Court File and Parties

Court File No.: FS-17-40295 Date: 2021-07-28 Ontario Superior Court of Justice

Between: Ting Mei Chong, Applicant – and – Timothy Donnelly, Respondent

Counsel: Ting Mei Chong, Self-represented Timothy Donnelly, Self-represented

Heard: March 29, 30, 31, April 1 and 6, 2021 by video conference

Before: Chozik J.

Reasons for Judgment

[1] The parties were married on September 20, 2009. They have two children, Adella (age 10), and Aria (age 9). They separated on July 16, 2016 but continued to reside together in the same home until late June 2018.

[2] Since their separation in 2016, the parties settled many of the issues between them. They resolved the sale of the matrimonial home, property division and equalization, spousal support and travel with the children. They have abided by a “partial” parenting plan, set out in the interim Order made on consent by Coats J. on April 10, 2018.

[3] At this trial, the parties sought additional terms to fill “gaps” in how they communicate and behave with respect to several issues. Each party is self-represented. Each testified before me. Their evidence is not contentious. They agree on most of the facts. They also agree on a number of terms that should form part of a Final Order.

[4] Their disagreement lies in how to deal with the following issues:

a. Sharing of the parenting time on statutory holidays, Halloween and during the Christmas, March and summer breaks;

b. Sharing of the children’s private school tuition and other section 7 expenses;

c. Division of the RESP contributions made by the Applicant prior to and after the separation into a jointly held RESP account;

d. Scheduling of and attendance at the children’s regular medical, dental and eye appointments;

e. A location for exchanges on non-school days;

f. Whether a change of school, if one occurs, should entail the children attending school in Burlington in the Applicant’s school district (as opposed to Oakville, in the Respondent’s school district);

g. Whether the party who moved out of Burlington (i.e. the Respondent who lives in Oakville) should be “solely” responsible for doing all the additional driving that results from the move;

h. Whether the parties should have a ‘right of first refusal’ if one of the parents is unable to care for the children in certain circumstances, and

i. The parties agree to mediation but cannot agree on the types of issues that should go to mediation in the future and whether costs of mediation, should mediation be necessary, be shared equally.

[5] Ultimately, the parties each proposed competing terms to resolve these issues. I accept that they each view their respective proposals as fair, in the best interests of their children with the aim to reduce the conflict between them. In a number of respects, they ask the court to decide between similarly worded proposals.

[6] For the following reasons, I have decided these issues as follows:

(a) Parenting Schedule for Statutory Holidays, Christmas break, March break and the Summer:

[7] The interim Order of Coats J. set out a 2/2/5/5 parenting schedule. The parties flipped a coin to determine who got which days of the week. In the end, the interim arrangement has been that the children are in the Respondent’s care Mondays and Tuesdays, in the Applicant’s care on Wednesdays and Thursdays, and alternating Fridays, Saturdays and Sundays between the parties. The parties have abided by this parenting schedule for three years. They request that this parenting schedule be imposed on a final basis. I am satisfied that a 2/2/5/5 schedule is in the best interests of the children and should continue on a final basis.

[8] There was a provision in the interim order that on Saturdays, the parent who does not have care of the children have a visit with them. The parties agree that such a provision is not necessary or in the children’s best interests. It shall not be part of the Final Order

[9] The parties cannot agree on how to equally share statutory holidays, many of which fall on a Monday (the Respondent’s day), the Christmas break, March break and the summer holidays. They agree that Halloween should be shared by alternating annually who has the children in the evening. They cannot agree on who should have them in odd or even years, starting this year.

[10] The Applicant proposes the following arrangement:

a. The children would be in the Applicant’s care on Canada Day, the August Civic Holiday, Boxing Day and New Year’s Day; the Respondent would have children on Family Day, Victoria Day, Thanksgiving and Labour Day.

b. Christmas day would be shared, with the exchange occurring at 2:00 pm;

c. Good Friday would follow the regular schedule;

d. The children would alternate spending time with each parent on Halloween. They would be with the Applicant this year (2021) and in subsequent odd numbered years. They would be with the Respondent next year (2022) and in following even numbered years.

e. The Applicant would have the children each Christmas break from 2:00 pm on Christmas day until January 2nd at 8:00 am; the Respondent would have the children from the first Monday after the end of the school term until 2 pm on Christmas day, and then for any remaining holidays after January 2nd at 8:00 am;

f. For the summer break, each party would select a three-week vacation period with the children. The three-week period may or may not be used for travel. The rest of the summer holidays would follow a week-about schedule, rather than the 2/2/5/5 regular schedule;

g. At their current school, the March break is two weeks. The parties agree to share this time by having the children spend one week with each parent.

[11] The Respondent disagrees with the Applicant’s proposal. He argues that there is no need to fix the statutory holiday schedule and that the parties could simply exchange holidays for equal time when they need to. He has no objection to the Christmas break being shared in the manner proposed by the Applicant, except that he would like the children returned to his care on the evening of January 1 as opposed to the morning of January 2 at 8:00 am. He argues that he should have the children on Halloween in odd years commencing this year because the Applicant had them in 2019 and 2018; he had to bring a motion to get Halloween time with them in 2020.

[12] The Respondent submits that the sharing of the statutory holidays as proposed by the Applicant is not fair: in the next three years (2021, 2022 and 2023) Good Friday falls on the Applicant’s day. Splitting the holidays as she suggests would also result in her having larger chunks of time than anticipated. The intention of the 2/2/5/5 schedule, he says, was to minimize the time away from each parent for the children. He argues that a three-week break during the summer is too long for the children to be away from either parent. It is unnecessary to accommodate the Applicant’s intercontinental travel with the children. Otherwise, the summer should follow either the regular 2/2/5/5 schedule or a week-about schedule, with each party selecting a two-week break for travel.

