Court File and Parties

COURT FILE NO.: FC-17-681 DATE: 2022/03/18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Anthony James Davidson, Applicant – and – Heather Alysse Jamieson, Respondent

COUNSEL: Thomas R. Hunter, for the Applicant Duncan A.R. Crosby, for the Respondent

HEARD: September 22, 23 and October 14, 2021

REASONS FOR JUDGMENT Justice Engelking

Introduction

[1] Mr. Davidson brought an Amended Application pursuant to an Order of Justice Fraser dated June 30, 2020, in which he seeks a divorce, parenting relief and support for the children pursuant to the Divorce Act and provincial legislation, as well as equalization of the parties’ net family properties pursuant to the Family Law Act. He also seeks an order for partition and sale of the matrimonial home, an order preventing relocation of the children, and occupation rent for the matrimonial home from date of separation until its’ sale. In her Amended Answer, Ms. Jamieson seeks a divorce, parenting relief, child and spousal support, equalization of net family properties, exclusive possession of the matrimonial home and an order freezing assets.

[2] The matrimonial home ceased to be an issue for the trial as it sold in 2018. The parties resolved most of the parenting issues through comprehensive Minutes of Settlement in June of 2021, which have since been incorporated into an order. One item having to do with certain holiday weekend parenting time remains outstanding, as do the financial issues of prospective child support, Ms. Jamieson’s claim for spousal support, the parties’ respective incomes for support purposes and equalization. The parties consent to a divorce.

[3] The issues before me are:

1. What is Mr. Davidson’s income for support purposes?
2. Should income be imputed to Ms. Jamieson for support purposes?
3. Is Ms. Jamieson entitled to spousal support, and if so, what is the duration and quantum of support payable?
4. Is there an equalization payment owed, and if so, to whom and in what amount?
5. Are either of the parties entitled to credit for post-separation adjustments, and if so, in what amount?
6. How should parenting time be allocated for Thanksgiving, Easter and Halloween?

[4] For the following reasons, in addition to making findings regarding the parties’ respective incomes upon which prospective child support shall be payable, I find that Ms. Jamieson is entitled to spousal support commencing January 1, 2018, for a duration of eight years, that Mr. Davidson owes Ms. Jamieson an equalization payment of $35,461.38 and that the parents shall share parenting time on the Easter and Thanksgiving weekends and on Halloween.

Background Facts

[5] The parties married on December 31, 2011, and separated on September 1, 2017, according to Ms. Jamieson or October 25, 2017, according to Mr. Davidson. They have lived separate and apart since at least October 25, 2017, and there is no reasonable prospect of reconciliation. Two children were born of the relationship, Adelaide in February of 2013, and Sutton in June of 2015.

[6] Mr. Davidson works as an HVAC technician, and owns his own company, Top Notch Heating Ltd. in Eganville, Ontario, which he has been operating since 2008. In June of 2015, Mr. Davidson entered into an Agreement of Purchase and Sale for a property known municipally as 148 John Street, out of which Top Notch Heating is operated. Although it was his intention to purchase this property, Mr. Davidson says that he now pays rent for it to the original sellers, Robert Kruger and Peter Manor, in whose names the property remains.

[7] Ms. Jamieson is currently home with her third child, who was born on May 3, 2021, but she is yoga instructor, who was a stay-at-home mother to the children while they were young. According to Mr. Davidson, the parties would have agreed that Ms. Jamieson stay home with the children until they started school fulltime, which Sutton, the youngest, would have done at age four, in or about 2019. According to Ms. Jamieson, she cared for the children and the home while Mr. Davidson built his business, which she also assisted him in doing.

[8] At the time of separation, Ms. Jamieson stayed in the matrimonial home and Mr. Davidson paid all the expenses for the home from the date of separation until it sold in August of 2018.

[9] For the months of November and December of 2017, as well as January of 2018, Mr. Davidson voluntarily paid Ms. Jamieson $743 per month in child support. Commencing February 1, 2018, Mr. Davidson began paying $621 per month in child support on a without prejudice basis pursuant to the temporary consent order of Justice McNamara dated February 1, 2018. Pursuant to paragraph 11 of that Order, Mr. Davidson was also to continue paying the carrying costs of the matrimonial home, and he was to receive credit at the time of equalization for $800 per month payments towards Ms. Jamieson’s student loan. Mr. Davidson is seeking post-separation credits for some of these payments, which will be set out in further detail below.

