Lima v. McCarthy, 2022 ONSC 1383

COURT FILE NO.: 2548/12

DATE: 2022-04-20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LUIS CARLOS LIMA

Applicant

– and –

BILINDA KEARSTEN MCCARTHY

Respondent

Murdoch Carter, for the Applicant

Leah Gensey, for the Respondent

HEARD: October 19, 20, 21, 22, December 13, 14, 15, 16, 2021

VARPIO J.

REASONS FOR DECISION

OVERVIEW

1Mr. Luis Lima and Ms. Bilinda McCarthy began living together in the summer of 1999 and were married on July 5, 2003. They have four children together, the eldest of whom, Kira, is now 21 years old. The three younger children are all boys. Mr. Lima and Ms. McCarthy separated in early January of 2012. Pursuant to Koke J.’s final order dated April 9, 2013, Ms. McCarthy has decision-making authority for the children. Mr. Lima has regular parenting time on alternate weekends, as well as on Tuesdays and Thursdays from 5:00 to 9:00 p.m.

2Kira’s relationship with her father deteriorated post-separation. Mr. Lima was concerned that Ms. McCarthy was engaged in parental alienation. The Office of the Children’s Lawyer (“OCL”) became involved and, on August 19, 2015, the OCL authored a report that indicated that no parental alienation was occurring. The report also stated that, while Mr. Lima had the parenting ability to look after the children on a part-time basis, he did not have the physical space to accommodate the children on “week about” basis.

3Mr. Lima and his partner have since renovated their home such that they now have the room to accommodate “week about” parenting time. Mr. Lima thus brings an application seeking the following relief:

a. Joint decision-making in order to allow him more input into the boys’ lives;

b. “Week about” parenting time;

c. Imputation of income to Ms. McCarthy to reflect the fact that she is in a position to return to work;

d. Variation of the existing child support payments to reflect:

(i) The hoped for change in parenting time; and

(ii) Ms. McCarthy’s hoped for imputed income;

e. A termination of spousal support effective November 1, 2023 since Ms. McCarthy is able to work outside the home. In the alternative, Mr. Lima asks that spousal support should reflect Ms. McCarthy’s imputed income;

f. A termination of child support obligations for Kira; and

g. A determination that certain s. 7 expenses were in fact unreasonable given the parties’ financial situation.

4In response, Ms. McCarthy seeks the following relief:

a. Continued decision-making authority for the three boys;

b. No changes to the parenting schedule as the boys have succeeded under her care;

c. Continued child support for Kira as the latter has gone back to college;

d. Retroactive child support to reflect Mr. Lima’s increase in income since 2013, although I note that her Response to the Motion to Change does not seek this relief;

e. Continued spousal support which will enable Ms. McCarthy to further her educational pursuits; and

f. Mr. Lima’s proportionate contribution to section 7 expenses, although the Response to the Moton to Change does not specify the duration of said contribution.

5Upon consideration of all the relevant evidence and the applicable principles, I hereby order that:

a. Ms. McCarthy shall retain decision-making authority for the boys;

b. Paragraph 8 of Koke J.’s April 9, 2013 order shall now state:

Commencing May 1, 2022, Mr. Lima shall have parenting time with the three youngest children three weekends out of every month. This weekend parenting time shall commence on Wednesday after school and last until Monday morning school drop off. If Monday is a P.A. Day or a holiday (other than holidays for which parenting time has already been allocated in this order), then parenting time shall continue until the Tuesday morning. This parenting time shall occur on weekends that commence upon the first, second and fourth Wednesday of every month. This paragraph shall be superseded by specific holiday parenting time and/or other special parenting time as described elsewhere in this order. Mr. Lima shall not engage in corporal punishment with the children at any time.

c. Ms. McCarthy shall be imputed an income of $29,120 per annum, effective September 1, 2021;

d. Mr. Lima shall pay $2,374 in child support on the first of every month, commencing May 1, 2022 (or another amount to be agreed upon by the parties based on 2021 incomes);

e. Reasonable section 7 expenses shall be capped at $1,500 per annum for each child unless there is a material change in the parents’ income. Mr. Lima shall pay 75% of reasonable s. 7 expenses, unless there is a material change in the parties’ income;

f. Spousal support shall terminate September 1, 2023;

g. Mr. Lima shall continue to pay $600/month in spousal support pending my determination of an appropriate quantum for ongoing spousal support;

h. Child support for Kira shall terminate upon her graduation from undergraduate studies, her withdrawal from school or on her 24^th birthday, whichever comes first;

i. Mr. Lima’s income at the SAH is reasonable in the circumstances and no income ought to be imputed to him; and

j. The parties shall exchange Notices of Assessment for a calendar year on or by June 1^st of the following year;

k. The parties will schedule a two-hour appearance to make submissions regarding arrears for child support, arrears for s. 7 expenses, and ongoing spousal support.

EVIDENCE

Accepted Evidence

Background

6Mr. Lima is 49 years old and came to Canada from his native Portugal as a teenager. He earned a degree in computer science from Algoma University in the late 1990’s.

7Ms. McCarthy is 48 years old and lives in Sault Ste. Marie. Prior to the marriage, she did not have her high school diploma.

8The pair met in the late 1990’s. They began cohabitating in 1999 and, in September of 2000, Kira was born. The couple was married on July 5, 2003. During this time, Mr. Lima held different jobs in IT before starting work with Essar Steel (now Algoma Steel). Ms. McCarthy worked in retail, or in other such positions, at minimum wage. The pair made ends meet and in 2003 they purchased a house on Church Street.

9Ms. McCarthy gave birth to a son in 2009, and again to another son in 2011. In 2011, Ms. McCarthy became pregnant with their third son. Ms. McCarthy had stopped working at this point.

10In 2011, Kira saw a doctor at the Hospital for Sick Children who diagnosed her with having ADHD. Kira had difficulty focusing, being on time and following through on certain tasks. She was given an Individual Education Plan (“IEP”) at school. The IEP suggested that Kira required Assessment Accommodations that included: “Extended time limits”, and “Extra time for processing”.

11The marriage frayed and, in January 2012, Mr. Lima left Ms. McCarthy. Ms. McCarthy stayed in the Church Street house while Mr. Lima found other accommodations. At the time of separation, Mr. Lima was doing some IT work for the local YMCA. While so employed, he began a friendship with Ms. Michelle Maranger. Mr. Lima and Ms. Maranger began a romantic relationship within a short time of Mr. Lima’s separation. By the summer of 2012, Mr. Lima and Ms. Maranger were living together, along with Ms. Maranger’s daughter Paxton. The residence was not large enough to accommodate Mr. Lima’s children on a “week about” basis, along with Ms. Maranger and Paxton.

12Mr. Lima was accused of infidelity as a result of the timing of this new relationship.¹ Ms. McCarthy gave birth to the couple’s youngest son in 2012.

13The parties commenced litigation and were able to negotiate a final order before Koke J. on April 9, 2013. The relevant portions of the order state:

Parenting

7. The Respondent Bilinda McCarthy shall have custody of Kira Lima born September 20, 2000, [name] born October 30, 2009, [name] born April 12, 2011 and [name]born June 19, 2012 without prejudice to the Applicant Luis Lima being permitted to seek joint custody by application on or after April 30, 2014.

8. The Applicant Luis Lima shall have access as follows to all four children:

(a) Commencing Friday April 12, 2013 alternate weekends, from Friday at 5:00 p.m. until Sunday at 5:00 p.m. with such access to be extended to Thursday at 5:00 p.m. or Monday at 5:00 p.m. if there is a holiday or professional development day at school;

(b) Each and every Tuesday and Thursday from 5:00 p.m. to 9:00 p.m.;

(c) Holiday access schedule, as set out below;

(d) Reasonable telephone and e-mail access and the children shall be able to call the Applicant whenever they so wish; and

(e) Such further and other access as the parties may agree including one on one time for the child Kira Lima.

(f) The child Kira Lima shall be provided a cellphone by the Applicant Luis Lima for a trial period of thirty days.

Child Support

17. Commencing May 1, 2013 the Applicant Luis Lima shall pay to the Respondent Bilinda McCarthy child support for the children Kira Lima born September 20, 2000, [name] born October 30, 2009, [name] born April 12, 2011 and [name] born June 19, 2012 the sum of $2,082 on the 1^st day of each and every month based on the Applicant’s 2012 income of $79,980 less union dues of $1,100 plus net self-employment income of $15,000 for a total of $93,880.

18. The Applicant Luis Lima shall pay to the Respondent Bilinda McCarthy 75% of the children’s Section 7 expenses. The Applicant Luis Lima shall only contribute to the expenses which are agreed upon in writing prior to same being incurred and the Applicant Luis Lima shall not unreasonably withhold his consent.

19. Once the Applicant Luis Lima is discharged from bankruptcy the issue of the Applicant’s contribution to an RESP for the children shall be reviewed.

Spousal Support

20. The Applicant Luis Lima shall pay to the Respondent Bilinda McCarthy spousal support in the sum of $600 per month based on the high-range of the Spousal Support Advisory Guidelines commencing May 1, 2013.

14The court-ordered support payments were never updated to reflect changes in income.

The OCL

15Despite having settled upon a final order, the parties remained in court as certain issues arose. Specifically, Kira’s relationship with her father deteriorated and she no longer wished to see him. Mr. Lima was concerned that Ms. McCarthy was engaging in a pattern of parental alienation. Mr. Lima was also concerned with a schooling issue. The OCL became involved, and in a report dated August 20, 2015, the OCL generally applauded both parents’ parenting abilities but found that the father’s domicile was unsuitable for a “week about” parenting arrangement. At that time, the OCL stated that Ms. McCarthy wished for the access schedule to remain unchanged as she felt that the agreement was working well. She also felt “that her safety is an issue due to the past marital relationship. She does not wish to have direct contact with Mr. Lima due to those safety concerns and her view that he attempts to control her”. The OCL report disclosed no evidence to suggest Ms. McCarthy’s safety was in issue or that Mr. Lima attempted to control Ms. McCarthy.

16The OCL clinician observed both parents interact with the young children and opined: “Both Mr. Lima and Ms. McCarthy displayed exceptional parenting skills. Their parenting styles may differ but both styles are very effective and it appears that the children thrive under each of their care”.

17The clinician interviewed Kira who, at that time, had just finished Grade 9. The clinician wrote:

Kira was friendly and talkative. She presented as a mature and self-aware young woman. She stated that she will be entering grade ten at St. Mary’s college [sic] in September 2015. In grade nine, she obtained all of her credits but did not do as well as she could have achieved. Kira stated that she simply did not work as hard as she should have but guaranteed that her grades would improve in grade ten. She understands that she needs good grades if she wants to go to university. At present, she is thinking that she would like to become a lawyer or a police officer working with the canine unit.

