COURT FILE NO.: FC244/19

DATE: 2021/12/16

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Nicole Margaret Hennessy

Katelyn Andersen, for the Applicant

Applicant

• and -

Ryan David Samuel Brockett

Laura Camarra, for the Respondent

Respondent

HEARD: September 21, 22, 23, 24 & 27, 2021

T.G. PRICE J.

[1] Ryan Brockett and Nicole Hennessy met in September 2011. They dated for a few months, after which Nicole moved into a home owned by Ryan in London on or about January 1, 2012.

[2] Their son, H. B., was born on March 12, 2013 and their daughter, V.B., on October 23, 2015.

[3] The parties became engaged after the birth of H., but they never married.

[4] The family lived in London until the summer of 2016, when Ryan purchased a home in St. Thomas. They lived with Nicole’s parents for 4 months while the new residence was being renovated.

[5] They separated in March 2017 but remained in the St. Thomas residence before physically separating in November 2017.

[6] Following their separation, while they were still living in the same residence, Nicole and Ryan jointly developed a schedule which had Ryan caring for the children Monday and Wednesday evenings and alternating weekends from Friday to Sunday, while Nicole cared for the children Tuesday and Thursday evenings, together with the other alternating weekends from Friday to Sunday.

[7] Following the parties’ final separation in November 2017, Ryan started to pay child support, first to Nicole directly and, later, through the Family Responsibility Office.

[8] He also paid spousal support to Nicole for several months in 2018 and 2019 before suddenly stopping the payments after August 1, 2019.

[9] Nicole commenced this proceeding in October 2019.

[10] In February 2020, Ryan asked Nicole if she would care for the children on a few Saturday afternoons so that he could pick up some overtime. Nicole agreed to do so. When the overtime ended, the full alternate weekend parenting regime that had been in place prior to February 2020 did not resume. Nicole suggested that Ryan’s parenting time occur between Saturday at 3:30 p.m. and Sunday at 5:00 p.m. on alternating weekends. Ryan did not agree.

[11] Whatever the reason for the failed reinstatement of Ryan’s pre-February 2020 parenting time, he secured a court order in February 2020 which provided him with parenting time on alternating weekends from Friday after school until Monday morning at the commencement of school. That remains the parenting time regime.

[12] The parties have resolved most of the incidents of parenting time, including maintaining the current times when the children will be in the care of each of them. To the extent that their proposals for parenting time on statutory holidays and other special occasions did not align, they agreed that I would create a parenting schedule covering those occasions by selecting from the options that they presented to me in their draft orders.

[13] This trial primarily focused on the following issues: decision-making responsibility; a request by Nicole to change the children’s surnames to include the hyphenated surnames of both parents; child support and spousal support. A few miscellaneous parenting issues were also addressed.

Issue #1: Should Nicole have sole decision-making responsibility for the children, or should Nicole and Ryan have joint or shared decision-making responsibility?

Background

[14] Following their separation in March 2017, while they were still living in the same residence, the parties were initially on friendly terms. According to Nicole, however, as she started to demonstrate that she no longer regarded their relationship as significant and began to focus more on herself than on the two as a couple, Ryan became more argumentative and possessive of her, demanding to know what she was doing and why she was not at home. She testified that he acted like he was upset that he could not control her.

[15] Nicole testified that, once the parties were living apart, Ryan’s animosity manifested itself at access exchanges. By way of example, when she would tell Ryan that he needed to have more contact with the children, he became upset and would yell at her in front of them. She said that these conflicts distressed the children.

[16] When Ryan was asked about the exchange difficulties described by Nicole, he replied that the conflicts she described had occurred because she would follow him around and antagonize him or refuse to give him the children’s bags. He conceded, however, that his reactions to Nicole were “not always great” and that that he was “not proud” of some of the things he had done during their arguments in front of the children.

[17] According to Ryan, before February 2020 he transported the children to and from Nicole’s residence, where the parties tried to limit their communications by having the children enter or exit Ryan’s vehicle while the parties avoided interacting as much as possible.

[18] In the order obtained by Ryan in February 2020 to address his parenting time, the exchanges of the children were moved to their school. Both parties agree that this reduced conflict between them.

Order Sought

[19] Nicole seeks an order that would require the parties, firstly, to consult on significant issues about which parental decisions need to be made, with her to have sole-decision-making responsibility in most of the statutorily defined domains of activity over which decision-making responsibility may be exercised, including health, education, and significant extra-curricular activities, in the event that the parties cannot come to an agreement through the consultation process.

[20] Ryan seeks a hybrid order, with the parties being granted joint decision-making responsibility, with impasses being broken by a process that would alternate decision-making responsibility between them.

Post-Separation Decision Making

[21] The parties differed in their evidence about how and why decisions have been made, and how information was communicated, or not, between them, since they separated. They focused on four areas: Nicole’s and the children’s residences, and the children’s medical, educational, and extracurricular activities.

Nicole’s Relocations and the Children’s School Registrations

[22] On leaving the family home in November 2017, Nicole and the children moved to London where, for close to two years, they shared a house in Westmount with her sister and her sister’s children.

[23] Ryan testified that Nicole told him of her plans not long before she left the family home.

[24] Ryan also returned to London, where he secured, first, a one-bedroom apartment then, in May 2018, a two-bedroom apartment, both also in Westmount so that he could be near the children.

[25] After taking the two-bedroom apartment, Ryan retained counsel to secure more parenting time. Prior to that occurring, his parenting time did not include overnight periods. The parties differed about the reason behind that. Once Nicole viewed Ryan’s two-bedroom apartment, his parenting time expanded to include Thursday evenings and alternating weekends from Friday to Sunday.

[26] That schedule continued until August 2019, when Nicole and the children moved to Nicole’s parents’ home in Sparta. The move was partially driven by Nicole’s financial issues and partially because she was considering returning to school and her parents would be able to provide her with assistance.

[27] The parties initially agreed that Nicole first told Ryan of her plan to move to Sparta with the children when they were attending counselling with H. to address some difficulties he was having with their separation. The evidence suggests that this occurred in July or August, 2019.

[28] However, upon being presented with a Kettle Creek Public School enrollment form for the children dated June 9, 2019, Nicole changed her evidence to suggest that she may have told Ryan of the planned move to Sparta as early as June 2019.

[29] Ryan testified that he saw nothing wrong with Nicole moving in with her parents because he had understood it was made necessary by her financial circumstances. He was concerned, however, about the effect of the move on his parenting time. The result of Nicole’s move to Sparta was that Ryan lost his Thursday evening parenting time due to the travel time between London and Sparta. As a result, with Nicole’s move to Sparta, Ryan’s parenting time was reduced to alternating weekends.

[30] I find that Nicole likely registered the children at Kettle Creek Public School before she told Ryan of her plan to move to Sparta. It is also clear from the evidence that Nicole made the decision to move the children further away from Ryan without seeking his input or having regard to the effect that the move might have on his parenting time.

[31] In August 2020, Nicole and the children moved to their current residence in Dorchester. Nicole testified that she told Ryan of her plan to move but claimed that she had no specific memory of whether she told him before she enrolled the children in the local public school. The enrollment form for V. at the public school in Dorchester indicates that she was registered on August 14, 2020.

[32] Nicole’s vagueness on this issue, coming as it did on the heels of her evidence about the timing of the children’s enrollment at the previous school, left me with the feeling that she was trying to avoid having me conclude that she functioned as if she had sole decision-making responsibility for the children at the time, which she did not.

[33] Nicole testified that she completed the school enrollment forms because she had always done so since H. was first enrolled in September 2017 at Westmount Public School. In each case, she did note that Ryan was the children’s father, and he was listed as the alternate contact person for school personnel.

[34] While Nicole initially suggested that Ryan did not participate in the children’s school enrollment process before the moves to Sparta and Dorchester because he was busy with his job, under cross-examination she acknowledged that his lack of involvement with the enrollment process in each case was more likely because he did not know that the children were going to change schools at the time that she completed each enrollment form.

[35] Ryan testified that he was upset to learn of the planned move to Dorchester because it would necessitate a further change in the children’s school. According to him, Nicole did not discuss her move to Dorchester with him in advance of deciding to do so. Instead, he first learned of the pending move when Nicole told him in an email.

[36] I find that, as was the case in 2019, Ryan had no input into the decision about whether the children should change schools in September 2020 because, as Nicole acknowledged in her cross-examination, it was not her habit to tell Ryan about her plans for the children.

Children’s Health Issues

[37] According to Nicole, it was difficult to make health care decisions for the children when Ryan did not agree with her.

[38] When asked to provide an example of the types of joint health care decision-making that could be problematic for her and Ryan, Nicole first cited their pre-separation decision about whether or not H. would be circumcised. She testified that it was “just assumed” – presumably by Ryan, as she did not specify by whom - that the circumcision would occur. She did not indicate whether she agreed or disagreed with the procedure being done. I was neither told what decision was ultimately made, nor by whom.

[39] Nicole also spoke about her attempts to address H.’s complaints about having flat feet in April, 2021. According to her, she took H. to the doctor on three separate occasions to address this issue, and Ryan did not attend any of the appointments.

[40] It turns out that H. was prescribed orthotics, which Nicole purchased, after which she provided the bill to Ryan for submission to his insurer for partial reimbursement. Nicole complained that Ryan had not contributed to the payment of the uninsured portion of the cost of the orthotics. Ryan responded that Nicole had not notified him that H. was to be seen about having flat feet, that H. had been diagnosed with having flat feet or that orthotics had been prescribed for him, until after these things had occurred. He was not opposed to H. having orthotics, he said. He just wanted to be involved in the decision to obtain them.

[41] Ryan testified that this was usually the case with Nicole - failing regularly to either advise him prior to or following the children’s medical appointments.

[42] Nicole replied that she has told Ryan of the children’s medical appointments and of any emergency visits to the hospital. She could not recall, however, if she told Ryan of the medical appointments in advance but did concede that it was more likely that she told him after they had taken place, agreeing that Ryan could not attend an appointment of which he had no knowledge.

[43] Prior to the separation, Nicole typically took the children to their medical appointments. She said that she did not recall Ryan attending many medical appointments before the separation. One example where he did attend after the separation, however, concerned medical tests necessary to determine whether or not V. had an allergy to rice.

[44] According to Nicole, V. first showed possible signs of an allergy to rice when she was six months of age. As a result, V. was to have ready access to an EpiPen. Later, in 2020, when V. was to be assessed for an allergy to rice, six medical appointments were needed. Ryan went to only the first two appointments, according to Nicole, who attended all six.

[45] Nicole saw Ryan’s failure to attend the other four appointments as evidence of him being not supportive and, possibly, even denying that V. even had an allergy. Under cross-examination, however, she acknowledged that, because of Covid-19, only one person could accompany V. to the allergist. She also agreed that Ryan wanted to know what was happening at the various appointments.

[46] Ryan agreed that he had attended “a couple” of V.’s appointments with the allergist. He also acknowledged this to be an instance of Nicole advising him in advance of a medical appointment. She also told him that V.’s physician would contact him. That did not occur.

[47] While Ryan does not dispute that V. had a rice allergy, he noted that neither Nicole nor V.’s physician has yet to have told him whether or not V. still has the allergy.

[48] He was not asked by either lawyer whether he had contacted V.’s doctor to ask for that information but it seems that he has not done so. Ryan testified that all he knows of the outcome of V.’s allergy tests is what V. has told him, which he understands to be that the allergy has “gone away.”

[49] The most recent example referred to in the evidence was a hybrid issue touching upon H.’s mental health and school which occurred in May, 2021. In e-mail communications between Nicole and H.’s classroom teacher about his limited participation in on-line learning, Nicole suggested that there were a number of reasons, including her lack of adequate computer equipment, H.’s struggles with on-line learning, her own full-time schooling, the death of H.’s grandfather and “his mental health and attitude [having changed] so much.”

[50] When asked whether she told Ryan of the challenges being faced by H., and her concerns about his mental health, Nicole said that she did not, testifying that when she tries to speak with Ryan, “things do not go well.” She also said that she knew that the upcoming trial “would set the guidelines” about decision making responsibility.

[51] Under cross-examination, Nicole reluctantly acknowledged that it was more “convenient” to not communicate with Ryan about issues concerning the children, although she challenged the use of the word “convenient.”

[52] In the end, Nicole did nothing about H.’s mental health issues, neither contacting H.’s doctor nor speaking to Ryan about accessing his EAP to cover the cost of counselling, which she knew could be available because the insurer had covered the cost of family counselling in 2018.

[53] Ryan testified that he did not believe there had been any disagreements with Nicole about her seeking medical care for the children. He said that, if there is a concern which requires a medical appointment for the children, he should be told of it in order that the parties can agree on whether there is a need for an appointment, and he can attend if he chooses to do so. When asked about what he meant by this response, Ryan clarified that he wanted to know of the appointments, not because he might disagree with the children seeing a doctor but, because he wanted the option of attending to hear what might be said.

[54] He said that he could either go with Nicole and the children to their medical appointments or they could alternate their attendances.

Children’s Education Issues

[55] According to Nicole, there have been no disputes between them on educational issues. The only recent issue about which a decision was required concerned whether the children should attend school last year virtually or in-person. Her position was the children should attend school. When she spoke to Ryan about the matter, he held the same opinion.

[56] As noted, H. had difficulties with on-line learning during lockdown periods last year. Nicole worked with the school to develop a plan to help him. She noted that Ryan took no steps to address this issue but, as already noted, she had not told him of H.’s difficulties at school.

[57] In March 2021, H.’s “Music, Drama and Dance” teacher sent an e-mail to Nicole in which he expressed concern about “some struggles” that he was having with H., including “making poor choices in class such as distracting his classmates from their work, or interrupting a lesson by talking to friends when he should be listening.”

