COURT FILE NO.: FS-22-00027482-0000
DATE: 20221220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Daniel Rafal Dworakowski
Applicant
– and –
Wendy Tasine Dworakowski
Respondent
Peter J. Chmiel, for the Applicant
James S. Marks and Chery Mackintosh, for the Respondent
HEARD: September 26 – 29, October 6, 2022
Justice M. Sharma
JUDGMENT
[1] This judgment following trial resolves on a final basis the following issues between the parties: decision-making responsibility and parenting time for the parties’ soon to be three-year old son, child and spousal support, net family property equalization, and divorce. The Respondent mother had sought relief to relocate with the child to Anguilla, but she withdrew her request for that relief prior to trial.
A. Overview
[2] I refer to the Applicant as the Applicant or the father. I refer to the Respondent as the Respondent or the mother.
[3] The parties met in April 2018 at a dental office where the Respondent worked as an assistant dental hygienist and the Applicant was a patient. The Applicant owns and operates a commercial painting and construction company, D & W Painting Ltd.
[4] The parties moved in together in September 2018 in a house owned by the Applicant at 142 Kingsview Blvd., Etobicoke, Ontario (the “Kingsview property”) which was their matrimonial home.
[5] In 2014, at the age of 21, the Applicant purchased the Kingsview property for $526,000. He was able to make the down payment of 10% from savings he earned while working with his father and at a grocery store. He made significant renovations to the home with the help of his father and prior to entering into a relationship with the Respondent.
[6] On September 23, 2018, the Applicant proposed to the Respondent, which she accepted.
[7] The Respondent is from Anguilla but had been in Canada since 2015. She owned property in Anguilla that she purchased prior to meeting the Applicant.
[8] When the parties met, she was in Canada awaiting permanent residency. She was married to a Canadian citizen named Gerron Bishop. The parties disagree on whether the Applicant knew that the Respondent was married when he proposed to her.
[9] The Applicant states he only learned the Respondent was married in October 2018 when the Respondent was directed to attend a meeting with Immigration Canada officials and with Mr. Bishop. The Applicant believes the Respondent’s former roommate reported to Immigration Canada that the Respondent’s marriage to Mr. Bishop was not genuine, resulting in the meeting. Following this meeting, the Respondent withdrew her permanent residency application; she was permitted to remain in Canada as a temporary resident until October 2019.
[10] According to her Answer, the Respondent obtained a divorce from her previous husband on February 9, 2019. She did not file proof of her divorce.
[11] After the parties started living together, they had disagreements which centred on their future. The Applicant said the Respondent was focussed on development of her property in Anguilla, while he wanted to focus on starting a family in their home in Canada. It is not disputed that the Applicant made payments to support the construction of the Anguilla property, but the parties disagree on the contributions and whether any amounts were repaid. The Applicant states that disagreements arose again when he stopped making contributions to the Anguilla property.
[12] In April 2019, the Respondent became pregnant.
[13] On August 4, 2019, they had a marriage ceremony at the Kingsview property. Members of the Respondent’s family from Anguilla came to the ceremony.
[14] In October 2019, the Applicant completed a sponsorship application to allow the Respondent to obtain permanent residency and citizenship in Canada. He says this was because her status as of October 2018 was temporary and would expire in October 2019. They relied upon the Applicant’s friend, an Immigration Consultant in Alberta, to assist them.
[15] On December 20, 2019, their son, L, was born. The Respondent mother had a C-section and also underwent surgery to remove fibroids. The Respondent’s evidence was that she was in a lot of pain following these surgeries and required time for recovery.
[16] Following the birth of L, the Applicant father took time off work through to the end of January 2020, to spend time with L and to assist the mother. His evidence was that a nurse would check-in on them and give the father instruction on how to care for their child (e.g., feeding, swaddling). The Applicant’s mother also stayed with the family for two weeks following L’s birth, and the Applicant’s grandmother stayed for six months. Claudia Matthews, a friend and neighbour who was a witness at trial, also assisted the parties during this time.
[17] In May 2020, the father had emergency surgery due to a ruptured appendix. During his recovery, the parties were assisted by the Applicant’s grandmother and Ms. Matthews.
[18] There was evidence that the mother had a difficult time after L was born, a fact that she admitted in her evidence. It is not disputed that after June 2020, she was principally involved in caring for L while the father was at work, although, there was regular assistance provided by Ms. Matthews.
[19] The evidence is that in or around June 2020, the parties had increasingly heated arguments. They had a physical altercation on June 18, 2020. The mother alleges there were constant threats and verbal abuse. I address these allegations of family violence in my analysis of the evidence relating to parenting orders.
[20] Prior to their separation, the parties had discussed purchasing a second home as an investment rental property. On June 5, 2021, the parties visited, and the father made an offer to purchase a home at 4862 Fifth Avenue, Niagara Falls, Ontario (“the Niagara property”). The offer was accepted at a purchase price of $510,000. A deposit of $15,000 was paid from the parties’ joint account.
[21] On July 5, 2021, the parties had a heated argument about financial issues, and the terms of a separation.
[22] On the morning of July 6, 2021, the mother called the police. The mother’s evidence was that she called the police so that the police could come and talk to the parties and encourage more peaceful relations. The father’s evidence was that when the police called him, they reported that the mother alleged the father had engaged in domestic violence from April 2021. The father was directed to attend a police station, which he did. No charges were laid against the father. However, based on photographs of injuries the father had sustained during the physical fight on June 18, 2020, the mother was charged with assault and assault with a weapon. Those charges were later dropped.
[23] On July 6, 2021, after the mother called the police about the father, the father withdrew his sponsorship of the mother’s immigration. There is a dispute as to whether his withdrawal of his sponsorship was submitted to Immigration Canada on July 6, 2021, or not until July 12, 2021. The letter is dated July 6, 2021. In his letter, he offered the following reason for withdrawing his sponsorship: “Our relationship has ended and therefore I no longer wish to sponsor Wendy Tasine William Gumbs [the Respondent].”
[24] On July 15, 2021, the mother received a letter from Immigration Canada saying that she must leave Canada immediately. However, she was subsequently permitted to remain in Canada temporarily to apply for permanent residency status on humanitarian and compassionate grounds. On August 16, 2022, the mother’s application for permanent residency on humanitarian and compassionate grounds was provisionally approved.
[25] From July 7 to 9, 2021, the child stayed with his father. Thereafter, the mother did not permit L to spend time with the father again until the weekend of November 19, 2021. The father had continued access on alternating weekends until December 20, 2021. At that point, the mother denied the father further access unilaterally, unless it was through FaceTime or supervised access. Her concern was that L was not yet verbal, and in her view, it was important for L to communicate with her what was happening while in his father’s care. She was also concerned that L was getting sick while in his father’s care.
[26] After the police became involved with this family, the mother left the Kingsview property with L. She had limited funds. Her evidence was that she withdrew $10,000 from an account intended for L’s education, and she had limited other funds. She stayed at various places, including a Women’s Shelter, motel rooms, friends, and ultimately rented a bedroom in a house.
[27] The father was not paying regular child or spousal support until a temporary Order was made on February 4, 2022.
Previous Court Attendances
[28] On January 17, 2022, the father brought an urgent motion for a non-removal order of the child. The mother brought a cross-motion for support. Papageorgiou J. released her decision on February 4, 2022. On consent, she granted an order that prevented either party from removing the child from Ontario. While the father did not seek a parenting order formally, it was sought orally. On an interim basis, Papageorgiou J. ordered that the father have parenting time on alternating weekends. Papageorgiou J. also made an interim order for child support, based on an imputed income to the father of $132,856.50, resulting in monthly child support of $1,169. She also made an interim order for spousal support in the amount of $1,000.
[29] At the motion before Papageorgiou J., she permitted viva voce testimony. She made credibility findings against the father. That finding arose because Papageorgiou J. concluded that the father had lied when he said he did not sign a passport application for the child. At trial, the mother placed great weight on Papageorgiou J.’s credibility finding of the father.
[30] Papageorgiou J. made an order on March 31, 2022, in which she ordered financial disclosure from the Applicant father within 21 days. At trial, he admitted that he did not comply with this Order. He explained that this was because an Offer to Settle was on the table and his lawyer had advised him not to produce documents as they waited to hear from the mother about whether she would accept the offer. He subsequently complied with parts of the order for disclosure, however, he did not produce a critical credit application for a mortgage for the Niagara investment property. He explained that he tried to get it from his mortgage broker to no avail. He ultimately provided an authorization and direction for the mother to obtain his credit application for a mortgage with Equitable Bank. That mortgage application is the basis upon which the mother says the father’s income should be calculated. The father states that the numbers inserted on this document were included and set at amounts determined by his mortgage broker so that he could qualify for a mortgage. He says they are not accurate.
Video Evidence on July 5, 2021
[31] There was video evidence surreptitiously taken by the mother of discussions between the parties on July 5, 2021. It consisted of five short videos ranging in length from 30 seconds to four minutes. In the videos, the mother asks a series of questions of the father.
[32] I found the mother’s video evidence inadmissible, except to establish that on July 5, 2021, the parties were having an argument and discussing the terms of a potential separation. I decline to admit it for any other purpose for the following reasons.
[33] First, the videos capture questions by the mother and answers by the father dealing with how they are going to settle their affairs upon separation, including parenting. It is unclear whether either party had the benefit of legal advice. I am satisfied these discussions were settlement discussions and are inadmissible.
[34] Second, the videos are short clips. They do not reveal the totality of the conversation between the parties. The mother’s evidence was that she recorded throughout the day on July 5, 2021, although only snippets were introduced into evidence.
[35] Third, the videos show the mother prodding the father to answer questions, sometimes repeatedly. While she knew the conversation was being recorded, he did not. She had incentive to behave well. She solely determined when she would record, the circumstances when she would record, which questions she would put to the father, and which of his answers she would adduce in evidence. This creates real risk for the video recordings to portray a picture different from what was naturally unfolding. I am satisfied the prejudicial effect of the videos outweighs any probative value.
[36] Several Ontario cases speak to surreptitious recordings by parents in family law proceedings creating opportunities for further conflict and mistrust. They cite strong policy arguments against admitting surreptitious recordings into evidence. They have been fully set out by Kurz J. in Van Ruyvern v. Van Ruyven, 2021 ONSC 5963, 62 RFL (8th) 451, at paras. 30 to 43. In this case, the parties will have years to co-parent L together and do not need ammunition to fuel further distrust. As stated aptly by Kurz J. at para. 40 in Van Ruyvern,
…routinely allowing our courts to reward a party’s attempt to secretly spy on the other by admitting the fruits of that conduct into evidence contributes to the corrosiveness of matrimonial litigation. That approach must be discouraged.
Credibility of Witnesses
[37] All witnesses provided an affidavit, or in the case of the experts, an expert report. They all gave oral evidence in chief and were cross-examined. I granted the parties an opportunity to give evidence in chief on matters that exceeded what was contained in their affidavits.
[38] I found the father’s oral evidence to be generally credible. There was internal consistency with respect to his evidence. His demeanour was not argumentative or confrontational. On critical issues, he provided fulsome explanations that were internally consistent and had an air of reality. When asked about non-compliance with court orders for disclosure and other conduct, he provided reasonable explanations. It appeared to me that some of his acts or omissions were because he was uneducated in certain areas (e.g., his understanding of a mortgage application prepared by his mortgage broker), because he received poor legal advice (e.g., not disclosing relevant financial information until ordered to do so, or not abiding by a court order for disclosure pending a response to his offer to settle), or because he was motivated by anger (e.g., writing “ungrateful woman” on a take-out food container for the Respondent). I do not excuse his non-compliance with court ordered disclosure and I draw negative inferences, as a result, where appropriate. However, I found that his testimony explaining these incidents was credible.
[39] I have also considered the negative credibility findings made by Papageorgiou J. against the father around whether he signed L’s passport application. I have considered the way in which that credibility finding was reached, in the context of an urgent interim motion, where viva voce evidence was permitted “on the spot” the day the motion was argued, and where video evidence surreptitiously recorded by the mother was disclosed only after the father had sworn an affidavit saying something different than what appeared on the video. Papageorgiou J. noted that the video evidence may not be admissible at trial.