18The clinician described Kira’s perception of her father:

The topic of her relationship with her father was addressed. She said that she did not wish to go to his home at present. For the most part, Kira said that she likes both Michelle and Paxton but there are things she does not like, particularly the way Michelle is overly involved with her brothers. Kira felt uncomfortable at her dad’s home observing the way that he and Michelle parented her brothers. They were not mean to them but were overly controlling at times.

Right now, Kira would prefer to be in control of how and when she sees her dad. She admits that she does not have all of the answers right now but does know that she does not want regular access with him. She would prefer to be able to see him on his own to start, perhaps for lunch. …

Kira stated that her relationship with her father, when she was younger, was both good and bad. Unfortunately, she is remembering the bad times at present.

19Ultimately, the clinician provided an opinion regarding Kira’s relationship with Mr. Lima:

With regard to Kira, Mr. Lima believed that Kira was being influenced by Ms. McCarthy and he alleged that the mother was alienating his daughter from him. After interviewing Kira, the clinical investigator concluded that Kira was making her own decisions regarding her access with her father. Kira stated clearly that her mother was not preventing her from seeing her father. Kira had cogent reasons why she did not wish to have scheduled access with her father at this time. She stated that, while she had good memories of her time with her father, she also had many more unpleasant memories and thus had decided to limit her contact with her father. By no means was Kira closing the door to a relationship with her father. She simply wanted to control how that relationship would proceed. To Mr. Lima’s credit, he accepted the fact that Kira was experiencing some discomfort in her relationship with him at this time. He reluctantly accepted to allow Kira to direct how their relationship would proceed. It may be helpful for Mr. Lima to maintain contact with his daughter via cards or gifts for her birthday and Christmas, etc. He can also send her photos of what is happening in his life including his activities with the boys.

20The clinician also discussed the schooling issue:

With regard to the schooling issue, Mr. Lima wished to have the boys transfer to F.H. Clergue as it was closer to the matrimonial home and therefore a shorter bus ride to and from school. Ms. McCarthy believed that the length of the bus ride was not that critical an issue and she strongly believed that St. Francis Catholic School was the better school for the boys. She stated that Kira had good memories of that school and she was confident in the staff at St. Francis. F.H. Clergue, at present, only goes to grade three. While there are plans to expand the classes to grade eight at some point in the future, both parents did not wish to separate the boys while they were in elementary school. To the credit of the parents, they compromised and agreed to monitor the bussing issue each year and then decide of which school [sic] the boys would attend…

21The clinician also drew certain conclusions regarding Mr. Lima’s parenting abilities:

With regard to the custody arrangement, Mr. Lima still wishes to obtain a week about parenting schedule. At present, Ms. McCarthy is a stay-at-home mother which is an attractive option for the three young children. There is no doubt that Mr. Lima has the parenting skills to have the children with him on alternate weeks. However, his present accommodation is not suitable for the children. When he has the boys with him on weekends, the boys have to sleep in the same room as Mr. Lima and his partner. Mr. Lima needs to find a home with sufficient bedroom [sic] for the boys. It may be a better option for Mr. Lima to apply to the Court for a week about schedule when Kira leaves home to attend university. At that time, in three years, he will have had the opportunity to find suitable housing and the boys will be old enough to manage a change in their living arrangements.

The parents do have an existing parenting agreement that has worked well for the most part. However, both Mr. Lima and Ms. McCarthy are seeking some adjustments in this arrangement. At a settlement meeting held on July 24, 2015, the parties could not reach agreement on any issues. Their personal history appears to block any effort to compromise. The parents must overcome their history in order to move forward to the benefit of their children. Mr. Lima and Ms. McCarthy appeared to understand that their children would benefit greatly from the parents having a civil and amicable relationship. Whether this new relationship can be achieved is questionable.

Kira

22Around this time, Kira began seeing her father periodically. They would speak on the phone and he would occasionally help her with her French homework. Other than that, the pair did not have an involved father-daughter relationship.

23Kira had difficulties as she got older. She attended two local high schools – St. Mary’s College and Superior Heights Secondary School – but left both of them prior to graduation. When she was at Superior Heights, she fell in with the wrong crowd and began experimenting with marijuana. At one point, marijuana was found in her locker and she was given a ten-day suspension. Ms. McCarthy had difficulty with Kira at this time and Kira went to live with Mr. Lima. This living arrangement only lasted one week. She returned to Ms. McCarthy’s residence where she continues to live.

24Ultimately, Kira enrolled at Holy Angels Secondary School, which is an adult learning program where students can study at their own pace. She graduated in September of 2021 and enrolled in Police Foundations at Sault College, commencing January 2022.

25While she was in school, Kira took dance lessons. She attended dance trips and recitals. Receipts were filed from Kira’s dance studio to show the amounts paid in fees:

a. 2012: $3001.25

b. 2013: $3095.11

c. 2014: $3714.30

d. 2015: $4439.55

e. 2016: $3937.42

f. 2017: $4457.03

g. 2018: $1712.01

26The total of the dance receipts is $24,356.67

Ms. McCarthy’s Education

27Ms. McCarthy began taking high school classes in 2013 and she graduated in 2019. She then enrolled in social work at Sault College and ultimately graduated with a specialization in indigenous services.

28Studying at Sault College was not easy for Ms. McCarthy. She underwent psychological assessments. Dr. Caruso prepared a psychoeducational report for Ms. McCarthy which was filed with the court. The report is dated December 9, 2020. Dr. Caruso described Ms. McCarthy’s issues as follows:

Bilinda had been originally referred to the Northern Ontario Assessment and Resource Centre by Meagna Smith for a psychoeducational assessment due to the following presentation concerns: memory problems, comprehension, having to read sentences multiple times, slow reading, difficulties with timelines and organization, writing/typing ideas for assignments, and spelling and writing.

29Dr. Caruso then described Ms. McCarthy’s feelings of fatigue:

Bilinda finds that she has little time for herself. When her children visit their father, every second weekend, she had several plans to get things done but spends her Saturdays feelings [sic] fatigued and not accomplishing what she had planned. On Sunday’s [sic], she feels that she has more energy and a little bit of time.

30Dr. Caruso described Ms. McCarthy’s aspirations:

In the future, Bilinda would like to influence and create systems to help people involving law and social work. She also plans on attending university, after completing her studies at college, to get a degree in social work and would like accommodations for university.

31Dr. Caruso also described Ms. McCarthy’s academic experiences and diagnosed her as having a learning disability and an adjustment disorder unspecified. Dr. Caruso described how Ms. McCarthy’s stressors may affect her life as a result:

While Bilinda’s responses on personality measures are well within normal limits and there are no indications of any mental health illnesses which might be impacting on her performance, her general demeanor throughout the assessment dates and difficulties with scheduling suggest that she may be feeling overwhelmed with schoolwork, managing a household, and being the primary caregiver for young children…

32Ms. McCarthy graduated from Sault College in 2021 and enrolled at Algoma University in the faculty of social work in September 2021.

Mr. Lima’s Situation

33In the meantime, Mr. Lima and Ms. Maranger got married in August of 2019. Paxton moved out of the house and she now has a child of her own. Mr. Lima and Ms. Maranger have renovated their house such that the former garage is now a large bedroom for the boys.

34In March of 2021, Mr. Lima left Algoma Steel for a job at SAH.

General Commentary on Evidence

35Prior to describing the disputed evidence, there are two general points I wish to make. First, the parties called considerable evidence that was apparently designed to help one parent reach the “moral high ground”. For example, the parties called a fair amount of evidence regarding a meeting that occurred at the boys’ school almost a decade ago where the parties and Ms. Maranger got into a heated verbal disagreement. This meeting occurred shortly after separation and tempers were undoubtedly running high, especially given the allegations of infidelity raised by Ms. McCarthy. I need not determine whether either party was the aggressor in this meeting as such a finding is irrelevant to the issues before me. I will thus not reproduce any of this “moral high ground” evidence (or other such evidence) save and except where it is relevant to the issues before me.

36Second, the parties, Ms. Maranger and Kira all presented as decent people. I take no exception with them as individuals. However, all of them gave the distinct impression that they were testifying in a manner that was designed to advocate a position, rather than to simply answer the questions asked. Accordingly, I will not use demeanor as a basis to resolve credibility disputes in this trial, save and except where specifically noted.

Evidence Called by Mr. Lima

Mr. Luis Lima

Examination-in-Chief

37Mr. Lima testified that he is 49 years old and lives on Tilley Road in Sault Ste. Marie, Ontario. He lives with Ms. Maranger in half of a duplex. Ms. Maranger’s mother owns both halves of the duplex, and lives in the adjoining residence.

38Mr. Lima testified that he accepts that Ms. McCarthy is a good mother. He does not take exception with her overall parenting.

39Mr. Lima testified that Kira did not finish her schooling at Superior Heights. Like many teenagers, she had issues while attending the school and wound up living with Mr. Lima for approximately one week, about 4 years ago. Mr. Lima and Ms. Marenger enrolled her in school, got her a part-time job and attempted to get her life back on track. After a week, Kira returned to live with Ms. McCarthy.

40Kira finished her high school at Holy Angels. Kira has been diagnosed as having ADHD which causes her to take longer to complete school.

41Mr. Lima testified that Kira had numerous absences at school which were of concern. He also testified that the boys have had numerous absences at school, as well as a number of late attendances. He testified that he believes that this is due in part to the fact that the children attend school across town with an hour-long ride each way.

42Mr. Lima believes that the number of absences may be attributable to the number of trips taken by Ms. McCarthy and the children. Ms. McCarthy took the children to Disney on a number of occasions, as well as on a trip to Mexico. Mr. Lima was also concerned that Ms. McCarthy took the children on a number of dance trips.

43Kira broke off relations with Mr. Lima but Mr. Lima did not specify why that occurred. Mr. Lima did, however, testify that he has been kept somewhat in the dark regarding his children’s lives. It was only as a result of this litigation that Mr. Lima learned that Kira was enrolled in Police Foundations at Sault College.

44Mr. Lima and Ms. Maranger have renovated their current home. The boys share a large bedroom that was formerly a garage. Mr. Lima testified that the living arrangements at his home are more conducive to “week about” parenting than they were in 2015 when Ms. Maranger also had her daughter Paxton living with them (and prior to the renovation of the garage). Mr. Lima testified that the house has been renovated for the purpose of having the three boys live with him on a more regular basis. Mr. Lima testified that the boys’ new bedroom has been renovated in a manner consistent with their interest in archeology, dinosaurs and the like.