[58] Nicole testified that Ryan did nothing about the concerns expressed by the teacher. She, however, did not tell Ryan about this e-mail.

[59] Ryan testified, however, that he did receive a copy of the e-mail from the teacher. Ryan did not know, he said, that Nicole had also received this email until it came up at trial because there were no recipients’ names listed on the e-mail. Not knowing that Nicole had received the e-mail, Ryan did not contact her to tell her about it.

[60] Ryan testified that, instead of speaking with the teacher who sent the e-mail, to H.’s classroom teacher or to Nicole, his response was to ask H. what was occurring in drama class and to tell him that he should be listening.

[61] In the e-mail, the teacher specifically requested that he be contacted if the recipient had “any strategies that might help H. succeed.” Neither parent contacted the teacher.

[62] When asked, Ryan testified that he had received a copy of H.’s classroom teacher’s May 2021 e-mail which raised concerns about H.’s limited classroom participation. He could not recall if he responded to it but thought that he may have. No such responding e-mail was produced to the court.

[63] Curiously, though, he testified that, after receiving the e-mail, he told H. that he understood that he was “doing better.” When his lawyer pointed out to him that the e-mail was actually not complimenting H. but was, instead, about a problem that he was having, Ryan changed his response and said that he did not discuss the teacher’s concerns with H.

[64] Ryan also confirmed that he and Nicole did not speak about the e-mail.

[65] The children’s final report cards for the academic year 2020-2021 indicate that H. was marked absent for 35 days and V. for 36.5 days.

[66] Nicole testified that H.’s number of absences reflected his aversion to being on screen, which was required for him to be marked as being present during periods of virtual learning. While some of H.’s earlier report cards, pre-lockdown, would seem to support this explanation, I also note that some of H.’s pre-pandemic report cards also reflect a considerable number of unexplained absences from school.

[67] As to V.’s absences, Nicole testified that it was challenging to support V. because of the limited resources available to help such a young student during the periods of virtual learning.

[68] Nicole also attributed some of the children’s absences to the lack of a functioning computer, a problem that she confirmed she did not discuss with Ryan.

[69] When cross-examined, Nicole acknowledged not giving Ryan any of the children’s report cards nor retaining copies the June 2021 report cards which showed the considerable number of absences.

[70] Ryan confirmed that Nicole had failed to keep him informed about the children’s school progress. However, when asked about the events of which he did have knowledge, Ryan could only respond that he does “not know” why he did not speak to Nicole about the email from the classroom teacher, why he did not do more about the email from H.’s music teacher, and why he had not discussed with Nicole H.’s reading and other difficulties.

[71] He further testified that, having discovered H.’s report cards which spoke of his difficulties with reading, something he had not been told about by Nicole, he spoke with the teacher, and she recommended that he read to H. As a result, he started to do so.

[72] Because of steps that he has taken with the school, Ryan now receives emails from the children’s school and can see their report cards.

Extracurricular Activities

[73] When asked about problems with joint decision-making about the children’s extracurricular activities, Nicole cited an instance of Ryan not wanting to pay for the children’s soccer or having them go to soccer during the time that he would be caring for them.

[74] She also said that, in 2021, H. wanted to play ball hockey and, instead of simply agreeing, Ryan wanted more information before he would agree to H. participating.

[75] When Nicole was cross-examined on these issues, the emails between the parties discussing these matters were produced by Ryan’s counsel. They told a more complete story.

[76] As to ball hockey, the e-mails show that Nicole first contacted Ryan to ask if he would agree to evenly “splitting” the costs for ball hockey for H., which was to occur on Sundays, and dance for V., which was to occur on Saturdays, “and/or” drive them to their activities while they were in his care.

[77] Ryan readily agreed to do both for V. but wrote that he needed more information about H’s ball hockey because he found conflicting information about the date of the activity on the website.

[78] After having made inquiries, Ryan wrote and informed Nicole that H.’s ball hockey was to occur on Saturdays, rather than Sunday, as Nicole had originally indicated. He noted that, depending on start times, H.’s ball hockey might conflict with V.’s dance and he could not take the children to two separate locations at the same time.

[79] In the end, Nicole registered V. for dance and H. was not able to participate in ball hockey this year.

[80] This did not strike me as a case of problematic joint decision-making as much as it was a problem of logistics.

[81] When asked of other times that Ryan would not cooperate with her in respect of extracurricular activities, Nicole cited an incident in March 2020 when Ryan would not drive V. to a birthday party during his time with the children, and a time in 2019 when he refused to consent to the children participating in skating lessons during the time that they would be in his care.

[82] Ryan’s position was that there was no problem arranging extracurricular activities for the children with Nicole.

[83] His evidence about the ball hockey and dance registrations mirrored what was set out in the emails.

[84] He did acknowledge refusing to drive the children to St. Thomas for skating during his weekend parenting time in November 2019, pointing out that, at that time, he only had the children in his care between 3:30 PM Saturday and 5:30 PM Sunday. He also acknowledged that he did not respond to Nicole’s initial email promptly. He said that was not his usual habit.

[85] Ryan also acknowledged that he delayed in responding to Nicole’s March 2020 inquiry about V. going to a birthday party the following weekend when the children would be in his care. He did not respond until he was prompted by a second email from Nicole, sent four days after the first, in which she noted that the child’s parents needed a response about V.’s attendance. Ryan’s response was that he would not be taking V. to the party because they had already had plans for that day.

Law

[86] Under s. 18(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended, (“CLRA”) , a “parenting order” includes an order “respecting decision-making responsibility.”

[87] Section 24(1) directs the court that, in making a parenting order with respect to a child, it “shall only take into account the best interests of the child” in accordance with the section.

[88] Under s. 28(1)(a)(i), the court may “grant decision-making responsibility with respect to a child to one or more persons”, while under s. 28(1)(b) the court may “determine any aspect of the incidents of the right to decision-making responsibility…with respect to a child.”

[89] Under s. 28(4), the court “may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons.”

[90] In my view, under these sections, the court may make orders for sole, joint, or partial (or divided) decision-making-responsibility.

Ryan’s Suggested Order Concerning Decision-Making Responsibility

[91] Ryan’s counsel suggested that the language of the various sections quoted are broad enough to also allow for the alternating of sole decision-making responsibility, passing back and forth between parents on either a decision-by-decision basis, or after equal set periods of time.

[92] Counsel provided me with no cases which hold that sole decision-making responsibility can alternate between parents, and I have located none in my own search of the caselaw. Nor was I able to locate any decisions which included the term “alternating custody order” as the concept may have been called under the terms in use prior to the amendments to the CLRA on March 1, 2021.

[93] While the issue appears to be one of first instance, it seems to me that alternating decision-making responsibility is a concept that will invite conflict, especially since it would become effective in circumstances where the parties could not agree on a joint decision.

[94] As I suggested to counsel during submissions, even if parties get along extraordinarily well, it is possible to envision a situation where they disagree on some issue that cannot be jointly decided.

[95] Under the terms of the order sought by Ryan, each of the parents would have sole decision-making responsibility for an unresolved issue on an alternating basis as the default position. However, should the issue arise again, the other parent will have the sole decision-making responsibility. That parent could reverse the first parent’s decision. An example of such a scenario would be what school system – public, Catholic, or private - children should attend. While s. 24(1) of the CLRA makes clear that, in making its decision, a court must have regard to only the children’s best interests, no such duty is imposed on the parent who is exercising the decision-making responsibility.

[96] I have no doubt that, upon request, a court would quickly intervene if a parent were to exercise decision-making responsibility for an improper purpose, but what of the situation where parents have honestly held, legitimate, but opposing views on a matter over which each of them, on an alternating basis, has decision-making responsibility? Would a court be so quick to intervene when the one parent reverses a prior decision of the other? I cannot say that it would, necessarily.

[97] I therefore cannot agree with Ryan’s counsel that, as a method of resolving differences of opinion where the parties cannot jointly agree on a decision respecting their children, it is appropriate to alternate the decision-making responsibility between them.

[98] In the alternative, Ryan’s counsel suggests that the parties be granted exclusive spheres of decision-making responsibility in the event that they cannot jointly decide on some issue for their children. In other words, the impasse breaker would be an order under s. 28(4) of the CLRA allocating decision-making responsibility between the parties. I was not advised over which area or areas either party should have responsibility in the event that such an impasse breaker was to be implemented.

Nicole’s Suggested Order Concerning Decision-Making Responsibility

[99] As noted, Nicole seeks an order that focuses, initially, on process and how a decision might be arrived at jointly, with her to have sole-decision-making responsibility in most of the statutorily defined spheres of activity over which decision-making responsibility may be exercised, including health, education, and significant extra-curricular activities in the event that the parties cannot make a joint decision.

[100] Both parties agree that “culture, language, religion and spirituality” are not significant issues for either of them. Neither sought to exercise sole decision-making responsibility in respect of these areas.

Analysis

[101] In making my decision on this issue, I must have regard to the best interests of the children, as that term is expanded upon in s. 24(3) of the CLRA. The most pertinent to this issue are ss. 24(3)(d), (g), and (i).

s. 24(3)(d) - the history of care of the children

[102] Since separation, the children have resided primarily in Nicole’s care. Recognizing the inevitable logistical problems that the physical distance separating him from the children presents for him, given that they are registered to attend school in another municipality, Ryan has conceded that his initial request for shared parenting is not practical and that, as a result, the children will continue to reside primarily with Nicole. As the person responsible for the majority of the children’s day-to-day parenting, Nicole has had to make many decisions about their lives. That noted, her decisions have not always been above reproach.

s. 24(3)(g) – any plans for the children’s care

[103] Both parents plan to continue with the status quo. The children are, by all reports, doing well with moving back and forth between the two households and enjoy their time with Ryan and his blended family.

s. 24(3)(i) – the ability of each parent to communicate and cooperate with one another on matters affecting the children

[104] This factor goes to the heart of Ryan’s request for an order of joint decision-making responsibility, and Nicole’s opposition to that being the ordered mechanism for decision-making.

[105] Justice S.B. Sherr wrote the following about communication between separated spouses in L.B. v. P.E., 2021 ONCJ 114:

[96] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 CanLII 6423 (ON S.C.).

[106] The Ontario Court of Appeal noted in Kaplanis v. Kaplanis 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 that “[t]he fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered.” (at para. 11)

[107] When asked how she felt about the prospect of being required to make joint decisions with Ryan, Nicole responded that it makes her “feel anxious” because she is afraid to interact with him. She said that she is mindful of her safety and never wishes to be alone around Ryan, preferring that their interactions occur in public. However, at no point in her evidence did Nicole allege that Ryan had physically mistreated her.

[108] Nicole further testified that she did not broach the topic of co-parenting with Ryan because she was afraid of being attacked by him, both verbally and by e-mail. She claimed that she becomes afraid of Ryan when their conversation becomes heated.

[109] Ryan, on the other hand, claimed that the parties had not had any meaningful challenges with respect to decision-making since they physically separated because Nicole simply ignored him when making decisions pertaining to the children.

[110] This is a case where there has been verbal conflict between the parents in the past. It became so heated at times that both agreed that moving the place at which their children were exchanged from Nicole’s residence to the children’s school eliminated that conflict.

[111] However, what has developed in the wake of that move is a smoldering antipathy by each party toward the other which manifests itself in an almost total absence of meaningful communication.

[112] I point only to the fact that Ryan failed to inform Nicole that he had suffered a moderately severe injury in a car accident which caused him to be off work for several months in 2021 as evidence of the degree to which that smoldering antipathy toward Nicole has settled in for him.

[113] It was also clear to me that Nicole has continued with her life, and those of the children, as if Ryan is an afterthought, failing to notify him of significant issues pertaining to the children, or seeking his input into such decisions. By way of example, but for one occasion – V.’s allergy tests - she has not told him, in advance, of the children’s medical appointments. Nor has she sought his input into medical decisions.

[114] Nicole also moved the children’s residence, and changed their school, twice, without seeking Ryan’s input into the advisability of such moves, and with scant, if any, regard to what effect the moves would have on Ryan’s relationship with the children and his parenting time.

[115] She also failed to communicate to Ryan about the difficulties that H. was having at school last year and did not ask Ryan for assistance in obtaining a new computer so that the children could effectively participate in on-line learning.

[116] The absence of communication is not evidence of “a reasonable measure of communication.”

[117] Was Nicole’s withdrawal from and failure to communicate with Ryan justified? She testified about her fear of Ryan and his having given her heated responses to inquiries, both verbally and via e-mails.

[118] On that point, I did note that, under cross-examination, Ryan occasionally became defensive when responding to questions put to him by counsel for Nicole, responding at times with aggressively toned questions of his own. He did not appear to appreciate suggestions intended to paint him in a less than flattering light, pushing back on such suggestions. My impression was that he did not like being challenged.

[119] For his part, Ryan also appears to use communication as a means of control. He twice failed to respond in a timely manner to reasonable questions posed to him by Nicole, requiring her to follow up with a second e-mail.

[120] Furthermore, while Ryan seeks joint decision-making responsibility, I cannot ignore the fact that, when told by school personnel at H.’s school about the difficulties he was having, he neither communicated with Nicole about those difficulties, nor did he respond to the teachers to see what help he might provide to assist H. That said, Nicole also failed to respond to H.’s music teacher. In that instance, both parents abdicated their responsibility to H.

[121] Ryan has also not insisted on being a full participant in medical decisions concerning the children. Even now, he wishes to be notified of medical appointments in order to decide whether or not he needs to attend for the purpose of hearing what is said by the doctor.