[40] As is often done, judges on interim family motions make findings to resolve immediate issues pending trial. While I accept that the father may have been dishonest with respect to whether he signed L’s passport application, as a trial judge, I must consider the totality of the admissible evidence at trial. I was alive to the possibility of the father being dishonest throughout the trial. There were some instances where I doubted his credibility, although they were not on critical issues.
[41] I found the mother’s testimony lacked credibility on significant issues, which caused me to question her overall credibility. She often became argumentative, confrontational, and evasive despite being directed by the Court several times to answer questions and for her not to advocate on her own behalf.
[42] For example, her evidence of an incident of domestic violence with the father in June 2020, and her allegation that she was only acting in self-defence when she bit the father lacked any meaningful particulars. She had the opportunity to explain this incident in full. In contrast, much of her other evidence included significant detail. There were third party witnesses who attended the scene immediately after the June 2020 incident – Ms. Matthews and Mr. Fig. None of their evidence suggested that the mother had reported that she had been acting in self-defence. In contrast, the father’s evidence of the altercation had details and was logically consistent and was supported by what Ms. Matthews and Mr. Fig witnessed shortly after the incident. In the mother’s affidavits, she only makes passing reference to other instances of physical violence.
[43] I also find that the mother was evasive and lied to the Court when describing the nature of her relationship with her former husband, Mr. Bishop. The father entered as exhibits receipts which show the mother paid Mr. Bishop at least $3,000. The receipts indicate payments were for “S.S. Arrangement to Gerron Bishop”. The mother admitted that the signatures on the receipts were hers and that she paid Mr. Bishop $3,000. On cross-examination, she would not admit that “S.S. arrangement” stood for “spousal sponsorship arrangement”. Shockingly, she suggested that “S.S.” could stand for anything, including “salt and sour.” While I accept that she may have a real fear of being deported and potentially being separated from her son, her dishonesty was blatant.
[44] The father’s other witnesses were friends and neighbours who observed the parties together, each party’s parenting abilities, and the work the parties did on the matrimonial home. The father’s new partner also testified. There was limited cross-examination of their evidence.
[45] I found little reason to question the credibility of the father’s witnesses. Several had many interactions with the parties and L over many months, and sometimes those interactions were daily. I was mindful that as friends, they may have had motive to collude and be dishonest. However, I found Claudia Matthews evidence to be credible in relation to what she observed of the parties’ parenting of L. Over a period of many months, she had regular contact with the parties, often cared for L, and she had many direct observations of the parties’ parenting abilities and L’s needs. I was satisfied that her answers were given with the best interests of L in mind. Her testimony was consistent with the evidence of the father’s other witnesses. Claudia Matthews and her husband, Tony Fig, also corroborated the injuries that the father suffered following the parties physical fight in June 2020.
[46] Each side had expert witnesses to appraise the Kingsview property. The mother also had evidence of a Chartered Business Valuator. I found no reason to doubt their objectivity or duties as expert witnesses.
B. Issues
[47] I address the following issues in this order:
What parenting orders are necessary in the child’s best interests, including a parenting schedule, decision-making responsibility, and communication orders?
What income should be used for the purpose of determining support obligations?
What amount of child support is owed?
Is the mother entitled to spousal support, and if so, in what amount and for how long?
What equalization payment should be made?
1. What parenting orders are necessary in the child’s best interests, including a parenting schedule, decision-making responsibility, and communication orders?
Parenting Schedule
[48] The father seeks to have the child reside with him on three out of four weekends per month, from the Friday after daycare until the Monday morning at daycare. In the alternative, he seeks an order for equal parenting time, as determined appropriate by the Court.
[49] The mother argues the status quo of alternating weekends should remain in place, with the child being with the father from Friday after daycare until Monday morning at daycare.
[50] S. 16.1(1) of the Divorce Act confers jurisdiction on the court to make orders around the exercise of parenting time and decision-making responsibility for a child of the marriage. When making parenting orders, the court shall take into consideration only the best interests of the child: s. 16(1) Divorce Act. In determining the best interests of the child, the factors to be considered are set out in s. 16(3) of the Act.
[51] During the mother’s evidence in chief and her cross-examination, she often spoke of the necessity for L to spend time with her because that is what she needed. I do not consider that evidence when making parenting orders. My focus in making parenting orders is only on the L’s needs and interests, and not those of his parents.
[52] There were records from investigations from Catholic Children’s Aid Society of Toronto (“CCAST”) that were attached as exhibits to the parties’ affidavits. I accept those records as business records, but only with respect to observations and recordings of facts of what CCAST workers observed or were told. I am satisfied that they were recorded contemporaneously with the events recorded and in the exercise of the CCAST workers’ duties. However, I do not give any weight to opinions reflected in the CCAST records with respect to the parties’ parenting abilities. None of the workers were called as witnesses to give opinion evidence. See Catholic Children’s Aid Society of Toronto v. L.(J.), 2003 CanLII 57514 (ON CJ), [2003] 39 RFL (5th) 54(ON CJ), at para. 10 – 11.
[53] The child will be turning three on December 20, 2022. There was no evidence from outside assessors as to what parenting arrangement is in L’s best interests, given his age and stage of development. The evidence of what was in the child’s best interests came only from the parties and the witnesses that the father called.
[54] In making parenting orders, and in the absence of third-party assessors or other expert evidence, I consider the Parenting Plan Guide prepared by the Ontario Chapter of the Association of Family and Conciliation Courts (“AFCC-O”). The Parenting Plan Guide has been found to be helpful by other judges of this Court in determining parenting schedules that are in a child’s interest based on the child’s age and developmental stage: see Hatab v. Abuhatab, 2022 ONSC 1560, 69 R.F.L. (8th) 18; Czyzewski v. Fabro, 2022 ONSC 4883,77 R.F.L. (8th) 385; McBennet v Davis, 2021 ONSC 3610, 57 R.F.L. (8th) 1. As stated by Chappel J. in McBennet at para. 92:
The AFCCO-O Guide summarizes basic social science knowledge about the effects of parental separation on children, provides suggestions and guidance to help improve communications and cooperation between separated parents and offers valuable guidance about formulating parenting arrangements that meet the needs of children.
[55] In determining L’ best interests, I assess all factors related to the circumstances of the child, including the factors listed in s. 16(3) of the Divorce Act.
Child’s Needs, Given his Age/Stage of Development.
[56] The child turns three this month. Based on the Parenting Plan Guide, a child of L’s age is becoming increasingly independent and can tolerate longer absences from his primary caregiver, although fostering a sense of security remains important. Where the other parent has had limited involvement in the child’s daily routine at separation, a gradual re-introduction to the other parent is appropriate with a parenting schedule allowing for a few hours several days a week before introducing an overnight and moving to equal parenting. However, if both parents were employed outside the home at the time of separation and were equally involved in the child’s care, it may be appropriate to have an arrangement with roughly equal parenting time, but not more than three nights away from either parent.
[57] There was no evidence of concerns with the child spending alternating weekends with the father, except for some illness concerns which I address later. I also explain that there were positive reports of how he was developing and responding in both parties’ care.
Nature of Strength of Child’s Relationship with each Spouse & Others
[58] The mother provided evidence of how the child is closely bonded to her. She described how the child calls out for her, seeks her approval and comfort. Since separation in July 2021, she has assumed the primary responsibilities as parent. I accept that the child has a close relationship with his mother.
[59] There was evidence from the father, Ms. Matthews and Mr. Fig that when the child was a newborn and an infant, the mother ignored the child and did not tend to his needs. While this may have been true, and as addressed later in my Judgment, I am satisfied that there is a strong bond between the child and his mother. The mother, by her own admission, found it tough to parent right after birth. However, the reports from the CCAST records and the mother’s own evidence support the conclusion that any early neglect, if any, has not impacted the bond between the mother and L.
[60] The father provided evidence of the activities he engages in with the child and the bond he has had with the child since birth. He provided primary care to L for the first several weeks after birth while the mother recovered. He described the age-appropriate activities he has engaged in with the child, potty-training, meal sharing, and moments of pride the child expressed when he performed a task. The father built a playground in the backyard where they spend time together. There were photographs and corroborating evidence of Ms. Matthews and Mr. Fig attesting to the active role played by the father in his son’s life. I accept that the child has a close bond with his father.
[61] I also accept that L has a close relationship with Ms. Matthews, who often cared for L.
[62] The father is now re-partnered to Zara Prince, and together they have a newborn daughter. Ms. Prince also gave evidence of the bond the father has to L. There was some evidence that L has a budding relationship with his new sister, which should be fostered for the child’s benefit.
[63] I am satisfied that the child has a close, deep, and loving bond with both parents.
Spouse’s Willingness to Develop and Maintain Child’s Relationship with the Other Spouse
[64] There was evidence that neither party has taken seriously the importance of fostering and maintaining the child’s relationship with the other spouse.
[65] The evidence revealed that the mother withheld the child from the father for several months following separation. When parenting time with the father was ultimately arranged just before Christmas in 2021, the father attended the daycare to collect the child only to find he was not there. There were discussions through counsel to implement a parenting schedule, which were then resiled from unilaterally by the mother because she was concerned that the child was always returning sick. She blamed the father. The current parenting schedule of every other weekend was ultimately ordered by Papageorgiou J. on February 4, 2022.
[66] While the father has not withheld the child from the mother, he did revoke his sponsorship of the mother’s immigration application. As a result, from July 2021 to August 2022, the mother’s immigration status was temporary and there was a potential she may be deported. For reasons set out below, I do not think the father properly considered the negative impact the mother’s deportation might have on the child’s relationship with his mother. In my view, he ought to have seriously considered it.
[67] The mother gave evidence of the limited role the father played in the child’s life since birth and up to separation. She recounted that, when he returned home from work, he would engage in his own activities and would not spend time with L.
[68] The father, and his witnesses, gave evidence of the active role he played in the child’s life. However, with the exception of the first few months after L was born, there was no real dispute that the mother was principally responsible for the child’s care up to the date of separation, although she was regularly assisted by Ms. Matthews.
[69] For roughly six months from July 2021 to February 4, 2022, the mother remained L’s primary caregiver, and there was limited access granted to the father. Thereafter, the father had regular time with L on alternating weekends, which included three overnights from Friday to Monday. Aside from concerns about the child becoming sick while in his father’s care, there was no evidence that the child responded poorly while in his care during the overnight weekends. In fact, there was compelling evidence from the father and his witnesses that he parented well and fully attended to the child’s needs and development while in his care.
[70] There is insufficient evidence to draw a conclusion that the father has not attended to the child’s health, as alleged by the mother. Children often become ill, particularly when they are introduced to daycare. The evidence showing a causal connection between the child’s illnesses and the care the father provided was scant.
[71] I am satisfied that the mother has been the primary caregiver of L leading up to and following separation, although the father has played an active role in L’s life since birth and when L has been in his care since separation.
Child’s Views and Preferences
[72] The child is too young to express his views and preferences.
Child’s Cultural, Linguistic, Religious and Spiritual Upbringing
[73] This is not a factor on which significant evidence was led. There was some evidence of the child being exposed to the father’s Polish heritage, language and Christmas tradition. Parenting orders should foster this. Similarly, to the extent the mother seeks to expose the child to her family’s Caribbean heritage, culture and traditions, this should also be fostered.
Plans for the Child’s Care
[74] This issue was not fully canvassed at trial.
[75] For the mother, there was uncertainty around her immigration status, where she will work, and where she will live. The mother’s Form 35.1 Affidavit was based on the assumption that she was seeking an order to relocate with the child to Anguilla. With this relief abandoned before trial, it is assumed that she will find work, settle in a home, and continue to seek out counselling and supports as required. In her testimony, she suggested that she may return to school to upgrade her education. She also gave evidence of possibly residing outside of Toronto. The child is currently in daycare, and it is assumed he will remain in daycare until he attends full-time school, with possible after-school care if needed.
[76] The mother seeks sole decision-making with respect to L due to the conflict between the parties and their inability to communicate. She opposes the father having additional parenting time beyond alternating weekends. Her Form 35.1 Affidavit indicates the father would have half of the summers and some holidays.