[13] The parties both gave evidence and their calculations as to the fairness or ‘equality’ of sharing the statutory holidays, Christmas and summer holidays. The Applicant testified that a number of the statutory holidays fall on a Monday (for example, Family Day, Victoria Day, Thanksgiving and Labour Day). Mondays are when the children are usually in the Respondent’s care. She proposes that, to maintain consistency, on those holidays the children remain in his care. However, to make sure each parent has the same number of days, she proposes that on Canada Day, the August Civic Holiday, Boxing Day and New Year’s Day the children be in her care.

[14] The Respondent argues that the Final Order provide for an “exchange” of time: a day for a day. Thus, he argues, there is no need to assign specific holidays to a specific parent. Using three years of scheduling (2021, 2022 and 2023) the Respondent sought to show that the schedule proposed by the Applicant would benefit her.

[15] I have considered the evidence and the submissions of the parties. I have concluded that the schedule proposed by the Applicant, while not perfect or “equal” to a mathematic certainty, is in the best interests of these children.

[16] It is not possible to divide a parenting schedule with the mathematical precision and certainty these parties demand. A parenting schedule is intended to be flexible. The principle of maximum contact or an equal parenting schedule do not require a minute calculation of days or hours children spend in the care of a parent. A reasonable approach to joint parenting and shared parenting time must avoid such rigidity.

[17] During the course of the trial, it became obvious to me that these parties require clear enforceable terms. They struggle over minutiae. To reduce conflicts and potential disputes, their interactions must be minimized and little, if anything, should be left for negotiation. Their plans cannot be left vague or up for discussion. To this end, I have concluded that the parenting schedule for sharing holidays and special days must be fixed.

[18] In this case, it is not in the best interests of the children to leave to the parties to negotiate the exchange of holidays for equal time. For these parties, the parenting schedule needs to be predictable. Changes to the schedule and any unnecessary complexity should be minimized.

[19] At the same time, it is not realistic to divide a parenting schedule with the mathematical precision demanded by these parties. The goal of equal parenting is that the children spend roughly equal time with each parent. Equal parenting does not entail a day-by-day accounting with exactitude for each year. The best that can be accomplished is to come up with a reasonable schedule, that is fair and results in the children spending roughly the same quantity and quality of time with each parent generally.

[20] There are pros and cons to sharing the holiday time as suggested by each party. I prefer the Applicant’s approach because (a) it provides certainty to the parties and the children; (b) it minimizes transitions during holidays and other times; (c) it minimizes the potential for conflict between the parties as they attempt to negotiate changes and amendments to the parenting schedule; (d) it gives the children a break during school holidays from the usual routine of a 2/2/5/5 schedule and, (e) it allows each party and the children to establish routines and traditions for specific special days and periods of time during the year.

[21] I am also of the view that it is not always fair to exchange a holiday for a regular day. The two are not the same qualitatively. I am not concerned that fixing the holiday schedule may result in one parent or the other having a longer block of time with the children than anticipated by a 2/2/5/5 schedule. Minimizing the length of time children are away from a parent was important when the interim order was made because the children were very young. This consideration diminishes in importance as children age and mature. Leaving the statutory holidays for exchange for equal time gives an upper hand to the Respondent in negotiating, since many of the statutory holidays fall on his parenting day.

[22] The terms proposed by the Applicant for sharing statutory holidays and school breaks provide the most predictability. While it may not be mathematically perfect, assigning certain days to the Applicant and other days to the Respondent as suggested by the Applicant is generally fair. Over the course of years, this division of parenting time is roughly even.

[23] While specific statutory holidays should be allocated, there shall be a provision in the Final Order that permits the parties to exchange statutory holidays for other statutory holidays, if they so choose. This will allow for some but limited flexibility in the event the parties can agree.

[24] Although the Respondent initially proposed that the regular schedule be maintained during the Christmas and summer breaks, by the end of the trial the Respondent took the position that the Applicant’s proposal for these holidays was acceptable, with minor tweaks.

[25] For example, he would like the exchange following the Christmas holiday to take place on January 1 in the evening instead of January 2 at 8:00 am. In my view, this is of no real consequence except that it in some years, it may cause hardship to the children who may be travelling on January 1 with the Applicant. Since most exchanges during the regular schedule take place at 8:00 am, I am of the view that the post-Christmas exchange should also take place on January 2 at 8:00 am. This will maintain a sense of continuity for the children.

[26] I am also of the view that the Applicant’s proposal for sharing the Christmas break makes sense. Fixing the schedule in the way proposed by the Applicant provides the certainty and clarity these parties require. The children will spend the first part of the holidays with the Respondent, and then a week with the Applicant, and any portion of the remaining school break from January 2 until school resumes with the Respondent. In some years, depending on when the school chooses to take the Christmas break, this will mean that the Respondent’s time is longer at the beginning than the end of the break; other times it will split the other way. Regardless, the children will have the certainty of the schedule and a relief from the regular 2/2/5/5 schedule.

[27] During the summer, the Respondent submitted that the parties should only choose a three- week block for holidays (as opposed to two weeks), in the event the Applicant chooses to travel to Asia. He argues that three weeks is too long for the children to be away from either parent, but that this exception can be made to accommodate intercontinental travel.

