D.B. v. I.B., 2023 ONSC1053

NEWMARKET COURT FILE NO.: FC-20-1931-00

DATE: 20230214

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

D.B.

Applicant

– AND –

I.B.

Respondent

Frank Mendicino, Counsel for the Applicant

Self-Represented

HEARD: November 23, 24, 25 2022 and January 10, 2023

REASONS/RULING

JARVIS J.

Issues for trial

[1] The trial issues involve parenting (primarily decision-making), equalization of the parties’ net family properties and child and spousal support. The support issues also require the court to consider imputing income.

[2] Pursuant to the Trial Scheduling Order the evidence of the parties consisted of affidavits (each of the parties and the applicant’s sister) supplemented by oral testimony and the evidence of Fatima Baqri, a child protection worker whose agency has been involved with the family for several years.

[3] For the reasons which follow, the court orders:

(a) The parenting terms (which include decision-making) are set out in Schedule “A” to these reasons which shall form part of the final Order;

(b) The father shall pay to the mother $171,665.18 as and for an equalization payment, subject to post-valuation date adjustments;

(c) The father shall have vacant possession of the matrimonial home no later than July 1, 2023. It shall be in broom-swept condition;

(d) The mother shall retain the contents of the bedroom of the parties’ child. The balance of the household contents shall be divided in specie;

(e) The father’s annual income is imputed to be $82,500; the mother’s income is $33,351;

(f) The father shall pay to the mother table child support in the monthly amount of $769 effective on the earlier of the first day of the month following the mother vacating the matrimonial home or July 1, 2023;

(g)For the period March 1, 2023 to July 1, 2023 the father shall pay $535 monthly for the child’s daycare;

(h) Neither parent shall incur a s. 7 expense (as defined in the Child Support Guidelines) for which they intend a contribution from the other parent without that parent’s consent, such consent to be obtained in writing before the expense is incurred and not to be unreasonably withheld;

(i) The parents shall share s. 7 expenses in proportion to their incomes; the father shall pay 72% and the mother shall pay 28%;

(j) The mother is entitled to non-compensatory spousal support but nothing shall be awarded at this time because priority is given to child support. The amount and duration of spousal support (if any) may be reviewed at any time after January 1, 2027. Subject to any review Order made, the mother’s entitlement to spousal support shall end on December 31, 2029;

(k) Nothing shall be paid on account of retroactive child or spousal support.

[4] The forgoing summarizes the court’s principal findings and Order. They (and other terms) are more particularly detailed under “Disposition” below and Schedule “A” accompanying this Ruling.

EVIDENCE

[5] The applicant (“the father”) and the respondent (“the mother”) were married on February 21, 2011, in Albania and separated on October 31, 2019. There is one child of the marriage, MB, born in mid-2017. He has primarily lived with his mother since his parents separated.

[6] The father immigrated to Canada in 2001 and self-taught as a carpenter. He was previously married and was divorced in 2006. There are no children of that relationship. Since 2006 he has operated as an independent contractor/formwork carpenter for a company specializing in residential high-rise construction. In 2009 he purchased a residence (“Via Campanile” or the “matrimonial home”) and lived there with his mother, sister and her daughter.

[7] The mother had not been previously married. After the parties married, she immigrated to Canada in 2012 and began living with the father and his extended family at the matrimonial home. In 2013 title to the property was transferred into the names of the father and his sister because the registered mortgage matured: refinancing was needed and the father’s declared income was insufficient to qualify for the refinancing without his working sister’s income. All mortgage payments were made by the father until 2015 when his mother, sister and her daughter moved to rental accommodation elsewhere. The sister had contributed about one-half of the monthly mortgage expense before she left the home.

[8] The mother complained that when she signed the 2013 documents relating to title to the matrimonial home, she didn’t understand English very well and didn’t understand what she was being asked to sign. No independent legal advice was suggested or obtained. The father’s position when the trial started was that since his sister was a joint owner, he should only be required to bring one-half of the net value of the matrimonial home into his net family property. After his sister testified, the father conceded during his oral evidence that he was the beneficial owner of her interest in the matrimonial home and that the entirety of its net value should be factored into his net family property.

[9] The father’s evidence is that after MB was born he was very involved in all aspects of the child’s care. He would leave home early in the morning for work and finish daily around 3 pm when he would pick up MB from daycare, and care for him until the mother returned from work around 6 pm. He was the parent who most often readied MB for bed. On weekends, the mother socialized and would return home late; the father cared for the child. The mother’s evidence is that the father rarely participated in the child’s care because he worked long hours (and so was seldom home when the child was awake), was often drunk and was physically and verbally abusive of her. In her Answer she alleged that the father had anger management problems, was controlling, manipulative and that he suffered “from severe mental health problems to include undiagnosed personality disorder(s)”.[^1] She maintained much of this position at trial. In almost all aspects of their evidence about the child’s parenting the parties disagreed.

[10] Although the parties separated on October 31, 2019, they continued to live in the matrimonial home. Shortly before then, on October 4, 2019, the York Region Children’s Aid Society (“the Society”) had become involved after a verbal conflict between the parties to which the police were called. The parties were cautioned by the Society about emotional harm to MB. The file was closed on November 11, 2019. It was reopened (“reactivated”) on February 4, 2020 after another report of conflict between the parties. Emotional harm to the child was not verified after investigation but nothing further was done by the Society because it learned that the father had moved out of the home. He had been charged on February 20, 2020 with assaulting the mother. He was returning home from work that day: two police cruisers were there. After his arrest, the father was released from custody subject to an undertaking that he have no contact with the mother except for parenting time purposes arranged through a mutually agreed third party. He retained a lawyer to represent him with respect to the charges. Despite his many efforts he wasn’t allowed by the mother to see or speak to MB for almost five weeks.

[11] The Society closed its file on May 31, 2020.

[12] The father went to live with his brother and his family for about two months then moved to rental accommodations which he has shared with his mother, sister and niece since then. According to him, his efforts for parenting time with MB were consistently rebuffed, or restricted, by the mother. At the same time, the COVID-19 pandemic was declared in March 2020 and regular court operations were suspended. The father started these proceedings on December 20, 2020. Three days later, on December 23, 2020, the criminal charges were withdrawn by the Crown after the father agreed to a Peace Bond.

[13] The Society was reinvolved in February 2021 upon further reports of verbal conflict between the parents and inadequate supervision by the mother, admitted by her. The file was closed on April 4, 2021 then reopened on May 24th after the mother complained to the police that the father had let fireworks at a nearby park fall on her. According to the Society, the police determined that the incident was accidental. The Society closed its file on May 26th.

[14] On August 9, 2021, MacPherson J. heard an urgent motion brought by the father to deal with parenting issues. The court noted that the impetus for the motion was the father’s allegation that the mother was acting as “a gatekeeper and provides him with limited contact with [the child]. Parenting time, he states, is inconsistent, sporadic of short duration and at the whim of the Respondent.” The Trial Coordinator was directed to schedule a case conference on an expedited basis.

[15] A case conference was heard by Speyer J. on September 17, 2021. The court noted that the father had spent little time with the child since February 20, 2020, and that since compromise was not possible, a motion on an urgent, expedited basis was needed.

[16] The motion was heard on December 22, 2021. Bruhn J. made a parenting time Order that triaged the child’s time with his father on Mondays and Saturdays (daytime only) starting that day. Thereafter parenting time would increase in stages by March 4, 2022 to alternating weekends from after school on Fridays until return to school on the following Monday, and every Tuesday and Thursday after school for three and a half hours.

[17] On March 28, 2022, a further case conference was heard by Himel J. A comprehensive endorsement was made. The parenting time Order of Bruhn J. was varied so that, effective September 6, 2022, the child would spend overnight time with his father on alternating Tuesdays and Thursdays every week. Each party was permitted two non-consecutive weeks with MB during July and August 2022. The parties were directed to mediation; it was not successful.