[77] For the father, there was evidence of the supports that will be available to him, including from his new partner, Zara, his extended family, and his neighbours. The father and Zara gave evidence of Zara’s loving and nurturing relationship with L. The father and Zara also have a new child, E. The father operates his own business and has flexibility with respect to his schedule.
[78] The father seeks to expand his parenting time from every other weekend to three weekends a month, plus a sharing of holidays, and a division of summer vacation time. His lawyer indicated at the start of trial that the father would welcome a different expansion of his parenting time, including a week-on / week-off basis, as the Court deems fit. The father seeks joint decision-making responsibility.
Ability and willingness of each parent to care for and meet the needs of the child
[79] In her testimony, the mother admitted that after giving birth, “it was a bit rough.” I accept that her ability to parent was impacted by her period of recovery, and not feeling settled or confident as a new mother, which is not uncommon for any new parent. This view was supported by the evidence of Ms. Matthews who had regular interaction with the mother and the child from February 2020 until separation in July 2021. The mother also had few supports in Canada, other than the father and his immediate family and friends, which would have contributed to her sense of isolation.
[80] However, there was more recent evidence from CCAST records that the child is healthy and well cared for in the mother’s care. The mother has enrolled the child in daycare, and she has been attending regular dental and medical appointments with him. The mother gave evidence of her close bond with the child. She attends to his clothing, teaches him about colours, shapes, dinosaurs and airplanes, and watches him ride his tricycle. She engages in play with him and takes him on outings to parks, Canada’s Wonderland and the Aquarium.
[81] While the mother did return to work briefly as a dental hygienist following separation, she is not currently working. Her evidence was that, until the issues in this trial are resolved, she is not able to return to work. She attached to her affidavit a letter from her counsellor, Ms. Andrea Wilkinson, but Ms. Wilkinson did not give evidence at trial. Ms. Wilkinson’s letter stated she would not recommend the mother return to work until the issues in this trial are resolved. The mother testified that she did not know when she would return to work, saying that she needed stability, a permanent home and continued therapy.
[82] The mother has also lived in various places and does not have a settled home. She admitted that, following separation, there has been little stability for her and L. She has had to move from shelters, to motels, to friends’ homes temporarily, and most recently to rented premises.
[83] The father is not challenging the mother’s current ability to parent L. At trial, he was not seeking an order that the child reside primarily with him. The CCAST records further disclose that from their visits with the mother and L, L appeared to be well cared for and that L was attached to his mother.
[84] I am satisfied that the mother has an ability and willingness to care for L. A resolution of the issues in this trial, including the financial issues, will support the mother’s ability to meet the child’s needs, return to work, and find a permanent home.
[85] The father’s evidence of how he cares for the child was supported by his witnesses. He testified that, when L is in his care, he tends to his daily needs, including preparation of healthy home-cooked meals, bathing him, and getting him ready for bed. He built a playground in the backyard where much time is spent. The father engages in a variety of play, such as drawing, and educational play such as counting, recognizing colours, writing and reading. The father was involved in L’s potty training, and he supervises and encourages L on his bike and scooter. The father and his family are deeply attached to L, and they provide him with food, gifts and affection. Similarly, the father’s friends and neighbours, Ms. Matthews and Mr. Fig, have a close bond with L. Zara is also bonded with L.
[86] The father has his own business which generates sufficient income to raise his family. He continues to live in the matrimonial home, and there was no evidence of an intended move by him. The home would provide stability for the child in an environment in which he is accustomed, with adults with whom he is familiar.
[87] I am satisfied that the father has an ability and willingness to care for L and to meet his needs.
Ability and willingness of each parent to communicate and cooperate on matters affecting the child
[88] There was evidence of both parties not responding to each other’s communications. The mother sent emails asking for updates about the child when L was in his father’s care, which went unanswered. She sent another email offering other parenting time to the father, which he answered late. The father also sent an email about the child’s future school, which was not answered in any meaningful way.
[89] A court order is required to provide a framework within which the parties shall communicate. Currently, there is no framework. Rather, each party took it upon themselves to communicate when and how they saw fit, with no clarity of expectations on how or when to respond.
[90] I am not persuaded that either party had the best interests of L in mind as they considered their communications with each other since separation.
[91] Any communication order I make should command (a) polite and courteous communications; (b) timely responses on matters impacting the child’s well-being; (c) not invite harassing or non-essential communication; and (d) result in consequences where a party fails to communicate appropriately.
Family Violence and Its Impact
[92] I am satisfied that there were often heated arguments between the parties where there was verbal abuse. I am satisfied that each party had a role in instigating these fights, and they were triggered by disagreements over money, the mother’s property in Anguilla, the uncertainty of their future together, and the challenges the mother experienced as a new mother.
[93] I find that, on a balance of probabilities, there was physical violence by the mother against the father. I found the father’s detailed evidence of the physical fight in June 2020 to be credible, consistent, and supported by the testimony of Ms. Matthews and Mr. Fig who attended the matrimonial home shortly after the incident at the request of the father. The father explained how the mother broke a ceramic chicken on his head, and then used what remained with its jagged edges as a weapon. He feared she was going to gash his neck with it. When the father tried to restrain the mother and protect himself from the jagged ceramic by holding the mother’s wrists, she bit his forehead and attempted to bite his wrists. Ms. Matthews and Mr. Fig saw the bite mark and scratches on the father. There was also photographic evidence of the bite marks and scratches. In Ms. Matthews’ evidence, she said she spoke with the mother after the incident to explain that these physical altercations cannot occur. She did not give any evidence of the mother being injured in this altercation, nor did she testify that the incident occurred because the mother had reported to Ms. Matthews she was acting in self-defence. This was not the subject of any cross-examination. One would expect that if the mother was acting in self-defence, she would have recounted this fact to Ms. Matthews. The evidence was that Ms. Matthews and the mother were friends at this point.
[94] I did not find the mother’s explanation of this event credible. She failed to provide any details of this incidence of violence, other than to say the father was holding her down on the bed by her wrists and so she bit him. The mother gave no evidence of her conversation with Ms. Matthews immediately following this incident. Ms. Matthews did not report seeing the mother with any injuries, although the mother stated that bruises were not visible on her because of the colour of her skin. The mother had the opportunity to explain what led to this fight, how she allegedly ended up restrained on the bed, whether this was something that had occurred in the past, and why she did not report this to Ms. Matthews. Combined with other instances where the mother’s testimony lacked credibility, and in contrast to the level of details provided in her other testimony, I did not find her explanation of this incident credible.
[95] The father also gave evidence of an incident where the mother threw a chair at the father. There was photographic evidence of damage to a canopy from the thrown chair. I am satisfied that it is more likely than not that the mother threw the chair, given the other incident of violence in June 2020.
[96] The mother makes an allegation in her affidavit that she was subjected to physical violence. However, she described only one incident when the father slapped her but provided no other details. It is possible that this slap did occur, but I have no evidence of the circumstances surrounding this incident.
[97] The evidence is clear that the parties had a heated exchange on July 5, 2021, the day prior to their separation. Parties were arguing about their finances, and how they would settle their affairs, including the care of L, upon separation. They also argued about the closing of an investment property the father purchased in Niagara, which was set to close on July 12, 2021. The video evidence the mother sought to adduce and which I found inadmissible was captured this day. The mother alleges on this day the father threatened to revoke his sponsorship of her immigration application.
[98] I agree with a conclusion reached by Papageorgiou J. in her interim ruling in this case. Namely, that a withdrawal of an immigration sponsorship can be a form of family violence: Dworakowski v Dworakowski, 2022 ONSC 734, at para. 58. Where a spouse is dependent upon the other spouse to support or maintain their immigration status, that dependency can be leveraged as a threat or as a means to exert coercion and control over the other. The threat can be particularly traumatic for a spouse who is also a parent, who in addition to fearing deportation, may also fear losing parenting time and being removed from the care of their child for immigration reasons.
[99] Under s. 2(1) of the Divorce Act, “family violence” has an expanded meaning and includes “any conduct…that is violent or threatening…or that constitutes a pattern of coercive and controlling behaviour…” Where one spouse threatens to withdraw his or her support of a spouse’s immigration application or uses such threats as a means to coerce or control the other spouse, I find it can constitute family violence under the Divorce Act.
[100] However, after hearing viva voce evidence from the parties at trial, I am not satisfied that the father’s withdrawal of his sponsorship of the mother’s immigration application constituted family violence. I recognize that Papageorgiou J. came to a different conclusion at the urgent motion in this case where she gave interim relief. I come to my conclusion for the following reasons.
[101] First, I am not persuaded that, as the mother alleged, the father constantly threatened to withdraw his sponsorship to control the mother. I have explained why I found some of the mother’s evidence lacking credibility. There was no corroborating or documentary evidence to support her allegation of a constant threat.
[102] At most, there was a WhatsApp text message exchange on July 5, 2021 at 7:46 p.m., the day prior to the parties’ separation, where the mother sent information about her spousal sponsorship application, including the Immigration Canada file number and phone number. She says the father demanded this information be sent to him. She says that Immigration Canada was closed after 4:00 pm and so, he was not able to carry through with his threat. In his reply to this WhatsApp message, the father stated, “No problem I will call tomorrow” followed by “Did you email Joe”. The mother responded, “I did”, and the father replied, “Cool”. This was the complete WhatsApp text message exchange adduced into evidence. It was only a snapshot of what occurred on a day when the parties had a heated argument around the terms of their separation. I am not persuaded this text message is sufficient to establish that the father was threatening to revoke his sponsorship application of the mother.
[103] If the father had been constantly threatening to revoke his sponsorship of the mother’s immigration application as alleged, one would expect he would have had the mother’s Immigration Canada file information, before July 5, 2021, to allow him to carry out his threat. The fact that he asked for it on July 5, 2021, suggests that this was the first time it was requested, and the first time, if any, that threats occurred.
[104] It would also not be unreasonable to conclude that he sought this information because the parties were contemplating separation. The impact a separation might have on the mother’s immigration application would have been a reasonable inquiry for the parties to consider.
[105] It is relevant that the father did not revoke his sponsorship of the mother’s immigration until July 6, 2021, after the mother called the police to make allegations of domestic violence. Papageorgiou J., on the urgent motion before her, was of the view that the father waited until July 12, 2021, to revoke his sponsorship to ensure that the purchase of the Niagara investment property closed. It appears Papageorgiou J. reached this conclusion based on a letter from Immigration Canada to the mother, which states, “We received your sponsor’s correspondence of 12 July 2021 indicating their desire to withdraw or cancel their Undertaking.” However, after hearing the parties’ oral evidence, I would not conclude that the father sent his letter revoking his sponsorship on July 12, 2021. It appears more likely it was sent on July 6, 2021.
[106] The father testified that when he got a call from the police on July 6, 2021, asking him to come to 23rd Division so that he could be arrested on charges related to domestic violence, that that was the end of the relationship from his perspective. While no charges were laid against him, he said the event signified to him the end of their relationship; there was no longer any trust. He testified that after attending at the police station, he contacted the immigration lawyer the parties had used, Sonya Matkowsky. He explained to Ms. Matkowsky that despite attempts to make the relationship work, it was now over. He further testified that on the same day, he completed and signed a document, dated July 6, 2021, to withdraw his sponsorship of the mother’s application. That document was submitted in evidence and is clearly dated July 6, 2021. He further testified that he sent it the same day to Ms. Matkowsky. He understood Ms. Matkowsky forwarded it to Immigration Canada the same day.
[107] I cannot determine why Immigration Canada’s letter states “[w]e received your sponsor’s correspondence of 12 July 2021…” Perhaps Ms. Matkowsky’s office did not forward the letter immediately. Perhaps Immigration Canada recorded the incorrect date. Or perhaps the date used by Immigration Canada is the date on which it received the letter. In any event, I accept that the document tendered into evidence by the father, dated July 6, 2021, was the document signed by the father on that date. I also accept his evidence that he submitted it on July 6, 2021. On cross-examination, he was not questioned on this issue. I found the father’s testimony on this issue to be credible. For these reasons, I would not conclude that the father waited until July 12, 2021, the day when an investment property the parties’ purchased in Niagara was to close. This was a connection that Papageorgiou J. drew. But after hearing fulsome evidence from the father on this issue at trial rather than on an urgent motion, I would not come to the same conclusion.