45Mr. Lima testified that the boys enjoy being at his home. They engage in fun activities and they enjoy their time together. They share family bonding over such things as soccer and other child-centred phenomena.

46Mr. Lima and Ms. Maranger manage their work schedules such that someone is always available to be with the boys.

47Mr. Lima is concerned that Ms. McCarthy has not respected the spirit of Koke J.’s order as it pertains to his ability to parent the boys. Mr. Lima testified that he was advised about certain of the boys’ medical issues after the fact, rather than in real time. For example, one of the boys has a nut allergy and Mr. Lima found out about a hospital visit caused by a reaction the day after the visit. Mr. Lima also testified that he was listed as the third contact at the children’s schools after Ms. McCarthy and Ms. McCarthy’s mother. Mr. Lima did not believe that this was in the children’s best interests.

48Mr. Lima is also concerned that one of the boys, who is 12 years old, is suffering from clinical obesity. The child weighs in excess of 200 pounds and Mr. Lima is worried that the boy is not getting enough physical activity. Mr. Lima was a former semi-professional soccer player and is a certified rep-level soccer coach. As a result, he feels that he can shepherd the youngster into a healthier lifestyle. He is also concerned that the boy’s doctors identified the issue and suggested that the boy meet with a nutritionist, but Mr. Lima testified that said meeting has not materialized. Mr. Lima testified that he and Ms. Maranger have healthy foods available for the children.

49With respect to his income, Mr. Lima testified that he was always the main income earner in the family but that Ms. McCarthy also earned money during the relationship. From 2010 to March 2021, Mr. Lima worked at Essar/Algoma Steel and at the local YMCA. His work at the YMCA was sporadic and involved working off-hours in an arrangement that Essar accepted.

50Mr. Lima ultimately worked his way into management at Essar in the IT Department. He described the work environment as being very stressful with long hours. For example, there were instances where budget cuts demanded that Mr. Lima deal with IT issues at night or on weekends. He testified that Essar was a stressful job that became more difficult as he grew older. Mr. Lima is now almost 50 years old and that he cannot keep working overtime in such a stressful environment.

51Mr. Lima’s Notices of Assessment showed that Mr. Lima earned the following amounts:

a. 2014: $82,239.44

b. 2015: $89,007.45

c. 2016: $96,748.53

d. 2017: $104,330.82

e. 2018: $122,929.03

f. 2019: $123,245.09

g. 2020: $137,174.58

52Mr. Lima testified that his 2020 income increase was as a result of bonuses tied to the steel market, as opposed to bonuses for personal performance.

53In March of 2021, Mr. Lima left Algoma Steel to work in IT at SAH. He testified that SAH is an 8 – 4 job with no overtime. He has a good pension and benefits. Mr. Lima testified that he anticipates that he will earn $107,000 in 2021 and that the hours he now works will enable him to spend more time with the children.

54As regards s. 7 expenses, Mr. Lima testified that many of the expenses paid for by Ms. McCarthy were not justified. For example, he testified that Kira’s need for follow-up orthodontic treatments flowed from Kira’s inability or unwillingness to follow proper protocols. Mr. Lima does not know why he should pay for unnecessary treatments.

55Equally, Mr. Lima questioned the need to pay for Kira’s competitive dance given the financial situation in which the family found itself during the relevant times. This is especially true given the number of trips Ms. McCarthy took with the children.

Cross-Examination

56Mr. Lima testified that Ms. McCarthy worked consistently after Kira was born, although her income was always lower than his. Ms. McCarthy was a manager at a clothing store in the mall in Sault Ste. Marie. She was successful in this role and was offered a managerial position in Sudbury with the same company, but turned it down as a result of family obligations.

57After the birth of their second child, Mr. Lima denied that the couple decided that Ms. McCarthy ought to stay home. Rather, Mr. Lima testified that he wanted Ms. McCarthy to return to work but that she chose unilaterally not to do so.

58Mr. Lima agreed that he spent considerable time with Ms. McCarthy’s brother, Andrew, during the marriage. Mr. Andrew McCarthy rented from the couple when the latter needed a place to live. Mr. Lima disagreed with the suggestion that, when he left the marriage, he left the house in a dilapidated condition.

59Mr. Lima was also asked questions about school pick-ups and drop-offs where Ms. Maranger videotaped the interactions. A number of questions were asked about these exchanges and I do not understand the relevance of same save and except to state that the taping incidents, which occurred a number of years ago, reveal the level of antipathy that existed as between Mr. Lima and Ms. McCarthy.

60Mr. Lima was asked about his financial situation. He indicated that he had to file for bankruptcy as a result of his divorce. He testified that he is in a “rent-to-own” situation with his current mother-in-law whereby some of his rent gets apportioned towards owning the house in which he currently resides. The nature of the “rent-to-own” situation was not made clear to me.

61With respect to the poor communication as between Ms. McCarthy and Mr. Lima, Mr. Lima was taken to emails that suggest that, generally speaking, he was advised about the children’s affairs in a timely fashion. Nonetheless, it was apparent from the emails that there were instances where Mr. Lima was not advised quickly about certain matters. It was also clear from the emails that Mr. Lima did not advise Ms. McCarthy that he had purchased a membership to a local fitness club for one of his sons. Mr. Lima explained that this particular purchase was, in fact, a Christmas gift for the boy.

62When asked about his son’s weight problem, Mr. Lima held firm in his belief that the boy’s doctor suggested that the boy follow-up with a dietician.

63Mr. Lima testified that a 2011 psychologist’s report identified Kira as having ADHD. As a result, Mr. Lima acknowledged that Kira worked at a slower pace than other children.

64Mr. Lima denied an allegation that, when Kira was young, he struck her on the shin such that the child was hurt and/or traumatized. Mr. Lima denied being overly stern with Kira at any point.

65Mr. Lima was asked about Kira moving in with him when she was 16. He testified that when she moved in with him, he was able to secure a part-time job for Kira. Kira’s stay with Mr. Lima occurred because Ms. McCarthy was having difficulty parenting Kira. Mr. Lima confirmed that the stay lasted approximately one week.

66With regard to s. 7 expenses, Mr. Lima testified that Kira liked dance but that she loved soccer. Mr. Lima did not specify how he knew this assertion to be true.

Ms. Michelle Maranger

67Ms. Maranger testified that she is married to Mr. Lima. She works as a PSW for seniors in their homes.

68She has known Mr. Lima for 15 years. They reside in a bungalow that has been renovated whereby the garage is now a very large bedroom that can accommodate the boys. Ms. Maranger’s daughter and her grandson come over to stay occasionally. The grandson is very young. Ms. Maranger testified that the boys’ relationship with her grandson is excellent.

69Ms. Maranger testified that the couple have a very structured household. The boys thrive on routine and the couple ensures that the boys adhere to a “business first, play second” mentality. Accordingly, their homework gets done.

70Ms. Maranger testified that she wants to have the boys live with herself and Mr. Lima on a “week about” basis. She testified that the boys enjoy their time at her household and that they have a lot of family fun together.

71Ms. Maranger admitted that her relationship with Ms. McCarthy and Kira is not good. She recalled an incident in the mall food court a few years ago when Kira was a teenager. Kira appeared to be in distress. Ms. Maranger directed Kira away from the food court. Ms. Maranger believed that Kira may have been using substances at that time.

72Ms. Maranger admitted that she filmed a pick-up/drop-off based on bad advice that she had received. She acknowledged that this filming contributed to the negative animus as between herself and Ms. McCarthy. Ms. Maranger also admitted that there was a confrontation between herself and Ms. McCarthy at a school meeting. I note, however, that these incidents occurred several years ago.

73In cross-examination, Ms. Maranger denied taking the boys out of the District of Algoma contrary to Koke J.’s order.

74Ms. Maranger also denied forcibly grabbing Kira during the mall incident.

Ms. Laura Lima-Wilson

75Ms. Lima-Wilson is Mr. Lima’ sister. She resides in Mississauga, Ontario. She and Mr. Lima’s family see each other once or twice a year. They have shared holidays together and she described her brother as loving, easy going and generally a good father.

Ms. Carmela Resnick

76Ms. Resnick is the principal at St. Francis French Immersion Catholic School.

77Ms. Resnick testified that Mr. Lima has attempted to stay involved in the children’s lives despite not being the custodial parent. Ms. Resnick described an incident that occurred almost ten years ago where Ms. McCarthy and Ms. Maranger exchanged words at a parent-teacher meeting.

78Ms. Resnick was shown the boys’ report cards and she indicated that she had concerns with respect to the boys’ absences and lateness.

Ms. Krystina Pino

79Ms. Pino testified that she is a teacher at St. Francis. She taught the boys.

80She indicated that the boys had numerous absences and were often late.

81She testified that she had some difficulty contacting Ms. McCarthy about the absences and lateness. She would leave messages for Ms. McCarthy but they would not always be returned.

Ms. Erin Brown

82Ms. Brown was a teacher at St. Francis school. She taught the boys.

83Ms. Brown also commented that the boys were often late and/or absent from school.

84Ms. Brown described an incident where she had an issue with one of the boys’ homework. Ms. Brown had concerns about whether the boy had plagiarized the homework from the internet. Kira responded to Ms. Brown’s inquiries as opposed to Ms. McCarthy. The nature of Kira’s responses caused Ms. Brown to report same to the CAS.

85Ms. Brown testified that she has had difficulty contacting Ms. McCarthy in that Ms. McCarthy does not return phone calls.

86Ms. Brown testified that Mr. Lima is a pleasant person and is easy to deal with.

Ms. Allison Brideaux

87Ms. Allison Brideaux submitted an affidavit whereby she deposed that she knows Mr. Lima. Her husband and Mr. Lima are friends.

88Ms. Brideaux deposed that Mr. Lima, based upon her observations, is a good parent.

Evidence Called on Behalf of the Respondent

Ms. Bilinda McCarthy

Examination-In-Chief

89Ms. McCarthy testified that she is 48 years old. She lives on Church Street with her four children. The house is large and the children have their own bedrooms. The neighbourhood has a friendly feel with parks and friends/relatives nearby.

90She lived with Mr. Lima from 1999 to the start of 2012 when the couple separated. At that time, Ms. McCarthy had not completed her high school education. She worked in retail and other similar positions, culminating with a job at a local clothing store. She worked at the clothing store from 2006 to 2009. She left that position when both she and Mr. Lima agreed it was in the family’s best interests.