[10] Post-separation, Ms. Jamieson made it known that she wanted to move to Ottawa. Although Mr. Davidson objected to this, and made his objection known, Ms. Jamieson did relocate with the children to Ottawa in the spring of 2018. On August 9, 2018, Justice James ordered her to re-establish residency for the children within 25 kilometres of the children’s school, St. James Catholic School in Eganville. Ms. Jamieson moved to a property owed by her mother within that geographical distance, and the parties commenced a shared parenting schedule at that time.

[11] Pursuant to paragraph 6 of the August 9, 2018, Order, Mr. Davidson was to pay table support for the children until the beginning of September 2018, after which he was to pay support for Sutton only. Once the shared parenting regime was established, child support was to be governed by section 9 of the Federal Child Support Guidelines. Justice James also made an Order of costs to be paid by Ms. Jamieson of $14,000.

[12] Ms. Jamieson found the move back to Eganville, as well as the 2/2/3/3 parenting schedule for the children very challenging in terms of obtaining employment. According to her, she had, and would have continued to have, more opportunities for secure employment in Ottawa. Upon her return to Eganville, she worked parttime for a period at Lululemon, as well parttime as a yoga instructor at Yoga Town. At the time of her return to Eganville, Adelaide was in school, and Sutton was in daycare. Ms. Jamieson indicated that Mr. Davidson would not pay for daycare for Sutton during her days, and she found it very difficult to find work which could accommodate her schedule with the children.

[13] Since the separation, Ms. Jamieson has been on Ontario Works. At those times that she has worked, her income has been deducted by Ontario Works. Since April of 2021, she has been living back in Eganville and renting a home, for which she has a lease. As I have indicated, she is currently home with her third child born in May of 2021. Ms. Jamieson does not live with the child’s father, Chris Gordon, nor does she have any immediate plans to do so, though they share in the child’s care. As per the Minutes of Settlement entered into by the parties in June of 2021, she has agreed to remain in Eganville.

Analysis

Issue # 1 – What is Mr. Davidson’s income for support purposes?

[14] According to his Income Tax Returns for the years 2017 to 2020, Mr. Davidson’s annual income was as follows:

• 2017 - $47,960, consisting of $3,500 in employment income and $44,460 in taxable dividends [1];
• 2018 - $70,760, consisting of $5000 in employment income and $70,760 (already grossed up) in taxable dividends [2];
• 2019 - $79,350, consisting of $79,350 (already grossed up) of taxable dividends [3]; and,
• 2020 - $98,000, consisting of $92,000 (already grossed up) of taxable dividends and $6000 of CERB.

[15] Mr. Davidson testified that his income increased after 2017 because of the litigation commencing and his requirement to pay legal fees. For reasons that are unclear to me, Mr. Davidson takes the position that those portions of the dividends he drew in 2018, 2019 and 2020 which were used to pay his legal fees for this proceeding should not form part of his income for support purposes. His evidence is that his “personal income” over those years is consistent with his 2017 declared income of approximately $48,000.

[16] Despite that Mr. Davidson owns his own business, neither he nor Ms. Jamieson retained a litigation expert to provide a report on his available income for support purposes. Mr. Davidson did produce his accountant, Mr. Donnie Russet, as a witness at trial. Mr. Russet, a Chartered Professional Accountant, was qualified as a participant expert, having been the accountant for Top Notch Heating for five years. In addition to his testimony, Mr. Russet provided a letter dated June 9, 2021 [4], which indicates that Mr. Davidson’s “legal fees were charged to his shareholder account and formed part of the dividends declared”. Mr. Russet identified in his letter and in his evidence that in 2018, Mr. Davidson directed $8000 of his cash dividend towards his legal fees and received a “personal income” of $53,000, in 2019, he directed $21,000 towards his legal fees and received a “personal income” of $48,000 and in 2020, he directed $27,000 towards his legal fees and received a “personal income” of $52,500.