[108] I can appreciate why, from an emotional perspective, the father would no longer wish to sponsor the mother’s immigration application after she made allegations of domestic violence to the police. I accept his evidence that he understood that the mother would not be deported immediately. He testified it was his understanding that the mother would be granted a temporary visa to remain in Canada. This was not an unreasonable expectation for him to have. After the mother withdrew her prior immigration application in October 2018 when she was married to Mr. Bishop, she was granted a temporary visa for a further year. And after the father withdrew his sponsorship on July 6, 2021, the mother was granted a temporary resident permit until August 18, 2021, to permit her time to apply for permanent residency on humanitarian grounds. For these reasons, I do not believe the father intended to revoke his sponsorship to threaten, coerce or control the mother, and I do not believe his act of revoking his sponsorship on July 6, 2021, constituted family violence.
[109] However, I am persuaded that his decision to revoke his sponsorship was short sighted and did not consider the best interests of the child. The child was clearly bonded with the mother. The father acknowledged this fact. Had the mother been deported, and particularly given the child’s age, the mother’s deportation would have been traumatic for the child. While he understood that the mother would receive a temporary visa, he would have also understood that it would be more difficult for her to remain in Canada and there was a real possibility that she would be deported. I consider this to be a relevant consideration in terms of his willingness to support the child’s relationship with the mother. I do not consider it an act of family violence.
Any Proceeding, Order, Condition or Measure relevant to the Safety, Security and Well-being of the Child
[110] The mother’s application for permanent residency was provisionally approved in August 2022. If not granted on a final basis, the mother’s immigration status and any immigration proceedings may have an impact on the child’s safety, security and well-being.
[111] While this court does not have jurisdiction to make immigration orders, my strong view is that it is in the child’s best interest that the child enjoy a residential schedule with both parents residing in Canada, and that the child is likely to suffer emotional harm if the mother were not permitted to remain in Canada.
[112] The child is almost three years old. He has a close bond with both parents. The AFCC-O Parenting Plan Guide suggests that children the age of L can suffer from distress with prolonged separation from their primary caregiver. Therefore, there is a real risk that the child’s immediate and future sense of security and well-being would suffer significantly should his mother be deported. For this reason, I make parenting orders that the child have significant parenting time with both parents. This finding may be considered by Immigration Canada officials in their determination of the mother’s immigration status.
[113] I have also considered evidence about the mother’s ability to care for the child. That evidence came from the father, Ms. Matthews and Mr. Fig around the time the child was born. In summary, their evidence was that the mother would not respond to the child’s immediate needs (e.g., the child seeking attention but ignored by the mother), and that she tended to her own needs over the child (e.g., always being on a cell phone, not accepting advice around parenting). I accept their evidence, particularly that of Ms. Matthews who spent time with the child almost daily from February 2020 until the parties separated in July 2021. Ms. Matthews also testified that the mother was not happy being a mother, and that she was only being a mother for the father’s sake.
[114] On September 3, 2021, when the mother was at a women’s shelter with the child following separation, she is reported to have disclosed that she had thoughts of jumping in front of a train with a child. According to a CCAST record the mother “snapped out of it and reflected that this would not be fair to [L] and she wanted him to experience life.” The note also recorded that the mother had experienced suicidal ideation in the past. The CCAST investigated and closed the file. In summary, the CCAST reports attributed the mother’s comments to situational conflict, a lack of supports, and struggles that she was experiencing at the women’s shelter and after separation. It did not conclude that she was unable to properly care for the child or that the child was at risk.
[115] I find that it is more likely than not that the mother had difficulty and was reluctant to assume her role as a mother shortly after L was born and in the period after separation. However, I am satisfied that those concerns are no longer present concerns. The CCAST, after a home visit while L was in the mother’s care, found that L “was healthy and well-cared for.” The CCAST also concluded that the mother now “has good supports from friends and family members and appeared to have made improvements in terms of her mental and emotional health.” The CCAST record also revealed that the mother was attending counselling regularly, which was supported by the mother’s evidence at trial. For these reasons, I am not satisfied there is a current concern about the child’s well-being, safety or security in the mother’s care.
[116] There was no evidence of any concerns about the father’s ability to ensure the well-being, safety or security of the child while in his care. For reasons already given, I am not persuaded that he fails to properly care for the child resulting in frequent colds or illness.
[117] I have also considered the mother’s concern that friends and family members of the father contacted the CCAST to report concerns about the mother. The mother alleged that given these reports, she is concerned that the father and his friends and family will say negative things about the mother to L or in his presence, leading to parental alienation.
[118] I am not persuaded this is a legitimate concern. It was a bald allegation. It is one thing for the father’s family and friends to make reports to the CCAST about their observations in the context of an open child protection investigation; it is another thing to intentionally engage and embroil a child in his parent’s conflict with resulting parental alienation. There was no evidence that the father, his family or friends engaged in the latter.
[119] An order restraining both parties from speaking to L about the other parent in a negative or disparaging way is appropriate to safeguard against this potential concern. At the conclusion of the trial, I informed the parties about the severe risk to a child’s well-being if parents involve a child in their conflict. I am optimistic they will heed my advice.
Parenting Orders
[120] Having considered the above factors, I make the following parenting orders:
a. Decision-Making Responsibility.
[121] I find a parallel parenting order is appropriate in the circumstances. The parties have had real difficulty communicating. There is a lack of trust between the parties. I have found that at times, both parties have not acted in the child’s best interests. Joint decision-making is unlikely to work and may be a source of further conflict. In my view, a parallel parenting order is necessary and appropriate in this case because they have both shown a willingness and ability to make parenting decisions, in different areas, that are appropriate for L.
[122] I order that the father shall exercise decision-making responsibility around education for the child. The child shall be enrolled in a school in September 2023 (the year he turns 4 years old), and there are strong reasons for it to be a school within the father’s catchment area.
[123] I have considered that the mother’s home life is not currently stable but will likely become stable once the financial issues in this case are resolved and when she returns to work. In contrast, the father’s home is stable, and there are significant supports for the child from his partner, family and friends within his current community, as set out in his Form 35.1 Affidavit. These are adults that the child knows and from whom he can receive support in the father’s community. It is in the child’s best interest that the child attend school and be near those supports as he grows up.
[124] It is expected that the mother will find a permanent residence. With the child’s expected school placement within the father’s catchment area, the mother may seek to find a permanent residence within or not far from the community in which the father resides. This will reduce travelling time for the child. The child will likely have friends from school, and again, it is in his best interests that both his parents be in a community close to his friends. The mother may similarly consider employment opportunities proximate to this community.
[125] The mother shall exercise sole decision-making around daycare until September 2023. It is likely that the mother will need time to find and settle in a new home and find work. A reasonable time frame for that to occur is within the next six to nine months. So as not to disrupt the child’s routine at his current daycare, and to afford the mother flexibility over the next six to nine months, it is appropriate for the mother to exercise sole and unrestricted decision-making with respect to the choice of the child’s daycare until September 2023. Thereafter, she may continue to exercise decision-making around before and after-school care on her parenting time, if required, however it shall be restricted by having to be proximate to the child’s school as selected by the father.
[126] The mother shall have sole decision-making authority with respect to the child’s medical and dental care. At all times, she shall act in accordance with the direction and recommendations of the treating physician or health professional. She has been primarily responsible for the child’s medical and dental care, and this should and shall continue.
[127] Either party may enrol the child in extra-curricular activities during their parenting time. If an extra-curricular activity also falls on the other party’s parenting time, the other party may (a) consent to the registration or (b) advise that they do not oppose the registration, but they will not be taking the child to the activity on their parenting time. At all times, parties shall consider the child’s preferences regarding extra-curricular activities and give such preferences age-appropriate weight.
[128] Prior to making a major decision, the party exercising decision-making authority shall consult with the other party in advance. However, a party may act without considering the views of the other party if the other party does not provide his/her views on an issue within 5 days of request.
[129] When the child is in the care of one party, that party shall make day-to-day decisions with respect to the child, including decisions about emergency medical care for the child. Parties shall always act on the direction and recommendations of the treating physician.
[130] Both parties have the right to obtain information from, and to speak to, medical, educational, extra-curricular, daycare, and other professionals and service providers for the child.
[131] Both parties shall cooperate in the completion of any necessary forms to obtain a passport, renewed OHIP card, or any other government identification.
[132] The child’s birth certificate shall be held by the mother, and the child’s passport shall be held by the father.
[133] The child’s OHIP Health Card shall be placed in a secure location within the child’s backpack and shall accompany the child during all transitions.
b. Mobility
[134] I order that, as of September 2023, the mother shall not reside more than 25 km from the father’s home, namely 142 Kingsview Blvd, Etobicoke, Ontario. This is because it is not in the child’s best interest for him to commute long distances to school, extracurricular activities, or when transitioning between homes. With traffic and commuting times in Toronto, anything in excess of 25 kms can translate into an unreasonable amount of time spent in transit.
[135] I recognize that housing costs may make it difficult for the mother to find suitable housing. However, the father’s home is adjacent to the 401 highway, and therefore, there should be several opportunities to find housing within a 25 km distance from the father’s home. I have also considered the equalization payment and spousal support orders I have made when making this mobility restriction.
[136] If either parent intends to change their place of residence or that of the child, they shall notify the other, pursuant to s. 16.8 of the Divorce Act.
c. Travel
[137] I make the following orders around travel:
a. Either party may travel with the child outside Ontario during their parenting time with the consent of the other party, however, the other party may not unreasonably withhold their consent. The party seeking to travel shall provide a travel consent letter at least 7 days prior to the scheduled travel.
b. When a party seeks to travel outside Ontario with the child, he or she shall provide a full travel itinerary, including contact information where the child may be reached while travelling.
c. Travel within Ontario does not require the consent of the other party, however, the other party shall be advised, in advance, when there is overnight travel and the address of where the child will be staying.
d. Parenting Schedule
[138] I am persuaded that it is in the child’s best interests that the father’s parenting time should increase. It should be increased in gradual implements, reflecting the child’s age and stage of development, and the mother’s work schedule. Both parents are strongly bonded with the child and share a meaningful relationship with him. The child benefits from having both parents in his life and from the experiences and care that each parent brings to the child. The following schedule considers the parties’ work schedule and includes mid-week and weekend parenting time for both parents so that they share in both school and non-school time with the child. For these reasons, I make the following orders:
Regular parenting schedule
a. Effective immediately, and until the mother returns to working a minimum of 20 hours per week, the child shall be in the father’s care on the first, second, and fourth Friday of each month from 5:00 pm until the following Monday morning at 9:00 am.
b. Once the mother returns to working a minimum of 20 hours per week, and in any event by September 1, 2023, the child shall be in the father’s care on the following days/times:
i. Alternating weekends, commencing Friday at 5:00 p.m. until the following Monday at 9:00 a.m.
ii. Every Wednesday from 5:00 p.m. until the next morning (Thursday) at 9:00 a.m.
c. Effective September 1, 2024 when the child approaches 5 years old, and regardless of the mother’s work schedule, the following 2/2/5/5 parenting schedule shall govern:
i. The child shall be in the father’s care every Monday morning at 9:00 a.m. until Wednesday morning at 9:00 a.m.
ii. The child shall be in the mother’s care every Wednesday morning at 9:00 am until Friday morning at 9:00 a.m.
iii. The child shall alternate being in the care of the mother or the father from Friday morning at 9:00 am until Monday morning at 9:00 a.m.
d. All transitions shall occur at the child’s daycare or school, or if the child is not in daycare or school, at an agreed upon Police station parking lot. It is the responsibility of the resident parent to drop-off the child, unless the parties agree otherwise.
e. If the child is ill in the morning and cannot attend school or daycare on a transition day, the resident parent will contact the other parent as soon as possible. If the illness is mild, the transition shall occur at the scheduled time however, the drop-off shall occur at the non-resident parent’s home. If the illness is not mild, the resident parent shall make immediate arrangements for medical care for the child.
f. While a child is attending school or daycare and becomes ill or injured, the parent who has parenting time is responsible for picking up and caring for the child. The resident parent, however, may request the other parent to arrange for pick up and care of the child if the resident parent is unable to arrange to have another person pick-up and care for the child.
g. Parties may arrange for babysitting or other care of the child during the day while it is their parenting time. However, if a parent is unable to spend an overnight with the child during their parenting time, they shall first seek to have the other parent care for the child before seeking an alternative caregiver.