[28] I agree that three weeks may be a bit too long for children this age to be away from either parent. At the same time, I am of the view that it is in the best interests of these children that as little as possible be left to negotiation by the parties. Without being critical, I cannot help but observe that, for them, negotiation invites conflict. The parenting schedule proposed by the Applicant during the summer permits the parties to plan their summers independently, without interacting unnecessarily with each other.

[29] Thus, during the summers, each parent shall be permitted to choose a three-week block of time with the children. The Respondent shall choose and notify the Applicant of his three-week block of time by April 1st in even numbered years. The Applicant shall choose and notify the Respondent of her three-week block of time by April 1st in odd numbered years.

(b) Private School Tuition and Other Section 7 Expenses:

[30] The parties agree that, given their current incomes, section 7 expenses should be shared equally by them. They do not agree on (a) whether private school tuition is a necessary or reasonable extraordinary expense and (b) whether a number of other expenses are extraordinary expenses within the meaning of section 7. The parties also cannot agree on a mechanism to determine and share future section 7 expenses.

Private School Tuition:

[31] The children attend a private school. It is not disputed that the parties chose this school for the children shortly after the eldest child was born. The Respondent testified that he and the Applicant researched various schools and purchased the matrimonial home to be close to that school. Both parents have been involved in the school with the children since pre-kindergarten. Adella is now in grade 4 at the school. Aria is now in grade 2. The school continues to grade 12.

[32] The Respondent testified that he likes the school because (a) the children have the same teacher from grade 1 to 8; (b) the school is run by the teachers, rather than the administration and (c) it is not for profit. There is no dispute that the children are excellent students. They are thriving at school. They are both bright and capable. The Applicant testified that the children would do well in any school. Their report cards suggest this to be the case. The children do not have any special needs.

[33] The Respondent takes the position that it is in the best interests of the children to continue to attend at their current school. He argues that continuity is important: the children know the teachers, they have friends there, they have a routine and are thriving. The Respondent also submits that the tuition is a reasonable section 7 expense. Both he and the Applicant are financially able to afford the tuition: the Applicant simply chooses not to spend her money in this way.

[34] Since separation, the Respondent has borne the entire cost of the tuition. From 2016 to 2020, he paid $129,555 for private school tuition. At this trial, he seeks an Order that the Applicant share the costs of the tuition equally on an on-going basis and that she reimburse him for half of the tuition retroactive to their separation in 2016.

[35] The Applicant takes the position that she should not have to pay the costs of the tuition. She is content for the children to continue to attend the private school, provided that the Respondent continue to pay for it. The Applicant argues that she cannot afford to pay for the tuition and would rather contribute to the children’s post-secondary expenses by way of a RESP, than towards a tuition at this age when public education is available to them.

[36] Initially, the Applicant also argued that if she is compelled to pay half of the tuition as a section 7 expense, then the Respondent should pay her child support. She was prepared to waive child support on the children’s behalf so long as the Respondent is paying the private school tuition.

[37] The Applicant earned $61,000 in 2019 and $95,000 in 2020. The Respondent earned $125,000 in 2019 and $100,000 in 2020. The Respondent does not take the position that he cannot afford the private school tuition. Rather, he takes the position that the expense should be shared equally by the parties.

[38] Tuition can be a section 7 expense as defined under the Federal Child Support Guidelines. Section 7 states the following:

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) childcare 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.

(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

[39] Private school tuition can fall under s.7(1)(d). Such expenses can be ordered when they are (a) necessary in relation to the child’s best interest, and (b) reasonable, considering the parents’ financial circumstances: Park v. Thompson, [2005] 77 O.R. 3(d) 601 (Ont. C.A.), at paras. 21-22; Titova v. Titvov 2012 ONCA 864 at para. 23. The determination of what is necessary and reasonable must be made with a view to the family's pre-separation spending patterns.

[40] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under s. 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances: Park v. Thompson, at paras. 20-25.

[41] In my view, having regard to the decisions the parties made during their marriage, the private school tuition is both necessary and reasonable. Continuity for children in their education is important, especially when they have experienced separation of their parents. The children are used to going to this school. The parties specifically picked this school, in part because it provides for the children to have the same teacher from grade 1 to grade 8. The parties agreed that this was the best place for the children while they were married. The Applicant has no objection to the children continuing to attend that school. Post-separation, there is no reason to doubt that attendance at this private school in the children’s best interest.

[42] These parties earn approximately $100,000 each per year. The Applicant lists assets of over $600,000 in her most recent sworn Financial Statement. The Respondent, though currently unemployed, also lists assets of over $90,000 on his latest sworn Financial Statement. The tuition, for both children, is approximately $27,000 per year. Given the pre-separation spending patterns of these parties, I am satisfied that the private school tuition is a reasonable expense.

[43] I find that the private school tuition is a necessary and reasonable s. 7 expense. It is an expense to be shared by the parties. The parties agree to share the s. 7 expenses equally. Therefore, the Applicant must pay half of the tuition for these children on an on-going basis commencing with the 2021-2022 school year. If the tuition for the 2021-2022 year has already been paid by the Respondent, the Applicant shall reimburse the Respondent for her share of the tuition within 30 days of this decision. The parties may share any tax deduction arising from the payment of the tuition.

Retroactive Sharing of the Tuition:

[44] The Applicant argues that she should not be responsible for the tuition retroactively because (a) it was the Respondent’s decision to keep them at that school and (b) she had no notice of the amounts he was seeking until trial.