[17] Regardless of how Mr. Davidson accounted for these sums, the difficulty with his argument is that there is no provision in the Schedule III to the Federal Child Support Guidelines to support that cash dividends used to pay personal legal fees, which he has voluntarily chosen to expend, can be deducted from income for support purposes.

[18] Mr. Russet opined the health of the company would be in jeopardy if the amount of cash being extracted from it is not reduced. In his view, for the business to stay afloat, Mr. Davidson’s income should not extend beyond what he termed his “normal personal income”, that being approximately $48,000 - $53,000.

[19] Mr. Davidson submits, based on the evidence of Mr. Russet, that if a higher income figure is used for support purposes on a go forward basis, Top Notch Heating will be in peril within three years. The peril, however, is not predicated on what income figure “is used” by the court as the basis for support; it is predicated on how much Mr. Davidson continues to extract from the company in dividends. Rather than seeking to characterize dividends he extracts for the purpose of paying his personal legal fees as not being income, Mr. Davidson should be working out with his former and current counsel how to pay his, frankly, inordinately substantial legal fees without putting his company in jeopardy.

[20] The presumptive starting place to determine income is section 16 of the Guidelines, which provides that annual income is determined using the sources of income set out in the Revenue Canada T1 form. In the case of corporate income, section 18 of the Guidelines provides that where the spouse is a shareholder, officer or director of a corporation, as is Mr. Davidson, the court may determine the spouse’s income to include all or part of the corporation’s pre-tax corporate income. Mr. Davidson did not provide evidence to the court as to Top Notch Heating Inc.’s pre-tax corporate income.

[21] Ms. Jamison’s submits that she accepts that Mr. Davidson’s income in 2020 of $98,000 equates to an income of $86,000, being $80,000 in dividends and $6000 in CERB. Section 5 of Schedule III of the FCSG’s provides that an available adjustment to income is to “Replace the taxable amount of dividends from taxable Canadian corporations received by the spouse by the actual amount of those dividends received by the spouse.” [5]

[22] Lacking either an expert report on what his available income for support purposes is on a go forward basis or evidence regarding the pre-tax corporate income of Top-Notch Heating Inc., I find that Mr. Davidson’s income for support purposes for 2020 was $86,000. Following this logic, I also find that for 2019, it was $69,000, for 2018, it was $66,000, and for 2017, it was $40,846.

Issue #2 – What is Ms. Jamieson’s income for support purposes?

[23] Mr. Davidson seeks to impute an income to Ms. Jamieson of at least $30,000, being an approximate fulltime, minimum wage income. He submits that Ms. Jamieson is voluntarily unemployed and has at times being voluntarily underemployed. He has provided evidence of advertisements and notices for jobs in Eganville and surrounding areas, which he submits Ms. Jamieson could obtain. He submits, further that Ms. Jamieson could have been employed from the time that the parties separated to the present, and she has simply chosen to be underemployed or unemployed, as she prefers to instruct yoga than to do any other job.

[24] Ms. Jamieson’s evidence is that she was always a stay-at-home mother to the children, with the agreement of Mr. Davidson, and at the time they separated, Sutton was still not in school. Ms. Jamieson advised Mr. Davidson that she wished to move to Ottawa precisely because her prospects for employment were better there than they were in Eganville. Prior to separation, Ms. Jamieson had trained as a yoga instructor and was doing it parttime, even out of a room at Mr. Davidson’s place of business at 148 John Street. Although Ms. Jamieson had started university prior to Adelaide’s birth, she did not finish. She did do some bookkeeping and promotional work for Top Notch Heating during the marriage, and worked as a nanny prior to the marriage, but, besides yoga instruction, has no marketable skills. In addition, Ms. Jamieson states that the 2/2/3/3 schedule for the children from her return to Eganville in the fall of 2018 until June of 2021, made it very difficult for her to pursue employment, especially when Mr. Davidson would not pay for childcare for Sutton on her days. Although it might have been possible to get some kind of job in Renfrew County, Ms. Jamieson would also have to factor in driving time for anything outside of Eganville, which rendered the exercise even more difficult. She then had a baby in May of 2021, and the schedule for parenting of Adelaide and Sutton changed to week about in June of 2021. Her position is that she is not, and was never, voluntarily underemployed, but that the combination of her lack of marketable skills, the parenting schedule, and the dearth of suitable jobs in the Eganville area are what have led to her underemployment.