Holiday / Vacation / Birthday Schedule
h. The holiday / vacation schedule overrides the regular parenting schedule. It may be altered only by court order or written agreement of the parties.
i. Family Day: In even-numbered years, the child shall be with the mother from Friday at 9:00 a.m. of the Family Day Weekend, until Tuesday morning at 9:00 a.m. In odd-numbered years, the child will be with the father for this period.
ii. March Break: In even-numbered years, the child shall be with the father on the Friday at 9:00 am before the March Break (according to the Toronto District School Board (“TDSB”) Elementary School calendar) at 9:00 am, until the following Friday at 9:00 am. In odd-numbered years, the child will be with the mother for this period.
iii. Easter: In even-numbered years, the child shall be with the mother on the Easter weekend, commencing on Good Friday at 9:00 am, until Tuesday at 9:00 am (after Easter Monday). In odd-numbered years, the child will be with the father for this period.
iv. Victoria Day: In even-numbered years, the child shall be with the father on the Victoria Day weekend, commencing on the Friday at 9:00 am until Tuesday at 9:00 a.m. following Victoria Day. In odd-numbered years, the child will be with the mother for this period.
v. Summer Vacation: The summer vacation period is 8 weeks. It commences the first Friday before the TDSB summer school closure. The summer vacation period commences in the summer of 2023, even though the child is not yet in school. During this period, the parties shall each have one two-week block of vacation with the child, and two one-week blocks of vacation with the child.
In even-numbered years, the mother shall have the first two-weeks of summer vacation, commencing on the Friday of the last day of school at 9:00 am. and ending two weeks later on the Friday at 9:00 am. This will be followed by:
the father having one week,
the mother having one week,
the father having two weeks,
the mother having one week, and
the father having one week.
In odd-numbered years, the schedule is reversed with the father having the first two-weeks of summer vacation.
All transitions shall occur on Fridays at 9:00 a.m. Parties may agree to another division of summer vacation weeks or a different transition time (e.g. to move summer transition times to Saturday at 9:00 a.m. to accommodate work schedules).
The regular parenting schedule follows on the Friday of the last week of summer vacation period. For example, if the TDSB summer vacation is longer than 8 weeks, then the regular parenting schedule governs the remaining weeks.
vi. Labour Day: In even-numbered years, the child shall spend Labour Day weekend with the father, commencing on the Friday at 9:00 am until the beginning of school on Tuesday at 9:00 a.m. In odd-numbered years, the child will be with the mother for this period.
vii. Thanksgiving: In even-numbered years, the child shall be with the mother on the Thanksgiving weekend, commencing on the Friday at 9:00 am until Tuesday at 9:00 a.m. following. In odd-numbered years, the child will be with the father for this period.
viii. Christmas Break: In even-numbered years, the child shall reside with the father from the last day of school (according to the TDSB School calendar) at 9:00 a.m. until December 25 at 12:00 noon. The child will reside with the mother from December 25 at 12:00 noon until January 2 at 12:00 noon. The child will reside with the father from January 2 at 12:00 noon until the first day of school at 9:00 a.m. In odd numbered years, the child will be with the other parent for the periods specified.
ix. Birthdays: The non-resident parent shall be entitled to spend 3 hours with the child on his birthday (i.e. December 20) from the hours of 10:00 a.m. to 1:00 p.m.
x. Mother’s Day / Father’s Day: The child shall reside with the mother from 5:00 p.m. on the Saturday before Mother’s Day to the following Monday at 9:00 a.m. The child shall reside with the father from 5:00 p.m. on the Saturday before Father’s Day to the following Monday at 9:00 a.m.
e. Communications
[139] I make the following communications orders:
a. Neither parent shall denigrate or disparage the other parent or members of their extended family, either overtly or covertly, in any communication with the child or in the child’s presence. Each parent will advise others, including their extended families and friends, to maintain the same standards, refraining from criticizing the other parent to, or in front of, the child.
b. Neither parent will speak with the child directly or indirectly about any issues related to child or spousal support, property or financial issues between them.
c. The parents shall not ask the child to relay information between them, nor shall they discuss parenting schedules or other contentious issues at transition times. Rather, parents shall communicate directly with one another about issues relating to parenting or other contentious issues in the manner as ordered.
d. The parents shall communicate by email but may communicate by text message or telephone in cases of emergency or last-minute scheduling matters. In all communications, the parents shall be polite, factual, child-focused, brief and respectful. Under no circumstances, shall the parents engage in swearing, abusive or threatening communications. If requested by one parent, they shall promptly begin use of Our Family Wizard or other similar parenting communication application instead of email.
e. The parents shall respond to non-urgent communications within 48 hours of receipt, and they shall respond to urgent communications as soon as possible. The parents shall check their emails/parenting application regularly.
f. The parents shall promptly communicate all medical information when the child is ill, including any symptoms noticed, any medications administered, and any treatments advised by a treating physician.
g. During a parent’s parenting time, they have the right not to be interrupted with unnecessary email communication from the other parent. For clarity, a parent is not required to provide regular updates on the welfare of the child to the other parent during a parent’s parenting time. However, they shall provide regular updates, at least once a day, to the other parent if the child is ill.
h. The child shall communicate with the other parent via telephone or video (e.g. FaceTime, WhatsApp) when the child requests to do so. In addition, during vacation weeks, the non-resident parent shall have at least one telephone or video call for every 7 days the child is apart from the other parent.
2. What income should be used for the purpose of determining support obligations?
Father’s Income
[140] S. 18 of the Federal Child Support Guidelines, SOR 97-175 (“Guidelines”) allows the court to determine a spouse’s annual income where the spouse is a shareholder, director or officer of a corporation, and the court is of the opinion that the spouse’s personal income as declared in their personal income tax does not fairly reflect all the money available to the spouse for the payment of child support.
[141] S. 19 of the Guidelines also confers authority on the court to impute such income as is appropriate.
[142] The circumstances in which the court may impute income is not limited to the circumstances listed in s. 19: Riel v Holland, 2003 CanLII 3433 (ON CA), [2003] 232 D.L.R. (4th) 264 (Ont. C.A.), at para. 36. Income is often imputed when (a) a spouse is intentionally unemployed or under-employed; (b) when a spouse’s property is not reasonably used to generate income; (c) when a spouse personally benefits from expenses paid for through the spouse’s business corporation, and (d) when, as a result of a spouse’s business income, his tax liability is lower than if he were a salaried employee. In this last circumstance, the spouse’s income can be grossed-up for tax to ensure consistent treatment among spouses and children in similar circumstances: Riel, at paras. 33 to 34, citing Orser v Grant, [2000] O.J. No. 1429 (Ont. S.C.); see also Sarafinchin v. Sarafinchin, 2000 CanLII 22639 (ON SC), [2000] 189 D.L.R. (4th) 741(Ont. S.C.), at para 63.
[143] The father’s income is primarily from his painting and renovation business, D&W Painting Ltd. He also has rental income.
[144] I am not satisfied that the father’s personal income tax returns reflect his annual income, which show approximately $24,000 per year in income.[^1] As the principal of his own corporation, and based on the father’s own evidence, I am of the opinion that his income for income tax purposes does not fairly reflect all the money available to him for the payment of child support.
[145] In his affidavit for trial, the father has provided evidence about his 2018, 2019, 2020 and 2021 business income. He lists the corporate income earned each year and subtracts business expenses which he says reflects his actual income. His evidence of income is summarized in the chart below.
| Year | Gross Business Income | Business Expenses | Net Income |
|---|---|---|---|
| 2018 | $202,866 | $139,999 | $62,867 |
| 2019 | $138,531 | $67,093 | $72,438 |
| 2020 | $191,313 | $74,158 | $77,155 |
| 2021 | $220,052 | $123,785 | $89,315 |
[146] He states that his average net income for the years 2018 to 2021 is $75,444. He argues his support should be based on this income.
[147] The father has not adduced his own income valuation report. Evidence of his business expenses is attached to his affidavit. It consists of copies of cheques drawn from his business account, copies of bank statements from his business account, and personal credit card statements. Entries for business expenses are highlighted. This evidence constitutes approximately 400 pages. In his affidavit, he tallies up the business expenses for each year into a handful of headings.
[148] The father does not include any rental income, nor does he gross up his corporate income or any rental income.
[149] The matrimonial home has a separate basement rental unit which has been rented in the past for $1,800 per month (or $21,600 annually). Effective August 4, 2022, the tenant moved out. At the time of trial, it was not rented.
[150] In addition, on July 12, 2021, the father took ownership of the Niagara property, which was rented out to tenants at $1,350 per month. The Niagara property sold on September 15, 2022. It no longer generates rental income.
[151] The mother caused an income valuation report of the father’s income to be prepared through her expert, Harry Figov. I found him qualified to give expert evidence with respect to the value of the father’s income for the purposes of determining support.
[152] According to Mr. Figov’s testimony, his analysis of the father’s income was based on the father’s Declaration of Income that he signed on June 22, 2021 to support his credit application for a mortgage with Equitable Bank. That Declaration of Income identified total gross revenue from his business in 2021 as $256,823.00, and total expenses at $72,400, with resulting net income of $184,423.00. The father signed this declaration and certified “that the information above is true an accurate in all respects and will be relied upon by Equitable Bank.”
[153] The father’s evidence at trial was that his mortgage broker inputted the numbers on the Declaration of Income, that they are not accurate reflections of his income or business expenses, and that they were included to permit him to secure a mortgage. He says his mortgage broker advised that because he was self-employed, he could not secure a mortgage from an A Lender and had to rely upon a B Lender. He said he was further advised by his mortgage broker that he needed to demonstrate a certain income to qualify for a mortgage. The father explained that the offer to purchase the Niagara property was a “bully offer” without a financing condition. His realtor recommended he do so if he wanted the property. He testified that if he was not able to secure a mortgage, he would lose his deposit and potentially be subject to litigation from the vendor. There was no evidence from the mortgage broker, although he was originally scheduled to be a witness at trial.
[154] While it would have been preferable to have evidence from the father’s mortgage broker, I am satisfied on a balance of probabilities that the Declaration of Income is not an accurate reflection of the father’s business income and expenses as of June 2021. I do not condone the father improperly certifying his income for the purposes of obtaining a mortgage. However, I found the father’s evidence to be credible and that his explanation had an air of reality for why his income and expenses on the Declaration of Income were higher than his actual income and expenses, given the potential risks if he was not able to secure a mortgage. Just as it would be unfair to rely upon his income for tax purposes when fixing his support obligations, it would be equally unfair in the circumstances of this case to rely upon his income for mortgage purposes when fixing his support obligations.
[155] Mr. Figov’s report relied heavily upon the father’s Declaration of Income when identifying his income. For this reason, I do not rely on Mr. Figov’s conclusions about the father’s income. However, I have taken from Mr. Figov’s testimony two facts which I consider in determining the father’s income: (1) the repayment of the COVID business loan is not a business expense; and (2) some of the expenses that the father ran through his business were clearly personal.
[156] I find the father’s conclusions with respect to his income do not accurately reflect his income for support purposes for several reasons.
[157] First, the father had a positive obligation to demonstrate his income. It is not sufficient for him to attach hundreds of pages to his affidavit and expect the Court or the mother to go through each item, unsupported by invoices or general ledger statements to determine whether the expenses are legitimate and that they are not personal. He was ordered on March 31, 2022, by Papageorgiou J. to provide his corporate tax returns, but they were only provided just before trial. I recognize that he is a small business owner and that the cost of obtaining an income valuation report is expensive. However, I am not persuaded that he took necessary and reasonable steps to assist the court or the mother in appreciating his true income. It is appropriate to draw a negative inference.
[158] For example, the evidence of Mr. Figov was that the father passed through his business various expenses for which he derived personal benefit, such as hydro, utility and tax expenses related to the Kingsview property, and others that were clearly personal (e.g., payments at jewellery stores, fitness dues, payment of mortgage expenses, and laser hair removal). Mr. Figov’s report was prepared on July 29, 2022. Upon receipt of this report, the father ought to have reviewed his expenses and clearly identified those from which he derived a personal benefit. His evidence was silent on this issue. In addition, he ought to have explained and provided proof of the expenses paid by his business to non-arm’s length providers, such as Ms. Matthews, his mother, and brother.