[122] What I conclude from the evidence is that each parent has contributed to the situation in which they find themselves, and in which they have placed their children. Each parent perceives the other as the impediment to a regime of joint decision-making responsibility. Ryan sees Nicole, not without justification, as determined to make decisions without regard to his input. Nicole sees Ryan, again not without justification, as angry and confrontational, thereby making joint decision-making impossible.

[123] However, despite those problems, evidence also exists that the parties were able to communicate without animosity about the children’s extracurricular activities, just as they were, early in the separation, able to agree on a parenting schedule.

[124] The Ontario Court of Appeal set out factors for a court’s consideration when it is faced with a request for joint decision-making responsibility in Kaplanis. Those factors were encapsulated in paragraph 94 of Justice S.B. Sherr’s decision in L.B. v. P.E. as follows:

1. There must be evidence of historical communication between the parents and appropriate communication between them.

2. It can’t be ordered in the hope that it will improve their communication.

3. Just because both parents are fit does not mean that joint custody should be ordered.

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise, they must be able to be addressed on an ongoing basis.

6. The younger the child, the more important communication is.

[125] H. is eight, going on nine, years of age and V. just turned six years of age. While I do not have evidence of their views, these children are not infants. They will, undoubtedly, express their own views about the decisions affecting their lives with increasing frequency as they develop and get older.

[126] As Justice M. Kraft wrote at paragraph 85 in Brown v. Brown, 2021 ONSC 1753:

Joint custody allows each parent authority to make decisions concerning his or her children. Absent a demonstrated ability by parents to cooperate in making those decisions an order for joint custody has the potential to increase conflict between parents. That potential must be carefully weighed and considered in relation to the specific circumstances of each case. Parental conflict is a significant risk factor for children, particularly when the conflict is long standing and progressive: Antemia v. Divitor, 2019 ONSC 678, at para. 91.

[127] It is the cold war of non-communication between Nicole and Ryan that I see as being the problem when considering joint decision-making as the mechanism for making significant decisions about the children in this case.

[128] Looking at the different orders sought by the parties, they differ in two key respects:

a. whether what must be done in the first instance is the making of a joint decision, or whether what must be undertaken is consultation with a view to a possible joint decision; and

b. the mechanism for a decision to be made in the event that the parties do not arrive at a joint decision under the first stage of the process.

[129] What is really in dispute in this case is how and by whom significant decisions affecting the children’s welfare will be made if the parties cannot otherwise agree.

[130] In my view, mandatory allocated (or split) decision-making responsibility will not work if mandatory joint decision-making responsibility will not work, and I am not convinced, on the facts of this case, that mandatory joint decision-making responsibility will work for these litigants.

[131] Such an order would have each party with an area or areas of authority to make decisions concerning the children. In my view, it is quite possible to envision decisions in one area which will impact another, over which the other parent might have decision-making responsibility. Medical and educational decisions are often related, for example. (McLellan v. Birbilis, [2021] O.J. No. 6194 at para. 36). How are conflicts of that nature to be resolved in the best interests of a child? The same problem exists if the responsibility is allocated not by area but by child. (Moreton v. Inthavixay, [2021] O.J. No. 2166 at para. 48)

[132] Moreover, split (or allocated) decision-making responsibility is difficult when the children reside primarily with one parent, or when parents are plagued by an inability to communicate effectively. (Moreton v. Inthavixay, [2021] O.J. No. 2166 at para. 47)

[133] That noted, an order granting one parent decision-making responsibility does not come with a carte-blanche right to ignore the views and opinions of the other parent. Meaningful consultation and informed input must be sought before a decision is to be made. Good faith discussions with a view to a joint decision must occur before a decision is reached, by whatever means. (See, for example, McBennett v. Danis, 2021 ONSC 3610, [2021] O.J. No. 2796 at para. 380.2). That is what occurred when the parties addressed the children’s ball hockey and dance lessons.

[134] Additionally, in non-emergency circumstances, particularly where medical decisions are concerned, both parents must be able to articulate their views to those who will be acting on the decision.

[135] And, lastly, in the event of one of the parents deciding, that parent must provide the other with the reasons underlying any decision made.

[136] The order that I will be making will incorporate all of those factors and some additional limits.

Conclusion on Issue #1

[137] For the reasons noted herein, having particular regard to the continuing estrangement and non-communication that exists between the parties, and the fact that, historically and on-going, Nicole has been and will be the parent who will be providing primary care for the children, it is my conclusion that, failing the parties being able to reach a joint agreement on significant issues pertaining to the children in the areas listed in the CLRA, in accordance with the procedures to be set out in the order to be detailed herein, Nicole shall have final decision-making responsibility.

Issue #2: Should the children’s surnames be changed?

[138] According to Nicole, the children were given Ryan’s surname – Brockett - because when they were born, she and Ryan were planning to marry sometime in the future. Had that occurred, all four of them would have had the same last name.

[139] Now, with the relationship having ended, Nicole wants the children’s surnames to include her surname. She advanced two reasons for the requested change from Brockett to either Brockett-Hennessy or Hennessy-Brockett, a combination of the parties’ surnames. Nicole did not express a preference for one over the other.

[140] According to Nicole, if she had known that she and Ryan would not be staying together, she would have given the children a hyphenated last name.

[141] Nicole’s reasons for now requesting the name change for the children were:

1. H. is her parents’ only male grandchild. They would like to pass along their family name to future generations, something that would “mean a lot” to both Nicole and, according to her, her parents, neither of whom testified; and

2. She finds it to be challenging having to deal with teachers and other members of the public, such as hospital staff, while having a different last name than her children. She testified that incidents had occurred where people asked her about her relationship to the children, given that they have different last names. She spoke of being “embarrassed” by these questions, as if there was something wrong with her and the children having different surnames.

[142] When cross-examined about her embarrassment over having a different last name than the children, she spoke about how she “felt,” but she gave no specific examples of anyone treating her or the children differently because their last names are different.

[143] Ryan opposes the children’s surnames being changed. According to him, Nicole chose the surname Brockett for the children. He claims that he and Nicole never discussed an alternate or hyphenated surname for the children.

[144] He disputes that it is problematic for a child to have a different surname from their parent. He pointed out that one of his other children has her mother’s surname and he does not feel that his relationship with that child is hampered in any way.

[145] Ryan also cited the children’s ages as another factor in his opposition to the requested name change. In his view, H. and V. have had an identity as Brockett children since their births. He was concerned that their sense of identity might somehow be altered or compromised if they were to now be provided with a hyphenated last name.

[146] Nicole denied that she had completed the form required in order to provide the children with their names after birth. According to her, it was a nurse who did so. In any event, Nicole did acknowledge that she told the nurse that the children’s surnames were to be Brockett.

[147] She also confirmed Ryan’s evidence that she was not pressured or coerced into providing the children with the surname Brockett.

[148] I had no evidence of the children’s views about this issue, beyond Ryan saying that the children had not complained to him about their last name.

Law and Analysis

[149] I was also not provided with copies of any of the documents required to be filed by or on behalf of the parties under the Vital Statistics Act, R.S.O. c. V.4, as am., at the times of the children’s births.

Birth Registration

[150] The Vital Statistics Act provides that, following a child’s birth in Ontario, “[t]he parents …, or one of them in such circumstances as may be prescribed, … shall certify the child’s birth in the manner, including providing such information and documentation as may be prescribed, within the time and to the person prescribed by the regulations.” [s. 9(1)]

[151] Upon receiving such certification, “[t]he Registrar General, acting on a certification under subsection (1)… may register the birth of a child in Ontario of which he or she becomes aware.” [s. 9(3)]

Determining the Children’s Surname

[152] It is common ground that, however the children’s births were certified, at birth both were given the surname Brockett.

[153] Nicole’s counsel provided me with three cases which address the subject of changing a child’s surname under the Vital Statistics Act.

[154] In Hill v. Shimla (1995), 1995 CanLII 17849 (ON SC), 17 R.F.L. (4th) 316, Justice Henry Vogelsang was faced with a case of a mother wanting to change her child’s surname from that of his birth father to her surname by marriage to a man who was not the child’s father. On that fact alone, the case is distinguishable.

[155] That aside, however, Justice Vogelsang made a number of pertinent comments that, in my view, apply to this case.

[156] He firstly noted, as the parties in this case have submitted, and as I agree, the test to be applied is whether the change of name is in the children’s best interests.

[157] On that point, Justice Vogelsang quoted Justice Thomas Granger’s comment in Silverberg v. Silverberg (1990), 1990 CanLII 12241 (ON SC), 25 R.F.L. (3d) 141 that it “would not be in the best interests of the child” to arbitrarily decide to change a child’s surname “without considering the effect on” the child.

[158] Nothing in Nicole’s evidence could lead me to conclude that she had even considered the effect on H. and V. of having their last names changed at this point in their lives.

[159] As Justice Vogelsang wrote in Hill v. Shimla, citing the words of Justice Zelinski in Belisle v. Poole, (1994), 1994 CanLII 18211 (ON SC), 2 R.F.L. (4th) 165 at p.172 in support of his conclusion that it was not in the child’s best interests to allow the Applicant to change his surname, “In many ways, the surname speaks to who the person is, and is not simply a convenient means of identification.”

[160] While I recognize that those words were written in a case where the father’s surname was being sought to be removed from the child, they are as applicable in this case. Since birth, these children have carried the surname Brockett. That is one aspect of defining who they are.

[161] The reasons advanced by Nicole for their name change has little to do with their best interests, in my view. She seeks to recognize her parents in her children’s surnames, and to avoid some alleged embarrassment she claims to “feel” when she has to tell people that the children have a different last name than she does. Neither appears to focus at all on the children.

[162] I have difficulty accepting her first reason for wanting to change the children’s surnames – because it is important to her parents that their surname be carried on. As she testified, she and Ryan selected the surname Brockett because they intended to marry. Had they done so, not only would the children have borne the surname Brockett, so would she have, as she testified that the plan was for her to adopt the surname Brockett on marriage. I heard no evidence that her parents tried to dissuade her from planning to do that because of the importance to them of the surname Hennessy.

[163] As to the second reason, as Justice Vogelsang wrote in Hill v. Shimla at para. 9, “divided families (and different surnames within a family unit) are a commonplace in these times.” I think that I may take judicial notice of the fact that today, many women use their pre-marital surnames in business and personal dealings, while their children bear their father’s surname. The situations posited by Nicole are probably commonplace.

[164] As Ryan’s counsel also noted in submissions, the persons with whom Nicole is likely to be dealing are more concerned with the children’s surname than they are with whether that surname is the same as hers.

[165] Lastly, in refusing the change of name, Justice Vogelsang noted that he was “mindful of the express agreement of the parties, following some discussion, and the deliberate choice of name that they made after the boy's birth.”

[166] While the evidence in this case is not as clear on whether Ryan had been involved in the discussions about how the children’s surnames were chosen, it is clear that Nicole made a deliberate decision to provide them with the surname Brockett. To now overturn that decision requires more compelling evidence, in my view, than was advanced by Nicole.

[167] Garland v. Browuwer, 2011 ONSC 6437 was a case where the father was trying to have his name added to the child’s surname in circumstances where the mother had omitted it in an effort to ignore his connection to the child, and despite having discussed the child having either the father’s surname or a hyphenated one.

[168] It is in that context that Justice J. R. Henderson wrote:

[63] A child’s name as shown on the birth registration is recognition of the child’s biological ties to his or her biological parents. A birth registration is not merely an instrument of recording a birth; it is evidence of the biological ties between a parent and a child, and a means of affirming those biological ties.

[169] Again, on the facts, Garland v. Browuwer is distinguishable. These children’s surname was chosen by their parents and their births were certified in accordance with that agreement. They know their mother. They reside with her primarily and have done so since the separation. The omission of her surname from their legal, registered surname will not diminish their biological ties to her.

[170] Lastly, Hermanson v. Kiarie, 2017 ONCJ 598 was a case where the father was attempting to obtain an order prohibiting the mother, as custodial parent, from applying under the Vital Statistics Act to change the children’s surname to a hyphenated name which would include both her surname and that of the father. It would mirror the facts of this case if Ryan had applied to prevent Nicole from changing the children’s surnames.

[171] Justice Sherr noted that the Ontario Court of Justice does not have the jurisdiction to change a child’s surname. He addressed the father’s request to prohibit the change of surname as “an incident of custody” under the CLRA.

[172] Justice Sherr refused to prohibit the mother from making the application, writing:

[28] The court finds that the mother is acting in good faith with respect to the proposed name change. It is understandable that she would want the children to share her surname. She wants the children to be publicly identified as much as her children as those of the father. When she agreed to only use the father’s surname for the children, the family was intact. Now that the family is no longer intact, she wants the children’s surnames to reflect the reality that they have two separate homes.

[173] Justice Sherr also relied on the following findings in support of his decision:

[36]…(a) The children are mixed race and don’t share the mother’s surname. The mother testified that she is often required to go to great lengths to explain to service providers that she is their mother and able to provide necessary directions and consents for them. She described a recent trip to the hospital emergency room where she had to go through this process with multiple persons. There is some risk of medical treatment of the children being delayed. There is also a real risk of delay and difficulties when crossing the border if the mother wishes to travel with the children. None of this is in the children’s best interests and can be remedied if the children share the mother’s surname.

[174] It appears that the children being of mixed race was a significant factor underlying persons asking the mother at the hospital about the differences between her last name and that of the children. That is most unfortunate.

[175] However, to the extent that the decision in Hermanson v. Kiarie reflects a different outcome than I would find in this case, as I am not bound to follow it, I choose not to do so.