91Her brother Andrew lived with the family during the 2000’s. Her brother and Mr. Lima were very close at the time.

92Ms. McCarthy described Mr. Lima as being angry and aggressive. Kira stopped visiting her father as a result of this anger and aggression. Ms. McCarthy testified that the more stress Mr. Lima is under, the angrier and more aggressive he becomes. Ms. McCarthy described one instance where Kira was very young and Mr. Lima threw skates at Kira.

93Ms. McCarthy testified that she attempted to ensure that Kira and Mr. Lima had a good relationship post-separation by undertaking gestures such as making treats for Kira to give to her father. Mr. Lima was not receptive to these gestures. Kira stopped visiting her father as a result. Mr. Lima did help Kira with her French homework and Kira lived with her father for about a one week period when Kira was about 16 years old.

94Kira participated in soccer and dance. Ms. McCarthy was a “bench mom” in soccer so as to compensate for Mr. Lima’s aggression. After separation, Kira continued in dance and she averaged two competitions per year. Dance was very important to Kira and, by the end of her time in dance, Kira was an assistant teacher. Ms. McCarthy believes that dancing was good for Kira emotionally, physically and mentally.

95When Mr. Lima moved out of the home, the house badly needed repair. Ms. McCarthy was forced to juggle her life financially to make ends meet. The children attended daycare as a result of a subsidy that she received.

96Currently, Ms. McCarthy is enrolled at Algoma University where she is studying social work. She began this course in September of 2021 after graduating from Sault College where she received a diploma in social work with a specialization in indigenous services. She wants to complete her education because it will give her independence. She testified that going back to school is the best thing that she has ever done.

97Ms. McCarthy filed a number of job postings for social workers. These postings require a university degree and pay in excess of $60,000 per annum.

98Since separation, the children and Ms. McCarthy have taken three trips to Disney, one trip to Mexico, and been to several dance competitions.

99Ms. McCarthy testified that she encouraged the children to have positive relations with their father. She did not prevent Mr. Lima from accessing school information. Ms. McCarthy was taken to a number of emails that appeared to contain real-time communication regarding the children and their education and/or health.

100Ms. McCarthy acknowledged that her mother was listed as a secondary contact at school – as opposed to Mr. Lima – because her mother lives two streets from Ms. McCarthy’s house and having her mother listed as the secondary contact makes managing the children’s lives easier.

101Ms. McCarthy denied that she attempted to hold back information from Mr. Lima as regards the children. There were instances where Mr. Lima was advised of certain situations after the fact, but these notifications (nut reactions, etc.) occurred shortly after the event itself.

102As regards her son’s weight issue, Ms. McCarthy testified that she took her son to see a doctor and to a dietician. She agreed that she did not follow up with another appointment with the dietician although she maintained that her son is active and has a healthy diet.

103Ms. McCarthy testified that it was always the case that Kira required a multi-year orthodontic treatment. Ms. McCarthy produced receipts from the orthodontist evidencing this fact.

104Since COVID, Ms. McCarthy has changed the children’s activities to involve more outdoor activities so to ensure physical fitness.

105With respect to her involvement with the schools, Ms. McCarthy denied that she was difficult to reach or had difficulty returning phone calls. Ms. McCarthy also described the problematic parent-teacher meeting from several years ago and indicated that Ms. Maranger’s presence at the meeting caused the problem.

106Ms. McCarthy has ensured that the children have good relationships with their extended family including Ms. McCarthy’s relatives in Sudbury. She has also ensured that the children stay in touch with their Portuguese heritage by, amongst other things, following a Portuguese TikTok channel.

107Ms. McCarthy testified that Mr. Lima’s plan for joint decision-making and “week about” parenting time would not work. First, the children would not cope well with having their schedule interrupted and would be out of sorts. When they are going to their father’s house or coming home from being with their father, they are anxious and upset. Ms. McCarthy testified that the boys’ routine would be disrupted by changing the parenting schedule and that it was in their best interest to maintain the status quo.

108Ms. McCarthy stated that the children know that she advocates for them which, by implication, suggests to me that Ms. McCarthy was attempting to state that the children also know that their father does not advocate for them.

109Ms. McCarthy was clear that joint decision-making would not work as the two parents do not communicate well.

Cross-Examination

110Ms. McCarthy agreed that Mr. Lima has always paid support. She also testified that working while the children were young would have been difficult given their housing situation and the like. Ms. McCarthy always had minimum wage jobs.

111It took Ms. McCarthy six years to complete her Grade 12 diploma. As long as she was going to school, she could not work. She attempted to find work after getting her college diploma but everywhere she looked required a university degree, such as the CAS.

112Ms. McCarthy saw a psychologist, Dr. Caruso, while attending Sault College. Dr. Caruso gave a diagnosis that stated that stress triggers problems for Ms. McCarthy. Ms. McCarthy denied that a “week about” parenting schedule would reduce her stress. She was shown a section of the report where the doctor indicated that Ms. McCarthy “feels that she has more energy and a little bit of time” on Sundays when the boys are at Mr. Lima’s house. At this point, Ms. McCarthy’s testimony became defensive, and she suggested that it would be more stressful for her to worry about the children while they were at their father’s residence.

113Ms. McCarthy was taken through financial records. She budgeted $490/month for pet care, and she denied that this was an excessive expense. She also testified that the trips that the family took were not excessive in that her mother paid for one Disney trip while Ms. McCarthy was forced to pay $10,000 for the Mexico trip because it was a family wedding.

114Ms. McCarthy testified that she did not believe that Kira missed an undue amount of school. Kira had challenges and had to change schools because of difficulties with supports at St. Mary’s College and Superior Heights. Ultimately, Kira attended Holy Angels which enabled her to work at her own pace.

115Ms. McCarthy also recounted an episode where drugs were found in Kira’s locker at Superior Heights. Kira kept marijuana in her locker because some of her peers had made her do so. Kira ended up with a ten-day suspension as a result of the incident.

116Ms. McCarthy agreed that soccer is less expensive than dance given Mr. Lima’s status as a coach.

117Ms. McCarthy testified that she was hesitant in letting the children get vaccinated, especially their second vaccination. She was not opposed to vaccination but was merely hesitant.

118Ms. McCarthy denied that she had a difficult relationship with the children’s teachers.

119Ms. McCarthy made clear that she gets financial help from several sources to fund her education, including bursaries. It was not made clear to me how much money was received and/or the quantum that needs to be repaid.

Ms. Kira McCarthy-Lima

Examination-in-Chief

120Kira testified that she is 20 years old [she is now 21] and resides with her mother and her brothers at the Church Street address. She graduated from Holy Angels in September 2021. She began studying Police Foundations at Sault College in January 2022. She hopes to pursue an undergraduate degree and attend law school.

121Kira testified that her ADHD makes organization very difficult for her. Kira testified that her mother helped her to learn organizational skills by teaching her to reverse engineer her steps once she identified a particular goal.

122Kira described her youth and her relationships with her parents. She stated that her father was more athletic while her mother was more emotional.

123After separation, she would see her father every Tuesday, Thursday and every second weekend. At her father’s house, she felt like she was engaged in a game of emotional survival. She had to follow strict rules. She had to eat all her food or risk having it shovelled into her mouth. In fact, Kira described an episode where Mr. Lima was stuffing food into her brother’s mouth. In late Grade 8, she stopped going to her father’s house. Had she continued going to his house, she testified that she would have been a “shell of a person”.

124With respect to her scholastic record, Kira testified that she had difficulties with some teachers and some students while at St. Mary’s and Superior Heights. She tried marijuana when she was 16 years old. She ultimately transferred to Holy Angels which enabled her to study at her own pace.

125Dance was very important to Kira in that it helped her with time management and enabled her to chase a dream. Kira danced throughout her high school years.

126Kira testified that she needs braces in order to have her teeth and jaw set properly. Without the braces, she would potentially need her jaw broken. These braces require multiple treatments. Orthodontic receipts were filed with the court from Dr. Kent Floreani. These receipts show that Kira’s treatments cost a total of $6,880.

127Receipts for Kira’s eyeglasses were also filed with the court totalling $225.00 from 2018.

128Kira recounted an episode from when she as a young child when her father hit her on the shins while she was skating at the GWL Gardens. She testified that she was scared but that she girded herself to deal with her father’s aggression during the incident.

129Kira also recalled an incident at the Great Wolf Lodge when she was 8 or 9 years old and her father lost his temper and struck her in the mouth.

130Kira recalled staying at her paternal grandparents and seeing her paternal grandmother welted. She recalls that she stayed at her paternal grandparents for about a week and believes that she observed the effects of domestic violence.

131She described an incident at the Station Mall when Ms. Maranger walked with her in a physically intimidating manner. This incident occurred at the food court.

132Kira also recounted an episode where her father became very upset with her mother. This incident occurred when she was around 16 years old and was experimenting with marijuana.

133Kira testified that her father would punish her by pinching her hard in a manner that hurt.

134In all, it was clear that Kira was afraid of her father.

Cross-Examination

135Kira described her parents’ houses as being dichotomous: one was easygoing while one was strict. She testified that one parent (her mother) welcomes the individual needs of children, while the other parent (her father) makes one conform to norms.

136She was pressed on her recollections of her father’s temper and she held firm that her father got very angry with her. She specifically recalled the episode at the GWL Gardens where he struck her when she was 11 or 12 years old.

137Although her evidence was not specific in this regard (i.e. she did not provide exact dates), Kira testified that she worked full-time at Winner’s while pursuing her high school education. During 2021, it appears that she worked full-time while attending Holy Angels. She testified that she worked five days a week, six to eight hours per shift. Further, there were periods of time when she was not attending school that she worked two jobs (Winners and waitressing) to pay for post-secondary education. This period of double employment lasted only a month or two.

138Ultimately, Kira viewed her father and Ms. Maranger as being abusive. Kira was taken to the OCL report where she did not mention anything about the alleged abuse. Kira noted that this report was written when she was much younger. She testified that she was not ready to disclose anything at that time.

Re-Examination

139Kira testified that her mother would let the children dictate what the children wanted to do in their daily lives.

Ms. Sharon Rimmer

140Ms. Rimmer is an Algoma District School Board early childhood educator. She ran the preschool that Ms. McCarthy’s children attended when they were young. Ms. McCarthy was there 2 to 3 times per week. They became good friends to the point where Ms. Rimmer babysat the children.

141Ms. Rimmer described Ms. McCarthy as a good mother.

Mr. Andrew McCarthy

142Mr. McCarthy testified that he has lived in Sudbury since 2009. He has two stepdaughters. He is 45 years old.