[18] The mother failed to comply with that part of the Order made by Himel J. converting the father’s Tuesday and Thursday evening times with MB to overnight in September 2022. At a settlement conference heard on October 13, 2022, Himel J. found the mother in breach of her March 28, 2022 Order and cautioned that Order non-compliance could impact the mother’s case at the trial ordered to proceed during the November 2022 sittings. It was made known to the mother that she likely needed to start very soon with relocation planning within a month or two of any final decision.

[19] At the time of trial, the mother was complying with the parenting terms of the March 2022 Order made by Himel J.

[20] Since vacating the matrimonial home in February 2020 the father has paid the entirety of the home expenses (mortgage, taxes, insurance and utilities) and the insurance coverage for the car that he owns but which the mother has operated, the total averaging slightly over $2,500 monthly. Nothing has been paid for child or spousal support.

ANALYSIS AND DISCUSSION

[21] The court will deal, in order, with parenting, equalization and support (child and spousal, including retroactivity).

Parenting

[22] Recent amendments to the Divorce Act[^2] (hereafter the “Act”) have changed the terminology and approach to what were formerly known as “custody” and “access” and incorporated a mandatory “bests interests” set of factors where parenting of a child is involved. The relevant terms are “parenting order” and “parenting time”, both of which are defined in s. 1 of the Act:

parenting order means an order made under subsection 16.1(1);

parenting time means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1), whether or not the child is physically with that person during that entire time;

[23] Section 1 of the Act also speaks to decision-making for a child:

decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of

(a) health;

(b) education;

(c) culture, language, religion and spirituality; and

(d) significant extra-curricular activities.

[24] Section 16.1 of the Act deals with parenting Orders (formerly custody). Subsections (1)(a) and (4) are relevant to this case:

Parenting order

16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

(a) either or both spouses…

Contents of parenting order

(4) The court may, in the order,

(a) allocate parenting time in accordance with section 16.2;

(b) allocate decision-making responsibility in accordance with section 16.3;

(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

(d) provide for any other matter that the court considers appropriate.

[25] Parenting time (formerly access), the allocation of decision-making and entitlement to information involving a child are addressed in sections 16.2(1) and (2), 16.3 and 16.4 of the Act.

Parenting time-schedule

16.2 (1) Parenting time may be allocated by way of a schedule.

Day-to-day decisions

(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

Allocation of decision-making responsibility

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

Entitlement to information

16.4 Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.

[26] Above all, the court must be guided by the best interests of a child in making any parenting or parenting time Order as set out in s. 16 of the Act.

Best interests of the child

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

Primary consideration

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

Factors to be considered

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

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

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

Factors relating to family violence

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

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

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

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

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

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

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

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

(h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

Parenting time consistent with best interests of child

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

Parenting order and contact order

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

Parenting evidence of the parties

[27] Simply put, the father’s evidence is that until he was charged in February 2020 and unable to return to the matrimonial home, he and the mother shared MB’s care. During the week, he would leave early in the morning for work, typically finishing around 3 pm when he would pick up MB from daycare then solely care for him until the mother would return from her work around 6 pm. It was he who prepared the child for, and put him to, bed the majority of the time.

[28] Everything changed after the criminal charges. The father’s Recognizance required that he have no contact, directly or indirectly, with the mother except through a lawyer or court Order. Despite his efforts through third parties, he was not allowed to have any contact with MB for almost five weeks and then only to speak with him. He tried through third parties to arrange a regular schedule but the mother refused. What parenting time he was allowed was sporadic and inconsistent, at her “whim”. The mother refused to allow the child to spend time alone with his father. The mother’s behaviour led the father to start these proceedings in late December 2020 a few days before the criminal charges were resolved by a Peace Bond. But for the court’s involvement, the father would not have the parenting time that the court has ordered.

[29] The mother’s evidence is that the parties’ relationship was abusive and conflicted by members of the father’s extended family who, she said, threatened to “ruin” her. She wanted to reduce the father’s parenting time because he was “not a good father”. The child needed to know that no one loved him more than her and that he needed to know about the sacrifices that she had made for him. She claimed that the child wasn’t spending quality time with his father, that his care was being left to the father’s extended family (meaning the paternal grandmother, aunt and cousin) and MB was being “manipulated by the father and his family members against [her]”. The child was keeping “secrets” from her and wasn’t as communicative with, and respectful to, her after parenting time. MB was “memorizing the expressions, conversations and actions, that are not acceptable for his age, and for the well-being of the child, and all are proven by the CAS”. The mother said it was not her responsibility to help ensure that the child had a happy and healthy relationship with his father, about whom she had nothing positive to say, or about members of his family. She was reluctant to acknowledge that the father loved MB.

[30] The parties couldn’t agree about the child’s care arrangements before they physically separated. The father claimed that the mother would go out socializing with a cousin, returning home late. He cared for the child. The mother said she cared for the child on weekends; the father would force her to cook for his family and friends and would go out nightclubbing. After they were physically separated, both made complaints to the Society about the other’s care of the child, none of which was verified (except for one incident involving the mother).

[31] Despite the March 28, 2022 Order made by Himel J. that the child have two non-consecutive weeks with his father during the 2022 summer, no such parenting time was permitted by the mother. Nor did the mother comply with that Order with respect to alternating overnight times starting in September 2022 until after a further appearance before Himel J. in mid-October 2022.

[32] The father said that he was content with the parenting time terms as ordered but, given that he viewed the mother as undermining the child’s relationship with him, there should be joint decision-making. He agreed that the child’s primary residence be with his mother.

[33] The mother wanted the current parenting arrangement to be reduced to alternating weekend time and requested that she be granted sole decision-making authority.

[34] Both parties agreed that March Break with the child be shared and that he begin attending a public school near the mother’s residence in September 2023. In several other respects the parties’ positions were identical. The principal differences were decision-making and parenting time.

Fatima Baqri

[35] Ms. Baqri is a Family Service Worker employed by the Society since April 2012. She was called as a witness by the mother. Ms. Baqri became involved with the family in March 2021. A file with the Society had been opened before her involvement due to concerns about emotional harm to MB from exposure to conflict between his parents and an incident involving inadequate supervision by the mother. Ms. Baqri typically met with each parent monthly at their residence for about an hour and a half each time. MB was present for all the meetings with the mother and for the majority of the time when Ms. Baqri met with the father.

[36] The mother asked Ms. Baqri questions about MB’s behaviour when returning from time with his father. Relevant excerpts of their exchanges involve the following testimony from the witness:

A. In my observations and meetings with you (i.e., the mother) and [MB], I have not observed the behaviours; however, you have reported to me that he often misbehaves with you after he is visit - after visits from Dad. However, I have not observed it but these are disclosures that you have expressed or concerns that you have expressed to me, yes.

A. What [the mother] had just referred to was at the last meeting there was several – [MB], I, and [the mother] were discussing some of his behaviours that [the mother] had expressed that he was exhibiting and that she had said that she’s going to tape up the rules around the house and [MB] had indicated that he’s going to pull those rules off the walls. I would not have categorized that as a behavioural concern. He’s five years old. And at that point I had expressed that to [the mother] that I have not seen behaviours that are not typical of a five-year old from him, and that is what was discussed.

A. The current involvement continues to be [MB]’s exposure to emotional harm in terms of parents – the conflict between parents. As well as at this point some of the work that I’ve been working on with [the mother] is [MB] has recently expressed some concerns around [the mother]’s negative messaging regarding [the father], and that’s been part of our involvement.