[25] Ms. Jamieson’s annual income for the years 2017 to 2020 was:

• 2017 - $6,278 in business income [6];
• 2018 - $11,007 [7];
• 2019 - $15,516 [8]; and,
• 2020 - $14,587.46, $2,930 of which is professional income and $11,657.46 is social assistance [9].

[26] Section 9 of the FCSG’s provides that a court may impute income to a spouse if she is intentionally under-employed or unemployed, “ other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority ” (emphasis added). From the date of separation, be it September or October of 2017, until Sutton commenced school in September of 2019, Ms. Jamison’s lack of employment related to the needs of a child of the marriage. No income will be imputed to her for that period.

[27] From September of 2019 to May of 2021, Ms. Jamieson’s efforts to find employment were, from her own evidence, limited and sporadic. Nevertheless, her lack of employment still related to the needs of the children of the marriage, as they were on a 2/2/3/3 schedule, and Ms. Jamieson could not afford before and/or afterschool daycare, nor make enough money to make daycare feasible. Additionally, her ability to work as a yoga instructor was significantly impacted by the pandemic over this period. No income will be imputed to her for this period. Finally, Ms. Jamieson gave birth to another child in May of 2021, and is taking one year of maternity leave. She should, thus, be available for employment commencing June 1, 2022.

[28] Although Ms. Jamieson has indicated in her Form 35.1 Affidavit that she intends to return to parttime yoga instruction at the end of her maternity leave, she has the same obligation to provide financial support to the children as does Mr. Davidson, to the extent that they are each capable, of course. Ms. Jamieson is young and healthy. Though her preference is to work as a yoga instructor, I heard no evidence that she would not be physically capable to work in a fulltime minimum wage job. I am, therefore, prepared to impute an income to her of $30,000 effective June 1, 2022.

Prospective Child Support

[29] As indicated above, Mr. Davidson has been paying child support pursuant to an interim order of the court since 2018 and paid voluntarily for a couple of months before that. Neither party has made any submissions with respect to whether there should be retroactive adjustments to the child support paid. Both, however, seek an order on a go forward basis from October 1, 2021.

[30] Therefore, there will be an order that commencing October 1, 2021, Mr. Davidson shall pay set-off table support for two children to Ms. Jamieson based on his 2020 income of $86,000 and her 2020 in come of $14,587.46. Commencing June 1, 2022, Mr. Davidson shall pay set-off table support for two children to Ms. Jamieson based on his 2021 income and her imputed income of $30,000. Child support shall, thereafter, be adjusted every June 1, after an obligatory exchange of the parties’ income tax returns and/or Notices of Assessment.

Issue # 3 - Is Ms. Jamieson entitled to spousal support, and if so, what is the duration and quantum of support payable?

[31] There is no doubt that Ms. Jamieson is entitled to spousal support, on both a compensatory and non-compensatory basis.

[32] Mr. Davidson had already started his business at the time of the marriage. Although Ms. Jamieson had commenced university at Trent in Peterborough, she did not finish before giving birth to Adelaide. After Adelaide was born Ms. Jamieson stayed home to care for the children. Mr. Davidson was able to focus on building his business during those years. Ms. Davidson also testified that she did some bookkeeping for the business and volunteered at events in the community to get the name of Top Notch Heating out there. She, thus, helped Mr. Davidson promote the business.

[33] Ms. Jamieson also experienced a significant reduction in her standard of living because of the breakdown of the marriage. As indicated, she has been on Ontario Works since separation, but for short stints of work which are deducted from her OW income. Even if employed fulltime, Ms. Jamieson does not have the skillset which would permit her to earn an income which would support the standard of living she experienced during the marriage.

[34] Mr. Davidson, on the other hand, has purchased a new home with his current partner, which includes an arena area for hobby show horses. He has also purchased a new horse since separation. His standard of living has not been reduced; indeed, it appears to have improved.