143He was very involved with Kira when she was young as he lived with Mr. Lima and Ms. McCarthy. He previously considered himself to be a friend of Mr. Lima’s.

144Mr. McCarthy thought that Mr. Lima was too hard on Kira. Kira has ADHD which makes organization and focusing on a task difficult for her.

145Mr. McCarthy recalled an episode when Mr. Lima was upset with Kira for not getting her skates on quickly. Mr. Lima lost his temper and struck the child on her legs. Mr. McCarthy felt that this action was excessive.

146Mr. McCarthy also described Mr. Lima as pinching Kira as a means of punishing her. These pinches hurt Kira. Mr. McCarthy testified that Mr. Lima was generally too hard on Kira.

147Mr. McCarthy was forthright about his own addiction issues and his success in overcoming same.

Ms. Tracy McCarthy

148Ms. Tracy McCarthy testified that she is Ms. McCarthy’s mother (the “Grandmother”). The Grandmother is a registered nurse at the SAH.

149The Grandmother testified about the background to this application in some detail. That testimony is not relevant to the issues to be decided by me, so I need not repeat same.

150The Grandmother described Mr. Lima as an aggressive father. She testified that Mr. Lima has a bad temper.

Ms. Angela Cooper

151Ms. Cooper swore an affidavit that described the incident whereby Ms. Maranger filmed a pick-up. I need not repeat said testimony as it is irrelevant to the issues before me.

POSITION OF THE PARTIES

152Mr. Lima submits that the following is in the best interests of the boys:

a. Joint decision-making to allow Mr. Lima more input into the boys’ lives; and

b. “Week about” parenting time.

153As regards financial issues, Mr. Lima submits that the court ought to:

a. Impute income to Ms. McCarthy to reflect the fact that she is in a position to return to work;

b. Vary the existing child support payments to reflect:

i. A change in the parenting time; and

ii. Ms. McCarthy’s imputed income;

c. Terminate spousal support since Ms. McCarthy is able to work outside the home given her educational achievements. In the alternative, Mr. Lima asks that spousal support continue with Ms. McCarthy being imputed a reasonable income;

d. Terminate child support obligations for Kira since she is 21 years old; and

e. Determine that certain s. 7 expenses paid for by Ms. McCarthy were in fact unreasonable given the parties’ financial situation.

154Ms. McCarthy submits that:

a. It is in the boys’ best interests for her to have exclusive decision-making authority;

b. It is in the boys’ best interests for the parenting schedule to remain unchanged as the children have succeeded under her care;

c. Child support for Kira ought to continue as Kira has gone back to college;

d. Ms. McCarthy is entitled to continued spousal support which will enable her to further her educational pursuits; and

e. Mr. Lima’s ought to make pro rata contributions to section 7 expenses that Ms. McCarthy says are reasonable in the circumstances.

ANALYSIS

Decision-Making and Parenting Time

155On March 1, 2021, new provisions of the Divorce Act came into force with respect to decision-making and parenting time. Section 16(1) and 16(2) of the Divorce Act mandates that orders in this regard must be made while keeping the best interests of the child as the primary objective:

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

156Section 16(3) of the Divorce Act lists specific factors to be considered when determining the best interests of the child:

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

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

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

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

157Section 16(4) of the Divorce Act describes a nuanced approach to be undertaken with respect to family violence:

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

158Section 16(6) of the Divorce Act explicitly recognizes the preferability of maximum parenting time with each parent:

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

159Section 16.1(4) of the Divorce Act enables the courts to allocate parenting time and decision-making responsibility. As regards decision-making (formerly “custody”), a considerable body of law exists that suggests that where parents cannot communicate effectively and/or have incompatible priorities, shared decision-making (or “joint custody”) is often inappropriate. At para. 11 of Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (Ont. C.A.), Weiler J.A. (as he then was) stated:

The 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. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.

160Mr. Lima does not dispute that Ms. McCarthy is an effective parent. She has been primarily responsible for raising four children over the past 10 years and, by all accounts, has generally succeeded in helping these young people progress towards adulthood. Accordingly, I do not worry about Ms. McCarthy’s ability to parent (with one exception, to be addressed later in these reasons).

161With respect to Mr. Lima, the OCL clinician believed in 2015 that Mr. Lima was capable of “week about” parenting. Equally, the children’s teachers indicated that Mr. Lima attempted to be involved in the children’s lives. In fact, the teachers indicated that Mr. Lima was easier to deal with than was Ms. McCarthy. Mr. Lima’s friends and relations also painted a picture of a doting father who attempted to help his boys in any way possible.

162In contrast, Ms. McCarthy’s witnesses (Ms. McCarthy, the Grandmother, Kira and Mr. Andrew McCarthy) described Mr. Lima as a father that was too strict and whose anger went beyond what was reasonable in the circumstances.

163When I consider all the evidence regarding Mr. Lima’s parenting, I note a few things. First, the OCL Report is several years old and cannot be relied upon as an accurate barometer of the current state of affairs. Nonetheless, it should be given some weight as objective evidence of Mr. Lima’s parenting abilities.

164Second, the evidence of both parties’ “friends and relations” must be taken with a grain of salt. I am satisfied that these witnesses testified truthfully. I am satisfied that they all attempted to recall events as accurately as possible. Nonetheless, I am also satisfied that families will inevitably “put their best foot forward” when non-immediate family members are around. As such, the evidence from Mr. Lima’s family and friends is of limited value in that it is not necessarily representative of the full reality.

165Of greater weight is the evidence from the teachers who suggest that Mr. Lima is a responsive parent who is concerned about the welfare of his children. This suggests that Mr. Lima has the ability to parent the boys in a meaningful fashion.

166I also note that the perception of acceptable parenting styles differ based upon an individual’s situation. Clearly, there are some forms of parenting that are entirely unacceptable in any circumstance. I do not believe that Mr. Lima’s parenting is of the latter variety otherwise Ms. McCarthy would have undoubtedly tried to withdraw Mr. Lima’s parenting time entirely and/or had CAS or other authorities involved with the family. Rather, it appears to me that Ms. McCarthy, Kira, the Grandmother and Mr. McCarthy’s concerns about Mr. Lima’s aggression are amplified because these people support Ms. McCarthy’s more sensitive parenting approach. Viewed from the perspective of a sensitive parent, Mr. Lima’s strict and disciplined approach could well seem inappropriate but, from an objective perspective, Mr. Lima’s parenting style may be entirely acceptable. Therefore, I find that Ms. McCarthy’s concerns regarding her boys’ anxiety upon returning home from their father’s residence is likely an innocent overstatement.

167I am troubled, however, by the evidence about Mr. Lima’s apparent use of corporal punishment. First, I accept Mr. McCarthy’s and Kira’s evidence that Mr. Lima pinched Kira and lashed out physically. Mr. McCarthy did not present as a witness whose credibility was flawed in any way. Rather, he testified about his own foibles in a forthright manner and presented his evidence in an even-handed and balanced fashion. His evidence is corroborated by Kira who, despite recalling events from her childhood, was specific and cogent. While Mr. Lima denies ever striking Kira, one can imagine how a father of three, with a pregnant wife, under financial pressure and living in a crumbling marriage, could be too aggressive and physical in such a circumstance. I note that the events in question occurred many years ago and that people can block out events about which they are ashamed. Mr. Lima may be suffering from such a blockage as regards these incidents.

168Although I do not accept Mr. Lima’s denial regarding the use of corporal punishment, I am not satisfied that he is generally physically abusive towards the children. As noted earlier, Ms. McCarthy testified that she is someone who advocates for her children and, if Mr. Lima truly were prone to abuse, she would have undoubtedly reported same to the authorities. Nonetheless, I accept that Mr. Lima has a strict parenting style that has, in the past, been too firm so as to be in the children’s best interests.

169Using these findings as a backdrop, I must also consider the parents’ ability to communicate and work together. Mr. Lima testified that Ms. McCarthy did not give him sufficient information about the boys. Ms. McCarthy testified that she did provide sufficient information and that Mr. Lima was the one who was not testifying in a manner consistent with the facts. It is clear from this conflicting evidence that the parties do not work well together. Further, the parties clearly have bad feelings towards each other which may flow from the separation and the allegations of infidelity. Kira’s lack of a relationship with her father undoubtedly reflects the negative emotions existing within the family dynamic. Although Ms. McCarthy has provided Mr. Lima with reasonable information regarding the children’s schooling and health issues, the parties have not been able to discuss the children’s well-being with one another in a meaningful fashion. Mr. Lima believes that he has been excluded from decision-making input as evidenced by his subordinate position on school contact lists. While his concerns may be somewhat overstated, they are nonetheless rooted in objective evidence. To think that joint decision-making could work in such a dysfunctional environment fails to give adequate weight to the realities of this communication breakdown and the parents’ differing priorities.

170Given the foregoing, decision-making authority should remain with Ms. McCarthy. Joint decision making will not succeed in this case. As was admitted by Mr. Lima, Ms. McCarthy has been a good parent. Accordingly, I see no reason to change decision-making authority.

171Given this ruling, I am compelled to make some further observations about the decision-making status quo. The teachers uniformly testified that the children’s attendance is problematic. Being late and/or absent from school on a regular basis undoubtedly sets the tone for poor academic performance. Kira had a poor attendance record in high school, had personal difficulties during that time, and took longer than many students to complete her secondary school education. Given her ADHD diagnosis, it is obvious to me that Kira would have benefitted from a more structured environment that emphasized attendance, assiduity, and scholastic achievement. The number of late’s and absences on her school record did not help her achieve her potential and, had circumstances been different, it is reasonable to wonder whether Mr. Lima’s more structured approach to parenting may have assisted Kira, despite obvious concerns about Mr. Lima’s apparent inability to meet Kira’s emotional needs. Kira may have benefitted from fewer trips, less extra-curricular activity and more punctuality².

172I outline my concerns regarding Kira as a cautionary tale for Ms. McCarthy. Her sons must attend school regularly and must be on time. Failure to meet the mark in this regard could lead to their academic downfall. Mr. Lima had concerns about sending the children across the city to go to school as far back as 2015. Ms. McCarthy did not believe that this phenomenon was problematic. Clearly, this is an issue.

173Accordingly, while Ms. McCarthy retains decision-making authority, she shall ensure that:

a. Mr. Lima is consulted prior to any major decisions regarding the boys. Mr. Lima’s views shall be given appropriate consideration;

b. Mr. Lima is advised as soon as is practicable about any consequential developments in the boys’ lives, and/or any major decisions ultimately made post-consultation regarding their well-being; and

c. The boys attend school punctually and that school absences are kept to a minimum. A failure to ensure consistent school attendance and punctuality shall be considered a material change in circumstances with respect to decision-making, parenting time, and the correlative effect that any changes to my order may have upon child and spousal support.