[37] As it was clear to the court that the mother had not prepared in advance of her calling the witness, it was often necessary for the court to assist in framing the mother’s questions, as indicated by the following exchanges:

THE COURT: [Can you comment] on the discussions you’ve had with mother, then, in terms of what - I think you said that you were concerned that the child had been expressing concerns about the mother’s negative imaging, or messaging…about his father.

A. Yes. So, in discussions with [the mother] she has expressed that she feels when [MB] is expressing these concerns that is it - that it is coming from Dad and it’s coming from negative messaging from paternal family. I have - I have discussed with [the mother] that I can’t definitively say that

these conversations are coming from dad. Consistently since March 2022 MB has not expressed any negative - has not expressed anything in terms of paternal family or [the father] speaking negatively of [the mother]…MB has not expressed any concerns regarding paternal family and negative messaging regarding Dad - regarding [the mother] in his presence.

THE COURT: And that’s what he said to you?

A. Yes. Yeah, he hasn’t - he hasn’t expressed anything in my multiple interactions with him.

THE COURT: … From the Society’s standpoint, is there any kind of an approach which would give the Society some comfort in terms of trying to create a more stable situation, whether exchanges be at an independent place or whatever? Do you see certain flashpoints that, from your review of the file and your involvement with this family, indicate that these are sort of things that perhaps should be looked at?

A. Absolutely. In terms of the communication, as I have been consistent with both parents in terms of the communication needs to be open between them in regards to access exchanges. There has (sic) been multiple discussions around this due to at times [the mother] is late at visits; however, she has [the father] blocked on her phone so there is - that communication is blocked at that point where they can’t communicate, whether it’s in regards to the access exchanges being late or not being able to attend or, you know, going to the doctor’s or addressing the needs of the child. I would say that it’s really important for them to have some sort of arrangement where they could communicate, whether that’s Family Wizard if the text messaging is not working. I do think that would help immensely.

THE COURT: Have you observed the child to use age-inappropriate language or expressions that might suggest to you that they’re coming from some third party with ill-will intended?

A. I have not.

[38] In cross-examination by Mr. Mendicino:

Q. And during that time did you have an opportunity to observe [the father] and [MB]’s interactions?

A. I have.

Q. And were they appropriate?

A. They were.

Q. And did you have any concerns at all with respect to Mr. [the father]’s interaction with [MB]?

A. I have not.

Q. And during the time that you had those visits, did [the father] ever refer to [the mother] in any derogatory or pejorative language?

A. Never.

Q. And during those visits when [MB] was present with [his father], did he ever in front of [MB] make any comments about [the mother], derogatory or pejorative?

A. Never. He was actually quite mindful about - of when we were having discussions with making sure that [MB] wasn’t in the room.

Q. And from your observation did [the father] do or say anything to undermine [MB]’s relationship with his mother?

A. No.

Q. And how many times would you have met with [the mother]?

A. Same. Again, approximately on a monthly basis.

Q. And where did you have the visits with [the mother]?

A. In [her] home.

Q. And was [MB] present during those visits?

A. Yes.

Q. And from your observations and your interaction with [the mother], would you say whether [the mother] was supportive of [MB]’s relationship with [his father]?

A. Yes.

Q. And in what way? Can you....

A. In discussions with [the mother], when it did occur - when she would discuss her concerns with [the father], in terms of with [MB], she never indicated that he shouldn’t have a relationship with his father or that he should, you know, be nice to father, should continue to have his visits with dad…

[39] Ms. Baqri said that the Society was awaiting the decision of this court to determine what steps it would consider to mitigate the parties’ conflict, including recommendations involving communications and mediation. The Society was prepared to continue working with the family on an ongoing basis.

Discussion.

[40] The guiding principle in all parenting disputes is that children should spend as much time with each parent as is consistent with their best interests. The corollary is that, whatever their personal differences, parents have a duty to support a child’s relationship with the other parent. While the responsible discharge of that duty may be complicated by, for example, evidence of family violence or mental health issues, the court will focus on the parents’ actions, typically in preference to their words, as predictive of the outcome intended by the court. Above all, minimizing conflict between separated parents is of paramount importance because children “do significantly better if their parents co-operate and conflict is low.”[^3]

[41] In this case each party has accused the other of undermining the child’s relationship with them. But what is the evidence? For almost three years since the parties last cohabited (February 20, 2020) MB has primarily resided with his mother and the father’s time has been either non-existent, irregular or directed by court Order. Despite her statements to the court and to the Society that she supports MB’s relationship with his father, this court is not persuaded, and cannot trust, that the mother will exercise decision-making authority responsibly if solely awarded to her (the parties marginally differ on parenting time). Some examples:

(a) The mother did not permit the father to have any contact with the child for almost five weeks after he was arrested, and then only by videolink and later as supervised by her;

(b) The court accepts the father’s evidence that the mother restricted the child’s time with him and was often uncooperative in facilitating parenting time. She was not prepared to accept as supervisors of the child’s time with his father members of his extended family;

(c) The mother breached the March 2022 Order of Himel J. dealing with MB’s summer 2022 time with his father and the start of alternating Tuesday and Thursday overnight time in September 2022. There was nothing ambiguous about the terms of that Order and the mother led no evidence at trial justifying her non-compliance with them;

(d) When asked repeatedly by this court whether she thought that the father loved MB, the mother was reluctant to answer and evaded a direct response;

(e) The mother was reluctant to acknowledge that, in principle, a child needs both parents. This is consistent with her evidence that no one but her loved MB more and that he needed to know (he was five years old at trial) the sacrifices that she had made for him;

(f) The mother disclaimed any responsibility in supporting MB having a happy and healthy relationship with his father, and members of the father’s extended family;

(g) Far from Ms. Baqri supporting the mother’s allegations that the child was acting or speaking in age-inappropriate ways when with his father or after spending time with him, the evidence points to a different conclusion that MB had a close relationship with his father and that he (MB) was expressing concerns about his mother’s negative imaging of his father and his father’s extended family;

(h) The mother sought to reduce MB’s time with his father without any persuasive reason.

[42] The foregoing should not be interpreted as relieving the father from all responsibility for the conflict between the parties. The court thinks it more likely than not that there was conflict between the parties more serious than he was prepared to acknowledge: he and his family were angered that assault charges had been laid, were costly to defend, and his and their efforts to spend time with MB were being obstructed by the mother. The dispute over control of the child’s time with his father spiralled into actions by both parties involving the Society and police. There is no evidence that the father sought anger management counselling to dispel the mother’s allegations in that regard, nor was there any evidence that the mother sought counseling how best, and practically, to deal with that kind of behaviour. It does not appear that the mother accepted what she was being told by Ms. Baqri.

[43] Viewed holistically, the father’s evidence about the parenting problems in this case is more reliable and credible than the mother and is partly corroborated by Ms. Baqri. While there is no dispute that MB should reside in the primary care of his mother, she cannot be trusted with sole decision-making authority.

Equalization

[44] The parties’ principal asset is the matrimonial home. The values of their other assets are modest. A home appraisal obtained by the parties at the court’s direction opined a $760,000 fair market value on the valuation date, to which both parties agreed. As a result of his concession about ownership of the matrimonial home, the father submitted that he owed the mother a $167,602.83 equalization payment. She claims that the payment should be $267,602.83.

[45] The equalization payment is $171,655.18 before post-valuation date adjustments. A net family property statement is appended to these Reasons as Schedule “B”. A rough draft of this statement was prepared by the court and circulated to the parties before the trial resumed on January 10, 2023. Submissions were made by the parties with respect to that statement.

[46] Overall, the parties did not contest the values of most of the other party’s assets and debts. Those disputed, and this court’s findings, follow:

(a) Household Goods & Furniture

[47] The father proposed that the household contents be divided in specie but did not suggest a procedure by which that could be done. The mother claimed that the value of the contents was $20,000 but neither tendered any evidence of value nor suggested a division process. In other words, the parties left this issue for the court, hardly the best use of the court’s valuable time.