Conclusion on Issue #2

[176] For the foregoing reasons, I dismiss Nicole’s request that she be permitted to change the children’s surnames.

[177] I also will be ordering that she be prohibited from doing so under the Change of Name Act, R.S.O. 1990, c. C.7, as am.

[178] Under that Act, a person with “lawful custody of a child whose birth was registered in Ontario and who is ordinarily resident there” (s. 5(1.1)), “may apply to the Registrar General… to change the child’s forename or surname or both”, “unless a court order or separation agreement prohibits the change.” (s. 5(1)(a))

[179] While the statute has not been amended to reflect the updated term for custody in the CLRA [“decision making responsibility”], it is clear that, absent a court order or separation agreement prohibiting her from doing so, Nicole could still apply to the Registrar General to change the children’s surnames since, by the terms of my order herein, she has been granted final decision-making responsibility for the children.

[180] While I would like to believe that she would not use her authority to seek to change the children’s surnames in the face of my ruling that she cannot, as Justice Sherr wrote at paragraph 19 in Hermanson v. Kiarie, “[i]n the absence of such an order or agreement, the custodial parent is free to change a child’s name over the objection of the non-custodial parent.”

[181] Since one cannot do indirectly that which they have been refused permission to do directly, I conclude that, in order to maintain the integrity of my order dismissing her request to change the children’s surnames, it is also necessary that I make an order prohibiting Nicole from applying to the Registrar General under s. 5(1) of the Change of Name Act to change the children’s surnames.

Issue #3a: What amount of monthly child support is Ryan to be paying to Nicole for 2021?

Issue #3b: Does Ryan owe arrears of child support for any prior year? If so, what amount?

[182] Since he began to pay child support, Ryan appears to have based the amount paid on his income, net of union dues, for the previous year. For 2021, that practice is reasonable because Ryan’s full year 2021 income is not yet known.

[183] For prior years, however, Ryan’s income for each full year is now known, and any adjustments to child support can now be based on the actual income for each year.

2021

[184] As will be noted below, Ryan’s income, net of union dues, in 2020 amounted to $114,696.00. This generates a child support payment, pursuant to the Child Support Guidelines, in the amount of $1,652.00 per month for two children.

[185] Included in the $114,696.00 was the sum of $11,728.97, which represented a one-time payment resulting from the sale of shares of Solium Capital ULC, a corporation which Ryan believed to be related to his employer, Hydro One. He testified that he did not know that he could sell the shares until 2020, when he made inquiries about whether he could do so.

[186] At the time, he was in substantial debt and the shares were sold to raise funds to reduce it.

[187] When determining income for the purposes of child support, s. 16 of the Child Support Guidelines provides as follows:

16. Subject to sections 17 to 20, a parent’s or spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

[188] “Total Income” is the amount entered on Line 15000 of a taxpayer’s T1 General income tax return. Schedule III deductions are not applicable in this case.

[189] If I were to have regard only to s. 16 of the CSGs, therefore, net of union dues, Ryan’s income for child support purposes in 2020 would be $114,696.00.

[190] However, because his income “spiked” in 2020, the CSGs allow the court to moderate that “spike” through the application of s. 17(1), which provides as follows:

17. (1) If the court is of the opinion that the determination of a parent’s or spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the parent’s or spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

[191] Section 17(1)(a) has been interpreted as allowing for the averaging of a support payor’s income over “the last three years”, meaning the three years which culminate with the year with the spike increase (or decrease), if the court determines that, were it not to do so, the amount attributable to the support payor as income for support purposes would not result in “the fairest determination of” the support payor’s income in the year of the spike increase (or decrease). The decision to average a spouse's income over a three-year period, however, is discretionary and not mandatory (Decaen v. Decaen, 2013 ONCA 218).

[192] In this case, , however, Ryan’s counsel, in her draft order, appears to have taken the position that averaging is not necessary for determining child support in 2021, as her draft bases child support in 2021 on Ryan’s non-averaged 2020 income. She did not request that I consider income averaging in 2021. I am prepared to accept her approach for 2021.

[193] According to Exhibit #7, on the first day of each month between the months of January 2021 and July 2021, inclusive, Ryan paid child support to the Family Responsibly Office (FRO) in the amount of $1,467.00. He continued to pay the same amount in the ensuing months.

[194] As a result, unless he has made up any shortfall by the time this decision is released, for each month in 2021 that Ryan paid child support at the rate of $1,467.00 per month, he must make up a shortfall of $185.00 per month, or $2,200.00 for the year 2021.

2020

[195] Ryan’s income, net of union dues, in 2020 amounted to $114,696.00. This would generate a child support payment, pursuant to the Child Support Guidelines in the amount of $1,652.00 per month.

[196] For the reasons noted above, Ryan’s income for 2020 will remain at $114,696.00 for child support purposes.

[197] According to Exhibit #7, on the first day of the months of January 2020 to July, 2020, inclusive, Ryan paid child support directly to Nicole in the amount of $1,467.00 per month. Commencing August 1, 2020, FRO began to deduct from Ryan’s wages the sum of $1,467.00 per month for the support of H. and V.

[198] Accordingly, unless he has made up any shortfall by the time this decision is released, Ryan owes arrears of child support for 2020 in the amount of $2,200.00.

2019

[199] Ryan’s income, net of union dues, in 2019 amounted to $98,742.00. This would generate a child support payment, pursuant to the Child Support Guidelines in the amount of $1,456.00 per month.

[200] According to Exhibit #7, on the first day of the months of January 2019 to November 2019, inclusive, Ryan paid child support directly to Nicole in the amount of $1,385.00 per month. He paid her the sum of $1,467.00 on December 2, 2019.

[201] Accordingly, unless he has made up any shortfall by the time this decision is released, Ryan owes arrears of child support for 2019 in the amount of $770.00.

2018

[202] Ryan’s income, net of union dues, in 2018 amounted to $98,507.00. This would generate a child support payment, pursuant to the Child Support Guidelines in the amount of $1,453.00 per month.

[203] According to Exhibit #7, Ryan paid child support directly to Nicole in the amount of $1,363.00 per month on the first day of the months of February through June 2018, inclusive, and in the amount of $1,385 per month on the first day of the months of July through December, 2018, inclusive. The parties agree that Ryan also paid Nicole child support in the amount of $1,363.00 in January 2018.

[204] Accordingly, unless he has made up any shortfall by the time this decision is released, Ryan owes arrears of child support for 2018 in the amount of $948.00.

2017

[205] The parties agree that Ryan began to pay child support to Nicole on December 1, 2017, when he paid her the sum of $1,363.00.

[206] Ryan’s income, net of union dues, in 2017 amounted to $92,973.00. This would generate a child support payment, pursuant to the Child Support Guidelines in the amount of $1,385.00 per month.

[207] Accordingly, unless he has made up any shortfall by the time this decision is released, Ryan owes arrears of child support for 2018 in the amount of $22.00.

Issue #4: Is Nicole entitled to spousal support? If so, in what amount and for what duration?

Nicole’s Evidence

[208] When the parties met, Nicole had a Grade 12 education. She was working part-time at Goodlife, which was only one of the jobs that she held before the children were born. She also worked at Adventures on Wonderland and babysat. For some period before the birth of H., Nicole worked full time at Goodlife.

[209] Nicole took parental leave after the birth of each child. After H.’s birth, she became involved with mother/child fitness and took H. with her to the classes that she was teaching at Goodlife.

[210] When asked what was to happen about employment when the children were born, Nicole responded that it was “just assumed” that she would take the pregnancy leave while Ryan continued to work. She did not say by whom this assumption was made, nor whether she felt aggrieved by staying at home during her pregnancy leaves.

[211] She then worked for a property appraisal company for about a year, at which time she was laid off. She also continued teaching her fitness classes until V. was born.

[212] At some point in 2015 or 2016, it not being clear, Nicole established a business called “Body Design Fitness.” She described herself in her 2016 income tax return as a “Personal trainer.” She also established another business called “Mommy Connections,” the “Main product or service” of which was described in Nicole’s 2016 income tax return as being “Networking and education of new parents.”

[213] “Body Design Fitness” produced the following gross and net incomes for Nicole:

2016: Gross: $21,009.41 Net: $1,677.41

2017: Gross: $9,411.50 Net: -$3,388.50

2018: Gross: $6,044.00 Net: -$3,946.00

2019: Gross: $7,480.00 Net: $7,480.00

2020: Gross: $5,700.00 Net: $2,180.00

[214] Nicole agreed with Ryan’s counsel that her losses in 2017 and 2018 likely arose as a result of her acquiring equipment for her fitness business, but a review of her tax returns shows that her operating expenses for such things as insurance, automobile use and professional development were high. There is no indication in the returns that she incurred expenses for the acquisition of equipment in either year.

[215] “Body Design Fitness” ceased operations in 2020 because of Covid-19.

[216] “Mommy Connections” produced the following gross and net incomes for Nicole:

2016: Gross: $2,432.00 Net: $1,634.82

2017: Gross: $7,198.59 Net: $5,041.09

2018: Gross: $8,296.00 Net: $3,075.20

2019: Gross: $4,371.00 Net: $4,371.00

[217] “Mommy Connections” ceased operations after 2019.

[218] Nicole attributed what she described as her diminishing income from self-employment between 2016 and 2019 to her increasing responsibilities for the children after the separation, resulting in her having less time to deal with her businesses. The tax returns do not bear out her claim that her income diminished over that entire period, with the net income from “Mommy Connections” being fairly steady, albeit low, and the best year for “Body Design Fitness” being 2019.

[219] Nicole said that she found it more challenging to get by after the parties’ separation without support from Ryan. She claimed that she could not get a regular job because she was busy getting the children ready to go to school. By September 2018, however, H. was in school full-time, and V. had started attending pre-school. When she needed childcare, she was assisted by her mother, at no cost. Since moving to Dorchester, the children are gone during the day between 8:35 AM, when they get on the bus and 3:55 PM, when they are returned home.

[220] Nicole is currently registered in a three-year program, accelerated to two years, at Fanshawe College, with the goal of obtaining a diploma in child and youth counselling. She will soon be going on an unpaid placement, working in equine therapy. She hopes to secure employment with a school board in the London area, counselling children.

[221] In 2020, in addition to her business income and child support, Nicole received $14,000.00 (gross) for CERB between March and September, and a grant upon returning to school at Fanshawe College in the amount of $15,194.00 (in addition to a loan of $6,972.00). Tuition and books would have had to be paid from those funds. The amount was not quantified in evidence.

[222] In 2021, Nicole received grants of $15,421.00, from which she paid tuition of $1,672.73. She also received the Canada Recovery Benefit (CRB) in the amount of $4,500.00 (gross) and the Canada Recovery Caregiving Benefit (CRCB) in the amount of $7,650.00 (gross).

[223] She has also been receiving the Canada Child Benefit (CCB) in the amount of $1,282.91 per month since January 1, 2020.

Nicole’s Other Sources of Income

[224] At the Trial Management Conference on September 3, 2021, at the request of Ryan’s counsel, I had ordered Nicole to disclose her “employment salary/income from January 1, 2020” onward. In an affidavit sworn by her on September 7, 2021, she disclosed the various governmental benefits listed above but made no mention of other potential sources of income.

[225] It turns out that Nicole did have other ventures on the go through which she sought to earn income which she did not disclose in her affidavit. The information was disclosed by Nicole during her examination in chief.

[226] In 2021, she began to offer “Reiki healing” services, after having taken courses in 2019. She rented a room in the local [Dorchester] wellness clinic in the spring of 2021. She was on Covid lockdown from April to June, after which she restarted offering Reik services, giving free sessions to friends.

[227] She also acknowledged trying to earn an income from the direct sale of vitamins obtained from a company called Usana but indicated that the endeavour was financially fruitless.

[228] Ryan’s counsel put to her in cross-examination that, in her financial statement sworn August 2, 2021, Nicole also made no mention of efforts to sell vitamins or run a Reiki business. Nicole replied that she had not listed the businesses because she did not consider them to be “employment” because she made no money from them. She did acknowledge grossing $250.00 from Reiki before deducting her costs for rent and insurance in 2021, so she ended up losing money. She said that she had engaged in these endeavours, which she felt focused on her strengths, because she needed to support herself and the children.

[229] Nicole’s Form 35.1 affidavit, also sworn on August 2, 2021, was then reviewed. In it, she described herself as a “stay-at-home” parent, not engaged in any business activities.

[230] Ryan’s counsel then reviewed a number of Nicole’s video postings to Instagram between May 27, 2020 and August 21, 2021. They clearly show that she was continually trying to sell the vitamins throughout that period and, towards the end, her Reiki services. She also attempted to persuade people to attend upon her for “crystal therapy.”

[231] She also included the children in some of the Instagram postings without informing Ryan or seeking his consent.

[232] When asked why she stopped posting to Instagram on August 21, 2021, she responded that she did not have time to continue the Reiki business since she would be attending Fanshawe in September.

Ryan’s Evidence

[233] He is 37 years of age and resides in a rental property in North London with his wife (having married her on a weekend break during the trial), their one-year-old child and his wife’s 11-year-old daughter.

[234] In addition to being the father of H. and V., he is also the father of a daughter from a previous relationship, S.L., age 3 years, who resides with her mother.

[235] He has worked for Hydro One for fifteen years. He has held the position of utility arborist since January, 2012, following his completion of a four-year apprenticeship program and writing a ministry exam. Thereafter, he worked to acquire sufficient hours to obtain the seniority necessary to obtain a permanent position. That occurred sometime between 2012 and 2013.