174With regard to parenting time, I am mindful that Mr. Lima’s relationship with Kira appears to have failed as a result of, amongst other things, Mr. Lima’s strict parenting. Kira testified that had she maintained a relationship with her father and continued to visit him regularly, she would have been a “shell of a human being”. As noted earlier, Mr. Lima’s approach failed Kira and he needs to think about how he deals with his boys in the future.

175On the other hand, it is also clear that the boys’ teachers have concern that the boys need more discipline in their lives. The boys’ attendance at school is concerning. The eldest son’s weight issues may also suggest that the boy requires a more disciplined approach to eating and physical activity. As noted earlier, I believe that Mr. Lima’s parenting is not inherently dangerous to the boys, despite Kira’s description of unfortunate events from her childhood. I caution Mr. Lima to consider the effects his parenting have had upon his daughter, and I encourage him not to repeat his mistakes with his sons.

176In total, it would be in the boys’ best interests to have more time with their father so that they can learn to have more structure and discipline. This discipline will presumably enable them to obtain academic and fitness success and gain confidence from personal achievement. However, if the boys begin to have the same negative animus towards Mr. Lima that Kira developed, the court will consider this animus a material change in circumstance with respect to decision-making, parenting time and any correlative effect that this change to my order may have upon child and spousal support.

177I thus order that paragraph 8 of Koke J.’s April 9, 2013 order (which governs parenting time) shall be replaced with the following:

Commencing May 1, 2022, Mr. Lima shall have parenting time with the three youngest children three weekends out of every month. This weekend parenting time shall commence on Wednesday after school and last until Monday morning school drop off. If Monday is a P.A. Day or a holiday (other than holidays for which parenting time has already been allocated in this order), then parenting time shall continue until the Tuesday morning. This parenting time shall occur on weekends that commence upon the first, second and fourth Wednesday of every month. This paragraph shall be superseded by specific holiday parenting time and/or other special parenting time as described elsewhere in this order. Mr. Lima shall not engage in corporal punishment with the children at any time.

178Such an order ensures that the boys will have more parenting time with their father which will give them a clear and disciplined routine, while at the same time maintaining a balance as between the parents’ disparate approaches to parenting. This schedule also minimizes the travel as between the two households and reduces possible friction at pick-ups and drop-offs.

179Such a schedule is in the boys’ best interests.

Mr. Lima’s Income

180A question arose during this trial as to whether Mr. Lima’s change in employment was reasonable in the circumstances. I find that his decision to work at SAH is reasonable.

181Mr. Lima is approximately 50 years old. He testified that working long and stressful hours is becoming more difficult and that he wishes to have a more manageable work/life balance. Mr. Lima’s income dropped as a result of his decision, but not overwhelmingly so when one considers that some of Mr. Lima’s 2020 income of approximately $137,000 included bonuses associated with the unusual success of Algoma Steel in that year. In other words, Mr. Lima may not see such bonuses again.

182Given Mr. Lima’s age, the move to a better work/life balance is reasonable and Mr. Lima need not be imputed income at a higher level than the income he currently earns at SAH. A person over 50 should not be required to work overtime if they do not feel that they are reasonably capable of so doing, absent an overriding obligation requiring them to work in such a stressful environment.

Support for Kira

183Section 2(1) of the Divorce Act defines “child of the marriage” as follows:

child of the marriage means a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge,

or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; (enfant à charge)

184It is undisputed that, prior to her 18^th birthday, Kira was a “child of the marriage”. Accordingly, Ms. McCarthy was entitled to support for Kira’s needs. Since that time, however, two issues affect whether Kira remains a “child of the marriage”:

a. Whether her educational needs are reasonable in the circumstances; and

b. Whether the breakdown in the relationship as between Kira and Mr. Lima disentitles Ms. McCarthy to support for Kira.

185The law is clear that educational needs for children are such that enrollment in post-secondary education does not necessarily negate an adult child’s status as a “child of the marriage”. In Whitton v. Whitton, 1989 CanLII 8868 (ON CA), [1989] O.J. No. 1002 (Ont. C.A.), the court dealt with a circumstance whereby a 22 year-old continued to be a “child of the marriage” for the purposes of the Divorce Act. With respect to the factors to be considered, Finlayson J.A. stated:

In my opinion, the learned judge was in error in placing on the appellant the onus of demonstrating the child's ability to provide for herself. I also believe that more consideration should have been given to some of the matters raised by the husband, although in the case on appeal they are not determinative. I believe that the proper instruction is that given by Fleury L.J.S.C. in Law v. Law (1986), 1986 CanLII 6291 (ON SC), 2 R.F.L. (3d) 458 at 462:

The definition implies that an onus rests on the person seeking maintenance for a child who is "sixteen years of age and over and under their charge" to establish the child's "inability to provide". In determining what is appropriate in each case, a court might have to consider the age of the child, his or her ability, his or her past performance in previous courses, his or her determination to assist with study costs through summer employment, the means of the paying spouse and any obligation to provide for the education of other children, the plans of the parents generally with respect of further education of their children especially where these plans were formulated jointly by the spouses during cohabitation, the appropriateness of the course selected to generate future employment and also the "conduct of the parties and the condition, means and circumstances of each of them".

The learned judge considered the issue of the father/daughter relationship. He stated at page 463:

Although it is sufficient that she be in the custodial parent's charge, I am of the view that where, as here, a mature child unilaterally terminates a relationship with one of the parents without any apparent reason, that is a factor to be considered by the trial judge in determining whether it would be "fit and just" to provide maintenance for that child. A father-child relationship is more than a simple economic dependency. The father is burdened with heavy financial responsibilities and the child has very few duties in return. It seems reasonable to demand that a child who expects to receive support entertain some type of relationship with his or her father in the absence of any conduct by the father which might justify the child's neglect of his or her filial duties.

186In finding that the child continued to be a “child of the marriage”, the court nonetheless concluded:

Having said all that and having had the opportunity of considering the same material that was before Osborne J., the most troublesome issue is the attitude of the daughter to her father. At age 22 she should have the maturity to deal with her father directly to help him in discharging his legal and parental duties to assist in her education. We are told that Joanne and her father had a very close relationship which was not disturbed by the breakup of the marriage and the remarriage by the father. The reasons given for her refusal to communicate with him now are vague. It is to be noted that the separation agreement expressly provides for joint involvement by both parents in the education of both children of the marriage and yet the appellant father has not been consulted by either his former wife or Joanne on this most important matter which is the heart of the respondent wife's claim that Joanne is "unable ... to withdraw herself from their charge ...".

However, after reviewing all the other considerations reflected in the material before this court, I am satisfied that Joanne still falls within the definition of "child of the marriage" in the separation agreement. If she continues to refuse to engage in any sensible discussion with her father on the matter of her future education, the appellant's only recourse would be to pursue a parallel proceeding, already instituted, to have the quantum of her maintenance reviewed by the court. I note that this was a remedy that the respondent wife had previously pursued. It resulted in a consent order by Labrosse J. dated November 12, 1986.

187More recent jurisprudence cements the notion that, in modern society, adults will remain “children of the marriage” as they pursue reasonable post-secondary education: see P.(S.) v. P.(R.), 2011 ONCA 336, [2011] O.J. No. 1968 (Ont. C.A.). Taliano J. captured the apparent consensus of the courts with respect to this “virtual presumption” at paras 52 to 54 of Haist v. Haist, [2010] O.J. No. 785:

Under the Divorce Act, a "child of the marriage" means a child of two spouses or former spouses who, at the material time is under the age of majority and who has not withdrawn from their charge, or is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

The case law establishes that the pursuit of an education qualifies as an "other cause", which prevents a child from withdrawing from parental care. This interpretation is consistent with the child support regime under the Family Law Act in Ontario, which extends support to children enrolled in a full time program of education.

An applicant for support bears the onus of proving that the child is dependent and unable to withdraw from her parents' charge. If a young adult is diligently pursuing studies in a suitable program and there is evidence establishing the need for support, there is a virtual presumption that support should be provided for at least an initial university degree or college program. The onus of demonstrating dependency becomes more burdensome when the issue concerns post-graduate education and as the child becomes older (Rebenchuk v. Rebenchuk, 2007 MBCA 22, [2007] M.J. No. 130, [2007] W.D.F.L. 1891, 2007 CarswellMan 59 (Man. C.O.A.) at para. 26).

188As regards the effect of a breakdown in the parent-child relationship, the law suggests that support typically continues for a “child of the marriage” despite any such breakdown: Chartier v. Chartier, 1999 CanLII 707 (SCC), [1998] S.C.J. No. 79 and Whittan v. Whittan, supra. Matters become more complicated where, as in the instance case, the child attains the age of majority. At paras. 38 to 40 of Beach v. Tolstoy, 2015 ONSC 7248, Blishen J. synthesized the caselaw as it pertains to the impact that dissolution of the parent-child relationship has upon support obligations for adult children:

In cases involving support for adult children s. 3(2)(b)(ii) of the Guidelines provides the court with jurisdiction to determine "the amount [of support] that the Court considers appropriate, having regard to the condition, means, needs, and other circumstances of the children who are entitled to support." The broad language in this section has been interpreted in the jurisprudence to allow courts to take account of whether an adult child has effectively ended the social and emotional relationship with the parent from whom support is being sought. However the court will consider the reasons for a child's estrangement from the payor parent and, in general, the jurisprudence indicates a reluctance to terminate support based on the negative attitude of an adult child toward the payor parent (see Rotondi v. Rotondi, 2014 ONSC 1520).

The threshold for arguing for a reduction or a termination of support due to a child's rejection of a payor parent is high (see Olszewski v. Willick, 2009 SKCA 133, 313 D.L.R. (4th) 635, at para. 34;, 2012 Turner v. Ansell ONSC 2598 [Turner]). In Turner, Gareau J. notes not only is the test high but "there has to be a large portion of blamelessness on the part of the payor parent" (para. 13). The child's rejection of a parent has to be considered an independent decision and not the result of the conduct or attitude of the payor parent. Further, the onus is on the payor parent to show that he or she has made meaningful efforts to maintain a positive relationship with the adult child (see Casademont v. Casademont (2007), 44 R.F.L. (6th) 287 at para. 19 (Ont. Sup. Ct.) and A.C. v. M.Z., 2010 ONSC 6473 at para. 145). The courts have warned child support should be terminated only in the clearest of cases (see Musgrave v. Musgrave, 2013 ONSC 7481 at para. 33).