[35] The parties’ submissions were decidedly unhelpful on the issue of spousal support. Ms. Jamieson’s Answer, in which she made her original claim for spousal support, is dated January 11, 2018. I have found that she is entitled to spousal support, and she is entitled to it from at least the date of her claim, if not the date of separation. However, Ms. Jamieson has provided no submissions in relation to a start date for spousal support or on the appropriate quantum in 2018, 2019 and 2020. Her only submission in this regard states: “The Spousal Support Advisory Guidelines (SSAG) “With Child Support Formula” (Schedule 1) recommends the Applicant pay child support of $1,111.00 per month and spousal support of $657.00 (low), $926.00 (mid) and $1,214 (high), based on an equal timeshare, the Applicant’s income of $86,00000 per year and the Respondent’s income of $15,516 per year.” This suggests a post-trial start date for on-going spousal support in 2021 based on Mr. Davidson’s 2020 income of $86,000.

[36] Mr. Davidson may be tempted to argue that spousal support should not be payable prior to the sale of the matrimonial home as he was carrying the expenses of same. However, in this trial, he has sought and, as is noted below, has obtained a post-separation adjustment from Ms. Jamieson for her share of the expenses related to the matrimonial home. Spousal support should, in my view, commence as of January 1, 2018, the month in which Ms. Jamieson made her claim. Ms. Jamieson has submitted that spousal support should be payable at the high end of the range, however, given that she will be in receipt of an equalization payment and given her obligation to contribute to her own support, I find that spousal support should be payable in the mid-range.

Quantum

[37] Spousal support shall, therefore, be payable as follows:

• Commencing January 1, 2018, Mr. Davidson shall pay to Ms. Jamieson spousal support at the mid-range of the SSAG’s based on his 2017 income of $40,846 and her 2017 income of $6,278.
• Commencing January 1, 2019, Mr. Davidson shall pay to Ms. Jamieson spousal support at the mid-range of the SSAG’s based on his 2018 income of $66,000 and her 2018 income of $11,007.
• Commencing January 1, 2020, Mr. Davidson shall pay to Ms. Jamieson spousal support at the mid-range of the SSAG’s based on his 2019 income of $69,000 and her 2019 income of $15,516.
• Commencing January 1, 2021, Mr. Davidson shall pay to Ms. Jamieson spousal support at the mid-range of the SSAG’s on a With Child Support Formula based on his 2020 income of $86,000 and her 2020 income of $14,587.46.

[38] In doing their calculations, the parties must, however, consider they never requested nor received an order adjusting child support based on my findings regarding Mr. Davidson’s incomes for 2018, 2019, and 2020. Spousal support will, therefore, have to be calculated taking into account the actual child support being paid by Mr. Davidson during those years.

[39] The parties 2021 incomes were not known at the time of the trial. Spousal support shall be adjusted as of January 1, 2022, in accordance with the parties’ incomes for 2021. Commencing June 1, 2022, it shall continue as per Mr. Davidson’s income for 2021 and Ms. Jamieson’s imputed income of $30,000.

[40] For taxation purposes, spousal support shall be deductible by Mr. Davidson and taxable to Ms. Jamieson. Should Mr. Davidson be unable to deduct spousal support for any given year, the parties shall calculate an appropriate midpoint lump sum payment between Mr. Davidson’s after-tax cost and Ms. Jamieson’s after-tax benefit for the period in question.

[41] The parties shall prepare DivorceMate calculations in accordance with paragraphs 37 through 40 above and include the appropriate figures in a draft order approved as to form and content for my review.

Duration

[42] The parties were married for almost six years. The results of Ms. Jamieson’s DivorceMate calculation for spousal support based on the parties’ 2020 incomes suggests “an indefinite (unspecified) duration, subject to variation and possibly review, with a minimum duration of 3 years and a maximum duration of 16 years from the date of separation.” Pursuant to Subsection 15.2(6) of the Divorce Act, the objectives of a spousal support order are to recognize the economic advantages or disadvantages of marriage breakdown, apportion the consequences of childcare between the spouses, relieve economic hardship arising from the breakdown and promote the economic self-sufficiency of spouses within a reasonable time [10]. The marriage was of a relatively short duration. Prospective childcare responsibility is shared, as opposed to being Ms. Jamieson’s sole responsibility. Ms. Jamieson was young at the date of separation (29) and is young now (33). She has since made choices in her own life, the consequences for which Mr. Davidson should not be indefinitely responsible. It will take some time for Ms. Jamieson to get on her feet but get on her feet she must. Taking into consideration the length of the marriage, the ages of children, the roles of the parties’ during the marriage and after, Ms. Jamieson’s ability to become self-supporting and the range of duration indicated by the SSAG’s, I find that a reasonable duration for spousal support is eight years. Spousal support shall, therefore, terminate, as of December 31, 2025.