[48] Given that the child will have his primary residence with his mother, the contents of his bedroom shall be retained by her. All fixtures shall remain in the home. Each party shall be entitled to retain their own personal belongings. The movable furniture shall be divided equally between the parties and an agreement with respect to what will be allocated to each party shall be concluded before the mother vacates the matrimonial home.

[49] On the valuation date the father owned a Mercedes-Benz automobile, the purchase of which had been financed and which the mother has exclusively used since the parties separated. The mother did not dispute the father’s $25,000 value for the car. The father proposed, and the mother agreed, that ownership of the car would be transferred to her. At some point before the trial the father paid the outstanding loan which he suggested had been $32,000 on the valuation date.

[50] Despite the statutory requirement that there must be corroboration of a debt, the father did not provide any evidence substantiating the car loan, although there was evidence of an on-going debt being paid from the father’s personal account unrelated to his business and credit accounts at a different bank. There is also no evidence that at any time during these proceedings, including trial, the mother challenged the debt. Determining values and net family properties is not an exact science.[^4] The fairest way to resolve this issue is for the value of the car to be equal to its debt on the valuation date and to reflect a value for the car being transferred to the mother as a post-valuation date adjustment. It is unknown when, before trial, that the parties agreed to the transfer. There is certainly no evidence that either gave any thought to the value to be attributed to the transfer, nor any evidence at trial about the car’s value. In these circumstances, the father shall be credited $25,000 with a post-valuation date value for the transfer.

[51] The parties disagreed on the value of the mother’s jewellery on the valuation date. The father suggested that the value was $1,400 whereas the mother suggested that the value was $1,200. Neither party provided evidence in support of their position on this issue. A value of $1,300 will therefore be attributed to the value of the wife’s jewellery.

(b) Debts and other liabilities on the valuation date

[52] The parties agreed at trial that the value of the mortgage on the matrimonial home was $317, 416.28 on the valuation date.

[53] The court attributed notional disposition costs of $42,290 to the matrimonial home. No dispute to this amount was taken by either party.

(c) Property, Debts or other liabilities on the date of marriage

[54] The father advanced no claim for the net value of his property on the date of marriage. The mother claimed a $20,000 deduction but acknowledged during her testimony that she had no property worth that value then. She also claimed a $2,000 deduction for the value of jewellery brought to the marriage but provided no corroborating evidence. The father did not dispute that jewellery was brought to the marriage. The mother shall be allowed a $1,000 deduction for this asset.

(d) Payment of equalization payment

[55] The father does not wish to sell the matrimonial home and wishes to reoccupy it. Likely he will need to refinance it to obtain the funds needed for the equalization payment. He proposed to make a $6,000 payment to the mother two months before she would be required to leave the property to enable her to secure alternate accommodation. This payment would be credited toward his equalization payment, the balance of which would be paid on vacant possession. The father originally proposed April 1, 2023 as the date by which the mother would move but that timeline is now unrealistic.

(e) Adjustments

[56] The equalization payment shall be reduced by $25,551 to reflect the $25,000 value of the Mercedes-Benz transfer to the mother and $551 representing the mother’s agreed one-half share of the matrimonial home appraisal paid by the father. The adjusted equalization payment owing to her is $146,104.18, say $146,100.

Child support

[57] While the parties agreed that the mother’s annual income was $33,351, they could not agree about the father’s income. Notwithstanding a lower, declared income for tax purposes, his position at trial was that the court could impute a yearly $60,000 income to him thereby resulting in table child support of $556 monthly. The mother contended that a $100,000 income should be imputed, this resulting in a table payment of $910 monthly. There is little doubt in this case that the father’s line 150 total income, as assessed, does not fairly reflect his qualifying support income. The issue is determining the appropriate amount. Neither party’s position is accepted by the court.

(a) The law

[58] Sections 15.1(1), (3) and (4) of the Act deal with child support and provide as follows:

Child support order

15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

Guidelines apply

(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.

Terms and conditions

(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.

[59] The Child Support Guidelines[^5] (the “Guidelines”) set out the framework for determining child support. Relevant to this case are sections 3(1), 7(1) to (4), 15.1 and 16:

Presumptive rule

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

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

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

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

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

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

Sharing of expenses

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

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

Universal child care benefit

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.

Determination of annual income

15. (1) Subject to subsection (2), a parent’s or spouse’s annual income is determined by the court in accordance with sections 16 to 20.

Calculation of annual income

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

(b) Imputing income

[60] The father in this case is self-employed. The amount of qualifying child support income for self-employed parents may be, and often is, assessed differently than income earned by arm’s length employed parents. In the circumstances of this case, sections 19(1)(g) and (2) of the Guidelines address this potential unfairness:

Imputing income

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(g) the parent or spouse unreasonably deducts expenses from income;

Reasonableness of expenses

(2) For the purpose of clause (1) (g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada).

[61] In Laramie v. Laramie[^6], a case that involved income imputation, Chappel J. reviewed the relevant principles:

[91] Income imputation provides a means by which the court can ensure that parents meet their joint and ongoing obligation to support their children (Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731, 2002 CarswellOnt 3228 (C.A.), additional reasons 2003 CanLII 48241 (ON CA), 2003 CarswellOnt 17 (C.A.); Tillmans v. Tillmans, 2014 ONSC 6773 (S.C.J.); B.(G.T.) v. B.(Z.B.), 2014 ONCJ 382 (O.C.J.)). As the Ontario Court of Appeal stated in Korman v. Korman, 2015 ONCA 578 (C.A.), at para 51:

“[t]he courts retain discretion to impute income to a payor spouse in excess of that spouse's presumptive income where the imputed income is supported by the evidence and is consistent with the objective of establishing "fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution" Bak, at para. 36; Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711, 29 R.F.L. (5th) 2983 (Ont. C.A.), at para 44."

[92] The specific inclusion in the Guidelines of authority for the court to impute income highlights that the fundamental obligation of a parent to support their children takes priority over the parent's own interests and choices. It also reinforces that parents must act responsibly when making financial decisions that may affect the level of income available from them for the support of their children (Duffe v. Duffe, 2009 NLCA 48 (NLCA)). The list of circumstances set out in section 19 in which the court may impute income is not exhaustive, and therefore it does not circumscribe the court's general discretion to impute income in other situations where it considers it appropriate to do so. These other situations need not be analogous to the circumstances listed in section 19 in order to provide a foundation for imputation of income (Bak v. Dobell, 2007 ONCA 304 (C.A.); Riel v. Holland, 2003 CanLII 3433 (ON CA), [2003] O.J. No. 3901, 67 O.R. (3d) 417 (C.A.); Korman).

[93] The imputation of income to a party is a fact-driven exercise that turns on the unique circumstances of the case before the court (Bak, at para. 73; Korman, at para. 49). Regardless of the basis upon which income is imputed, the amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some reasonable basis in the evidence for the amount that the court has chosen to impute (Korwin v. Potworowski 2007 CarswellOnt 6852 (C.A.); Froelich-Fivey v. Fivey, 2016 ONCA 833 (C.A.); Korman).