A child's withdrawal from a relationship is only one factor in deciding whether the child is still "a child of the marriage" and entitled to support. The rejection must be weighed along with other factors to determine the child's eligibility to support.

189It is also possible for an adult to cease being a “child of the marriage” and then reacquire that status. In Rebenchuk v. Rebenchuk, 2007 MBCA 22, the Manitoba Court of Appeal synthesized the law that exists surrounding this issue at paras. 57 and 58:

What is the effect of being an intermittent student, a live issue in the appeal before us? Most courts are quite tolerant of breaks in studies and require the non-custodial parent to pay support upon re-enrollment. See McDonald v. Rasmussen, 2000 SKQB 494, 2000 SKQB 494. Perhaps the best that can be said on the subject is exemplified by the comment of Williamson J. in Harwood v. Harwood, 1999 CanLII 6502 (BC SC), [1999] B.C.J. No. 975 (S.C.) (QL) (at para. 22):

A number of authorities were cited. On a reading of those authorities, I conclude that in circumstances where a child temporarily ceases to be a student, one must look at all of the factors to determine whether a responsibility for child maintenance ceases during that hiatus.

To the same effect, he noted (at para. 24):

I am aware that there are circumstances when a child takes a substantial period out from school and earns income to support himself, that lead inexorably to the conclusion that he is no longer a child of the marriage. But I am also aware that many students travel and arguably a brief period of travel can be seen, in the large sense of the word, to be part of one's education.

190The court then discussed the impact of summer employment on “child of the marriage” status at para. 59:

Another difficult question, and one of more frequent application, is whether support should be maintained during the summer months between academic years. Cutting off support during this period is not helpful if the child is also required to contribute to her costs. If funds earned during the summer must be used for educational and living expenses during the school year, then how can the child be considered to be independent or self-supporting during the summer months? If a child cannot pursue full-time studies because of the costs involved, courts need to be tolerant of longer durations for obtaining the first, or even second, degree. To reduce or eliminate parental support because the child took several breaks to work and save money, or opted for part-time studies, would penalize her efforts to achieve her goals with limited means.

191Rebenchuk has been followed in several instances, although typically for the proposition that a moving party must establish the need for child support: see Hendriks v. Hendriks, 2022 ONCA 165.

192In this instance, Kira is 21 years old and is pursuing a Sault College diploma in Police Foundations. She hopes to transfer credits to Algoma University, complete her B.A., and then attend law school. Her aspirations are commendable.

193The fact that the father-daughter relationship has broken down is not determinative of whether Kira remains a “child of the marriage”. I accept that Kira genuinely recalls her father and Ms. Marenger being overly stern. Given Kira’s personality and her emotional needs, this parenting style traumatized Kira and, as a result, I do not blame Kira for withdrawing from her relationship with her father (although I do not find that Mr. Lima was generally abusive). As such, the breakdown in the father/daughter relationship does not auger for a termination of child support obligations as per the jurisprudence.

194Kira’s extended stay in high school and brief time working full-time also do not mandate that she ceased to be a “child of the marriage”. Kira’s IEP made plain that Kira needed more time to complete high school due to her ADHD diagnosis. She therefore did not cease to be a “child of the marriage” because it took her longer than normal to complete high school. Also, Kira’s brief stint working full-time did not terminate her status as a “child of the marriage” since she was working to save money for school. Again, the jurisprudence and the legislation is clear that these factors do not negate Kira’s status as a “child of the marriage”.

195As for the continued duration of support, I note that the laudability of Kira’s dream is not the basis by which continued child support is to be ordered. Rather, as noted above, continued child support has to do with a constellation of factors given that Kira is 21 years old and pursuing post-secondary education. In this case, Kira’s ADHD diagnosis demands that her studies will take a little longer than they might otherwise. Accordingly, Kira’s academic pursuits at Sault College are such that she remains a child of the marriage as she is “unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”. Mr. Lima must therefore continue to pay child support for Kira because Kira’s pursuit of her diploma is necessary in the current work environment.

196It is reasonable, however, that Mr. Lima’s obligations ought to end on Kira’s 24^th birthday, upon her withdrawal from school, or upon the completion of her undergraduate university degree, whichever comes first. Ending Mr. Lima’s support obligations at such a time reflects the fact that Kira needs more time to complete her program while recognizing that Mr. Lima’s financial obligations need to be reasonable in the circumstances. Kira’s performance over the course of her academic career is such that Mr. Lima would normally be obligated to support one post-secondary designation, but no more. Her 24^th birthday is the reasonable time to set a cut-off for child support based on that post-secondary designation given her ADHD diagnosis and her continued educational efforts.

Spousal Support

197Mr. Lima has not disputed that Ms. McCarthy was entitled to spousal support as a result of the dissolution of the marriage. Rather, he submits that her entitlement to same ought not be of unlimited duration. This view is consistent with L’Heureux-Dube J.’s description of self-sufficiency as having a nuanced impact upon entitlement and duration of spousal support, found at para. 69 of Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813:

Although the promotion of self sufficiency remains relevant under this view of spousal support, it does not deserve unwarranted pre eminence. After divorce, spouses would still have an obligation to contribute to their own support in a manner commensurate with their abilities. (Rogerson, "Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)", supra, at p. 171). In cases where relatively few advantages have been conferred or disadvantages incurred, transitional support allowing for full and unimpaired reintegration back into the labour force might be all that is required to afford sufficient compensation. However, in many cases a former spouse will continue to suffer the economic disadvantages of the marriage and its dissolution while the other spouse reaps its economic advantages. In such cases, compensatory spousal support would require long term support or an alternative settlement which provides an equivalent degree of assistance in light of all of the objectives of the Act. ("Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)", supra, at pp. 171 72.)

198I agree with Lemon J.’s view of Moge where, at para 15 of Gent v. Busse [2021] O.J. 2364 (Ont.S.C), he opined:

To paraphrase McLachlin J., as she then was, in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 SCR 813, at pp. 881-82, arguments that an ex-spouse should be doing more for themselves must be considered in light of their background and abilities, physical and psychological. It may be unreasonable to expect a middle-aged person who has devoted most of their life to domestic concerns within the marriage to compete for scarce jobs with youthful college graduates.... It is not enough to say in the abstract that the ex-spouse should have done more or be doing more, and argue from this that it is their inaction rather than the breakup of the marriage which is the cause of his economic hardship. One must look at the actual social and personal reality of the situation in which the spouse finds themselves and judge the matter fairly from that perspective.

199The Court of Appeal of Ontario engaged in a similar analysis in Drygala v. Pauli 2002 CanLII 41868 (ON CA), [2002] O.J. 3731 (OCA) in the context of child support. The court looked at a situation where a payor parent was attempting to reduce the quantum of child support owing as a result of the payor spouse’s educational needs. At paras 38 to 41 of the decision, Gillese J.A. stated for the unanimous court:

Reasonable Educational Needs

There is a duty to seek employment in a case where a parent is healthy. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs.

There are two aspects to this stage of inquiry. The trial judge must first determine whether the educational needs are reasonable. This involves a consideration of the course of study. A spouse is not to be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.

But, s. 19(1)(a) speaks not only to the reasonableness of the spouse's educational needs. It also dictates that the trial judge determine what is required by virtue of those educational needs. The spouse has the burden of demonstrating that unemployment or under-employment is required by virtue of his or her reasonable educational needs. How many courses must be taken and when? How much time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands such that the spouse is excused from pursuing part-time work? Could the program be completed over a longer period with the spouse taking fewer courses so that the spouse could obtain part-time employment? If the rigours of the program preclude part-time employment during the regular academic school year, is summer employment reasonably expected? Can the spouse take co-operative courses as part of the program and earn some income in that way? These are the types of considerations that go into determining what level of under- employment is required by the reasonable educational needs of a spouse.

The burden of proof is upon the spouse pursuing education as he or she is the person with access to the requisite information. The spouse is in the best position to know the particular requirements and demands of his or her educational program. He or she will have information about the hours of study necessary to fulfill such requirements, including the appropriate preparation time. He or she is in the best position to show whether part-time employment can be reasonably obtained in light of these educational requirements.

200In this case, it is clear that Ms. McCarthy has attempted to create the best life possible for herself and her children by going back to school and studying social work. For this she is to be congratulated. She will undoubtedly receive personal and economic remuneration as a result of her efforts that will inure not only to her benefit, but to the children’s benefit as well. Indeed, Kira testified that she is proud of her mother’s efforts to educate herself while raising children.

201With that being stated, Mr. Lima’s obligations towards Ms. McCarthy’s educational needs must be “reasonable” as per Drygala. Certain facts need to be considered as a result. First, Ms. McCarthy entered the marriage without her high school diploma. Her employment prospects were thus limited when she got married.

202Second, Ms. McCarthy was in a position where she had to raise the children without much help because, as was noted by the OCL report in 2015, Mr. Lima was not able to take the children more frequently because he did not have adequate living space. As such, Ms. McCarthy was effectively forced to care for the children the majority of the time. This undoubtedly impacted her ability to re-enter the workforce.

203Third, Mr. Lima’s income vastly exceeded Ms. McCarthy’s income at all times. It would only be logical, therefore, to find that the parties intended to have a more “traditional” marriage whereby Mr. Lima occupied the “earner” role while Ms. McCarthy occupied the “caregiver” role. The parties disagree about whether they reached an agreement that Ms. McCarthy ought to stay home following the birth of their second child. I need not resolve this dispute because, even if I accept that Mr. Lima wanted Ms. McCarthy to go back to work, Ms. McCarthy’s employment would have undoubtedly generated a secondary economic benefit to the family given the disparity in pay. Ms. McCarthy would therefore have likely undertaken the majority of the childcare as a result of this disparity.

204Finally, the parties were together for over ten years which suggests that their lives became intermingled in a meaningful way.

205As a result of the foregoing, Ms. McCarthy’s decision to return to school post-separation was necessary, lest she live a life on a perpetual minimum wage treadmill. Such a result would not be reasonable.

206It would also be unrealistic to think that Ms. McCarthy could work, go to school and raise children at the same time, especially in light of her medical diagnosis that demands that she take a lighter course load.