[236] Ryan works five days a week, Monday to Friday, from 7:00 a.m. to 3:00 p.m., although he is sometimes called in to work on weekends because of storms or operational needs in other areas. He most often works overtime in the autumn, usually over a period of between four and six Saturdays. Otherwise, his hours have been fairly steady since the births of H. and V.

[237] He described himself as having been actively involved with the children and household activities when he and Nicole were cohabiting. He described participating in the children’s bedtime routines if he was not working away from home, although he acknowledged that there was not specific routine for bath time or bedtime. He further claimed that, both before and after the children were born, he did the majority of the cleaning and laundry, as well as most of the household cooking. Nicole did not contradict this evidence.

[238] He was reluctant to acknowledge that Nicole contributed at all to the household cleaning, although he conceded that it may have been occurring during the day when he was at work.

[239] After H.’s birth, Nicole worked for about 2 to 3 hours at Body Design Fitness on Monday and Wednesday evenings and Saturday mornings. He provided childcare to H. during Nicole’s absences. Sometimes, on the Saturdays, he would take H. to where Nicole was instructing. After she was finished, they would continue with their day.

[240] According to him, both children attended preschool before starting Junior kindergarten. H. began to attend at 2 to 2 ½ years of age. V. began to attend at 3 years of age.

[241] He claimed to be generally unaware of the amounts that Nicole earned from her various jobs or self-employment activities while cohabiting because she maintained her own bank account. He said that the only time he ever really knew Nicole’s income was when it was disclosed on his income tax return.

[242] Nicole had access to a joint account into which his pays were deposited, and she was able to use some of that money to purchase groceries for the family. She did not contribute to the joint account.

[243] Ryan’s income was reviewed over the period between 2012 and 2020. His Line 150 (later, 15000) income increased from $90,700 in 2012 to $99,925 in 2019.

[244] As has already been noted, his income increased in 2020 because of his sale of shares. He used the proceeds of disposition to pay debt. However, the debt was not fully retired. As a result, he entered into a consumer proposal in March 2020, pursuant to which he will be paying $300.00 per month until March 2025.

[245] When asked how he got into such financial difficulty, he responded that he pays “a lot of child support.” In addition to the child support for H. and V., he pays child support of $650.00 per month for S.L., although that amount was agreed upon with her mother and is paid to her directly.

[246] He also said that he had accumulated much debt from previous relationships. He had been married before, separating in January 2010.

[247] He was in a motor vehicle accident in March 2021, when his vehicle struck a deer during a rainstorm. His vehicle was written off. He had severe tissue damage in his right shoulder and fractured carpal bones in his wrist. He also had “neck issues” which have since resolved. He had been attending physiotherapy but that is ending. He was off work between March and July 2021, when he returned on graduated work hours.

[248] Following the motor vehicle accident, Ryan received full pay from Hydro One for about four weeks, following which he received 75% of his regular gross salary.

[249] His year-to-date income at August 4, 2021 amounted to $61,125.00. According to the pay statement he produced, his pay was divided almost equally between hours paid at full pay and hours paid at 75% of full pay over the period between July 22 and August 4, 2021.

[250] He took a five-week parental leave beginning August 27, 2021 which, at the time of trial, was expected to end on October 4. At that time, he was to resume full time hours but not full-time duties.

[251] He agreed with Nicole’s counsel that his effective parental leave income is about 38% of his regular income, which would place it at approximately $722.00 per week, or $3,600.00 over the period of the leave.

[252] Ryan agreed that he had paid spousal support to Nicole in February and March 2018, stopped, and resumed paying between July 1, 2018 and August 1, 2019, inclusive. The amount paid totaled $3,885.00. He testified that he stopped paying on both occasions because he was not subject to any court order which required him to pay spousal support.

Positions of the Parties

[253] Nicole’s counsel submitted that her client was entitled to spousal support on a compensatory basis. She described Nicole’s and Ryan’s five-year relationship as being “mid-length.” She submitted that Nicole was unable to work full-time during their cohabitation because she was caring for the children. She was also said to have advanced Ryan’s career by caring for the children.

[254] Counsel further submitted that Nicole’s ability to earn an income following the parties’ separation was limited by her childcare responsibilities. As a result, she submitted, Nicole had suffered a significant economic disadvantage as a result of the end of the relationship.

[255] She asked that I award spousal support at the high end of the range of spousal supports generated by the application of the Spousal Support Advisory Guidelines (SSAGs).

[256] Ryan’s counsel began by asking me to find Nicole’s evidence to be not credible, based upon her failure to fully disclose all of her sources of income in her Financial Statement, and the degree to which she was actively trying to earn income at a time when she swore that she was not working and was a “stay-at-home” mom. She submitted that the discrepancies between what was originally sworn to by Nicole and what was disclosed subsequently were deliberate and constituted an attempt to mislead the court. As a result, she urged me to be very skeptical of Nicole’s evidence about her need for spousal support.

[257] Ryan’s counsel submitted that, before the quantum of any spousal support becomes an issue, entitlement must be resolved. Since the parties were not married, she noted that support is governed by s. 33 of the Family Law Act, R.S.O. 1990, c. F.3, as am. (“FLA”)

[258] She submitted that a five-year relationship is one of short duration, disagreeing with Nicole’s counsel on that point. She pointed out that, at the time the parties formed their relationship, Nicole only had a grade 12 education and no career or career plans to speak of. Although Nicole spoke of things she would like to do, she never followed through, although Ryan testified that he would have supported her in her endeavours, if she had done so.

[259] She also rejected the suggestion that, during the relationship, Nicole was deprived of opportunities to earn income, pointing out that she started two businesses and took the children to work with her in order that she could advance her business “Body By Design.”

[260] She further pointed out that, in 2017, Nicole had a gross income of $23,000, working part-time when the children were one and three years of age. She claimed that, if that were to be extrapolated to full-time employment, Nicole was capable of earning as much as $46,000.00 that year.

[261] She also submitted that Ryan is not responsible for the reductions in Nicole’s income after the separation. She affixed the blame for that on Nicole, who she described as “able-bodied, healthy, young, and fit.”

[262] On the issue of need, she pointed to the income Nicole earned from other sources over the last two years, since the onset of Covid-19, including the various government benefits made available and the grant money she received to enable her to attend school. When one adds in child support, in the submission of Ryan’s counsel, Nicole’s income far exceeds the expenses she claimed in her Financial Statement, meaning that she has no need for spousal support.

[263] She also rejected Nicole’s claim that support should be payable from 2017, noting that the claim commenced in 2019 and no motion was ever brought for interim spousal support. She reminded me that Ryan has paid spousal support to Nicole and that, if spousal support is to be awarded, he should be given credit for the payments made.

[264] She further said that there is nothing impeding Nicole from seeking part-time employment while she goes to school, since the children are not in her care during the day, pointing also to Nicole’s efforts to earn income from her Reiki business and the sale of vitamins. She asked that I impute an income to Nicole equal to that which she would earn at the minimum wage of $14.50 per hour for 10 to 20 hours per week at if I am going to consider ordering spousal support.

[265] She pointed out that Nicole will be graduating from Fanshawe College in August 2022, after which she foresees good employment prospects.

[266] In doing so, she asked that, if I award spousal support, I put a cap on the length that it is payable, suggesting that the support should be payable for no more than 2½ years from the date of separation.

Law and Analysis

[267] I begin by addressing the submissions of Ryan’s counsel about Nicole’s credibility.

[268] I am troubled by the fact that she was, at the very least, less than fully forthright about her efforts to earn income when she swore her Financial Statement and Form 35.1 affidavit.

[269] Affidavits are sworn documents. The person who affixes their signature and swears the contents of an affidavit to be true must pay serious and careful attention to what is written in it. Courts rely upon the sworn statements made by witnesses in their affidavits. If it is shown that a witness has purposely misled the court by swearing a false affidavit, the other evidence of that witness could, at the very least, be regarded with a high degree of skepticism, if not rejected outright. Furthermore, the purposeful swearing under oath to a false document could, in the right circumstances, be found to be perjury.

[270] Having had the opportunity to observe Nicole as she testified, bearing in mind her presentation in the Instagram videos produced by Ryan’s counsel, and measuring that evidence also against the apparently lofty goals that Nicole thought she might achieve through the two businesses she established, at least one of which appeared to me to have no long-term viability from the outset, I have concluded that Nicole was far more a naïve idealist than a realist. It is fair to conclude that her goals always exceeded her reach. Therefore, I do not conclude that Nicole was attempting to deceive the court when she failed to disclose her efforts to earn an income from Reiki or the sale of vitamins.

[271] I accept her explanation for why she did not disclose, or understand why she had to disclose, all of her sources of income, regardless of whether or not she profited from those sources of income, when she swore her Form 35.1 and her Financial Statement. To have disclosed income that netted her no profit added nothing to her narrative, in her mind, so did not need to be disclosed, from her perspective.

[272] That said, while I do not find that she was purposely attempting to deceive me about her income sources, and whether she was, or was not, working at any point in time, I will also not disregard the financial evidence which she ultimately disclosed through the September 7, 2021 affidavit requested by Ryan’s counsel.

[273] I have spent considerable time reviewing the income tax returns filed by Nicole’s counsel. As a result, I am satisfied that I was presented with a fairly accurate picture of her financial circumstances in the latter stages of the parties’ relationship and following their separation. The information set out in the affidavit dated September 7, 2021 adds to and clarifies the picture of Nicole’s financial circumstances in recent years.

[274] Ryan’s counsel is correct in her submission that, before discussing the quantum of spousal support, I must determine whether Nicole has established an entitlement to spousal support.

[275] This is specifically pointed out by the authors of the SSAGs themselves at the outset of Chapter 4 of the “Spousal Support Advisory Guidelines Provides User’s Guide”, where they wrote:

An analysis of entitlement is the crucial first step before any application of the Guidelines. In practice this step is often ignored, the assumption being that any income disparity that produces a positive range for amount under the SSAG formulas means there must be entitlement. The Advisory Guidelines do not determine entitlement. They deal with the amount and duration of support after entitlement has been established. They do not provide an arithmetical basis for entitlement. Entitlement is a threshold issue that must be determined before the Guidelines will be applicable. The existing legal framework recognizes three bases for entitlement: compensatory, non-compensatory, or contractual. If there is a finding of no entitlement, the Guidelines are not applicable.

[276] As the authors of the User’s Guide point out, there are three bases established by the Supreme Court of Canada upon which spousal support may be awarded. Neither party in this case suggested, in my view quite correctly, that contractual spousal support is an issue or need be considered by me.

[277] The factors underlying the other two types of spousal support, compensatory and non-compensatory, based on need, were articulated by Justice D. Chappell as follows in Thompson v. Thomson, 2013 ONSC 5500, [2013] O.J. No. 4001 (footnotes omitted), as follows:

55 The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of these sacrifices and contributions. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to interdependency between the spouses and merger of their economic lives.

56 Compensatory support claims arise most typically in situations where one spouse has suffered economic disadvantage and contributed to the other spouse's income earning potential as a result of assuming primary responsibility for childcare and/or home management obligations. However, a compensatory claim can also be founded on other forms of contribution to the other party's career, such as supporting the family while the other party obtained or upgraded their education, selling assets or a business for the benefit of the family unit, or assisting a party in establishing and operating a business that is the source of that party's income.

57 In considering whether a compensatory claim exists, the court must undertake a broad and expansive analysis of advantages and disadvantages which each party experienced throughout the relationship as a result of the marital union. In some situations, a compensatory claim may be defeated or weakened by the fact that disadvantage suffered by the claimant spouse is offset by disadvantage of a different type experienced by the other spouse.

58 A compensatory claim for spousal support may be established even where the recipient spouse is employed and reasonably self-supporting at the time of the parties' separation. This situation can arise where, despite that spouse's ability to meet their own needs, their financial advancement has been impaired as a result of subordinating their career to that of the other spouse, or from adopting a less lucrative career path in order to accommodate the needs of the family.

58

59 Spousal support entitlement can also arise on a non-compensatory basis, as a result of the needs of a spouse. The Supreme Court of Canada discussed this basis of entitlement in Bracklow v. Bracklow. It emphasized in that case that a spouse may be obliged to pay support based on the other spouse's economic need alone, even if that need does not arise as a result of the roles adopted or sacrifices made during the marriage. Rowles, J.A. of the British Columbia Court of Appeal summarized the general concepts underlying this basis of entitlement in Chutter v. Chutter as follows:

Non-compensatory support is grounded in the "social obligation model" of marriage, in which marriage is seen as an interdependent union. It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner, rather than the state (Bracklow, at para. 23). Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the "means and needs" approach to spousal support.

[278] As was also noted by Ryan’s counsel, because the parties were not married, I am to consider the awarding spousal support having regard to s. 33(8) of the Family Law Act, which provides as follows:

(8) An order for the support of a spouse should,

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

Is Nicole Entitled to Spousal Support?

[279] I turn first to whether Nicole has established a right to compensatory spousal support. In my view, she has not. She has not established on a balance of probabilities that she made sacrifices and contributions during the relationship which advantaged Ryan or disadvantaged her.

[280] When they met, Ryan was already on the verge of having completed his apprenticeship as an arborist. By the time they began to reside together, he was completing his apprenticeship. He wrote his qualifying examination in May 2012, a mere 5 months later. All that remained for him thereafter was to accumulate sufficient hours of work to afford him the seniority necessary to obtain a full-time position. Once he obtained that, he worked a fairly standard 40-hour week, consisting of daytime hours. There was nothing in Nicole’s evidence to suggest that anything she did assisted Ryan in attaining his current position.

[281] On the other hand, Ryan’s uncontradicted evidence was that he participated actively in caring for the children when at home and took on the majority of household tasks, apart from caring for the children.