[94] The question of onus with respect to imputation of income is an important one. In original child support proceedings, the onus is on the party requesting the court to impute income to establish the grounds for this request (Homsi v. Zaya, 2009 ONCA 322, 2009 CarswellOnt 2068 (C.A.), additional reasons 2009 Carswell Ont 3112 (C.A.); Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 2002 CarswellOnt 3228 (C.A.), additional reasons 2003 CarswellOntl 7 (C.A.)). However, the party whose income is in question has a positive obligation to disclose all relevant evidence required to enable the other party and the court to obtain a true and complete picture of their income for support purposes…

[62] The list of circumstances in which income may be imputed is not exhaustive.[^7] While the evidentiary onus to establish a foundation to impute income rests with the proponent,[^8] in this case the mother, the father acknowledges that his reported line 150 taxable income does not fairly represent his qualifying child support income. What then is the relevant evidence about the father’s income? It is the following:

(a) At all material times the father was, and continues to be, self-employed as an unincorporated subcontractor (Senada Construction) working for a third-party company since 2006;

(b) As a subcontractor the father is paid every week based on hours worked. His hourly rate as of March 2022 is $42.95. Overtime is paid 1.5 times the hourly rate. He is entitled to a daily travel allowance of $40;

(c) The company for whom the father works as a subcontractor contributes to a pension owned by him;

(d) In each of 2019 and 2020, the father declared business income that was then substantially reduced to reflect his net business income. In 2019 the father declared gross business income of $88,002.75 that was then reduced to $28,629.78 net which, after deducting union dues ($3,218.97) and CPP contributions ($1,319.31) resulted in a $25,147.27 net income, assessed at $25,147. In 2020 the father’s gross business income was $90,786.19 and the net was $29,185.13. After deducting union dues and CPP contributions, the father declared a line 150 income of $25,775.73. His income was assessed at $25,776. Putting the figures for these two years into perspective, the father expensed $59,372.97 in 2019 (i.e., $88,002.75 - $28,629.78) and $61,601.06 in 2020 (i.e., $90,786.19 - $29,185.13). No Statement of Business or Professional Activities accompanied either tax return which would have shed light on the nature of the father’s business-related expenses. He never explained how or why, as a formwork carpenter working for the same employer, he would need to incur work-related expenses;

(e) A Statement of Business or Professional Activities (“the Statement”) was included in the father’s 2021 tax return. That year he disclosed business income of $99,595 and a net business income of $33,639.94, a $65,955.06 difference. Under Part 3D of the return dealing with “Cost of goods sold and gross profit” the Statement showed $28,561.36 for “Purchases” during the year. The father never explained what was purchased for his business. Under Part 4 dealing with business or professional expenses the father claimed $37,394.15. These expenses comprised Meals and entertainment ($1,657.82), Insurance ($1,260), Interest and bank charges ($468), Office expenses ($2,136.58), Office stationery and supplies ($7,561.35), Management and administration fees ($754.50), Repairs and maintenance ($3,016.58), Motor vehicle expenses ($11,514.20) and a Capital cost allowance for his car ($9,024.91). After deducting these amounts, his union dues and CPP contribution, the father’s net income for tax purposes was $28,956.17. He was assessed for $28,956. The father never explained why or how any of these expenses related to his work as a carpentry subcontractor;

(f) The father’s financial statement sworn on December 16, 2020 disclosed a $29,683.92 all-sources annual income and expenses of $79,482, a $49,798 difference. Part of this difference may be explained by a $11,000 decrease in savings, leaving about $38,000 in unfunded expenses unexplained;

(g) In his trial financial statement sworn on September 29, 2022 the husband declared a $34,068 all-sources annual income and $80,295.24 in expenses, a $46,227.24 difference. According to the father he increased the mortgage on the matrimonial home by about $109,000 to help pay for his legal expenses (amount not disclosed) and repay the car loan ($32,000 claimed). He reduced a line of credit ($13,960.68), paid off a TD Business credit card balance ($30,164) and increased his savings by $17,771.16. The aggregate of these amounts is $93,895.84 (excluding whatever he testified was paid for legal expenses, that amount not quantified).

[63] A number of observations, and findings, can be made from the foregoing and the parties’ evidence:

(a) The father’s tax returns are wholly unreliable with respect to determining his income for support purposes;

(b) As noted by Chappel J. in Laramie, the father has “a positive obligation to disclose all relevant evidence required to enable the other party and the court to obtain a true and complete picture of their income for support purposes….”[^9] The father has failed to discharge this obligation. It is one thing to disclose, even to make a last minute (i.e., trial) concession about support income. It is quite another to intelligibly explain why the court should accept that evidence. The father never did that in this case;

(c) Excepting his union dues and CPP contributions, the father expensed on average 67% of his 2019 to 2021 gross subcontracting income;[^10]

(d) Excluding his unsubstantiated business expenses, his union dues and CPP contributions for the 2019 to 2021 period, the father’s gross income was $83,464 (2019), $86,317 (2020) and $94,487 (2021), all figures rounded. The father’s income appears to include about $10,000 a year for mandatory HST remittances;

(e) The father filed as evidence what this court understands is a representative invoice he submitted by Senada Construction to his employer for the week of March 17, 2022. The total invoiced was $1,772.88, or $92,189.76 for a full year. This includes weekly HST ($202.68). The father testified that he was not paid for vacations (the invoice reflected that his vacation pay was remitted to his union). Assuming that he would take four weeks for holidays (such as the Christmas and summer periods), the father’s disposable income would be (at least) $75,360[^11] in 2022. This is likely low.

[64] As the foregoing reveals, trying to make sense of the father’s qualifying support income for family law purposes can be problematic. In Meade v. Meade,[^12] Kiteley J. addressed the trial consequences of inadequate income and expense disclosure evidence:

[81]… It is inherent in the circumstances of those who are self-employed or who have irregular income and expenses, that they have a positive obligation to put forward not only adequate, but comprehensive records of income and expenses. That does not mean audited statements. But it does mean a package from which the recipient spouse can draw conclusions and the amount of child support can be established. Where disclosure is inadequate and inferences are to be drawn, they should be favourable to the spouse who is confronted with the challenge of making sense out of financial disclosure, and against the spouse whose records are so inadequate or whose response to the obligation to produce is so unhelpful that cumbersome calculations and intensive and costly investigations or examinations are necessary. [Nardea v. Nardea (heard March 5, 1998); MacLeod v. MacLeod [1998] O.J. No. 3076; Reyes v. Rollo released December 14, 2001].

[65] In Sharma v. Sunak,[^13] McGee J. observed that when dealing with the income of a self-employed party “[i]t will be the uncommon case that will not require some level of expert assistance to value income...”. But irrespective of the wisdom in engaging some kind of third-party expert assistance (usually prudent but not always affordable or practical) the fact is that, on a granular level, a payor bears the evidentiary onus when proposing to deduct expenses from income for support determination purposes. Referencing Orser v. Grant,[^14] Woodley J. in Lachance v. Campbell[^15] noted that “[t]he onus rests upon the parent seeking to deduct expenses from income to provide meaningful supporting documentation in respect of those deductions, failing which an adverse inference may be drawn.” In this case the father has not met the onus; he provided no evidence whatsoever supporting any of the deductions claimed in his tax returns. An adverse inference will be drawn. His trial proposal to have a $60,000 income imputed to him is not accepted. In these circumstances it is not an unreasonable inference that the father’s annual income is closer to $82,500. Based on that finding, he shall pay table child support of $792 monthly.

[66] The parties shall share the child’s s. 7 expenses proportionately, the father (72%) and the mother (28%).

(c) Section 7 expenses

[67] In neither of the mother’s financial statements was any Schedule B special or extraordinary expense recorded,[^16] although the mother recorded a $1,300 monthly daycare expense in her trial statement. The child was attending a Montessori private school in senior kindergarten during the trial. The parties agreed to have him continue there until September 2023 when he would begin attending a public school closest to the mother’s home, that to be located no more than a twenty-minute drive from the matrimonial home.

[68] The father did not challenge the mother’s evidence that her monthly daycare cost was $1,300 before accounting for tax deductions. Both parties agreed that each party would be entitled to claim their proportionate share of the daycare cost for tax purposes. They could not agree on when that cost would discontinue (June or August) or on the amount of the father’s contribution. He proposed $392 monthly starting March 1, 2023, whereas the mother sought a $1,000 monthly contribution. The father’s proposal reflected an amount based on his proposed $60,000 income; the mother’s amount was based on a higher imputed income to the father ($100,000) and did not account for any tax deduction.