[159] Second, the father has not grossed up his business income. Mr. Figov grossed up the father’s income by 76.71%. He rationalized that the marginal tax rate for the father is 43.41 based on Mr. Figov’s calculation of income, resulting in a gross-up percentage of 76.71% of the income subject to a gross-up to bring it to a pre-tax amount. The Court asked Mr. Figov whether the 76.71% gross-up would apply if the Court did not rely upon the Equitable Bank declaration of income with respect to the father’s income and expenses. He said it would not; it would depend upon a how the Court assessed the father’s business income and expenses. Rather than rely on Mr. Figov’s gross-up percentage, I have relied on DivorceMate to auto gross up the father’s business income to a pre-tax amount.
[160] Third, the father has not included in his income any rental income he received.
[161] Rental income from the basement unit of the Kingsview property was $1,800 per month. Annual rental income received was $14,400 in 2018; $21,600 in 2019; $21,600 in 2020; and $21,600 in 2021. This should be included in the calculation of the father’s income. As of August 2022, the basement unit is no longer being rented. The father has not led any evidence as to why it cannot be rented, or if there are reasons related to his own needs as to why it cannot be rented. For these reasons, I continue to impute rental income to the father from the Kingsview property for income determination purposes. I add it to his other non-taxed business income for the purpose of auto gross-up in DivorceMate.
[162] I have decided not to include any rental income from the Niagara property for the purpose of determining retroactive and on-going support. The mother’s evidence was that $3,700 per month was collected from the two units there ($2,400 and $1,300 per month). This property was purchased as an investment property in July 2021 for $510,000 and sold in September 2022 for $510,000. As this house sold for the same price at which it was purchased, there was no capital return on this investment. It is no longer generating rental income for the father. After deducting expenses, including mortgage, property taxes, and purchase and disposition costs, it is more likely than not that most if not all rental income acquired by the father was consumed by expenses relating to this property.[^2] Finally, in the mother’s closing submissions, her counsel prepared a document that he argued should be relied upon in fixing the father’s income. It did not include rent from the Niagara property.
[163] It is appropriate to rely upon the document the mother’s counsel prepared in determining the father’s grossed-up business income, except I do not rely upon the 76.71% gross-up rate. The values are based on the father’s affidavit where he lists his business income and expenses. It eliminates expenses that are clearly not business expenses, such as the repayment of a COVID business loan (as per Mr. Figov’s evidence), mortgage payments on the Niagara property, expenses paid to non-arm’s length parties such as Claudia Matthews, and cash withdrawals where there was no evidence these withdrawals were used to pay for business expenses. The chart adds rental income from the Kingsview property. There was one non-arm’s length business expense that I would allow, namely payments made to the applicant’s father. This is because there was evidence at trial that Wojtek Dworakowski had experience in home renovations and had worked with his son.
[164] According to the chart prepared by the mother’s counsel, annexed to this Judgment, and allowing for payments made to Wojteck Dworarkowski as a business expense, and relying upon DivorceMate’s auto gross-up for non-taxable income, I have determined the father’s grossed up income for support purposes to be as follows:
| Year | Gross Business income, plus Rental income | Total Expenses | Net Income | Total Tax Paid | Income (after deducting taxes paid) | Grossed-up Income, per DivorceMate (non-taxable income auto gross up) |
|---|---|---|---|---|---|---|
| 2018 | 217,266 | 125,694 | 91,572 | 2,236 | 89,336 | 125,996 |
| 2019 | 160,131 | 65,261 | 94,870 | 1,280 | 93,590 | 133,513 |
| 2020 | 212,913 | 71,157 | 141,756 | 2,747 | 139,009 | 221,181 |
| 2021 | 241,652 | 96,955 | 145,297 | 550 | 144,747 | 233,529 |
[165] Pursuant to s. 17 of the Child Support Guidelines, I believe that basing the father’s support obligations on his current year income would not be fair. There is a fluctuating nature to his business income, based on the amount of business he acquires from year-to-year. For the support payor and support recipient, there would be greater certainty and less fluctuation if an average of the father’s prior three years of income were used.
[166] For 2021, I average his 2018, 2019 and 2020 grossed-up income and find that the father’s income for support purposes is $160,230.
[167] For 2022 and until the next review of the father’s income, I average his 2019, 2020, and 2021 grossed-up income and find that the father’s income for support purposes is $196,074.
Mother’s Income
[168] At the time of trial, the mother was not working. Her 2018 Notice of Assessment, reflecting a period when she was working full-time, shows she earned approximately $45,000 per year. When she briefly returned to working post-separation from September 2021 to March 2022, she was earning an annual salary of $45,700.
[169] The mother testified that she was not working because of the situation the father put her in. She testified that the father’s approach to litigation impacted her mental health and ability to work. Instead, she said she was focussing on L. She attached to her affidavit a letter from her counsellor, Andrea Wilkinson, dated September 12, 2022, which states: “As her Counselor, given all that is currently happening in Tasine’s life, I do not think, and would not recommend her returning to work until the root of the problem has been resolved, and that root is the settlement between her and her husband.”
[170] While family litigation can be incredibly stressful, I am not persuaded that the father’s approach to this litigation resulted in an experience for the mother that was more arduous than what he experienced or that is experienced by a typical family litigant. Ms. Wilkinson is not a physician, psychologist or psychiatrist. She provided no evidence at trial. For these reasons, I place little to no weight on her letter.
[171] The mother had an obligation to return to work, and post-separation, there was a period during which she did return to work briefly. She has an obligation to be self-sufficient (an objective of a spousal support order under the Divorce Act), and an obligation to support L. I am not persuaded she adduced a sufficient evidentiary basis of her inability to work.
[172] Accordingly, in considering support obligations, I impute an income of $45,700 to the mother in 2022, which was her most recent annual salary. For future years, she shall be imputed a minimum income of $45,700.
[173] However, for 2021, given that she was at home caring for the child until June, and a reasonable amount of time would have been needed for her to return to work, I only impute an income of $11,425, representing four months of income at an annual salary of $45,700.
3. What amount of child support is due?
[174] In 2021, the father’s monthly child support obligation, based on an income of $160,230, was $1,373 a month.
[175] In 2022, the father’s monthly child support obligation, based on an income of $196,074, was $1,631 per month.
[176] Pursuant to Papageorgiou J.’s Order of February 4, 2022, the father has paid $1,169 per month in child support, which had been paid to the time of trial in September 2022. The parties separated on July 6, 2021, but the mother’s evidence was that the child was in the father’s care from July 7 to July 12, 2021, so I use that as the day for determining the commencing of the father’s support obligation; after this date, the mother was the primary caregiver. Assuming the father has made payments through to December 2022 as ordered, I determine that the father’s retroactive child support obligation up to December 2022 to be as follows:
| Time period | Table support owed | Amount paid | Retroactive Child Support Due |
|---|---|---|---|
| July 12 – July 31, 2021 | $842 =19/31 x $1,373 |
$0 | $842 |
| August 1, 2021 to December 31, 2021 | $6,865 =5 months x $1,373 |
$0 | $6,865 |
| January 1, 2022 to December 31, 2022 | $19,572 =12 months x $1,631 |
$12,859 = 11 months x $1,169 |
$6,713 =$19,572 - $12,859 |
| TOTAL ARREARS | $14,420 |
[177] I order that the father pay $14,420 in retroactive child support for the period from July 2021 to December 31, 2022.
[178] For on-going child support purposes, I order that the father shall continue to pay $1,631 per month in Table child support as of January 1, 2023, until the next review.
Review of Child Support
[179] The father’s child support obligation shall be reviewed annually, commencing 2024. I order that by May 1 of each year (starting May 1, 2024), the father shall provide full and complete financial disclosure to the mother of his prior year’s income to permit an accurate assessment of his grossed-up personal income each year. In determining his income for support purposes, the father’s prior three years of income shall be used to average his income. The new amount of child support shall be payable on July 1 of each year.
[180] Pursuant to the parenting schedule ordered, there will be an equal shared parenting schedule in place as of September 1, 2024. This shall constitute a material change in circumstances such that the father may bring a motion to have his child support obligations reviewed pursuant to s. 9 of the Child Support Guidelines. The father may bring a motion, if required, after July 1, 2024.
[181] For s. 7 expenses, the only current expense is daycare. Pursuant to s. 7(3) of the Child Support Guidelines, any subsidies, benefits or income tax deductions or credits relating to this expense should be deducted from annual s. 7 expenses payable by the father. The evidence was unclear as to which if any of these benefits, deductions or credits were received by the mother, and whether the father was current in his payment of s. 7 expenses. The challenge in forecasting precise s. 7 expenses due is that the daycare does not charge for a certain number of days if the parent does not bring the child to daycare. There were days when L did not attend daycare.
[182] Within 30 days, the mother shall provide the father with an accurate accounting from the daycare of actual daycare amounts charged for 2021 and 2022, along with an affidavit attesting to any subsidies, benefits, tax deductions or credits she received for this expense. Upon receipt of that accounting, the father shall use DivorceMate to calculate the parties proportionate sharing of s. 7 expenses for actual daycare costs incurred, after applying any benefits, credits, deductions, etc. to which the mother was entitled and relying upon the incomes of the parties as I have determined them to be. If there are any amounts owing, the father shall pay that amount. If he has made an over-payment, it shall be deducted from the amount of arrears of child support he has been ordered to pay.
4. Is the mother entitled to spousal support, and if so, in what amount and for how long?
[183] I am satisfied that the mother is entitled to spousal support on a compensatory and non-compensatory basis.
[184] The parties cohabited from September 2018, married in August 2019 and separated in July 2021. The mother was married to Mr. Bishop until February 2019. The mother stopped working as a dental hygienist in July 2019 due to complications with her pregnancy.
[185] For six months after L was born, the father, the applicant’s mother and grandmother were principally involved in caring for L and managing the household. Thereafter, with the father having returned to work, the mother was primarily responsible for L while the father was working.
[186] The mother did not return to work after L was born. In addition to caring for the child, the mother gave evidence of various tasks she performed for the benefit of the household, including making breakfasts for the father (and Mr. Fig), attending car maintenance appointments, assisting with the father’s business records, raking leaves, attending to tenant’s needs in the basement apartment, and household chores. She also led documentary and video evidence of her purchasing stones and assisting with landscaping of the Kingsview property on one occasion.
[187] Some of the household chores performed by the mother were disputed (e.g., the father said the mother rarely mowed the lawn). In terms of L’s care, Ms. Matthews gave evidence that she was very involved in caring for the child, and that L was in her care everyday while the mother went out to do errands. I accept that Ms. Matthews played a significant role in caring for L daily. There was consistent evidence from the father, Ms. Matthews and Mr. Fig that the mother felt uncomfortable in the role of a homemaker, which I accept. With this dynamic at play, I am persuaded and find that the mother was reluctant to contribute and did not contribute fully to household duties notwithstanding her ability to do so. Having said that, she did remain the child’s primary caregiver while the father was at work, there were some household chores and errands that she performed regularly, such as laundry and making certain meals, and she did assist with one landscaping project on the Kingsview property. I am satisfied that because of their marital roles, there were some uncompensated benefits conferred on the father.
[188] Given the short duration of the marriage and the circumstances listed above, I find that the mother has a compensatory entitlement to spousal support although her entitlement to compensatory support is limited.
[189] There is entitlement on a non-compensatory basis. Following separation, the mother did not have a home or the immediate resources to acquire one. She and L have lived in shelters, motel rooms and have rented a room within a house or apartment. Even if the mother had returned to work, there would exist a significant difference in her income as compared to the father’s income. This was matched by a drop in her standard of living, and an inability to meet a reasonable standard of living.
[190] Following separation, there was evidence that the father was seeking to negotiate greater parenting time, which the mother rejected. This is relevant to an assessment of whether the mother’s care of L prevented her from returning to work. L is in daycare, yet the mother has not returned to work.
