[156] Neither party provided me with accurate Divorcemate or their own calculations as to what was owing between them. While the Respondent may have underpaid his child support obligation in some years, he was overpaying his s.7 expenses. On the evidence before me, I am not making any orders for retroactive adjustments for either support spousal support or child support.

Order:

[157] In this Application where a divorce has been claimed, all provisions in this order are made under the Divorce Act (including relating to parenting and support), the Family Law Act (relating to property), the Courts of Justice Act and Family Law Rules (relating to procedures and costs) and the applicable common law unless indicated otherwise below.

Order to go as follows:

a. The parties shall have joint decision-making responsibility for the children, except that the Applicant shall have sole decision-making responsibility on medical issues for the children, in consultation with the Respondent.

b. The Respondent’s regular parenting time with A.M. shall be as follows:

i. Week 1: Wednesday from 5:00 pm until Thursday morning return to school/camp and if there is not school or camp, then at 9 am; and

ii. Week 2: Tuesday at 5:00pm until Wednesday morning return to school/camp and if there is no school or camp then at 9:00 am and Friday at 5:00pm until Sunday at 8:00pm.

c. The Respondent’s regular parenting time with K.L shall be on the same schedule as her brother as set out above, but whether K.L. sleeps over at the Respondent’s home, will be at the discretion of K.L. If K.L. chooses not to sleepover, it shall be the Applicant’s responsibility to pick K.L. up from the Respondent’s home at 9pm.

d. K.L. shall be provided with a basic phone of her own, that she has on her person at all times. The phone need not be a smart phone but only one where she has unfettered access to place/receive calls or texts. The parties shall share the cost of a basic phone/text plan. If either party wishes to provide data or other upgrades, they shall do so at their own cost.

e. Both children shall sleep in their own rooms, in their own beds. They are both at an age that they should not been sleeping with their parents or extended family.

f. On consent, the parties shall retain Helen Radovanovic as a parenting coordinator. If she is not available or unwilling to act, then the parties shall choose an alternate parenting coordinator. If they cannot agree on an alternate Parenting Coordinator, the issue shall be resolved by way of a 14B motion.

g. The school holidays over Christmas break, March break and summer shall be shared equally. The parties will complete an annual calendar by no later than February 1^st of each year to split these holidays equally. The children may spend four weeks in the summer in Serbia, with the remaining time to be shared equally between the parties. During the summer breaks, Christmas and March break, K.L. shall reside overnight with A.M. and the Respondent.

h. The regular parenting schedule shall not change for long weekends or P.D. days, except that if the children do not have school on Friday of the Father’s weekend with the children then the children shall reside with the Father starting on Friday at 10am.

i. Neither party shall speak negatively about the other in front of the children or allow any third party to speak negatively to or in earshot of the children about the other parent.

j. The Father shall continue working with Ms. Parker on his parenting and communication skills.

k. The children shall spend Father’s Day and Mother’s Day with the respective parent. If the children are not scheduled to be with that parent on the respective date, then the children shall spend Father’s Day with the Father from Sunday at 10am until Sunday at 7pm, and with the Mother on Mother’s Day from Sunday at 10am until Sunday at 7pm.

l. There shall be no make-up time for missed parenting time with the children.

m. The children shall be allowed and encouraged to call the other parent whenever they so desire.

n. The parties shall communicate using Our Family Wizard, and with the assistance of the Parenting Coordinator.

o. Commencing January 1, 2020, the Respondent shall pay child support for the two children of the marriage in the amount of $1,772 per month, and on the first day of each month thereafter until amended by court order or agreement, with credit to be given for amounts paid from January 1, 2020 to date, based on the Respondent’s income of $124,905.

p. The spousal support ordered below has been calculated based on the Applicant being solely responsible for the children’s s.7 expenses from January 1, 2020 and on a go forward basis with no proportionate sharing of this expense, and leaving the Respondent with 30% of the net disposable income of the parties. The following has been included in the s.7 expenses for the children, totalling approximately $69,741 per year:

i. Havergal tuition;

ii. Mabin tuition;

iii. Mabin after school extended care (post-COVID);

iv. School bus to Mabin (post-COVID);

v. Piano lessons and/or ski lessons for K.L.; and

vi. Swimming lessons, basketball and/or camp for A.M.

q. The Applicant may claim all applicable tax deductions/benefits for the children.

r. Child support shall be payable for each of the children for so long as they remain “children of the marriage” within the meaning of the Divorce Act.

s. If a child begins to live away from home to attend post-secondary education, neither party shall pay child support to the other during the academic months.

t. On June 1^st of each year, the parties shall exchange true copies of their income tax returns as filed with Canada Revenue Agency, and such other information as may be applicable from time to time and set out in section 21 of the Federal Child Support Guidelines, as well as a copy of their Notice of Assessment within five business days of receipt of same, to determine what, if any, changes should be made to the ongoing child support payments, retroactive to January 1^st of that calendar year.

u. Both parties shall maintain the children on their extended health and medical plans, available through their employment (or a similar plan) until each child ceases to be eligible dependents under the plan.

v. Commencing January 1, 2020, the Applicant shall pay spousal support to the Respondent in the sum of $3,346 per month, and on the first day of each month thereafter, with credit to be given for amounts paid from January 1, 2020 to date. Spousal support shall be payable until and including August 1, 2028.

w. There shall be no adjustments or retroactive support owing between the parties for any time prior to January 1, 2020.

x. If the parties are unable to resolve the issue of costs between them within 30 days of release of this decision, then the parties shall exchange costs submissions within 60 days of release of this decision, with a brief response, if any to the other’s cost submission within 15 days thereafter. Cost submissions are limited to 4 pages, not including bill of costs and offers to settle. Parties can assume I am familiar with rules 24 and 18 of the Family Law Rules and need not repeat them in their submissions.

Justice S. Shore

Released: July 14, 2021

COURT FILE NO.: FS-17-415944

DATE: 20210714

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Aleksandra Dlacic

Applicant

– and –

Nenad Dlacic

Respondent

REASONS FOR JUDGMENT

S. Shore, J.

Released: July 14, 2021