Court File and Parties

COURT FILE NO.: FC-17-2422 DATE: January 20, 2023

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

G.E. Applicant – and – J.E. Respondent

Counsel: Ronan Blake, for the Applicant Jonathan M. Richardson, for the Respondent

HEARD: January 17, 2022, January 18, 2022, January 19, 2022, January 20, 2022, January 21, 2022, January 24, 2022, January 25, 2022, January 26, 2022

THE HONOURABLE JUSTICE MARY A. FRASER

Reasons for Judgment

Part 1: Introduction

[1] The Applicant G.E. (“G.E.”) and the Respondent J.E. (“J.E.”) began to cohabit in 2002. They married on May 28, 2004.

[2] The parties separated in late May or early June 2016. The precise date of the parties’ separation does not impact the findings which need to be made in this proceeding.

[3] G.E. and J.E. have one child, namely, N.E. born in May 2010 (“N.E.”).

[4] G.E. commenced this proceeding in October 2017.

[5] The parties have agreed upon the equalization payment which is to be made by G.E. to J.E. The parties agree that G.E. owes J.E. an equalization payment in the amount of $22,543.04.

[6] Both agree to the granting of a divorce.

[7] The outstanding issues to be determined are the following: a. What parenting arrangement is in the best interests of N.E.? b. Should J.E. be permitted to relocate N.E.’s residence to Sarnia, Ontario? c. Should one or both of the parties have decision making authority with respect to N.E.? d. What should G.E.’s income be for the purpose of determining the appropriate quantum of child support and spousal support? e. Should income be imputed to J.E.? f. What is the appropriate quantum of child support for N.E.? g. What is the appropriate quantum of spousal support for J.E.?

[8] These are my Reasons for Judgment following the trial of that Application and the claim’s set out in J.E.’s Answer and Claim.

[9] For the reasons that follow, I conclude that it is in N.E.’s best interests to remain resident in the Ottawa area. As such I am ordering that N.E.’s residence not be relocated to Sarnia, Ontario.

[10] With respect to parenting time, I conclude that it is in N.E.’s best interests to have generous parenting time with both G.E. and J.E. and that a parenting arrangement similar to that in place at the time, shall, absent agreement by the parties, continue (subject to minor adjustment).

[11] The parties shall additionally share parenting time on special occasions and during holiday periods in the manner I have more particularly set out.

[12] Decision making should be joint.

[13] In regard to child support, there shall be a set off of the table amounts for each parties’ income. The income for this purpose shall be calculated in the same manner as income for the purpose of spousal support. Unless and until further order of this court in the event of a material change in circumstances, no ceiling shall be employed in calculating the Federal Child Support Guideline amount payable.

[14] I conclude that J.E.’s income from the date of separation until the end of 2021 will be as set out in line 150 of her income tax return (less spousal support received). From 2022 forward, I conclude that an income of $35,000 should be imputed to J.E. unless her income exceeds this imputed amount in which instance her actual income shall govern.

[15] G.E.’s income shall be calculated based upon net professional income for any given year except that the amounts paid by G.E. for his life and disability insurance shall be treated as cash flow adjustments “decrease NDI” for the purpose of calculating G.E.’s support obligation. His income shall include overtime worked and post-separation increases in income, unless varied by the Court.

[16] With respect to J.E.’s claim for spousal support, I find that spousal support is payable based both on a needs and compensatory basis. The SSAG formulas will be used to calculate the support payable in any given year, on an indefinite basis. The low end of the SSAG range shall be employed.

Part 2: Background and History of Court Proceedings

[17] G.E. is 44 years old. He is a medical doctor. He works as an Anesthesiologist at the Ottawa General Hospital.

[18] J.E. is 51 years old. At the time of trial, J.E. was not employed. J.E. has a university degree in history from Mont St. Vincent University, Halifax, Nova Scotia. In 2002, J.E. obtained a Certificate in Interior Decorating from Marymount College in the United States. In 2020, subsequent to the parties’ separation, J.E. returned to school and completed a two-year program in interior decorating at Algonquin College in Ottawa.

[19] The parties met in Ottawa at a New Year’s party in the year 2000. At that time G.E. was completing his undergraduate studies at McGill University in Montreal. G.E. commenced his medical studies in Ottawa in the fall of 2000.

[20] G.E. and J.E. began to cohabit in the summer of 2002 once J.E. completed her studies in the United States. The parties were engaged in November 2003. They married in May 2004.

[21] The parties initially lived in Ottawa until the summer of 2004. At that time the parties moved to London, Ontario so that G.E. could complete his residency training in anesthesia. The parties then moved to Ann Arbour Michigan in 2009 for G.E. to pursue a Fellowship in advanced pain management. J.E. left her employment to accompany G.E. Until the move back to Ottawa, J.E. worked sporadically at a number of jobs. However, for the most part, her income was minimal and the geographic moves required for G.E.’s professional development were given priority.

[22] The parties returned to Ottawa when G.E. completed his Fellowship training in 2010. Other than some sporadic, part-time work, J.E. has remained unemployed since the parties moved back to Ottawa approximately six weeks before N.E.’s birth in May 2010.

[23] When the parties returned to Ottawa, they purchased the jointly owned matrimonial home, located at 6736 Suncrest Drive, Greely, Ontario (the “matrimonial home”). They remained in the matrimonial home until the parties’ separation. J.E. has continued to reside in the matrimonial home subsequent to the date of separation up to and including trial.