[191] The Spousal Support Advisory Guidelines (SSAGs) generate the following recommendations for “with child support” spousal support, using the determination of the parties’ incomes that I found previously. In 2021, I imputed an income to the mother of $11,425, representing four month’s income at $45,700 annually:
| Year | Assumptions | Child Support | Low | Mid | High |
|---|---|---|---|---|---|
| 2021 | Father’s income: $160,230 Mother’s income: $11,425 |
$1,373 | $2,730 | $3,267 | $3,780 |
| 2022 | Father’s income: $196,074 Mother’s income: $45,700 |
$1,631 | $2,551 | $3,174 | $3,799 |
[192] The SSAGs formula results in the above-noted ranges for an unspecified duration, with a minimum duration of spousal support of 2 years, and a maximum duration of 14 years from the date of separation.
[193] The SSAGs are guidelines. The Court may order such amounts as it thinks reasonable for the support of the other spouse, for a duration and upon such terms as the Court thinks fit and just: s. 15.2(1) and 15(3) Divorce Act. In making a spousal support order, the Court shall consider the condition, means, needs and other circumstances of each spouse, including the length of cohabitation, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to support of either spouse: s. 15(4) Divorce Act. However, the court shall not consider any misconduct: s. 15(5) Divorce Act.
[194] The objectives of a spousal support order are set out in s. 15(6) of the Divorce Act. A spousal support order should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[195] From Moge v Moge, 1992 CanLII 25 (SCC), [1992] 3 SCR 813, certain principles must be considered when making spousal support orders under the Divorce Act. Namely, all four objectives must be considered when spousal support is sought; no single objective is paramount. The longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon marriage dissolution.
[196] I am satisfied that the mother experienced economic loss or disadvantage during the marriage, however, I cannot conclude it was significant. She was out of the workforce briefly between 2019 and 2021, but the evidence post-separation showed that she was able to return to work in 2021 quickly in the same profession earning a slightly higher level of income. In terms of her contributions during the marriage, I have commented on the fact that she made some contributions during the two-year marriage, but they were limited in scope.
[197] In terms of childcare and household responsibilities, the parties received significant support during the first six months after L was born by the father’s mother and his grandmother. Thereafter, around May of 2020, the mother was the primary caregiver when the father was at work, but even then, Ms. Matthews regularly cared for L during the day. The parties then separated in July 2021.
[198] An economic consequence following separation is that the mother experienced significant difficulty supporting herself and L and in securing a home. If a spouse after separation has financial disadvantage as a result of caring for a child of the marriage, she should be compensated.
[199] As one objective, a spousal support order should encourage economic self-sufficiency within a reasonable time. Where few disadvantages have been incurred, “transitional support for full and unimpaired reintegration back into the labour force might be all that is required to afford sufficient compensation”: Moge.
[200] I am satisfied a spousal support order should be of limited duration.
[201] Duration and quantum of support are separate and interrelated tools available to courts to best achieve the purposes of a spousal support order: Lazare v. Heitner, 2018 ONSC 3604, 17 R.F.L. (8th) 211, at para. 11.
[202] The “with child” formula for spousal support incorporates some measure of a compensatory claim to promote parity for children living in a family with two homes: Lazare, at para. 34.
[203] A support order at the high end of the SSAGs of indefinite duration, as sought by the mother, would be unreasonable, unnecessary, and impossible for the father to afford in the circumstances. At trial, the mother testified strenuously that both she and L deserved to live in the same type of a house, with a backyard and their own rooms as they did before separation. With respect, this is not feasible based on the father’s income alone, his new family and the mother’s apparent unwillingness to return to work.
[204] When spousal support ends, “there may still be – and usually is – an income disparity between the spouses.” The promotion of self-sufficiency in the Divorce Act does not mean parity of income: Lazare, at paras. 9 to 10, citing the Revised Users Guide to the Spousal Support Advisory Guidelines, p. 11.
[205] A disparity of income may have implications for a child. The compensatory component of the spousal support order should reflect the economic consequences arising from the mother’s care of the child during the marriage, over and above any child support order. However, while spousal support is paid and following it, the mother will continue to receive child support to minimize this income disparity. It is anticipated she will continue to receive child support even when there is an equal parenting schedule, given the relative difference in the parties’ income. The Child Support Guidelines are more carefully nuanced to alleviate the disparity of income when a child lives in separate homes.
[206] A high-end spousal support order of $3,800 would result in $45,600 annually to the mother, a nearly equal amount to the salary she earned before marriage and after separation. It would create no incentive for her to return to work. Her ability to find work shortly after separation shows that she is capable of becoming self-sufficient quickly.
[207] During trial, the mother expressed an intention to pursue further education or training. A time limited spousal support order would provide that opportunity. If she engaged in further skills training, it would improve her prospect of self-sufficiency, and minimize the economic disparity following the breakdown of the marriage. I also consider that upon an equal sharing of parenting time in 2024, the parties will share equally in the responsibilities associated with the care of the child. Put differently, any economic burden associated with the care of the child post-separation will not be the mother’s alone.
[208] The duration of cohabitation does not support indefinite support. The parties lived together for only 34 months.
[209] Finally, I have also considered the father’s economic circumstances, his new partner and their child. While the general rule is that “first families come first”, ordering indefinite spousal support will have immediate implications for the father’s new family: Castedo v. Haldorsen, 2016 ONSC 3870, 81 R.F.L. (7th) 365, citing Fisher v Fisher, 2008 ONCA 11,288 D.L.R. (4th) 513, at paras. 39-40. The father’s budget, as found in his Form 13.1 Financial Statement, shows monthly expenses of $7,397. I do not find any of his expenses in his budget to be extraordinary or unusual. His 2022 actual income, not grossed-up, is roughly $12,000 per month (based on $144,000 annually). After expenses and payment of child support are paid, he has roughly $3,000 per month available to pay spousal support. This has weighed into my decision-making on quantum of spousal support.
[210] It is simply not feasible for both parties to continue to enjoy the same standard of living indefinitely based on the father’s income and expenses. It is in neither party’s interest to make an order for spousal support that the father will be incapable of paying. A spousal support order should consider the means, condition and needs of each spouse.
[211] Having considered the above, including all the circumstances of this case following the breakdown of marriage, and the factors and objectives when making a spousal support order under the Divorce Act, I find that it is fit and just for the father to pay spousal support fixed in the amount of $3,000 for a period of three years, from July 2021 to July 2024.
[212] I calculate arrears of spousal support as follows, recognizing the $1,000 that the father paid to the mother shortly after separation, and the temporary $1,000 spousal support order made by Papageorgiou J., payable as of February 1, 2022, which is assumed to have been paid monthly since:
| Time period | Table support owed | Amount paid | Retroactive Spousal Support Due |
|---|---|---|---|
| July 6 – July 31, 2021 | $2,419 =25/31 x $3,000 |
$0 | $2,419 |
| August 1, 2021 to December 31, 2021 | $15,000 =5 months x $3,000 |
$1,000 | $14,000 |
| January 1, 2022 to December 31, 2022 | $36,000 =12 months x $3,000 |
$11,000 = 11 months x $1,000 |
$22,000 =$36,000 - $11,000 |
| TOTAL ARREARS | $36,419 |
5. What equalization payment should be made?
[213] The father calculates a presumptive equalization payment to the mother of $180,947.39 in his Net Family Property Statement (“NFP”) but argues there should be an unequal division of property because the parties cohabited less than five years under s. 5(6) of the Family Law Act. The mother calculates the presumptive equalization payment to her is $311,330.55 and that it should be paid without reduction.
[214] In determining equalization, the parties’ calculations differ on the following issues:
a. The value of the matrimonial home as of the date of separation, along with contingent liability for costs of disposition.
b. Payment of a $15,000 deposit for the purchase of the Niagara property that was held in trust at the time of separation.
c. Treatment of a $60,000 COVID Business Loan, which the applicant says is a personal debt although it is a debt of his business.
d. The value of property owned by the applicant in Anguilla on the date of marriage.
e. Debts and other liabilities of the applicant on the date of marriage that were not included in the applicant’s NFP, although amounts were admitted in the Applicant’s Form 13. 1 affidavit.
f. Adjustments to the mother’s NFP to account for funds she transferred out of her account and sent abroad, and not for family purposes.
g. Whether the mother removed $10,000 in cash from the home on separation.
a. Value of Matrimonial Home
[215] The applicant’s expert, Mr. Tim Chan, gave testimony and prepared an appraisal report of the Kingsview property. He valued it at $990,000 on the date of separation.
[216] The respondent’s expert, Mr. David Pabon, gave testimony and also prepared an appraisal report. Mr. Pabon valued the Kingsview property at $1,130,000 on the date of separation
[217] I found both Mr. Chan and Mr. Pabon to be duly qualified to give expert evidence on residential real estate appraisals. In assessing the value of the Kingsview property, they both relied on three comparables. Two of the comparables were the same in their respective reports, but they made different adjustments when comparing it to the Kingsview property. Their third comparable was not the same.
[218] For the following reasons, I am persuaded that the Kingsview property on the date of separation is more likely valued at $990,000 as appraised by Mr. Chan.
[219] First, both experts made similar adjustments with respect to livable floor area in the comparables. But their opinions differed significantly with respect to adjustments for the age and condition of the comparable properties. Both explained that their differences in this regard were a matter of opinion and that their assessments were done from photographs and descriptions of comparables in the Multiple Listing Service (“MLS”) listing.
[220] Certain conditions may be more or less appealing to a buyer, such as the type of paving (asphalt vs. interlocking), new or original hardwood floors, and updated appliances. Mr. Pabon made more significant adjustments than Mr. Chan for age and condition (e.g., Mr. Pabon adjusted by $45,000 to one property and $40,000 to another, while Mr. Chan made no adjustments). Mr. Chan found that some of Mr. Pabon’s adjustments were aggressive. He acknowledged that while the comparables had differences that could have negatively impacted their sale, he also considered that those properties also had positive attributes, such as upgrades to windows, air conditioning, a new roof and bathroom updates. Given that both experts admitted there is subjectivity to these adjustments, and that neither visited the comparables, it would be unfair to rely upon a report that placed too great an emphasis on traits that could be valued differently subjectively.
[221] Second, Mr. Pabon relied on a comparable that was not used by Mr. Chan, namely, 57 Sabrina Drive. This property was just on the border of the MLS geographical area in which the Kingsview property was located (although in the same school district), situated on a corner lot, sold for $1.15 million, and it did not back on to the 401 Highway like the Kingsview property (although it did back on to Kipling Avenue). I am persuaded that a home that backs on to the 401 would have less value than one that backed on to Kipling Ave., and that a home with a corner lot would be more attractive to a buyer. While Mr. Pabon did make adjustments for these factors, a prospective buyer could place considerably different values on these factors than the adjustments made by Mr. Pabon. The use of this comparable had influenced Mr. Pabon’s valuation of the Kingsview property.
[222] While I found both experts’ evidence to be compelling and rationale, I prefer the evidence of Mr. Chan for the above reasons and conclude that the value of the Kingsview property was more likely closer to $990,000 on the date of separation.
b. $15,000 Deposit for Niagara Property
[223] The father’s NFP made no reference to $15,000 being paid and held in the lawyer’s trust account on the date of separation. However, the evidence was clear that $15,000 was paid as a deposit on June 7, 2021, for the purchase of the Niagara Property. The mother attached to her affidavit a TD Bank draft for payment of $15,000 to Re/Max Niagara Realty Brokerage and there was a receipt of it being received by the same brokerage on June 8, 2021. It was also reflected in the real estate lawyer’s Statement of Adjustments.
[224] I find that this amount ought to have been included in the father’s NFP as an asset on the separation date subject to equalization.
c. $60,000 COVID Loan
[225] The father’s NFP includes the $60,000 COVID Business Loan as a personal debt on the date of separation. It is not a personal debt. It is a business debt. In the 2021 Corporate Tax Filing for the father’s business is a Balance Sheet Information which identifies this debt as a loan to his business. Accordingly, I remove it as a debt of the father on the date of separation.
d. Value of Anguilla Property
[226] There is no dispute that the mother owned a property in Anguilla on the date of marriage, which was sold during the marriage. The net proceeds of its sale in January 2021 was $55,894.30 in Canadian funds. The mother had the burden but did not lead evidence of its value on the date of marriage. Rather, she discounted the net proceeds of sale in 2021 by 10% per year to come to a date of marriage value and argued its value on the date of marriage should be $47,510.