[282] There is also no evidence that Nicole suffered an economic disadvantage arising from the relationship. She entered it with a grade 12 education, holding only part-time positions. She left it still with a grade 12 education, but operating two businesses that she chose to establish, working only part-time in them by her choice. After the children were born, she was able to take them with her to her “Body Design Fitness” classes from time to time and, when she was not able to do so, Ryan either cared for the children or she received assistance from her mother.

[283] There was no merging of the parties’ financial resources. Nicole maintained her own bank account and contributed no funds to the joint account, to which she had access to withdraw funds deposited by Ryan. Accordingly, there was no “interdependency” between the parties nor was there a “merger of their economic lives.”

[284] Nicole neither gained an economic advantage nor suffered an economic disadvantage because of the relationship. She moved into a house owned by Ryan in January 2012. The residence in which they were residing in St. Thomas at the time of their separation was also owned by him.

[285] There is no evidence that Nicole in any way suppressed her own plans to advance her career because of the relationship or the births of the children. She had plenty of opportunity to follow whatever career path she wished, but she never defined one to follow. Neither the relationship nor Ryan appear to have been responsible for her lack of advancement.

[286] The next question is whether Nicole has established an entitlement to support on a non-compensatory basis because of need.

[287] As Justice Chappel noted in Thompson, the British Columbia Court of Appeal in Chutter v. Chutter, 2008 BCCA 507, [2008] B.C.J. No. 2398 commented that the aim of such support is to “narrow the gap between the needs and means of the spouses” on the breakdown of their relationship, resulting in the approach to such spousal support often being referred to as the “means and needs” approach.

[288] At the time the parties separated in 2017, Nicole was coming out of the 2016 tax year having earned total income of $5,601.73. That year, Ryan’s total income amounted to $93,039.00. Clearly, Nicole relied upon Ryan’s income, both for her own needs and those of the children. The loss of access to Ryan’s income would have disadvantaged Nicole economically.

[289] In 2017, the year of the separation, Nicole’s total income was $8,882.59 whereas Ryan’s was $94,121.63.

[290] Because Nicole did not commence this proceeding until 2019, a financial statement setting out her expenses in 2017 appears not to exist. However, given that she was sharing the costs of a residence in Westmount with her sister, it is not a large leap of logic to conclude that she was not financially able at that time to care for herself and the children without the financial efficiencies that might have been generated by living with her sister. It is also reasonable to conclude that her personal expenses exceeded her income of $8,882.59 and were covered, to a significant extent, by the child support paid to her at that time by Ryan.

[291] In 2018, Nicole’s total income amounted to $3,029.20. Ryan’s income totaled $99,672.

[292] Similarly, in 2019, the year in which Nicole commenced this application, her total income amounted to $12,451.00, whereas Ryan’s amounted to $99,925.04.

[293] Again, while I was not provided with a copy of the Financial Statement filed by Nicole in the year she commenced her application, it seems clear that her means remained limited, so much so that she and the children moved in with her parents in order to save money and plan for a return to school.

[294] Based upon the evidence, I conclude that, by any measure, between the date of separation in 2017 and the end of 2019, inclusive, Nicole’s needs exceeded her means to such an extent that it would not have been possible for her to achieve economic self-sufficiency, defined by the Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241 as follows:

[53] Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation.

[295] In 2020, with the onset of Covid-19, Nicole’s financial circumstances began to improve. During that year, she had a total income of $16,180, which included CERB income of $14,000. Additionally, as her affidavit sworn September 7, 2021 demonstrates, she also received a grant of $15,194.00, an amount which, for the purposes of support, is considered income. (D.A. v. S.A., [2017] S.J. No. 164 at paras. 83, 84; Lepine v. Lepine, 2012 ONSC 4153 at para.18).

[296] Consequently, in 2020 Nicole had an income for support purposes of $31,374.00, which represented a substantial increase over her previous years’ incomes.

[297] While it is not considered income for spousal support purposes[^1], in 2020 Nicole also received the Canada Child Benefit for the two children in the amount of $15,394.92, plus child support from Ryan in the amount of $17,604.00. At that point, Nicole’s overall means exceeded $63,000.00.

[298] In 2021, Nicole’s income included a grant of $15,421.00, plus government benefits related to Covid-19 totaling $12,150.00, for total of $27,571.00. Additionally, she received child support from Ryan and the Canada Child Benefit.

[299] Her financial statement sworn August 2, 2021, shows yearly expenses of $38,304.00, an amount which, arguably, represents her needs at that time. The amounts available to Nicole in 2021 exceed her needs.

[300] The question, however, is whether, having finally acquired financial resources by 2020 sufficient to meet her expenses, Nicole had attained economic self-sufficiency.

[301] Ryan’s counsel argues that she did, but I disagree, relying upon the definition of economic self-sufficiency provided by the Court of Appeal in Fisher v. Fisher.

[302] That said, Nicole is clearly on the way toward establishing economic self-sufficiency because she is in school and is mere months from completing a program that she is confident will give her access to a job market which will provide her with a steady, predictable income. She is not yet there.

[303] Consequently, I am satisfied that Nicole has established an entitlement to non-compensatory, needs-based spousal support.

[304] Having reached that conclusion, three further issues need to be considered. They are:

a. from what date is spousal support payable by Ryan;

b. what amount of spousal support is payable by Ryan; and

c. for how long will spousal support be payable by Ryan?

Commencement Date of Spousal Support

[305] While Ryan’s counsel submits that spousal support should only be payable from the date of issuance of the application in 2019, I do note that, in the application, Nicole claimed spousal support from the date of separation, which she defined as March 13, 2017.

[306] The Supreme Court of Canada addressed the issue of a claim for spousal support for a period predating the issuance of an application in its decision in Kerr v. Baranow, 2011 SCC 10, [2011] S.C.J. No. 10.

[307] Firstly, the Supreme Court noted that, under the British Columbia legislation being considered in the decision, the trial judge had discretion to award support for any period prior to the date of the order. Similar authority is granted to me under s. 34(1)(f) of the Family Law Act.

[308] In considering whether support should be awarded for a period prior to the date of the issuance of the application, the Supreme Court indicated that factors such as the needs of the recipient, the conduct of the payor (such as concealing assets or failing to make appropriate disclosure), the reason for the delay in seeking support and any hardship occasioned to the payor spouse must be considered.

[309] The Supreme Court further noted that the Ontario Court of Appeal had held in MacKinnon v. MacKinnon (2005), 2005 CanLII 13191 (ON CA), 75 O.R. (3d) 175, at para. 24, that the “usual commencement date” for an order of spousal support is the date the proceeding making that claim was initiated, “absent a reason not to make the order effective as of that date.”

[310] In examining the needs of the support recipient, the Supreme Court indicated that the trial court must consider the needs of the recipient spouse “both at the time support should have been paid and at present.” (para. 212).

[311] I have already found that, at the date of separation, Nicole’s needs exceeded her means, as they still do, although to a much lesser extent.

[312] I was provided with no evidence that Ryan’s conduct with respect to financial disclosure was blameworthy or that his disclosure was in any way delayed.

[313] There is no doubt that there was a delay between the date of the parties’ separation in 2017, whether one considers that to be March or November for the purposes of support, and the commencement of the proceeding in October 2019.

[314] Nicole did not provide an explanation for the delay in the commencement of this proceeding, but one may be found in the fact that Ryan was paying child support directly to Nicole commencing in December 2017, as well as spousal support, briefly, in February and March 2018, and then consistently between July 1, 2018 and August 1, 2019 inclusive. In her evidence, Nicole testified that Ryan ceased paying spousal support on both occasions without any prior notice to her.

[315] I find in those circumstances that it was entirely reasonable for Nicole to have considered that Ryan agreed that spousal support was payable, and he was signifying that agreement by making the payments. When he stopped doing so on the second occasion, and did not resume, Nicole commenced this proceeding.

[316] The last consideration is whether an order for the payment of spousal support for the period prior to the commencement of the proceeding would cause hardship on Ryan. There is no doubt that he has financial difficulties at this time and to burden him with additional payments for a period prior to the commencement of the proceeding would only add to the financial burdens he faces. However, the hardship that might be visited upon him by an order for spousal support predating October 2019 is mitigated by the fact that he did make spousal support payments to Nicole in the amount of $3,885.00 between February 1, 2018 and August 1, 2019, inclusive for which he will be given credit. Furthermore, arrears can be ordered paid in installments.

[317] While the financial documents filed by Ryan do not make clear whether he deducted the spousal support payments made to Nicole in 2018 from his income for tax purposes, Nicole’s tax return for 2018 includes support of $3,900.00 which, in my view, must have been the support payments received from Ryan. Accordingly, when given credit for the payments made in 2018, there will not be a grossing up of the amount credited to Ryan to account for the fact that the payments are being made retroactively since he appears to have already received the tax benefit of the deduction at the time the payments were made.

[318] In all the circumstances, I am satisfied that the date at which spousal support payments were to begin being paid was December 1, 2017 and that is the date from which spousal support will be calculated.

Amount of Spousal Support to Be Paid by Ryan

[319] While s. 34(9) of the Family Law Act sets out the factors that need to be considered by a court determining “the amount and duration, if any, of support for a spouse or parent in relation to need”, it is also important to recall that, while “neither legislated nor binding”, the SSAGs have been held by the Court of Appeal to be “a useful tool with which to measure the quantum and duration of spousal support” and “should be routinely consulted.” Even in cases where there are “complicating factors that must be considered before a court applies the SSAG wholesale,” the court must conduct an analysis of the facts of the specific case to assess whether the SSAG ranges are appropriate.” (Gray v. Gray (2014), 2014 ONCA 659, 122 O.R. (3d) 337 at paras. 42-45)

[320] As a starting point in determining the amount of spousal support to be paid by Ryan, it is appropriate to consider where within the ranges of support generated by the application of the SSAGs I should be looking. As the authors of the Revised User’s Guide note, at page 45, “The mid-point of the SSAG ranges for amount should NOT be treated as the default outcome.”

[321] According to the authors, factors such as the strength of a compensatory claim need to be considered, with a weak compensatory claim suggesting that the low end of the range be applied. Conversely, “a high-range amount can be linked to a shorter duration or, vice versa, a lower amount for a longer duration.” Additionally, “where it is difficult to impute income to a recipient, but the court believes she or he could earn more, the Judge may go lower in the range.” (pg. 46)

[322] In determining the ranges for the years 2017 through 2020 inclusive, I have regard to the actual incomes of the parties as disclosed by their income tax returns, with adjustments for such things as Ryan’s registered pension plan contributions which, according to the SSAGs “are not deducted from a party’s income in determining spousal support” under the SSAGs, but the “reduced tax payable as a result of the contribution will be taken into account in determining spousal support.”

[323] Similarly, the SSAGs will deduct child support payments for children from other relationships from a payor’s income when determining spousal support.(SSAGs, s. 12.3)

[324] Bearing these factors in mind, utilizing the incomes for Ryan determined under my discussion of child support, incorporating deductions for his registered pension plan contributions and support for S.L., and attributing to Nicole the incomes for the years 2017 through 2021 noted in my discussion under this issue, supra, the ranges yielded by the SSAGs are as follows for the years 2017 through 2021:

2017: $655.00 $890.00 $1150.00

2018: $979.00 $1,203.00 $1,433.00

2019: $199.00 $443.00 $712.00

2020: $0.00[^2] $311.00 $773.00

2021: $0.00 $76.00 $435.00

[325] For 2022, because it is unknown whether Nicole will be in receipt of any grants, I must assess whether she should have some income imputed to her.

[326] In order to impute an income to Nicole, I must first be satisfied that she is intentionally underemployed or unemployed, and that such unemployment or underemployment is not required by her reasonable educational needs or the needs of a child. (Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (C.A.))

[327] The onus is on the party seeking to impute income to establish that the other party is intentionally unemployed or underemployed. The person requesting an imputation must establish an evidentiary basis upon which the finding can be made. (Rival v. Rival, [2017] O.J. No. 4343, at para. 64)

[328] The children are in school all day. Nicole is attending school, but I was provided with no evidence about the number of hours per day or the number of days per week that she is in class. She will soon be on an unpaid placement. I was provided with no evidence about whether she will be attending classes during the times that she is on the placement. Additionally, she provided no evidence about whether she will be attending school when she is not at her placement.

[329] Ryan’s counsel suggests that I impute an income to Nicole in an amount equal to 15 hours work per week at minimum wage of $14.35/hour. That amounts to $215.25 per week.

[330] I am left with little evidence upon which to assess whether Nicole is intentionally unemployed, will be unemployed while she remains in school, or whether she is capable of working while attending school.

[331] Because the government is phasing out the Covid-related grants, I cannot assume that they will be available to Nicole in 2022.

[332] However, it is reasonable to assume that, for so long as she is attending school, Nicole will have some sort of income in the form of a grants or grants, based on her having received such funds in 2020 and 2021. Her affidavit sworn September 7, 2021 suggests that because the grants that she received in January 2021 were to “pay tuition for my summer semester in 2021…”, that leaves open the distinct prospect of her receiving grants in 2022 for that school year.

[333] As a result, I will be imputing an income to Nicole of $10,000.00 for 2022. She may well receive more, but I must base my imputation of income on reasonable conclusions derived from the evidence and not mere conjecture.

Income Imputed to Ryan

[334] In order to determine spousal support for Nicole going forward, and to maintain some consistency with the manner by which child support is calculated, while also recognizing that in 2020 Ryan’s income spiked, whereas in 2021 it was reduced due to his car accident and his parental leave, I propose to average his 2019, 2020 and projected 2021 incomes in order to formulate ongoing spousal support.