[69] Based on this court’s findings about the parties’ incomes and accepting that the daycare cost is unchallenged, the father shall contribute to the cost in the amount of $539 starting March 1, 2023. This shall continue until (and include) the payment due on July 1, 2023. As the parties will each have two weeks of summertime with the child when there would not be daycare costs involved for one month, there shall not be anything payable by him on account of daycare costs for August 2023. The court is unaware of the child’s daycare costs as of September 2023. The parties shall contribute to those costs as set out in paragraph 66 above.

Spousal support

[70] Marriage does not automatically entitle a spouse to support. In this case, the father’s trial position is that the mother’s claim for her support should be dismissed and that, in any event, no support would be paid to her pursuant to the Spousal Support Advisory Guidelines (the “SSAG”). The mother claims support of $1,000 monthly for three years. Neither side adequately addressed the issue of the mother’s entitlement to support or the impact on the amount for her support (if entitlement was found) after child support was determined.

[71] Sections 15.2(1), (3), (4), and (6) of the Divorce Act provide as follows:

Spousal support order

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

Objectives of spousal support

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse 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.

[72] In circumstances where the court finds entitlement to spousal support but is unable to make an Order because there is a child support obligation, priority of payment must be given to child support. Reasons must be given. Sections 15.3(1) to (3) of the Act frame the proper approach to be taken:

Priority to child support

15.3 (1) Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications.

Reasons

(2) Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so.

Consequences of reduction or termination of child support order

(3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.

[73] The mother’s evidence is that she obtained a university degree in Albania and worked there as a teacher for five years before emigrating to Canada in early 2012. There was no evidence whether the mother was fully employed before she emigrated, her employment income or the general economic conditions of Albania (which would be relevant to the issue of any career or economic sacrifice made by her). Before the parties finally separated in early 2020, the mother had worked at a number of jobs, although the trial evidence was not entirely clear about the nature of those jobs, their hours or pay. The court infers that these were low level, mostly clerical, positions, one involving working for a local grocery chain. She took twelve months parental leave after MB was born. At trial, the mother was a full-time student in the third semester of an Early Childhood Education (ECE) program at a local community college; she hoped to complete this program in September 2023. Upon graduation, she expected to be able to earn about $40,000 a year. Since around January 2020 she worked part-time and was paid hourly as an ECE assistant before and after school. Her income comprised her hourly work, CERB (when the program was available in 2020/2021), rent from a tenanted portion of the matrimonial home, OSAP and child tax benefits payments.

Entitlement

[74] Spousal support may be based on compensatory, non-compensatory or contractual principles (the last of these does not apply in this case). Income disparity does not, in and of itself, establish entitlement.[^17] Determining entitlement is a condition precedent for a spousal support Order. As noted by Aston J. in Dickson:

[7] One of the objectives of a support order under s.15.2(6) of the Divorce Act is the promotion of self sufficiency. To establish entitlement based on “need” a spouse is first required to show their inability to become self sufficient, in whole or in part. The assessment of “need” is based on a reflection of the standard of living the parties had while together…

[75] In Thomson v. Thompson,[^18] Chappel J. reviewed the legal considerations for entitlement to compensatory spousal support:

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

[58] In considering whether a compensatory claim exists, the court must undertake a broad and expansive analysis of advantages and disadvantages which each party experiences throughout the relationship as a result of the marital union…

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

[76] In Spousal Support Advisory Guidelines: The Revised Users Guide” Rogerson and Thompson (April 2016, Chapter 3) dealt with non-compensatory support:

Non-compensatory claims involve claims based on need. “Need” can mean an inability to meet basic needs, but it has also generally been interpreted to cover a significant decline in standard of living from the marital standard. Non-compensatory support reflects the economic interdependency that develops as a result of a shared life, including significant elements of reliance and expectation, summed up in the phrase “merger over time”.

Common markers of non-compensatory claims include: the length of the relationship, the drop in standard of living for the claimant after separation, and economic hardship experienced by the claimant.

[77] The mother is not entitled to compensatory support but is entitled to non-compensatory support for these reasons:

(a) There is no evidence that the mother contributed to the father’s career or that the father received career or economic benefits as a result of contributions or sacrifices made by her;

(b) Excepting her parental leave after MB was born, the mother was always employed. She has been pursuing an ECE degree that should earn her about $40,000 a year;

(c) Both parties experienced a drop in their standard of living after separation and experienced economic hardship. The father paid rental expenses as well as paying for all the matrimonial home costs, the automobile loan and related insurance costs of the car retained by the mother. She did not have the benefit of the father’s income to help pay for the daily living expenses for the child and her or for the child’s private school. Neither party’s financial statement or trial evidence indicated anything other than they were managing their modest financial affairs as best as they could;

(d) The principal asset funding the equalization payment in this case is the matrimonial home that was purchased and financed by the father. There is no evidence that the mother contributed to the mortgage or operating expenses for the home before and after MB was born, although this court accepts that she contributed to the family’s daily living costs and for the majority of the child’s expenses;

(e) Taking into account the equalization payment (as adjusted) the parties will have roughly the same net worth and (as below) the mother will enjoy a larger net disposable income than the father.

[78] Absent the birth of MB, the SSAG range for the parties suggests a $522 (low)-$609 (middle) -$696 (high) range for spousal support having a 4.25 to 8.5 years duration based on the father’s imputed $82,500 income and the agreed $33,351 income for the mother. If the mother was earning $40,000 a year, the range would be $452 (low)-$527 (middle)-$602 (high), in all cases leaving the mother with slightly more than 40% of the parties’ net disposable income.

[79] Factoring into these calculations the child’s birth, the father’s $769 monthly (table) child support results in a spousal support range of $0 being paid (low and middle) to $280 (high) monthly for an indefinite (or unspecified) duration, subject to variation, and possibly review, with a minimum duration of 4.25 years and a maximum duration of 16 years. If the mother was earning $40,000 a year, the high end of the range would be $131 a month, in all cases leaving the mother with an average equal to or slightly above 52% of the parties’ net disposable income.

[80] No spousal support shall be paid at this time because the mother’s net disposable income under either (with child) income scenario exceeds the father’s imputed income. There is no basis for a high-end range award. The parties’ married cohabitation was seven and a half years. The father was forty-four years old and the mother was 36 years old when they separated. Neither party has, or has had, any relevant health condition impacting their income earning ability. The amount and duration of spousal support may be reviewed at any time after January 1, 2027. Subject to any Order that may be made after that date, the mother’s entitlement to spousal support shall terminate on December 31, 2029.

Retroactivity

[81] This is not a case for retroactive support, an argument not seriously pursued at trial. The expenses of the matrimonial home maintained by the father during its exclusive occupancy by the mother have exceeded what he would have been obliged to pay for support. The child has benefitted.

DISPOSITION

[82] A Divorce Order shall issue having an effective date 31 days after the date of these Reasons.

[83] The parenting terms set out in Schedule “A” are ordered pursuant to the Divorce Act.

[84] Pursuant to the Divorce Act:

(a) The father’s income for child support is imputed at $82,500 and the mother’s income is $33,351.00;

(b) Commencing on the earlier of the first day of the month after the mother vacates the matrimonial home or July 1, 2023 and on the first of each month thereafter, the father shall pay table child support in the amount of $769 monthly;

(c) The father shall pay his proportionate share of section 7 expenses which share shall be (currently) 72% in accordance with the Child Support Guidelines. Except as may be otherwise agreed by the parties in writing, the provisions of s. 7(a) to (c) of the Guidelines shall govern the qualifying expense;

(d) Neither party shall incur an expense for the child (including a s. 7 expense) for which a contribution will be sought from the other party without the other party’s written consent, such consent not to be unreasonable withheld;

(e) Commencing March 1, 2023, the father shall pay his proportionate share for the daycare in the amount of $392.00 currently or as may be adjusted accordingly. The parties shall each claim their proportionate share and receive daycare tax credits and deductions.