Issue #4 - Is there an equalization payment owed, and if so, to whom and in what amount?

[43] Mr. Davidson produced a Net Family Property Statement dated May 26, 2021 [11], which results in him owing to Ms. Jamieson an equalization payment of $73,707.21. With this amount, Ms. Jamieson agrees.

[44] Notwithstanding his own NFP statement dated May 26, 2021, however, Mr. Davidson submits that no equalization payment should be owed by him to Ms. Jamieson. The basis for this argument is related primarily to his claim for a debt owed by Top Notch Heating at the valuation date. Top Notch Heating Ltd. was valued at $90,600 in Part 4(e) “Business Interests” of Mr. Davidson’s May 26, 2021, NFP statement, as well as in that of Ms. Jamieson dated May 28, 2021 [12]. Both also valued Mr. Davidson’s interest in 148 John Street as $8,327 under Part 4(g) “Other Property”.

[45] However, in his NFP statement dated September 23, 2021, Mr. Davidson has removed any value for 148 John Street, and has included under the title “Value of debts and liabilities on valuation date”, the sum of $183,346.52 as a loan owed by Top Notch Heating, something he did not include in his May statement. The inclusion of this loan, which relates to the purchase of 148 John Street, renders his assets zero.

[46] Top Notch Heating Ltd. entered into an agreement of purchase and sale to buy 148 John Street, Eganville from Mr. Robert Kruger and Mr. Peter Manor on June 1, 2015. The purchase price was $195,000 plus HST. The arrangement for payment was that Mr. Davidson was to pay $5000 on the date of the agreement, and then a minimum of $1000 per month for three years, with the balance of the purchase price to be paid on June 1, 2018. The vendors were, thus, financing the purchase for the first three years, after which Mr. Davidson was to obtain his own financing and pay the balance owing of the purchase price.

[47] Mr. Davidson’s evidence with respect to the 2015 transaction was that he intended to purchase the property outright but could not obtain the financing to do so. Additionally, he understood that there was some tax advantage to the vendors to delay the purchase to June 1, 2018, so the agreement was made. What was registered in the Land Title Office on June 10, 2015, was a “Caution of Agreement of Purchase and Sale”. It clearly shows Robert Kruger and Peter Manor as the owners of the property. The date of closing is noted to be June 1, 2018. There is no mortgage registered on the property.

[48] At the date of separation, the balance owing on the purchase price was $183,346.52. Mr. Davidson seeks to claim that amount on his updated NFP statement, even though he did not complete the purchase on June 1, 2018, indicating that he was not able to obtain financing due to the uncertainly surrounding this litigation. The agreement states: “At the end of the three (3) year term, the Purchaser acknowledges that unless there is an Agreement in writing between the Purchaser and the Vendor to extend this Agreement of Purchase and Sale, that new financing will have to be obtained by the Purchaser.” No new agreement in writing between Mr. Davidson (Top Notch Heating Ltd.) and Mr. Kruger and Mr. Manor was presented to the court. Thus, according to the terms of the agreement, he was expected to obtain the financing to complete the purchase and he did not. The property remains in the names of Mr. Kruger and Mr. Manor, and Mr. Davidson continues to make monthly payments to them. The nature of the on-going arrangement is not clear to me. Mr. Davidson suggests in his September 13, 2021, NFP statement that he is paying Mr. Kruger and Mr. Manor on a “rent to own” basis. If this is the case, then Mr. Davidson will have accrued some interest in the property (the original payment of $5000 + subsequent payments to the date of separation) by the valuation date. It is, therefore, reasonable that the value of $8,327 as his interest in the property at the date of valuation remain in the NFP statement.