[335] I will not impute income to Ryan in 2021 for the period that he has been off work due to parental leave[^3], just as I would not do so for a female who takes pregnancy leave[^4], both of which are allowed for by statute.[^5]

[336] I am also not imputing income to Ryan due to his automobile accident. Where a failure to seek or find employment is argued to be due to medical issues, the party should put forward medical evidence to support that assertion. (Rival v. Rival, [2017] O.J. No. 4343, at para. 66)

[337] I am satisfied that Ryan produced medical evidence to support his assertion that he was unable to work full-time for several months in 2021. Nicole produced no evidence to suggest that the medical evidence produced by Ryan ought to be disregarded or discounted. Accordingly, there is no need to impute income beyond the 75% of regular income paid to Ryan as a result of whatever benefits are available to him through his employment at Hydro One.

[338] Using an imputed income for Ryan of $103,240.00, consisting of the average of his 2019, 2020 and projected 2021[^6] incomes, for the payment of ongoing spousal support, and allowing for deductions from his income of $8,800.00 for his RPP, union and professional dues of $1,800.00 and support of $7,800.00 for S.L., yields the following range for ongoing spousal support:

2022: $230.00 $470.00 $716.00

[339] In my view, because Nicole is far closer to becoming self-sufficient than she was at the time of separation, and because her support is non-compensatory, I will be awarding support in amounts that lie between the lower and the mid-point amounts.

[340] Additionally, because prior years’ support payments must now be considered as lump sum amounts, they must be tax-reduced to account for that fact. (Pey v. Pey, [2016] O.J. No. 1994 a para. 149)

[341] I will apply an 18% tax reduction to the amounts payable for 2017 through 2020, given that Ryan would likely have received a larger reduction, but Nicole might have received none, given her otherwise low incomes for those years. For 2021 and 2022, the parties can account for the payments when they file their income tax returns.

[342] While I have not specifically referred to each of the factors set out in s. 33(9) of the Family Law Act, I have considered, in reaching my conclusions:

i. the parties’ assets and means, now and in the future;

ii. Nicole’s capacity to contribute to her own support, in the past and in the future, once she has completed school;

iii. Ryan’s financial difficulties, including debts accumulated during a prior and this relationship; the cost of child support for three children in addition to the costs related to his youngest child with his current wife;

iv. that both parties are young and healthy;

v. Nicole’s needs, with consideration to the parties’ standard of living while she and Ryan resided together;

vi. Nicole’s attendance at Fanshawe College to improve her employability in a specialized field and that she is to graduate in August 2022;

vii. Ryan’s obligation to support his daughter by a different relationship, S.L.;

viii. that Nicole need not remain home to care for the children during the day because they are at school;

ix. my finding that Nicole did not contribute to Ryan’s career potential;

x. the length of time the parties cohabited;

xi. the (negligible) effects on Nicole’s earning capacity for responsibilities she assumed during cohabitation;

xii. the lack of evidence about Nicole’s housekeeping, childcare or other domestic services provided, thus having no basis for drawing conclusions about what she might have contributed to the household finances if that time were spent in remunerative employment; and

xiii. the lack of an effect on Nicole’s earnings and career development arising from taking on childcare responsibilities.

Determination of Spousal Support

[343] Having regard to the foregoing, and using the ranges for spousal support set out in Paragraphs [324] and [338], supra, I find as follows:

a. for the month of December 2017, Ryan’s support obligation to Nicole amounted to $750.00, now reduced by 18% to $615.00 to account for it being a lump sum payment obligation;

b. for 2018, Ryan’s monthly support obligation to Nicole amounted to $1,050.00, now reduced by 18% to $862.00 to account for it being a lump sum payment obligation;

c. for 2019, Ryan’s monthly support obligation to Nicole amounted to $320.00, now reduced by 18% to $262.00 to account for it being a lump sum payment obligation;

d. for 2020, Ryan’s monthly support obligation to Nicole amounted to $150.00, now reduced by 18% to $123.00 to account for it being a lump sum payment obligation;

e. for 2021, Ryan’s monthly support obligation to Nicole amounts to $50.00; and

f. for 2022 and after, subject to there being a material change in circumstances, Ryan’s monthly support obligation to Nicole will amount to $300.00.

Duration of Spousal Support Payable by Ryan

[344] For persons having the ages of Ryan and Nicole, who resided together for a period of five years with Nicole being 25 years of age at the date of separation, the SSAGs, as applied by DivorceMate, result in spousal support being payable for an indefinite (unspecified) duration, subject to variation and possibly review, with a minimum duration of four years and a maximum duration of 17 years from the date of separation.

[345] Given the ages of the parties and the duration of their cohabitation, spousal support shall be payable by Ryan to Nicole until November 30, 2023, a period of no more than eight (8) years from the date of their physical separation in November 2017, with Nicole obtaining employment after graduation from Fanshawe College constituting a material change in circumstances allowing for a review of the order by either party.

Miscellaneous Parenting Issues

Summer Parenting Time

[346] The parties differed on the parenting time schedule that should be in place for the children during the summer months.

[347] Ryan seeks an order that would have the children in the care of each of him and Nicole on a week-on, week-off schedule, with transitions to occur Sunday evening at 7:00 p.m.

[348] Nicole seeks an order which would provide Ryan two non-consecutive weeks of parenting time in July and August each year. I understand that request to mean one week in each of the two months.

[349] Neither party testified about the reason they took the positions that they did on this issue during their examinations in chief. However, in cross-examination, Ryan testified that the time that he gets to spend with the children during the school year is based entirely on the logistics of their residences being separated by such a distance, with each of the parties residing in different municipalities. Ideally, he envisioned a week-about parenting schedule as providing him with better and more time with the children because, in his view, they deserve to see each parent for an equal amount of time, if possible.

[350] He was asked whether he would be with the children for the four weeks of the summer that he is proposing that they be in his care. He suggested that he would not. He spoke of the children either spending time with his then-fiancé, now wife, Amy Dell, or participating in day camps.

[351] Ryan testified that the children have an excellent relationship with Amy Dell, and Nicole offered no evidence to the contrary.

[352] Amy Dell testified on Ryan’s behalf. According to her, if the children were be involved with a week-about parenting schedule during the summer, and Ryan were to be required to work during one of the weeks when they were in his care, she would use some of her vacation to stay home with them, “if necessary”, but would also consider putting the children in day camps, as she does with her daughter.

[353] When she was challenged about the children being in her care while their father was at work in the summer, she equated such a situation to that which exists when the children are in the care of a teacher during school day. In her view, it would be unfair to the children to have to travel back to Nicole’s care during the day, only to return to Ryan’s care in the evening, in any week in the summer when they would otherwise have been in Ryan’s care but for him working.

[354] Ryan also spoke at length of his weekends with the children, noting that when they are at his residence, also present are his one-year-old child with Ms. Dell, Ms. Dell’s child by a former relationship, and his child, S.L. According to him, the children enjoy their time at his residence as they also enjoy their time with the other children.

[355] Nicole testified that, when the children return home after spending the weekend with their father, they sometimes show heightened aggressive behaviour and H. compares activities which occur at the two homes.

[356] That said, Nicole did testify that Ryan was good at showing all of his children that they are loved.

[357] The parties were able to resolve their parenting time arrangements. The evidence satisfied me that the children enjoy their time in the care of their father, and I am equally satisfied that his job affords him vacations on short notice.

[358] While neither party addressed the topic, the fact that the children might spend two extra weeks in the summer beyond that which is being offered by Nicole will not affect Ryan’s child support obligations, so it would not appear that his request is driven by financial reasons.

[359] It is unfortunate that the parties could not resolve this issue. However, they were unable to do so, and I am satisfied, on the evidence, that a week-about parenting arrangement in the summer is in their best interests as it provides them with equal exposure to their parents, with whom they have excellent and loving relations according to all of the evidence I heard.

Mobility

[360] Upon the completion of her educational program in August 2022, Nicole hopes to secure employment with a local school board, counselling children who suffer from anxiety. She will be applying for positions with the Thames Valley District School Board. There is also a local Catholic board to which she could, presumably, apply for employment. She also testified that she understands that Covid-19 has created more openings for counselling positions with school boards. Consequently, she was confident that she would be successful in securing a position with a local school board.

[361] A term is included in the draft order presented by her counsel, however, which would, in effect, permit Nicole to move up to 100 km from the City of London without a court order or written agreement between the parties.

[362] When asked about this during her submissions, Nicole’s counsel suggested that Nicole’s response about her chances of obtaining a position with a local school board might have been overly optimistic. That submission was at variance both with Nicole’s perspective about her chances and her evidence.

[363] In his draft order, Ryan seeks a provision which would have both parties required to reside within a 25 km radius of the City of London, with an obligation to obtain a court order or the consent of the other party to move further from the city.

[364] Nicole has moved with the children three times since the parties finally separated in November 2017. Each move has resulted in the children living further from Ryan than the move before.

[365] Nicole will not complete school for approximately nine months. She may not yet have applied for any positions with any school board.

[366] In my view, to set a wider radius than 25 km. from the City of London within which Nicole can relocate with the children at this time, without any evidence advancing a reason for such a wider radius, would not only ignore Nicole’s evidence but could, possibly, also set up a circumstance whereby, if given two opportunities for employment, one within 25 km of London and one beyond, Nicole would have no incentive to discuss with Ryan the advantages and disadvantages of accepting the position further from London.

[367] In my view, it is premature to set a radial distance from London larger than that sought by Ryan, beyond which Nicole cannot move without further actions on her part. The 25 km. radius would still allow Nicole to continue residing in Dorchester, and to be able to travel to the furthest reaches of the jurisdiction covered by the Thames Valley District School Board without needing to uproot the children.

[368] Accordingly, my order will contain the provision proposed by Ryan in his draft.

Order

[369] For the foregoing reasons, I make the following order:

Parenting

1. The children, Hunter Reese Brockett, born March 12, 2013 and Vivian Charlotte Brockett, born October 23, 2015 (hereinafter, “the children”) shall reside primarily with the Applicant, Nicole Margaret Hennessy.

2. The Respondent, Ryan David Samuel Brockett, shall have parenting time with the children:

a. Subject to the provisions of Paragraph 3, on alternating weekends from Friday after school, or 3:00 p.m. in the event of there being no school on Friday, until Monday at the commencement of school. If the Monday immediately following the children’s weekend with the Respondent is either Family Day or Victoria Day, his parenting time shall be extended until the Tuesday when the children are dropped off at school (or 9:00 a.m. in the event of there being no school);

b. on an alternating week-on, week-off basis during the children’s summer school vacation, with exchanges of the children occurring Sunday at 7:00 p.m. The week-on, week-off schedule shall commence on the first Sunday following the end of the school year, with the Applicant to have the children in her care the first week in even-numbered years and the Respondent to have the children in his care the first week in odd-numbered years. However,

i. the party who has parenting time with the children during the week in which Canada Day occurs shall maintain their parenting time with the children on Canada Day;

ii. the party who has parenting time with the children during the week in which Civic Holiday occurs shall maintain their parenting time with the children on Civic Holiday; and

iii. regardless of the summer schedule, the children shall be returned to the care of the Applicant at 2 PM on Labour Day;

and

c. at such other times as the parties may agree.

3. Notwithstanding the provisions of Paragraph 2, the parties shall share the following holidays and special occasions with the children according to the following schedule:

Christmas and the Christmas School Break - 2021

a. The Applicant shall have parenting time from December 24 at 12:00 p.m. until December 25 at 12:00 p.m.

b. The Respondent shall have parenting time from December 25 at 12:00 p.m. until December 26 at 8:00 p.m.

c. The balance of the children’s two-week break from school will be shared evenly between the parties according to the following schedule, unless they agree otherwise:

i. The Applicant shall have parenting time during the first week of Christmas break and the Respondent shall have parenting time during the second week of Christmas break

March Break – 2022 onward

a. For the purposes of this clause, the March Break shall begin on Friday when school ends at the commencement of the March Break and shall end when the children return to school on the Monday following the March Break.

b. In even-numbered years, the Applicant shall have parenting time during the March Break.

c. In odd-numbered years, the Respondent shall have parenting time during the March Break.

d. The parties shall have the option of dividing the March break, such that each has parenting time for one-half of the break period, if both agree, in writing, to do so.

Easter Weekend – 2022 onward

a. In even-numbered years, the Respondent shall have parenting time on Easter weekend from Thursday after school (3:30 p.m. in the event of a holiday) until Tuesday at the commencement of school.

b. In odd-numbered years, the Applicant shall have parenting time on Easter weekend from Thursday after school (3:30 p.m. in the event of a holiday) until Tuesday at the commencement of school.

Mother’s Day and Father’s Day – 2022 onward

1. The Applicant shall have parenting time on Mother’s Day weekend from Sunday at 10:00 a.m. until Monday at the commencement of school.

2. The Respondent shall have parenting time on Father’s Day weekend from Sunday at 10:00 a.m. until Monday at the commencement of school.

Halloween – 2022 onward

a. Unless the parties agree otherwise, the Applicant shall have parenting time with the children on Halloween in even-numbered years from 5:00 p.m. until 8:00 p.m. in order to take the children out to “trick or treat.”

b. Unless the parties agree otherwise, the Respondent shall have parenting time with the children on Halloween in odd-numbered years from 5:00 p.m. until 8:00 p.m. in order to take the children out to “trick or treat.”

Thanksgiving – 2022 onward

a. In even-numbered years, the Applicant shall have parenting time on Thanksgiving weekend from Friday after school (3:30 p.m. in the event of a holiday) until Tuesday at the commencement of school.

b. In odd-numbered years, the Respondent shall have parenting time on Thanksgiving weekend from Friday after school (3:30 p.m. in the event of a holiday) until Tuesday at the commencement of school.