[85] A Support Deduction Order shall issue.

[86] The following is ordered pursuant to the Family Law Act:

(a) The father shall pay to the mother on or before July 1, 2023, an equalization payment of $171,655.18 less $25,551 for post-valuation date adjustments, for a net payment of $146,104.18 rounded to $146,000 (and less any advance funds paid to assist her securing alternate accommodations as per (b) below). The payment of this amount shall take place at the same time that the mother vacates the matrimonial home;

(b) On or before April 1, 2023, the father shall advance to the mother the sum of $6,000 to assist her securing alternate accommodations for herself and the parties’ child, which amount shall be credited to the father’s equalization payment obligation;

(c) The father shall transfer ownership of the 2015 Mercedes ML 350 to the mother by March 10, 2023. He shall sign any documents necessary to ensure that the mother will not pay any sales tax on the transfer. The father shall maintain insurance until the transfer. From the date of the ownership transfer, the mother shall insure the vehicle;

(d) The mother shall vacate the matrimonial home on the date of payment to her of the balance of the equalization payment (as per (a) above) or July 1, 2023, whichever should first occur, but under no circumstance shall she be required to vacate the property if the equalization payment is not paid;

(e) Subject to (d) above, the father shall have exclusive possession of the matrimonial home municipally known as 219 Via Campanile, Woodbridge, Ontario L3H 3J8 effective on the earlier of the date that the mother vacates the matrimonial home or July 1, 2023;

(f) The parties shall complete the family law forms for the family law value of the father’s pension. The parties shall complete the application for the transfer of one half of the family law value to the mother;

(g) The mother shall retain the contents of MB’s bedroom in the matrimonial home. All other contents shall be divided in specie between the parties. If the parties are unable to agree upon a process, they may obtain directions from the court (there may be cost consequences to the parties should either be found to have adopted an unreasonable position).

[87] This is not a case for pre-judgment interest. The mother and child have continued to occupy the matrimonial home since the parties’ final physical separation in late February 2020. The father has continued to pay almost the entirety of costs for the property. It is the parties’ major asset the equity of which will fund the father’s equalization payment.

[88] In the event that directions should be needed to give effect to, or further clarify, these terms, arrangements with the court may be made through the judicial assistant.

COSTS

[89] Given the parties’ divided success in these proceedings[^19], the court is not inclined to award costs to either party. However, if the parties disagree and are unable to resolve costs between themselves, the following directions apply:

(a) The party seeking costs shall deliver their submissions by March 3, 2023;

(b) The responding party shall deliver their submissions by March 10, 2023;

(c) Reply (if any) to be delivered by March 15, 2023;

(d) All submissions shall be single-side page, double-spaced. In the case of (a) and (b) the limit shall be four pages; reply shall be two pages. These submissions shall be filed in the Continuing Record, and a copy of the filed material forwarded to the judicial assistant (Kelsey.Lowes@ontario.ca);

(e) Offers to Settle, Bills of Costs and any authorities upon which a party may wish to rely shall be filed by the above deadlines (also copied to the judicial assistant) but shall not form part of the Continuing Record;

(f) The parties are to advise the judicial assistant when they have filed their materials.

[90] Approval of this Order by the mother is dispensed with. A draft of the proposed final Order may be sent to the judicial assistant for the court’s review and timely issuance.

Justice David A. Jarvis

Date: February 14, 2023

Schedule “A”

1. The father and the mother shall have joint decision-making responsibility for MB and shall make important decisions in relation to the child’s welfare together, including decisions about the child’s health, education and significant extra-curricular activities.

2. The child’s primary residence shall be with the mother.

3. The father shall have parenting time and the child shall reside with the father as follows:

(a) Starting February 17, 2023, every other weekend from Friday at 4:00 pm with pick up from school on school days or from McDonald’s on non school days, to Monday morning drop off at 9:00 am at school on school days or at McDonald’s following the father’s weekend parenting time on non school days; if Monday is a statutory holiday, the weekend shall extend to Tuesday morning at 9:00 am;

(b) Starting February 23, 2023, alternate Thursdays from 4:00 pm with pick up from school on school days or from McDonald’s on non-school days to Friday morning drop off at school on school days or the McDonald’s on non-school days;

(c) Starting February 28, 2023, alternate Tuesdays from 4:00 pm with pick up from school on school days or from McDonald’s on non-school days to Wednesday morning drop off at school on school days or the McDonald’s on non-school days;

(d) Such other times as may be agreed upon between the mother and the father.

4. The parents shall share the March break equally. The week shall start on the Friday and the changeover shall be on the Wednesday at 4:00 p.m. The mother shall have the child in the first half of even-numbered years and the father shall have the child in the first half of odd-numbered years.

5. For the summer months of July and August of each year;

(a)The mother shall have two consecutive weeks and shall give notice of her two weeks by March 15th of each year. The week shall start on the Friday;

(b)The father shall have two non-consecutive weeks. The father shall give notice of his two weeks by April 1st of each year. The week shall start on the Friday.

6. Unless otherwise agreed by his parents, the child shall continue to attend Maple Children’s Montessori school until August 31, 2023 (or such earlier date as the parents can agree). Commencing in September 2023 the child will attend the public school closest to the mother’s home, which shall not be more than 20 minutes drive from the matrimonial home unless the mother and father agree otherwise.

7. Neither parent register the child in any extra-curricular activity that may impact the child’s time with the other parent without that other parent’s written consent.

8. If the child needs emergency medical care while with one of his parents, that parent shall promptly notify the other of the emergency.

9. All care providers for the child shall be provided with a copy of this Schedule so that the care provider can communicate with the father on the same basis as with the mother.

10. Both parents must consent for the purposes of a passport application for the child. The mother shall keep the passport and provide it to the father as may be required for travel purposes. The passport shall be returned to the mother forthwith upon the child being returned to her care.

11. If either parent plans a vacation with the child outside the Province of Ontario, that parent will give to the other parent at least 30 days’ notice before the planned trip, providing flight information (if applicable), the trip itinerary, as well as contact information for the child during the trip.

12. The child may not be taken outside of Canada without the written consent of both parents. For the purposes of the Divorce Act and the Hague Convention on Child Abduction the child’s habitual residence will remain Ontario.

13. If the parents cannot agree about a parenting issue, they shall consider using the mediation services of York Hills Family Mediation Services (or any other mutually agreed mediation service). If either parent is required to start legal proceedings to resolve the issue(s), their willingness to mediate expeditiously may be considered as a factor when dealing with the costs of any such legal proceeding.

14. The mother and father shall each register and attend a parenting course such as Two Home One Family. They shall each attend a program that they register for in-person or as it may be offered. The programs shall be completed by June 30, 2023. A parent who fails to comply with this term may be subject to cost penalties for breach of a court Order if the court is required to consider in future their parenting conduct.

15. Neither parent shall make negative comments about, or disparage, the other parent in the child’s presence. Neither parent shall encourage or permit third parties to make negative comments about, or disparage, the other parent in the child’s presence.

16. The parents shall communicate regarding the child through APCO (Access for Parents and Children in Ontario) or through Our Family Wizard, the initial cost for which shall be paid by the father. Thereafter the expense shall be shared equally by the mother and the father.

Schedule “B”

Court File Number

Superior Court of Justice, Family Court

FC-20-1931

(Name of Court)

at

50 Eagle Street, Newmarket, Ontario L3Y 6B1

Form 13B: Net Family Property Statement

(Court office address)

Applicant

Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

D.B.