[45] I am of the view that the Applicant must pay her half share of the tuition retroactive to the date of separation. In D.B.S v. S.R.G., 2006 SCC 37, at paras. 118-125, the Supreme Court of Canada articulated that as a rule, it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent: D.B.S. at para. 123. This general rule is consistent with the Federal Child Support Guidelines, which contain a similar three-year obligation to provide historical income information in (section 25(1)(a)).

[46] In this case, I am satisfied that the Respondent gave formal notice of his intent to seek payment of the tuition in 2017, 2018 and 2019. The Applicant knew that the children were attending at the private school and that tuition was due. She knew that the Respondent paid the tuition. He also asked her to pay her share of the tuition in an email in July, 2018 but she refused.

[47] In his Answer dated October 6, 2017, the Respondent made no specific claim with respect to the payment of tuition. He made a general claim for table amount of child support and support for the children other than the table amount. In his Answer, he indicated that he is paying all of the children’s expenses alone because the Applicant refuses to do so. In his sworn Financial Statement dated October 6, 2017 the Respondent listed school fees as $2,250 per month, and another $545 per month for summer camp, clothing and other children’s activities. The Applicant listed none of these expenses in her Financial Statement dated August 3, 2017.

[48] The accepted offer to settle dated January 22, 2019 sets out at para. 9 that the issue of s. 7 expenses, and specifically tuition, was a matter under discussion in mediation at that time.

[49] These documents, together with the email exchange in July 2018 satisfy me that the Applicant had notice that the Respondent had been paying tuition on behalf of the children and that he was seeking her contribution towards these expenses since separation in July 2016.

[50] I accept the Respondent’s evidence that he has paid $129,555 for tuition from 2016 to 2020. His evidence in this regard is not challenged and supported by receipts. The Applicant shall reimburse him for her half share of the tuition (approximately $64,777.50), net of any tax deductions he has received.

[51] The Respondent shall provide a written outline setting out the tax deductions he received for tuition and the net tuition he paid for 2016 to 2020. This outline shall not exceed two written pages plus any supporting documentation. He shall serve the Applicant with a copy of this written outline and file it with the court by emailing it to my judicial assistant within 30 days of this decision. The Applicant shall have ten days to respond to that outline in writing. Her written response shall not exceed two pages. She shall serve her written response on the Respondent and file it with the court by emailing it to my judicial assistant. The Respondent shall then have five days to serve and file any written reply, which shall not exceed one page.

[52] I am satisfied that an order for the payment of the retroactive tuition, in the amount of $64,777.50 less any tax deductions received by the Respondent, will not occasion a financial hardship to the Applicant: D.B.S. at para. 94-116; Kim v. Kim, 2019 ONSC 4865, at paras. 34-35. Her current Financial Statement shows her to have assets and investments of over $600,000 and she has a stable income of approximately $100,000 annually.

Child Support:

[53] The Applicant took the position that if she was required to pay for the private school tuition, then she was entitled to child support payments from the Respondent. At trial, she did not advance any evidence in support of a claim for on-going or retroactive child support. There is no foundation in the evidence for her claim in this regard. The parties have had an equal parenting schedule and their incomes are more or less equal. At the time of the trial, the Respondent was temporarily unemployed. Despite his unemployment, based on how he conducted the trial, he was content to have income imputed to him of approximately $100,000 per year, as it has been in prior years. I am not satisfied that the Applicant is entitled to any child support. Her claim in this regard is dismissed.

The Pizza/Pasta Lunch and Christmas Fair Kit:

[54] One of the issues between the parties is whether a $45 annual expense (x2) for a weekly pizza/pasta lunch at the children’s school and a $25 (x2) the Christmas Fair Kit are s. 7 expenses that must be shared equally by the parties, or a day-to-day cost to be borne by the parent who has the children in his or her care on the day the expense is incurred. The Respondent incurred this expense. The Applicant refused to pay her half when he asked her to.

[55] The Applicant argues that she should not have to pay $45 for the pizza/pasta lunch because it is on Wednesdays. The children are deemed to be in the Respondent’s care on Wednesdays during the school day; therefore, he is responsible for providing them with lunch for the day. She argues that the cost of the pizza/pasta weekly lunch should therefore be borne exclusively by him.

[56] Similarly, the Applicant argues that the Respondent chose to order the $25 Christmas Fair Kit: the fair itself was cancelled due to the COVID-19 pandemic and the take-home kit was a replacement for the event. Since the Respondent chose to order the kits without her input, for a sum of $50 ($25 x 2), she should therefore not have to contribute to it as a s. 7 expense.

[57] She argues that these expenses were not education related: rather, these events are fundraisers for the parent association.

[58] I do not accept any of the Applicant’s arguments in this regard. Attendance at school, whether public or private, often entails some additional expenses for activities and events outside the classroom. Such expenses include field trips and fundraisers such as pizza/pasta/hot dog/hot chocolate days. Such expenses may include fund raising events such as charity runs or promotional events intended to raise awareness of community causes or social issues, such as hunger, violence, climate change, bullying, etc. Donations are sought for various community projects and charity drives. Some events are sponsored by parent associations, which in turn give back to the school community. Some events give directly to other worthy causes. There is a myriad of various activities at school that require some expenditure of funds by parents. Sometimes parents are asked to contribute funds for group gifts for teachers, other staff or special persons.

[59] Regardless of the activity or cause, the events put on in addition to the regular educational curriculum are intended to enrich the experience of the children while at school, either directly or indirectly through the parents’ association. Participation in such events, while voluntary, is often inherent to being a member of the school community. These are necessary expenses, in the sense that being an active member of the school community and able to participate in these events with other children is in the best interests of children. In this case, the total cost of the pizza lunch and the Christmas kits was $145. This was an entirely reasonable expense, having regard to the parties’ incomes. These expenses must be shared by the parties as s.7 expenses.