[49] I cannot, however, conclude from the evidence before me that Mr. Davidson owed a debt to Mr. Kruger and Mr. Manor at the time of separation. As I have indicated, no mortgage was registered against the property with Mr. Davidson noted as the mortgagor. The closing date of the purchase was additionally noted to be June 1, 2018. If any debt was owing by Mr. Davidson, it would have been as of that date, when the remainder of the purchase price was due. That “debt” appears not to have been called in or enforced in any manner, and in any event, it was long past the valuation date. Consequently, I find that Mr. Davidson cannot claim a valuation date debt of $183,346.52, and he owes an equalization payment of $73,707.21 to Ms. Jamieson.

[50] The issue then becomes what adjustments need to be made to that sum.

Issue #5 - Are either of the parties entitled to credit for post-separation adjustments, and if so, in what amount?

[51] Ms. Jamieson agrees to the following adjustments being claimed by Mr. Davidson:

• $14,685.88, being her share of the mortgage and other household expenses to the date of the sale of the matrimonial home;
• $4,908, being the amount of her debt to Trent University which Mr. Davidson paid on her behalf;
• $3,400, being the cost of renovations to the yoga studio at 148 John Street for which Mr. Davidson paid; and,
• $15,251.95, being the costs order on the interim motion with interest, which she still owes to Mr. Davidson.

[52] These deductions total $38,245.83. The result, once those adjustments are made, is that Mr. Davidson owes to Ms. Jamieson an equalization payment of $35,461.38. Ms. Jamieson has indicated in her submissions that she is agreeable to a timetable for payment. The parties may agree on same. If they are unable to do so, Mr. Davidson shall pay the equalization in four installments at three-month intervals over the course of the next year.

Issue #6 - How should parenting time be divided for Thanksgiving, Easter and Halloween?

[53] Astonishingly, Mr. Davidson and Ms. Jamieson could not resolve one aspect of their prospective parenting regime, that being parenting time on the weekends of Thanksgiving and Easter, and for Halloween. If this is any indication of the course of the litigation to date, it may help to explain why they are faced with astronomical legal bills.

[54] In any event, Mr. Davidson’s position is that those occasions should simply fall into the week on/week off schedule, and the children should spend them with whomever has them in the ordinary course. His reason for this is that the exchanges have, certainly historically, and possibly also more recently, been problematic. He submits that family gatherings can be moved to a different day/week if the parent who wishes to celebrate the occasion does not normally have the children.

[55] Ms. Jamieson’s position is that these specific occasions should be shared equally, as are Christmas, Mother’s Day, and Father’s Day. Her view is that each parent should have time with the children to allow them to participate in gatherings with extended family at Easter and Thanksgiving, and to either rotate Halloween or have the children spend time with each parent on that day. To her, it is very important that the children participate in the actual occasion with their relatives, and that it is unfair to expect of extended family that celebrations be changed. She does not see the same issues currently with exchanges as had been identified in the past, including by the clinical investigator for the OCL.

[56] The OCL clinician, Sandra Kapasky, who prepared a report dated November 3, 2020, included in her recommendations at page 20: “For holidays, not otherwise specified in this schedule, such as Family Day, Victoria Day, Canada Day, Civic Holiday and Labor Day, the children will be in the care of the parent that has them for the regular scheduled parenting time.” [13] Mr. Davidson relies on this in support of his position. However, Ms. Jamieson notes that the important family occasions of Easter and Thanksgiving were left off the list. In discussing her recommendation for week about parenting, Ms. Kapasky indicated at page 19 that same would allow for the children to have “maximum exposure to each parent while face to face contact between Anthony and Heather is minimized.” Mr. Davidson submits that adding six more exchanges would not be optimal for the children.

[57] This case has at times been characterized as “high conflict”. Of course, the worst thing separated parents can do to their children is act in a manner that results in their case being characterized as high conflict. These people, nevertheless, seem to behave that way. Ms. Kapasky noted at page 18 of her report that “both parents displayed a lack of respect and a serious mistrust for the other parent.” Notwithstanding that, she recommended shared decision making and shared parenting.