[227] The father’s oral testimony was that the mother told him she bought it in 2017 or 2018 for approximately $10,000. Although in his NFP, he places the value at $9,100.
[228] I am satisfied that the father provided funds to the applicant to develop the Anguilla property. The father adduced into evidence Scotiabank records from 2018 which show a cash advance of $10,000, one direct payment to “Anguilla Masonry” in the amount of $7,362.92, and various e-transfers to the mother totalling $7,910 as proof of the funds he provided for the Anguilla property. However, the $10,000 cash advance, the payment to “Anguilla Masonry”, and some of these transfers happened in 2018 before the date of marriage. The bank records only show $4,600 being transferred to the mother after the date of marriage and before the Anguilla property was sold.
[229] The mother says that she paid the father back $9,100. She attached various bank statements showing various e-transfers to him from September 2018 to July 2020, totalling $20,725.
[230] Regardless of whether funds provided by the father for the Anguilla property were paid back, I am satisfied that the father made contributions during the marriage that allowed the Anguilla property to be developed, and that these contributions increased its value when it was sold in January 2021. Therefore, it would be improper to base its date of marriage value on its value when it was sold. A simple discounting of 10% per year may not sufficiently account for improvements made to the property that increased its value at the time of sale.
[231] The mother has not met her burden of proving the value of the Anguilla property. However, I am satisfied that it existed at the date of marriage and that it had some value. I have valued it at $25,000 on the date of marriage. This seems appropriate because: (a) it was sold for $55,000, (b) there was evidence of the mother repaying the father at least $20,725; and (c) it likely had some appreciation in value due to the improvements between the date of marriage and its sale in January 2021. While some of the mother’s repayment to the father may have arisen from improvements to the property made prior to the date of marriage or for other debts she owed to him, it was her burden to demonstrate the property’s value on the date of marriage. For these reasons, I find that the Anguilla property had a date of marriage value of $25,000.
e. Father’s Debts/Liabilities on Date of Marriage
[232] In the father’s NFP, he has not included debts and liabilities from four accounts on the date of marriage: two with TD (a line of credit and Visa account), and two with Scotiabank (a line of credit and Visa account). However, these amounts appear on his Form 13.1 Financial Statement, sworn September 14, 2022. They total $19,817.46 and should be included in his NFP. I adjust accordingly.
f. Adjustments to Mother’s Assets and Debts on Separation
[233] The father argued that there were funds withdrawn from the mother’s account that were not used for the purpose of the family but were for the mother’s sole benefit or which were sent to her family abroad. Namely, on July 5, 2021, the day prior to separation, bank records show she transferred $3,000 from her account. Similarly, on June 21, 2021, and June 22, 2021, she sent $3,400 and $3,500, respectively, as global money transfers from her CIBC Visa.
[234] The father’s lawyer raised these arguments in his closing submissions. He did not question the mother at trial on where these funds went. There was evidence of a history of the parties sending money or items to family abroad during their marriage, and I am not persuaded that the mother should be penalized for having done what the parties had agreed to do in the past. Furthermore, the mother did testify that she has a debt of $8,000 owed to her from a friend in England to whom she leant money in 2021. The global money transfers may account for this loan to her friend and it is accounted for in her NFP. While the transfer of $3,000 on July 5, 2021, the day prior to separation is suspicious, it was incumbent on the father to question the mother on this issue.
[235] Accordingly, I make no adjustments for these transactions.
g. $10,000 in cash
[236] The father alleges that on July 6, 2021, when the parties separated, the mother removed $10,000 in cash from the home which had accrued from rental income from the basement tenants. The mother denies that she took this money. She admitted that she did take other money from the parties’ bank account intended for L, which she says was $10,000.
[237] I am not persuaded that the mother took $10,000 in cash from the home. There was no proof of this cash being there. The father could have adduced evidence of the tenants showing that they paid rent in cash or explained why it was kept as cash at home. The narrative that rental income was kept as cash was different from the father’s other narrative that the mother received all the rental income into her account to demonstrate to immigration officials from her banking records that she was self-sustaining. I am not prepared to accept his allegation without further proof and given the different narratives.
Adjusted NFP
[238] With the above adjustments, I provide the following adjusted NFP:
| Value of: | Adjustment | New Value | Applicant | Respondent |
|---|---|---|---|---|
| Property owned on Separation (Total 1) |
- Kingsview Property valued at $990,000 - $15,000 deposit with Re/Max added to Applicant’s income |
$1,156,964.84 | $31,132.66 | |
| Debts on separation (Total 2) |
-Removed COVID Business loan as personal debt -Adjusted contingent liability of Kingsview Property to reflect the $990,000 value (i.e. $49,500 at 5%) |
$650,407.20 | $12,678.99 | |
| Property owned on Marriage | -Adjusted value of Anguilla property | $36,714 | $25,000 | |
| Debts on Marriage | -Included the applicant’s debts as set out in his Form 13.1 | $19,817.46 | $2,948 | |
| Net Value of Property on Marriage (Total 3) |
$16,896.54 | $22,052 | ||
| Totals 2 + 3 (Total 5) |
$667,303.74 | $34,730.99 | ||
| NFP (Total 1 – 5) |
$489,661.10 | $0 | ||
| Presumptive Equalization Payment | 50% Equalization would result in the applicant paying the respondent | $244,830.55 | $0 |
Should the Court Award Less than Half of the Net Family Property?
[239] The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing net family properties would be unconscionable, having regard to various factors listed in subsection 5(6) of the Family Law Act.
[240] One factor is whether the amount of the equalization payment is disproportionately large in relation to the period of cohabitation that is less than five years: s. 5(6)(e) FLA. It is the period of cohabitation, and not the length of the marriage that governs: MacNeill v Pope, 1999 CanLII 2278 (ON CA), [1999] 170 D.L.R. (4th) 89(Ont. C.A.), para. 29.
[241] For the court to make an unequal division of net family property, the court must find that (a) the parties cohabited for less than five years; (b) payment of the presumptive amount would be unconscionable; and (c) that the presumptive amount is disproportionately large in relation to the length of cohabitation: M.N.B. v. J.M.B., 2022 ONSC 38, (Ont. S.C.), at para. 135.
[242] Whether the amount of the payment is unconscionable is a high threshold. It must shock the conscience of the court and be more than “unfair”, “harsh” or “unjust”: M.N.B. at paras. 138 and 140, citing Serra v Serra, 2009 ONCA 105, 307 D.L.R. (4th) 1, at paras. 47 and 48.
[243] The parties cohabited for less than five years. From the commencement of cohabitation in September 2018 to February 2019, the respondent was married to someone else.
[244] Would it be unconscionable for the presumptive equalization payment to be made? I conclude that it would be unconscionable, and that the presumptive equalization is disproportionately large in relation to the length of cohabitation for the following reasons:
a. The father purchased the Kingsview property in 2014, four years before cohabitation. It was purchased through the father’s own savings from employment during his teenage years when the father was 21, and with a down payment of 10%. The evidence of the father and his neighbour, Kelum Wigayathllaka, was that the father invested considerable time and energy into major upgrades and renovations to the home that increased its value. Those renovations were done with the assistance of the applicant’s father. They included a new roof, new windows, eavestrough and soffits, a new furnace, a laundry room in the garage, new floors, tiling, and kitchen, bathroom and basement renovations. None of this evidence was challenged by the mother.
b. I have considered that the purpose of equalization in s. 5(7) of the Family Law Act, notably, the statutory recognition that childcare, household management and financial provision are the joint responsibilities of spouses.
During the first six months after L was born, the parties were assisted by the applicant’s mother and grandmother largely because the mother was unable to following the birth of L and her surgery. Thereafter, I do not accept that there was an equal sharing of childcare, household management and financial responsibility according to the parties’ ability. I find that the mother did participate in some routine household chores and home maintenance work during cohabitation, including one exterior landscaping project.
However, I am not persuaded that she made an equal contribution based on her ability. I find that there was great reluctance on the mother’s part to contribute to her share of household and childcare responsibilities, and that she did not contribute according to her ability. At least until January 2021, she was more focussed on developing her property in Anguilla than being committed to her family and the maintenance of the matrimonial home. She regularly left L in Ms. Matthews care. Given the negative credibility findings I made against the mother, I do not accept that she regularly performed the household chores that she lists in her affidavit. There was consistent evidence from the father, Ms. Matthews, and Mr. Wigayathllaka that the mother was distracted, often on her phone, and unhappy contributing to her household responsibilities.
c. During 6 months of the 34 months of cohabitation, the mother was married to Mr. Bishop. The mother’s evidence was shocking with respect to the circumstances around her marriage to Mr. Bishop, as stated earlier in my Judgment. She has not filed proof of her divorce, and the Court has no information about the financial arrangement with Mr. Bishop following her divorce. I am also satisfied that she did not advise the father that she was married to Mr. Bishop until after she moved in with the father.
d. The value of the Kingsview property on August 1, 2019, just before marriage, was appraised by Mr. Chan to be $820,000. This evidence was not challenged by the mother. It increased in value to $990,000, or by $170,000 (excluding contingent disposition costs). If the father had been permitted to deduct the date of marriage value of the Kingsview property, the presumptive equalization payment to the mother would have been $0. Instead, it is $244,830.05.
e. This was a short-term marriage and the bulk of the value of equalization payment arises from the father’s acquisition of the Kingsview property before marriage. If the principle of sharing equally in the wealth accumulated during marriage were to be applied, which includes the Kingsview property, the application of the presumptive equalization payment would result in a shocking windfall to the mother that was not representative of her contributions.
f. Considering the above circumstances, it would shock the conscience of the Court if the presumptive equalization payment were made to the mother.
[245] I have considered the authorities where there has been a reduction of the presumptive equalization. A common approach has been to grant an equalization payment that is proportionate to the number of months of cohabitation, with 60 months cohabitation representing full equalization. In this case, 34 months of cohabitation would result in 57% of the equalization payment, or $139,553.41 being paid to the mother. I find this amount to be fair and equitable under s. 5(6) of the Family Law Act. It appropriately compensates the parties for their respective contributions and the growth in value of their most significant assets during the marriage, namely the Kingsview property and the Anguilla property, which I find the father contributed to in its development prior to its sale.
[246] Accordingly, I order that $139,553.41 be paid by the father to the mother as an equalization payment.
Timing of Payment of Support Arrears and Equalization Payment
[247] The evidence at trial was that the father’s self-employment makes it difficult for him to secure financing. For this reason, it is appropriate to afford him time to secure the funds necessary to make payment of his child support arrears, spousal support arrears and equalization payment. Therefore, I order that his child support arrears, spousal support arrears and equalization payment shall be due and payable within 120 days of the release of this Judgment. For clarity, however, his monthly child support and spousal support shall be due and payable on the first of each month, effective January 1, 2023.
Divorce
[248] With a determination of the child support issues, and upon payment of the equalization payment to the mother, the father may proceed to obtain a divorce by filing an affidavit for divorce. It may be filed jointly.
Costs
[249] Parties shall deliver cost submissions not exceeding five pages, which shall attach a Bill of Costs and any other document they deem relevant. Any attached documents shall be hyperlinked. The mother shall deliver cost submissions by January 20, 2023; the father shall deliver cost submissions by February 10, 2023; the mother shall deliver reply cost submissions, if any, by February 24, 2023.
Justice M. Sharma
Released: December 20, 2022
COURT FILE NO.: FS-22-00027482-0000
DATE: 20221220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Daniel Rafal Dworakowski
Applicant
– and –
Wendy Tasine Dworakowski
Respondent
REASONS FOR JUDGMENT
Justice M. Sharma
Released: December 20, 2022
[^1]: The father’s Notices of Assessment identify total income of $24,107 in 2018; $24,000 in 2019; and $24,000 in 2020.
[^2]: The father’s March 9, 2022 Financial Statement shows monthly housing costs of $5,693.86, and $1,134 in utility costs. The monthly cost of the mortgage on the Kingsview property is $2,748.51 as per Charge/Mortgage for the same property. This suggests at least $3,000 per month in costs related to carrying the Niagara property.