Other School Day Expenses and Violin Lessons:

[60] The Respondent claims an additional $52 as a school day expense, to be shared. Receipts in evidence support his claim: this was mostly for school trips. The total school day expense of $197.00 shall be shared equally by the parties.

[61] The Respondent also claims $1,143.74 for Adella’s violin lessons. Although she had agreed to the violin lessons, the Applicant then refused to pay her share of the expense because she was not happy with the timing of his request for reimbursement and because the violin lessons were scheduled at a time that she could not attend. These are not legitimate reasons for refusing to share in a necessary and reasonable s.7 expense. The Applicant shall reimburse the Respondent for her share of the violin lessons forthwith.

Mechanism for Dealing with Section 7 Expenses in the Future:

[62] The parties agree that they should share s. 7 expenses equally. However, they cannot agree on how to determine future s. 7 expenses or a mechanism for reimbursement for these expenses.

[63] The Applicant proposed that going forward, the parties require the consent of the other party prior to incurring the expense and that a request for reimbursement with an accompanying receipt be submitted by the party claiming the expense to the other party within two weeks of incurring the expense. Otherwise, the claim for the expense is deemed waived or expired. Without a valid receipt, she was not prepared to honour any request for reimbursement.

[64] The Applicant’s approach is unnecessarily rigid and not in the best interest of the children. No consent is required prior to incurring a reasonable and necessary expense. The parties should agree in advance on which activities the children will participate in. Such compromise is part and parcel of joint parenting. Where possible, the parties should advise each other of such expenses and request reimbursement within a reasonable time.

[65] Section 7 expenses can be shared annually. Under the Guidelines, parties are required to share income information annually. At that time, any obligation for child support can be determined, and the proportionate share of s. 7 expenses can be determined based on the income information. In this case, the parties can also provide any receipts for expenses they have incurred and request reimbursement. They may do so earlier, if they wish to, but they must do so annually.

(c) RESP Contributions

[66] During the marriage, the parties contributed to a joint RESP account for each child. After their separation, the Applicant continued to contribute to the joint RESP account until December 2019. She then opened a separate RESP account and started making her own contributions to it instead.

[67] The Applicant’s unchallenged evidence is that in 2015 she paid into the joint RESP $2,549 for Adella and $2,549 for Aria. This was prior to the separation. In December, 2016 (after the separation) and December 2017, 2018 and 2019 she paid $2,549 for each child, for a total gross contribution over those post-separation years of $20,392. From these gross amounts, the RESP fund deducted fees. Those fees were tax deductible for the Applicant.

[68] The Applicant now seeks an Order that all of the funds she contributed to the joint RESP post separation be deemed to be her contribution towards the children’s post-secondary education.

[69] I do not agree.

[70] The contributions made towards the RESP during the marriage are not those of the children. The RESPs were a jointly held asset and were subject to equalization: Christakos v. De Caires, 2016 ONSC 702. Contributions made to the RESP during the marriage were to be shared equally by the parties.

[71] The parties resolved all property issues between them on January 30, 2019 when the Applicant accepted the Respondent’s Offer to Settle dated January 22, 2019. (This offer to settle was endorsed by this court on November 19, 2020.) The terms of that Offer to Settle included the following:

9. This offer to settle, if accepted shall be a full and final settlement of issues between the Applicant and the Respondent and all rights and obligations arising out of their relationship with the exception of the parenting plan, s.7 expenses, child support and tuition which are currently under discussion in mediation;

10. Except as otherwise provided in this agreement, the Applicant and the Respondent release each other from all claims at common law, in equity or by statute against each other, including claims under the Divorce Act, the Family Law Act and the Succession Law Reform Act; [Emphasis added]

11. In consideration of and on completion of the parties mutual obligations pursuant to this offer to settle, and except as otherwise provided herein, the Applicant and the Respondent release each other from all claims either may have against the other now or in the future under the terms of any statute, in equity or the common law, including claims under the Family Law Act, and the Succession Law Reform Act, for:

[72] The parties have therefore settled and released all claims against each other for the RESP contributions during the marriage.

[73] Ordinarily, money contributed by a parent to a RESP post-separation is her investment. Whether she chose to put that money into a savings account, TFSA, RRSP or a piggy bank, it is her money to be used by her as she sees fit. The other parent could have no legitimate claim to it. She could use that money to offset her share of s.7 expenses in the future or for whatever purpose.

[74] The difficulty in this case is that the contributions made by the Applicant pre-separation and post-separation have been commingled in the joint account. In addition, the Canada Education Savings Grant (“CESG”) and other education grants, as well as interest and growth, have also been comingled in the RESP accounts. Post-separation, the Applicant continued to contribute to the joint account, then opened her own RESP account but did not offer to share the opportunity to invest in the RESP and take advantage of the CESG with the Respondent. If the Respondent were to contribute to a RESP on behalf of the children, he would not get the benefit of the CESG which has been maxed out by the Applicant.

[75] To be fair to both parties, I have concluded that the parties must share the RESP contributions made by the Applicant to the joint RESP accounts for 2016 to 2019. Those post-separation contributions total $20,392. This allows the parties to share the benefits that come with this form of investment. To this end, the Respondent shall reimburse the Applicant $10,196 for his half of the gross contribution to the joint RESP post-separation. The Respondent’s share of the RESP contribution shall be off-set against the Applicant’s share of the private school tuition.