207While it was eminently reasonable for Ms. McCarthy to complete high school and to pursue post-secondary education, I am not satisfied that it is “reasonable” for her to pursue social work beyond her Sault College diploma, as per Drygala. In this case, I have no doubt that Ms. McCarthy, armed with a college diploma, could secure meaningful employment if she so chose. That employment might not be in the field of her choice, and it may not be as remunerative as she might hope. Many people are forced to work in jobs that are not their “calling”. I take judicial notice of the fact that Sault Ste. Marie is currently seeing good economic times and, if Ms. McCarthy chooses to return to work, she will be likely be able to find reasonable employment. Mr. Lima should not be forced to pay spousal support in the absence of income imputation simply to allow Ms. McCarthy to find a preferred position. It is only reasonable that Ms. McCarthy select a career where she would be able to find employment within a reasonable time.

208Ms. McCarthy also testified that her education is being paid for, to some degree, by bursaries and other sources of income that may not need to be repaid. This fact also demands that it would be unfair for Mr. Lima to pay spousal support without imputing income to Ms. McCarthy.

209In the circumstances of this case and for spousal support purposes, education beyond a college diploma is not “reasonable”. Ms. McCarthy ought to be able to secure good employment as of September 1, 2021, and I therefore impute full-time, minimum wage income to Ms. McCarthy commencing September 1^st, 2021, or $29,120 per annum.

210With respect to the duration of spousal support, it is clear to me that Ms. McCarthy ought to be able to complete her university education by September of 2023. At that time, the parties will have been living separate and apart for approximately 11.5 years. The SSAGs suggest that spousal support for Mr. Lima and Ms. McCarthy ought to be imposed for a period of 6.5 to 13 years. A termination date of November 1, 2023 is towards the upper end of the range. As a result of the foregoing, spousal support will terminate on November 1, 2023.

Quantum of Ongoing Child Support

211In her Response to the Motion to Change, Ms. McCarthy sought increased child support commencing January 1, 2018.

212With respect to ongoing child support quantum, section 9 of the Federal Child Support Guidelines states:

9. If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account

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

(b) the increased costs of shared parenting time arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

213In Contino v. Leonelli-Contino, 2005 SCC 63, Bastarache J., writing for the majority, held that the “revised fixed percentage” formula adopted by the government in the Child Support Guidelines did not apply to instances where the forty percent threshold is met. At para. 23, he stated:

In fact, the wording of s. 9 is imperative. The court "must" determine the amount of child support in accordance with the three listed factors once the 40 percent threshold is met. There is no discretion as to when the section is to be applied: discretion exists only in relation to the quantification of child support

214As for the weighting of these factors, Bastarache J. stated at para 25:

The three factors structure the exercise of the discretion. These criteria are conjunctive: none of them should prevail (see Wensley, at p. 90; Payne and Payne, at p. 254; Jamieson v. Jamieson, [2003] N.B.J. No. 67 (QL), 2003 NBQB 74, at para. 24). Consideration should be given to the overall situation of shared custody and the costs related to the arrangement while paying attention to the needs, resources and situation of parents and any child. This will allow sufficient flexibility to ensure that the economic reality and particular circumstances of each family are properly accounted for. It is meant to ensure a fair level of child support.

215The parenting time regime imposed earlier in these reasons is such that Mr. Lima has the children more than forty percent of the time of the time. As such, child support needs to be determined as per section 9 of the Federal Child Support Regulations.

216Firstly, and given the set-off generated by this parenting-time reality, the child support tables state that Mr. Lima ought to pay Ms. McCarthy $2,374.00 in child support on the first of every month, effective May 1, 2022.

217Secondly, I am not in possession of any evidence to suggest that the increased cost of parenting time arrangements would auger for a deviation from the set-off amount. The same is true for the section 9(c) Guideline considerations, that is the means, needs and other circumstances of each spouse. Simply put, Ms. McCarthy did not explain the nature of the bursaries that she receives which in turn impacts her ability to go to school and support herself and her children. Mr. Lima has not provided me with sufficient information about his “rent to own” relationship to suggest that he would be in financial distress if the set-off amount were imposed. I therefore have no reason to depart from the set-off amount.

218Accordingly, given the paucity of evidence called regarding the section 9(b) and 9(c) Guideline factors, I am content to order that set-off support be ordered effective May 1, 2022 because said support will adequately provide for the children.

Quantum of Ongoing Spousal Support

219Given the fact that Mr. Lima has been paying support for some time, and given the fact that Ms. McCarthy has embarked on a journey towards economic self-sufficiency, it occurs to me that there has been a material change in circumstances. Ms. McCarthy has been receiving spousal support at the upper end of the range, although the parties’ incomes – and any concomitant spousal support - were never updated. Since the Response to the Motion to Change was filed in November of 2018, Ms. McCarthy’s home obligations have lessened as she no longer has three young children in the house. She has availed herself of the opportunities that have presented themselves and she is on her way to self-sufficiency. She is to be congratulated for same. As a consequence, Ms. McCarthy likely does not require spousal support at the upper end of the range.

220Nonetheless, Ms. McCarthy is only seeking $600/month in spousal support based upon her hoped for continuation of the current parenting regime, which has been terminated effectively May 1, 2022.³ Given my findings and the parties’ lack of submissions in this regard, I will need to hear from the parties in order to determine the new quantum of ongoing spousal support.

Section 7 Expenses

221Section 7 of the Federal Child Support Guidelines states:

Special or extraordinary expenses

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

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

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

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

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

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

222I have been asked to consider certain of Kira’s expenses. I reject Mr. Lima’s initial submission that the expense for braces is unreasonable. I am satisfied with Kira’s and Ms. McCarthy’s evidence that her dental work was necessary lest Kira be forced to have her jaw broken at a later date. The quantum of the expense was also reasonable. In fairness to Mr. Lima, he appeared to resile from his position once he heard Kira testify as to the necessity of same.

223It should be noted that Mr. Lima has agreed to keep Kira on his benefits at SAH. These benefits ought to pay for a good portion of the next orthodontic treatment.

224With respect to the amounts paid “out of pocket” for the orthodontics, Mr. Lima paid for all of the initial treatment through his former insurance and paid another $1,000 or $2,000 out-of-pocket. Given the foregoing, Mr. Lima has effectively paid for at least 75% of the amount not covered by insurance. He need pay no more.

225The expense for Kira’s glasses was also reasonable. Seeing properly is necessary for anyone to function in society, especially a student. Mr. Lima does not dispute same. He will therefore pay the outstanding eyeglasses expenses for Kira in the amount of $150 forthwith (or 75% of the $225 expense).

226On the other hand, Kira’s dance lessons, however much she may have benefitted from them, were not an entirely reasonable expense. Simply put, $3,000 to $4,000 per annum for dance was too expensive to be considered a reasonable expense given Mr Lima’s income. I am mindful that the parties have four children and need(ed) to ensure that the needs of all the children are were met.⁴

227In the circumstances, a spending limit of $1,500 per child for extra-curricular activities is reasonable because it strikes the appropriate balance as between the children’s emotional and physical needs as against financial realities associated with the families’ respective incomes. Mr. Lima will be responsible for his pro rata share of the $1,500 per child, per annum.

228The SSAGs suggest that Mr. Lima shall pay approximately 75% of ongoing valid s. 7 expenses based on his 2020 income and Ms. McCarthy’s imputed income.

229It is unclear from the Response to the Motion to Change if Ms. McCarthys is seeking arrears for s. 7 expenses. It is also unclear if Mr. Lima made any contributions in this regard. Accordingly, the parties will return before me to make submissions.

Arrears for Child Support, Spousal Support and s. 7 Expenses

230As noted earlier in these reasons, no request for arrears for child and spousal support was made by Ms. McCarthy in her 2018 Response to Motion to Change. Nonetheless, the parties both made submissions regarding support arrears and for s. 7 expenses going back to 2012. Given the impact that the failure to seek arrears in the Response to the Motion to Change may have on child and spousal support, I require submissions from the parties before I decide whether arrears are appropriate, the quantum of support to be awarded and the impact that these determinations will have upon reasonable s. 7 expenses. The parties will arrange a date through the trial coordinator.

CONCLUSION

231I hereby order the following:

a. Ms. McCarthy shall retain decision-making authority for the boys;

b. Paragraph 8 of Koke J.’s April 9, 2013 order shall now state:

Commencing May 1, 2022, Mr. Lima shall have parenting time with the three youngest children three weekends out of every month. This weekend parenting time shall commence on Wednesday after school and last until Monday morning school drop off. If Monday is a P.A. Day or a holiday (other than holidays for which parenting time has already been allocated in this order), then parenting time shall continue until the Tuesday morning. This parenting time shall occur on weekends that commence upon the first, second and fourth Wednesday of every month. This paragraph shall be superseded by specific holiday parenting time and/or other special parenting time as described elsewhere in this order. Mr. Lima shall not engage in corporal punishment with the children at any time.

c. Ms. McCarthy shall be imputed an income of $29,120 per annum, effective September 1, 2021;

d. Mr. Lima shall pay $2,374 in child support on the first of every month, commencing May 1, 2022 (or another amount to be agreed upon by the parties based on 2021 incomes);

e. Reasonable section 7 expenses shall be capped at $1,500 per annum for each child unless there is a material change in the parents’ income. Mr. Lima shall pay 75% of reasonable s. 7 expenses, unless there is a material change in the parties’ income;

f. Spousal support shall terminate September 1, 2023;

g. Mr. Lima shall continue to pay $600/month in spousal support pending my determination of an appropriate quantum for ongoing spousal support;

h. Child support for Kira shall terminate upon her graduation from undergraduate studies, her withdrawal from school or on her 24^th birthday, whichever comes first;

i. Mr. Lima’s income at the SAH is reasonable in the circumstances and no income ought to be imputed to him; and

j. The parties shall exchange Notices of Assessment for a calendar year on or by June 1^st of the following year;

k. The parties will schedule a two-hour appearance to make submissions regarding arrears for child support, arrears for s. 7 expenses, and ongoing spousal support.

COSTS

232Shall be addressed after I hear from the parties regarding, inter alia, arrears.

Varpio J.

Footnotes

1. 1I take nothing from the accusations of infidelity, nor do I make any findings in that regard, save and except as they may inform the animus of some witnesses.
2. 2I do not wish this paragraph to be seen as a criticism of Kira. Kira is to be commended for her recent commitment to scholastic achievement.
3. 3The parties both provided me with their suggested final orders which have been made lettered exhibits to this trial. Ms. McCarthy’s order seeks $600/month in spousal support.
4. 4It should be noted that Mr. Lima need not pay for Kira’s extra-curricular activities on a go forward basis since she is 21 years old and can presumably pay for her own extra-curricular activities now. I also note that Ms. McCarthy did not specifically ask for contribution to Kira’s post-secondary educational costs, and I make no order regarding same.