Frank Mendicino

Respondent

Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

I.B.

The parties’ names are

D.B. and I.B.

The valuation date for the following material is (date)

October 31, 2019

The date of marriage is (date)

February 21, 2011

Table 1: Value Of Assets Owned on Valuation Date (List in the order of the categories in the financial statement)

PART 4(a): LAND

Nature & Type of Ownership (State percentage interest)

Address of Property

APPLICANT

RESPONDENT

Matrimonial Home

219 Via Campanile, Woodbridge, Ontario

$760,000.00

15. Totals: Value of Land

$760,000.00

$0.00

PART 4(b): GENERAL HOUSEHOLD ITEMS AND VEHICLES

Item

Description

APPLICANT

RESPONDENT

Household goods & furniture

To be divided as per Reasons for Decision

No value included

No value included

Cars, boats, vehicles

2015 Mercedes ML350 (owned by AF on valuation date but to be transferred to RM and value credited to AF as a post-valuation date adjustment)

$25,000.00

Jewellery, art,

AF claims $1,400: RM claims $1,200 (as per Reasons for Decision)

$1,300.00

electronics, tools,

sports & hobby,

equipment

Other special

items

16. Totals: Value of General Household Items and Vehicles

$25,000.00

$1,300.00

PART 4(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS

Category (Savings, Checking, GIC, RRSP, Pensions, etc.)

Institution

Account Number

APPLICANT

RESPONDENT

Chequing account

TDB

*582400

$17.29

Chequing account

CIBC

*7938

($1,564.22)

Business account

CIBC

*7009

$1,912.56

RESP

Term RESP-Family Plan

*8802

$829.20

RESP

Mutual funds-Family Plan

*9603

$11,801.90

TFSA

Saving account*2601

$88.50

17. Totals: Value of Accounts And Savings

$348.34

$12,736.89

PART 4(d): LIFE AND DISABILITY INSURANCE

Company, Type & Policy No.

Owner

Beneficiary

Face Amount ($)

APPLICANT

RESPONDENT

18. Totals: Cash Surrender Value Of Insurance Policies

$0.00

$0.00

PART 4(e): BUSINESS INTERESTS

Name of Firm or Company

Interests

APPLICANT

RESPONDENT

Senada Construction

Unincorporated business (no evidence of value)

Nil

19. Totals: Value Of Business Interests

$0.00

$0.00

PART 4(f): MONEY OWED TO YOU

Details

APPLICANT

RESPONDENT

20. Totals: Money Owed To You

$0.00

$0.00

PART 4(g): OTHER PROPERTY

Category

Details

APPLICANT

RESPONDENT

21. Totals: Value Of Other Property

$0.00

$0.00

22. VALUE OF PROPERTY OWNED ON THE VALUATION DATE, (TOTAL 1) (Add: items [15] to [21])

$785,348.34

$14,036.89

Table 2: Value Of Debts and Liabilities on Valuation Date

PART 5: DEBTS AND OTHER LIABILITIES

Category

Details

APPLICANT

RESPONDENT

Mortgage

Matrimonial home

$317,416.28

Line of Credit

CIBC *3533

$14,926.58

Visa-CIBC *1650

$2,347.63

TD Business

$27,830.95

Car loan (paid by applicant after valuation date)

As per Reasons for Decision

$25,000.00

Notional disposition costs (219 Campanile)

Calculated at 5% on $760,000 plus HST (as per Reasons for Decision)

$42,290.00

Credit card

TD Cash Back Card

$810.34

23. Totals: Debts And Other Liabilities, (TOTAL 2)

$429,811.44

$810.34

Table 3: Net value on date of marriage of property (other than a matrimonial home) after deducting debts or other liabilities on date of marriage (other than those relating directly to the purchase or significant improvement of a matrimonial home)

PART 6: PROPERTY, DEBTS AND OTHER LIABILITIES ON DATE OF MARRIAGE

Category and Details

APPLICANT

RESPONDENT

Value of respondent’s jewellery (as per Reasons for Decision)

$0.00

$1,000.00

3(a) TOTAL OF PROPERTY ITEMS

$0.00

$1,000.00

$0.00

3(b) TOTAL OF DEBTS ITEMS

$0.00

$0.00

24. NET VALUE OF PROPERTY OWNED ON DATE OF MARRIAGE, (NET TOTAL 3)

$0.00

$1,000.00

Table 4: PART 7: VALUE OF PROPERTY EXCLUDED UNDER SUBS. 4(2) OF “FAMILY LAW ACT”

Item

APPLICANT

RESPONDENT

26. TOTALS: VALUE OF EXCLUDED PROPERTY, (TOTAL 4)

$0.00

$0.00

TOTAL 2: Debts and Other Liabilities (item 23)

$429,811.44

$810.34

TOTAL 3: Value of Property Owned on the Date of Marriage (item 24)

$0.00

$1,000.00

TOTAL 4: Value of Excluded Property (item 26)

$0.00

$0.00

TOTAL 5: (TOTAL 2 + TOTAL 3 + TOTAL 4)

$429,811.44

$1,810.34

APPLICANT

RESPONDENT

TOTAL 1: Value of Property Owned on Valuation Date (item 22)

$785,348.34

$14,036.89

TOTAL 5: (from above)

$429,811.44

$1,810.34

TOTAL 6: NET FAMILY PROPERTY (Subtract: TOTAL 1 minus TOTAL 5)

$355,536.90

$12,226.55

EQUALIZATION PAYMENTS

Applicant Pays Respondent

Respondent Pays Applicant

$171,655.18

$0.00

Signature

[^1]: Answer, paragraphs 6 and 20 under “Important Facts”.

[^2]: R.S.C. 1985, c. 3 (2nd Supp.) as amended.

[^3]: “Parenting Plan Guide” (2021), at p. 5, online (pdf), Association of Family and Conciliation Courts (Ontario Chapter).

[^4]: Shaw v. Shaw, 2003 CanLII 64335 (ON SC), [2002] O.J. No. 2782 (S.C).

[^5]: SOR/97-175, as am.

[^6]: 2018 ONSC 4740.

[^7]: Bak v. Dobell, 2007 ONCA 304, 86 O.R. (3d) 196

[^8]: Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730 at para.63.

[^9]: Laramie, at para. 94 above.

[^10]: In 2019 it was 67.7%. The figure was 67.8% in 2020 and 66.2% in 2021. These are calculated by the ratio of the net income divided by the gross income as recorded in the father’s tax returns.

[^11]: This is calculated as follows: ([$1772.88 less $202.68 HST] x 48 weeks).

[^12]: 2002 CanLII 2806 (ON SC), 31 R.F.L. 88 (5th) (SCJ)

[^13]: 2011 ONSC 7670, at para. 21.

[^14]: [2000] O.J. No. 1429 (S.C.J.).

[^15]: 2016 ONSC 6551 at para. 30.

[^16]: The mother’s financial statement dated April 26, 2021, was filed with her Answer. She was represented by counsel then. Her trial financial statement (sworn during the trial) contained no claim for s. 7 expenses either. Her trial statement indicated a $1,300 monthly daycare expense.

[^17]: Dickson v Dickson, 2021 ONSC 7180 at para. 6.

[^18]: 2013 ONSC 5500.

[^19]: The father succeeded in his claim for joint decision-making authority. The mother was unsuccessful in proposing to reduce the child’s parenting time with his father. Neither party was successful in their positions with respect to the equalization payment (the mother thought that she was entitled by marriage to a registered interest in the matrimonial home). Neither party’s position with respect to the income to be imputed to the father was accepted by the court. While the mother’s entitlement to spousal support was upheld, the evidence did not support any amount being awarded to her.