[76] The joint RESP shall represent both parties contribution towards the children’s post-secondary education, including any growth in that joint account.

[77] Going forward, the parties shall contribute to a RESP equally for the benefit of the children unless they agree otherwise in writing.

[78] The Applicant opened her own RESP account and made contributions to it in 2020. The Respondent may open his own RESP account and make contributions to it in 2021. The parties may alternate years in which they make contributions or split the annual contribution. The purpose is to share equally the available CESG, tax benefits and other grants between them, and so that in the future the jointly held RESP and those RESP accounts that are held by each parent individually can be used to off-set the children’s post-secondary education expenses.

(d) Neutral Location for Exchanges on Non-School Days:

[79] The parties are unable to agree on a neutral location for exchanges on non-school days. The Applicant suggests that the exchanges on non-school days continue at a local Tim Horton’s restaurant close to her house. The Respondent submits that in the event that they are unable to agree on a neutral location in the future, for non-school days, the Final Order should specify that exchanges shall occur at the children’s school.

[80] The interim Order of Coats J. provides that:

Transitions on a school days shall take place at the school with the parent whose time with the children is ending delivering the children to the school and the parent with whom the children will be with picking up the children. If not a school day, the parent who has the children will deliver the children to the other parent’s residence at 8:00 am.

[81] The parties agreed some time ago not to conduct exchanges at each other’s residences. Rather, they agreed on conducting exchanges at other neutral locations. Most recently, and for some time, on non-school days, the exchanges have typically taken place at a Tim Horton’s that is close (500 meters) from the Applicant’s home. The Applicant asks that this continue to be the exchange location on non-school days.

[82] The Applicant lives in Burlington. The Respondent lives in Oakville.

[83] The Respondent submits that he is prepared to continue with the Tim Horton’s as the usual neutral location, but in case the parties move or the children change schools or that location becomes inconvenient, and the parties cannot agree on where the exchanges on non-school days take place, the children’s school shall be named in the order as the neutral location. At present, the children’s school is a 15 to 20-minute drive from each of the parties’ residences.

[84] I am of the view that the term proposed by the Respondent adds an unnecessary layer of complexity, which in turn has the potential to fuel more conflict between the parties. The parties have been conducting exchanges at the Tim Horton’s when necessary. On non-school days, exchanges shall continue to take place at the Tim Horton’s located at 5051 Harvester Road, Burlington Ontario unless the parties agree otherwise in writing in advance.

(d) Attendance at a School “within the Applicant’s home’s school district in Burlington”:

[85] The principal residence of the children is shared by the parties 50/50. The Applicant lives in Burlington. The Respondent lives in Oakville. The Applicant seeks an order that in the event the children are not registered at their current school in Burlington, “the children shall attend a school within the Applicant’s home’s school district in Burlington”.

[86] The Respondent opposes such a term. He submits that there is no reason to favor Burlington over Oakville for schooling at this time.

[87] I agree with the Respondent.

[88] These children are very young. They are currently in grades 4 and 2. It is difficult to predict what would be in their best interests in some unknown point in time in the future. There is no evidence before me that would justify the order sought by the Applicant. Essentially, she seeks to lock in priority of her living arrangements over that of the Respondent. The request has nothing to do with the best interests of the children.

[89] A determination of their best interests at this time in the event they go to a different school in the future is entirely speculative on the record before me. The parties are jointly responsible for making decisions with respect to education that are in the best interests of their children. I cannot determine that it is in their best interests to attend an unidentified school at an unspecified time for an unknown reason.

[90] Similarly, I decline to impose a condition sought by the Applicant that if “any party” moves away from Burlington, that party “will be solely responsible” for any additional driving caused by the move. This is not a fair or reasonable request. Each parent is responsible for facilitating a child’s relationship with the other parent. Sharing the driving is part of that responsibility.

(e) Right of First Refusal:

[91] The Respondent seeks a term that if either parent is unable to personally care for the children during their regularly scheduled time, then the other parent shall be given the right of first refusal to provide care for them after school or if the regularly scheduled parent is unable to personally care for the children for more than six hours. The Applicant opposes such a term. She argues that it interferes with her ability to schedule play dates, sleep overs and other events that the children enjoy and are in their best interests.

[92] I agree. A right of first refusal may be appropriate for very young children. In this case, the parties have a functioning equal parenting time schedule. Each parent is responsible for managing the children’s schedule and activities on their parenting time. A right of first refusal unduly interferes with that ability. It is not in the best interests of these children.

(f) Health and Dental Care Appointments:

[93] The parties agree to take turns scheduling and taking the children to their regular dental and health appointments. They agree that one party should take the children to the dentist in a given year, while the other takes them to other regular medical appointments and that this should alternate annually.

[94] The parties cannot agree, and spent considerable time arguing, who should take the children to their regular dental appointments in 2021. It is an odd numbered year. The Applicant proposed that she take them to their dental and eye appointments in odd numbered years, while the Respondent takes them to their regularly scheduled medical appointments, and they would switch in even numbered years. The Respondent objected because the Applicant took the children to the dentist last year (2020). He and the Applicant argued over whether it would be fair for her to take them to the dentist two years in a row. At one point, the Respondent argued that since he had dental insurance coverage when he was employed, he should be the one to take them to the dentist.

[95] Ultimately, on the evidence before me, I have determined that it makes absolutely no difference to the best interests of these children which parent takes them to which appointments in which year.