Christmas and the Christmas School Break – 2022 onward

a. In even-numbered years, the Respondent shall have parenting time from December 24 at 12:00 p.m. until December 25 at 12:00 p.m.

b. In even-numbered years, the Applicant shall have parenting time from December 25 at 12:00 p.m. until December 26 at 8:00 p.m.

c. In odd-numbered years, the Applicant shall have parenting time from December 24 at 12:00 p.m. until December 25 at 12:00 p.m.

d. In odd-numbered years, the Respondent shall have parenting time from December 25 at 12:00 p.m. until December 26 at 8:00 p.m.

e. The balance of the children’s two-week break from school will be shared evenly between the parties according to the following schedule, unless they agree otherwise:

i. In even-numbered years, the Respondent shall have parenting time during the first week of Christmas break and the Applicant shall have parenting time during the second week of Christmas break.

ii. In odd-numbered years, the Applicant shall have parenting time during the first week of Christmas break and the Respondent shall have parenting time during the second week of Christmas break; and

4. The Respondent shall be responsible for transportation of the children to facilitate his parenting time, with pick-ups and drop-offs occurring at school wherever possible, and otherwise at the home of the Applicant, unless otherwise agreed between the parties.

5. Whenever a significant, non-emergency decision must be made about the well-being of one or both of their children, including with respect to their health, education, and significant extra-curricular activities, the parties shall follow the following process in an effort to arrive at a decision:

a. the party seeking a decision will contact the other, in writing, and advise of the issue about which a decision is required, the time within which the decision is required to be made and state his or her position about the decision and the reasons for taking that position. If no position is being taken by the party seeking a decision, that party shall inform the other of that fact when seeking the views of the other about the decision;

b. the party receiving the notice shall respond within 7 days, or such lesser period as the circumstances demand, setting out in the response his or her position about the decision, and the reasons for taking that position;

c. in circumstances where the decision pertains to the health or education of the children or either of them, the parties shall endeavour to consult with the children’s physician or teacher, either together or individually, as the circumstances dictate, in an effort to obtain information to assist them to formulate a position with respect to the decision to be made;

d. as time permits, the parties shall discuss the issue requiring a decision until such time as they have achieved a consensus about the decision; and

e. in the event that the parties cannot achieve a consensus about the decision, the Applicant shall have the ultimate decision-making responsibility. In the event that the Applicant exercises her decision-making responsibility after following the procedures herein, she shall immediately communicate the decision to the Respondent in writing and explain to him the reason that she decided as she did.

6. In the event that a decision must be made with respect to emergency health care for either or both of the children, the parties shall endeavour to discuss and achieve a consensus about a decision as quickly as possible. In circumstances where that is not possible, the Applicant shall make the emergency health care decision and shall communicate it to the Respondent as soon as possible thereafter, unless the emergency health care issue arises while the children are in the care of the Respondent, in which case the Respondent shall make the emergency health care decision and shall communicate it to the Applicant as soon as possible thereafter.

7. Decisions pertaining to the children’s culture, language, religion, and spirituality shall be made jointly by the parties.

8. Day-to-day decisions concerning the children shall be made by the party who is providing care for the children at the time.

9. At no time shall either party utilize the children for any commercial venture or activity, or post to social media personal information about the children, including their photographs or names, without the consent of the other party.

10. The parties shall, wherever possible, communicate with one another in writing, such communication to be private, respectful, only related to the children, and limited to once per day except in the case of an emergency.

11. The parties may make inquiries and be given information by any of the children’s teachers, school officials, doctors, dentists, healthcare providers, summer camp counsellors or others involved with the children. To give effect to this provision, if necessary, each party shall sign any authorization necessary to give effect to this clause.

12. Both parties may attend all school functions, including parent/teacher interviews, field trips and classroom events, regardless of the parenting schedule. Both parties shall obtain their own school calendar and school notices.

13. Both parties shall reside within a 25 km radius of the City of London, Ontario. Neither party shall reside outside the said 25 km radius without the consent of the other party or a court order obtained in compliance with the provisions of the CLRA.

14. If either party intends to change their current residence that party shall, no less than 60 days in advance of any intended change of residence, provide the other party with the address of the intended residence.

15. If either party intends to travel with either of the children outside of the province of Ontario, that party shall provide the other with no less than 30 days’ notice of their intended trip along with a detailed itinerary, including dates and location, transportation details (such as flight carrier and flight times), accommodation details (such as name of accommodation, address and telephone number), along with contact information where that party and the children can be reached during the trip.

16. If either party intends to travel with the children and requires authorization from the other party to do so, the other party shall execute any documentation necessary to allow the children to travel with the travelling party, provided that the party intending to travel with the children has complied with the provisions of Paragraph 15.

17. The Applicant shall maintain possession of the children’s birth certificates and passports. If the Respondent intends to travel with the children outside of Canada, the Applicant shall provide the Respondent with the children’s birth certificates and passports. The Respondent shall promptly return the children’s birth certificates and passports to the Applicant upon his return to Canada.

Change of Children’s Names

18. Neither party shall change the names of the children, Hunter Reese Brockett, born March 12, 2013, and Vivian Charlotte Brockett, born October 23, 2015, or either of them, without the other party’s written consent or a court order.

19. The Applicant shall not at any time apply to the Registrar General under s. 5(1) of the Change of Name Act to change the children’s surnames.

Child Support – Retroactive (Arrears)

20. The Respondent shall pay to the Applicant, in accordance with Paragraph 27 hereof, arrears of child support for the period between December 1, 2017 and December 31, 2021 in the amount of $6,140.00, calculated as follows:

2017

21. The Respondent shall pay the Applicant a retroactive adjustment of child support pursuant to the Child Support Guidelines in the amount of $22.00 for the month of December 2017, based on the Applicant’s annual income, net of union dues, of $92,973.00.

2018

22. The Respondent shall pay the Applicant a retroactive adjustment of child support pursuant to the Child Support Guidelines in the amount of $948.00 for the period between January 1, 2018 and December 31, 2018, based on the Applicant’s annual income, net of union dues, of $98,507.00.

2019

23. The Respondent shall pay the Applicant a retroactive adjustment of child support pursuant to the Child Support Guidelines in the amount of $770.00 for the period between January 1, 2019 and December 31, 2019, based on the Applicant’s annual income, net of union dues, of $98,742.00.

2020

24. The Respondent shall pay the Applicant a retroactive adjustment of child support pursuant to the Child Support Guidelines in the amount of $2,200.00 for the period between January 1, 2020 and December 31, 2020, based on the Applicant’s annual income, net of union dues, of $114,696.00.

2021

25. The Respondent shall pay the Applicant a retroactive adjustment of child support pursuant to the Child Support Guidelines in the amount of $2,200.00 for the period between January 1, 2021 and December 31, 2021, based on the Applicant’s 2020 annual income, net of union dues, of $114,696.00.

26. The said arears of child support in the amount of $6,140.00 shall be reduced by any amount that the Respondent has heretofore paid to the Applicant, or to the Director of the Family Responsibility Office on her behalf, in reduction of his arrears of child support.

27. Commencing January 1, 2022, and on the first day of each month thereafter, the Respondent shall pay the sum of $100.00 per month to the Applicant in reduction of the said arrears of child support owed to her until the arrears are paid in full.

Child support – Ongoing

28. Subject to Paragraph 29 hereof, the Respondent shall pay ongoing child support to the Applicant on the first day of January 2022, and on the first day of each month thereafter, in the amount of $1,489.00 per month, pursuant to the Child Support Guidelines, based on the Applicant’s estimated 2021 annual income, net of union dues, of $103,240.00.

29. Once the Respondent’s actual income, net of union dues, for 2021 is known, the amount of child support payable by him to the Applicant monthly in 2022 shall be adjusted to reflect the Child Support Guideline amount payable per month for two (2) children based on that income.

a. Any shortfall owing per month from January 1, 2022 based on the Respondent’s known 2021 income shall be added to the arrears of child support in the amount of $6,140.00 owed by the Respondent to the Applicant for the period 2017 to 2021.

b. Any excess paid by the Respondent to the Applicant after January 1, 2022 based on the Respondent’s known 2021 income shall be deducted from the arrears of child support in the amount of $6,140.00 owed by the Respondent to the Applicant for the period 2017 to 2021.

30. The monthly amount of child support payable by the Respondent to the Applicant shall be adjusted annually as of July 1, commencing on July 1, 2023, based on the Applicant’s previous year’s income, net of union dues, and on each July 1 thereafter until child support is no longer payable by the Respondent to the Applicant.

31. The parties shall exchange their income tax returns and notices of assessment for the previous taxation year by June 1 each year, for the purpose of adjusting child support and their proportionate share of special and extraordinary expenses.

Special and Extraordinary Expenses

32. Commencing September 1, 2020, each party shall contribute, in the percentage that such party’s individual income is as a proportion of the total of their combined incomes, to any special or extraordinary expense for the children, in accordance with the provisions of section 7 of the Child Support Guidelines.

33. The parties shall only be required to contribute to the special and extraordinary expenses of the children if the parties have, in advance, consented to the expense being incurred, such consent not to be unreasonably withheld.

34. Each party shall provide the other with evidence of any special and extraordinary expense that party has incurred within 30 days of incurring the expense, and each party’s contribution shall be made within 15 days of receipt of same.

Benefits

35. Each party shall maintain the children as beneficiaries of any extended health benefits available to them through their employment for as long as the benefits are available and for as long as the children are eligible for coverage.

36. Any medical or dental expenses for the children which are not covered under the parties’ medical or dental plans shall be shared between the parties in accordance with Paragraph 32 herein.

Life Insurance to Secure Child Support

37. The Respondent shall, as an incident of child support, designate the Applicant, in trust for the children, as irrevocable beneficiary of any life insurance policy available to him through his employment, and he shall maintain any such policy in good standing for so long as the policy is available to him and the children or either of them are entitled to child support.

38. The Respondent shall provide proof to the Applicant, annually, on or before July 1, that such insurance remains in good standing and is paid.

39. Upon both children no longer being entitled to child support, the Applicant shall execute a release of her interest in any life insurance policy available to the Respondent through his employment.

40. In the event that the Respondent fails to comply with these life insurance provisions, his child support obligations as set out in this order shall constitute a first charge against his estate.

Spousal Support - Arrears

41. The Respondent shall pay, in accordance with Paragraph 42 hereof, arrears of spousal support to the Applicant in the amount of $11,940.00, being the total arrears owed by the Respondent to the Applicant for the period between December 1, 2017 and December 31, 2021 in the amount of $15,825.00 less the sum of $3,885.00 paid to date.

42. Commencing January 1, 2022, and on the first day of each month thereafter, the Respondent shall pay the sum of $150.00 per month to the Applicant in reduction of the arrears of spousal support owed to her until the arrears are paid in full.

Spousal Support - Ongoing

43. Commencing January 1, 2022 and on the first day of each month thereafter until and including November 1, 2025, the Respondent shall pay spousal support to the Applicant in the amount of $300.00 per month, subject to variation based on a material change in circumstances, which shall include the Applicant obtaining employment following her graduation from Fanshawe College in August, 2022.

44. Unless the support provisions of this order are withdrawn from the Family Responsibility Office, they shall be enforced by the Director, an amount owing under the support provisions of this order shall be paid to the Director, who shall pay them to the person to whom they are owed.

45. All other claims are hereby dismissed.

46. Counsel shall submit written submissions on costs, not to exceed 5 pages, Times New Roman 12-point font at a line spacing of 1.5, together with their Bills of Costs and any Offers to Settle, to the Trial Coordinator at St. Thomas by January 14, 2022. Replies of no more than 3 pages, with the same font and spacing requirements, may be filed by January 21, 2022. In their submissions, each party shall comply with the provisions of Family Law Rule 24(12.2) and shall indicate what they believe to be a reasonable amount of costs that should be paid by their client to the other party should the court determine the other party to have been the more successful party. If no written costs submissions are received by January 14, 2022, there shall be no costs.

Justice T. Price

Released: December 16, 2021

COURT FILE NO.: FC244/19

DATE: 2021/12/16

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Nicole Margaret Hennessy

Applicant

• and -

Ryan David Samuel Brockett

Respondent

REASONS FOR JUDGMENT

T.G. PRICE J.

Released: December 16, 2021

[^1]: Thompson v. Thompson, 2013 ONSC 5500, [2013] O.J. No. 4001, at para. 85

[^2]: In Chapter 3(c) of the SSAG User’s Guide, the authors of address a situation where no support is payable at one or more of the levels in the range, writing: “Under the with child support formula there can be an income disparity and yet nothing but zeros for the range: 0 to 0 to 0. It is a mistake to automatically assume that this means no entitlement. Zeros …may just reflect the priority given to child support and the reality that there is “no ability to pay” left... There is entitlement, just no money…” This is illustrated by conceptually removing the child support paid by Ryan for S.L. from his expenses. In both 2020 and 2021, all range amounts increase, and the $0 disappears.

[^3]: Scott v. Szluinska, [2019] O.J. No. 5312 at para. 21

[^4]: Lachapelle v. Vezina, 2000 CanLII 22446 (ON SC), [2000] O.J. No. 3171 at para.27

[^5]: Employment Standards Act, 2000, S.O. 2000, c. 41, as am., ss.46, 48

[^6]: Ryan’s year-to-date income at August 4, 2021 amounted to $61,125.00. Over a full calendar year, that projects to an income of $102,532.00. That sum is reduced by $6,250.00 for 5 weeks of reduced income while on parental leave, for a 2021 projected income for Ryan in the amount of $96,282.00.