[58] Relationships with other family members are now considered important in both the Divorce Act and the Children’s Law Reform Act. Indeed, recent amendments to the Divorce Act have incorporated the nature and strength of a child’s relationship with his or her siblings, grandparents and other persons of importance to him or her to be a factor the court is to consider in determining the child’s best interests. Significant holidays and special occasions are one of the things that help to foster relationships with extended family members. Surely these parents can, for the sake of the children, manage exchanges such that Adelaide and Sutton can participate with both extended families at Easter, Thanksgiving and Halloween. Easter and Thanksgiving weekends shall, therefore, be shared equally with the exchange to occur on Sunday morning. Halloween will rotate from year to year.

Order

[59] For all the reasons given above, there shall be a final order as follows:

Pursuant to the Family Law Act:

Equalization

(1) The Applicant shall pay to the Respondent an equalization payment of $35,461.38, in either four installments over 12 months or by some other schedule as agreed by the parties in writing.

Pursuant to the Divorce Act:

Divorce

(2) The parties may file the necessary documents to obtain a divorce.

Child Support

(3) Commencing October 1, 2021, the Applicant shall pay to the Respondent set-off table support for two children based on his 2020 income of $86,000 and her 2020 income of $14,587.46.

(4) Commencing June 1, 2022, the Applicant shall pay to the Respondent set-off table support for two children based on his 2021 income and her imputed income of $30,000.

(5) By May 31 of 2022, and May 31st of every year thereafter, the parties shall exchange copies of their Income Tax Returns and/or Notices of Assessments for the previous year, and child support shall be adjusted effective June 1, if necessary.

Spousal Support

(6) Commencing January 1, 2018, the Applicant shall pay to the Respondent spousal support at the mid-range of the SSAG’s on his 2017 income of $40,846 and her 2017 income of $6,278, accounting in the calculation for the child support being paid by him at that time.

(7) Commencing January 1, 2019, the Applicant shall pay to Respondent spousal support at the mid-range of the SSAG’s based on his 2018 income of $66,000 and her 2018 income of $11,007, accounting in the calculation for the child support being paid by him at that time.

(8) Commencing January 1, 2020, the Applicant shall pay to the Respondent spousal support at the mid-range of the SSAG’s based on his 2019 income of $69,000 and her 2019 income of $15,516, accounting in the calculation for the child support being paid by him at that time.

(9) Commencing January 1, 2021, the Applicant shall pay to the Respondent spousal support at the mid-range of the SSAG’s on a With Child Support Formula based on his 2020 income of $86,000 and her 2020 income of $14,587.46.

(10) Commencing January 1, 2022, the Applicant shall pay to the Respondent spousal support at the mid-range of the SSAG’s on a With Child Support Formula based on his 2021 income and her 2021 income.

(11) Commencing June 1, 2022, the Applicant shall pay to the Respondent spousal support at the mid-range of the SSAG’s on a With Child Support Formula based on his 2021 income and an income imputed to the Respondent of $30,000.

(12) For taxation purposes, spousal support shall be deductible by Mr. Davidson and taxable to Ms. Jamieson.

Parenting

(13) Commencing in April of 2022, the parents shall equally share parenting time with the children during the Easter and Thanksgiving weekends, with the exchange of the children to take place Sunday morning at 10:00 a.m. or such other time as agreed upon by the parties.

(14) Commencing in 2022, parenting time on Halloween Day shall alternate on a yearly basis, with the parent who did not have the children in 2021 having care of the children in 2022. If the children, by the regular parenting schedule, are not in the care of the parent whose year it is to have Halloween, the exchange shall be agreed upon by the parties.

General

(15) Pursuant to the Courts of Justice Act, this order shall be subject to pre and post judgment interest.

(16) Unless it is withdrawn by the parties, support under this Order shall be enforceable by the Family Responsibility Office.

[60] The parties are to produce DivorceMate calculations as per the above and submit them to the court along with a draft order approved as to form and content for my review and signature.

Costs

[61] If the parties are unable to agree on for costs of this Trial, only after the calculation as set out above have been completed and the draft order provided may they make written costs submissions, which shall be limited to three double-spaced pages, along with Offers to Settle and Bills of Costs. The Applicant shall have 15 days after the draft order has been submitted to file his costs submissions. The Respondent shall have 15 days after receipt of the Applicant’s submissions to file her costs submissions. The Applicant shall have a further 10 days to file reply submissions, if any.

Justice Engelking Released: March 18, 2022