[96] Since the Applicant took the children to the dentist in 2020, the Respondent shall schedule and take the children to their dental appointments in odd numbered years commencing in 2021 while the Applicant takes them to their regularly scheduled medical appointments. In even numbered years, the Respondent shall schedule and take the children to their regular medical appointments; the Applicant shall schedule and take them to their regular dental and eye appointments.

(g) Health and Dental Insurance Coverage:

[97] The Applicant submits that in order to save costs, each party should be responsible for listing one of the children on their health insurance plan. She submits that if one child is covered under a plan, then coverage by a secondary plan is unnecessary.

[98] The Respondent disagrees. He submits that both children should be listed under each plan, and the total costs of those plans be shared. In any event, he is currently unemployed. He has no health or dental insurance coverage from an employer at this time.

[99] No evidence was called by the parties in support of either argument. No evidence was called about how any existing plan works or how much it costs. The Applicant did not adduce any evidence to support her contention that what she was proposing is allowed by her plan or that it would, in the end cost less.

[100] Ultimately, the cost of health and dental insurance is a s. 7 expense. It is to be shared by the parties equally. If coverage of both children under one plan is sufficient, and coverage under a secondary plan is superfluous and the parties opt to carry coverage under one plan only, then both parties share in the savings. It is for the parties to decide given the parameters of their individual plans whether the children require coverage under one plan or two. I can see no cost savings from putting one child on one plan, and the other child on a different plan. It makes no sense whatsoever.

[101] Each party shall participate in the health and dental insurance plan available to him or her for both children and provide proof of the coverage as well as any expenses associated with it when requested to do so. The cost of the health and dental insurance is to be shared equally by the parties.

(h) Costs of Mediation:

[102] The parties agree that if there is a dispute between them with respect to a major issue that they cannot resolve on their own, they will enter into mediation before seeking to have the issue adjudicated in this court. They also agree that if a party decides to invoke mediation, that party shall give notice to the other party and mediation shall commence no later than 30 days from the date of the notice being given.

[103] The parties do not agree on what constitutes a major issue or how the costs of mediation should be shared. The Applicant proposes that those costs should be shared equally by the parties. The Respondent submits that the costs of mediation should be paid by the party who commences mediation. He takes this position because, he submits, the Applicant has historically invoked mediation for frivolous or non-major issues. Apportioning costs in this way would deter either party from forcing the other party into mediation over trivial issues.

[104] In my view, costs of mediation over major decisions regarding the children’s education, health and religion should be shared equally. Such major decisions could include things such as what school a child attends, what medical care the child receives or what faith the child is to be raised in. Sharing the costs of mediation for such major decisions equally is intended to motivate both parties to be reasonable and reach agreement when they can. With respect to all other issues, the party invoking mediation shall pay for its costs.

[105] The Applicant submits that scheduling is also a “major” issue. I disagree. A parenting schedule has already been determined. Any issues arising on a day-to-day level regarding scheduling is not a major issue.

[106] Ordinarily it makes sense that parties share the costs of mediation equally. But not in this case. The dynamics between these parties and the fact that they saw fit to litigate over a $45 pizza lunch and a $25 Christmas kit weigh heavily against sharing of this costs equally. Therefore, whoever invokes mediation over non-major decisions should bear the cost of that mediation. This may encourage the parties to act reasonably and not invoke mediation for trivial or non-major issues.

Conclusion:

[107] While a number of the above issues might legitimately engage the cumbersome machinery of a family law trial, many do not. In arguing about a wide range of trivial matters, the parties have made the dispute about themselves and their perceived rights, and lost sight that these decisions are to be made in the best interests of their children. I urge them moving forward to approach such matters with a view to mutual compromise. That is what is in the best interests of the children they share and who I do not doubt they both love.

Order:

[108] If the parties are unable to agree on the form and content of an Order, they may submit a draft order for my consideration.

[109] To this end, I make the following order on a final basis:

1. The parties shall share decision making responsibility, primary residence and parenting time on an equal basis;

2. The regular parenting schedule shall be 2/2/5/5, with the Respondent having parenting time with the children on Mondays and Tuesday, the Applicant having parenting time with the children on Wednesdays and Thursdays, and the parties alternating having care of the children on Fridays, Saturdays and Sundays;

3. The parties shall share statutory holidays as follows: the Applicant shall have the children in her care on Canada Day, Civic Holiday, Boxing Day and New Year’s Day; the Respondent shall have the children in his care on Family Day, Victoria Day, Thanksgiving and Labour Day. The parties shall follow the regular parenting schedule on Good Friday.

4. The parties may exchange statutory holidays for other statutory holidays.

5. The Applicant shall have the children in her care every year from Christmas Day on December 25 at 2:00 pm until January 2 at 8:00 am; the Respondent shall have the children in his care from the first Monday that the children are off school for the Christmas break, and the balance of the Christmas break after January 2, at 8:00 am. until the day the children return to school;

6. The summer holidays start on the first Monday the children are off school and ends on the day the children return to school.

7. For the summer holidays, the children shall spend time with the parents on a week-about schedule with an allowance for two three-week periods, one for each parent. The summer schedule shall begin at 8:00 am on the day after the last day of school and end at 8:00 am on the same day of the week that it started on, before the first day of school in September. The regular schedule shall resume once the summer schedule ends.

8. The Respondent shall choose and notify the Applicant of his three-week block of time by April 1st in even numbered years. The Applicant shall choose and notify the Respondent of her three-week block of time by April 1st in odd numbered years.

9. The remaining summer schedule shall be shared with alternating weeks between the parties. In years where the summer break consists of eleven weeks, one party shall receive six weeks and the other shall receive five weeks, and this shall be rotated from year to year.

10. The March break shall be shared by the parties on a week-about schedule.

11. The parties shall alternate having care of the children on the evening of Halloween from 5 pm to 9 pm. The Respondent shall have the children in his care in 2021 and subsequent odd numbered; the Applicant shall have the children in her care on Halloween in 2022 and subsequent even numbered years.

12. Parenting exchanges on school days shall take place at the school with the parent whose time with the children is ending delivering the children to the school and the parent with whom the children will be with picking up the children. On non-school days, exchanges shall take place at the Tim Horton’s located at 5051 Harvester Road, Burlington Ontario unless the parties agree otherwise in writing in advance.

13. In 2021 and subsequent odd numbered years, the Respondent shall schedule and take the children to their dental and eye appointments while the Applicant shall schedule and take the children to their regularly scheduled medical appointments. In 2022 and subsequent even numbered years, the Respondent shall schedule and take the children to their regular medical appointments; the Applicant shall schedule and take them to their regular dental and eye appointments.

14. The parties agree that the children’s health, dental and eye care providers are:

The Children’s Doctor of Record: Dr. Evangelia Papadouris 208 Bloor Street West, Suite 803 Toronto ON M5S 3B4 Phone: 416-923-6443

The Children’s Dentist of Record: Safari Children’s Dentistry 4021 Upper Middle Rd Unit 5 Burlington ON L7M 0Y9 Phone: 905-331-3031

The Children’s Optometrist of Record Dr. Jo-Anne Monteiro & Associates 12-1960 Appleby Line Burlington ON L7L 0B7 Phone: 905-332-2162

15. The parties agree that if either parent takes the children to a health care provider other than their regular doctor, dentist or optometrist identified above, that parent shall, within 24 hours, inform the other parent and provide the contact details of the health care provider and the reason for the visit to the other parent.

16. Each party shall participate in the health and dental insurance plan available to him or her for both children and provide proof of the coverage as well as any expenses associated with it when requested to do so. The cost of the health and dental insurance is to be shared equally by the parties.

17. The parties shall share equally s.7 expenses, including private school tuition, expenses related to the children’s participation in activities at the school and extracurricular activities.

18. The parties shall share equally private school tuition for the 2021-2022 academic year. If the Respondent has already paid the tuition for the 2021-2022 academic year, then the Applicant shall reimburse the Respondent for her half of the tuition within 30 days of this decision. The parties shall share any tax deduction arising from the payment of the tuition.

19. The Applicant shall reimburse the Respondent for her half share of the tuition he paid for the years 2016 to 2020 within 30 days of this decision. This amount is $64,777.50 less any tax deductions the Respondent received.

20. The Respondent shall provide a written outline setting out the tax deductions he received for tuition and the net tuition he paid for 2016 to 2020. This outline shall not exceed two written pages plus any supporting documentation. He shall serve the Applicant with a copy of this written outline and file it with the court by emailing it to my judicial assistant within 30 days of this decision. The Applicant shall have ten days to respond to that outline in writing. Her written response shall not exceed two pages. She shall serve her written response on the Respondent and file it with the court by emailing it to my judicial assistant. The Respondent shall then have five days to serve and file any written reply, which shall not exceed one page.

21. No child support is payable by the parties to each other from the date of the separation to the date of this order.

22. The Applicant’s claim for child support is dismissed.

23. The Applicant shall pay forthwith to the Respondent $98.50 as her share for the school day expenses and $571.87 as her share of the violin lessons.

24. The Respondent shall reimburse the Applicant $10,196 for his half of the gross contribution to the joint RESPs post-separation. The Respondent’s share of the RESP contribution shall be off-set against the Applicant’s share of the private school tuition.

25. The joint RESPs shall represent both parties’ contribution towards the children’s post-secondary education, including any growth in those joint RESP accounts.

26. The parties shall contribute to any future RESPs equally, for the benefit of the children unless they agree otherwise in writing.

27. The Respondent may open his own RESP account for both children and make contributions to it in 2021. The parties shall alternate years in which they make contributions to their individual RESP accounts or split the annual contribution.

28. The parties agree that if there is a dispute between them with respect to a major issue that they cannot resolve on their own, they will enter into mediation before seeking to have the issue adjudicated in this court. If a party decides to invoke mediation, that party shall give notice to the other party and mediation shall commence no later than 30 days from the date of the notice being given.

29. Costs of mediation over major decisions regarding the children’s education, health and religion shall be shared equally. With respect to all other issues, the party invoking mediation shall pay for its costs.

30. For clarity, the decision as to health care providers and appointments is not a major decision.

31. Either party may proceed with the divorce.

Costs:

[110] The parties are encouraged to agree upon appropriate costs for this trial. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum two pages double-spaced, plus a bill of costs). The Applicant may have 14 days from the release of this decision to provide her submissions, with a copy to the Respondent; the Respondent shall have a further 14 days to respond; and the Applicant shall have a further 7 days for a reply, if any.

[111] If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

[112] If I have not received response or reply submissions within the specified timelines after the Applicant’s initial submission, I will consider that the parties do not wish to make any further submissions and I will decide on the basis of the material that I have received.

(Original signed by)

Chozik J.

Date: July 28, 2021

Court File No.: FS-17-40295 Date: 2021-07-28 Ontario Superior Court of Justice

Between: Ting Mei Chong, Applicant -and- Timothy Donnelly, Respondent

Reasons for Judgment Chozik J.

Released: July 28, 2021