[24] While G.E. has worked as an Anesthesiologist throughout the marriage, J.E. has remained almost exclusively at home to care for N.E. With the exception of N.E. attending part-time daycare or school, J.E. has, for the most part, cared for N.E. in the matrimonial home while G.E. has worked.

[25] G.E.’s parents reside in the Ottawa area. When N.E. was young, G.E.’s parents would come over on some Fridays to take N.E. for a walk or otherwise occupy him thus giving J.E. a break.

[26] The paternal grandparents also own a cottage close to Ottawa in Wakefield, Quebec. The parties would often go to the cottage for a day each weekend during the summer. N.E. has in this way had the advantage of forming a close relationship with his paternal grandparents and spending time with them. It has always provided N.E. with the opportunity to become close to his cousins.

[27] Despite having an onerous workload as a physician, G.E. was also actively involved as a father and caregiver to N.E. from the time he was a young child. N.E. was an “early rouser” and G.E. would spend time with him prior to leaving for work. He would often prepare a simple breakfast for N.E.

[28] Most evenings when G.E. came home from work, he and N.E. would spend time together. As N.E. grew older, they would frequently engage in outdoor activities, such as biking, sledding or building forts. Indoor activities would often involve playing cards or building N.E.’s electric train set.

[29] G.E. would also help with making meals and he would give N.E. his bath in the evening. It was part of their regular routine for G.E. to then read with N.E., in both French and English and do extra homework with him. Typically, G.E. would then assist N.E. to get ready for bed.

[30] As N.E. has grown older, G.E. asserts that he has been heavily involved in bringing N.E. to his extracurricular activities. He has coached his soccer and volunteered with his ski racing activities.

[31] J.E. was mainly responsible for the day-to-day cleaning in the home, buying groceries, helping with the meal preparation, and laundry. G.E. would share in some household duties such as vacuuming, cleaning, meal preparation, and making minor repairs to the home as needed. G.E. also looked after the yard and outdoor structures.

[32] Both parties initially attended the majority of N.E.’s appointments with his doctor or dentist. N.E. has not had any significant health issues.

[33] G.E. described J.E. as spending her evenings typically watching the news or other programming on television, surfing computer sites such as Pinterest. He testified that J.E. usually stayed inside the home and that she was not as involved with N.E. when they were engaging in outdoor activities.

[34] It is clear that J.E. was at home supporting N.E. while G.E. was working out of the home as the family’s financial provider. It is clear from G.E.’s own evidence that he has worked long and onerous hours. This might be in part due to the expectations of his chosen profession, or in response to the financial burden of supporting his family as well as the extraordinary expense of the IVF treatments. However, whether G.E. felt that he was being called upon to contribute unequally or not, this was their reality. He was working 60 to 70 hours per week. There can be no conclusion but that while G.E. worked these long hours, J.E. was the caregiver for N.E.

[35] N.E. began to attend a day care, “Tiny Hoppers,” in 2004. This provided J.E. with a bit of a break in the daytime and freed her up to get other daily chores done. This also gave N.E. the opportunity to socialize with other children his age. He began attending twice a week and it turned out to be quite beneficial to N.E.

[36] N.E. engaged in various extracurricular activities as he got older. At the age of approximately five years old, N.E. began to play soccer. He has become friends with a number of other neighbourhood boys through this activity. G.E. has often assisted with the coaching on his soccer team.

[37] Prior to the parties’ separation, J.E. would still attend most of N.E.’s soccer games. However, the parties have had difficulty with both attending the games subsequent to their separation. According to G.E., issues began to arise when J.E. would attend a game and then attempt to discuss with G.E. some of the issues arising from their separation. G.E. states that he asked that she not do this as he didn’t feel it was appropriate to have such a discussion in public and he was also afraid N.E. would hear. He asked that if J.E. was not able to focus on N.E. that she not attend. Since then, G.E. has continued to send J.E. the schedule for the games but she has not attended.

[38] In 2019, when N.E.’s year end soccer tournament landed on a Saturday so that it was scheduled during J.E.’s parenting time, G.E. offered to take N.E. or suggested they could both attend and keep their distance from one another. N.E. ended up missing the majority of his year end soccer tournament as J.E. did not allow him to attend the game during her parenting time.

[39] N.E. also participates in skiing. This is another activity N.E. has enjoyed with G.E. since he was about four years old. By age five, N.E. would ski regularly, at least one day per weekend. At age six, he began in the Nancy Greene program at the Edelweiss Alpine Ski club. N.E. joined the U10 program at age nine and he has continued with this program to date. G.E. has ensured that N.E. has been properly equipped to participate in this activity. He has brought N.E. to his training sessions for the majority of time.

[40] G.E. currently brings N.E. to his training on the Sundays but because of the schedule and the fact that N.E. is with his mother on Saturdays, N.E. misses the training on Saturdays.

[41] When J.E. would bring N.E. to ski, N.E. would apparently become too stressed during the drive to the hill and this would result in his not feeling well enough to participate. This is not something G.E. has noted when he has brought N.E. to the hill.

[42] J.E. has been resistant to supporting N.E. with his ski racing. G.E. has felt he has needed to sign N.E. up for these activities without her input or participation. J.E. feels that this was an activity which was essentially imposed upon her. J.E. recalls G.E. advising her that he had signed N.E. up for the ski racing program and expecting her to take N.E. on her days.

[43] J.E. believes N.E. does not mind not going to ski racing on the Saturday’s when he is with her.

[44] G.E. also engages with N.E. in other outdoor activities. He has built N.E. a “ninja line” at both his home and his family’s cottage residence. They go sledding and snow shoeing, build snow forts, play frisbee, and go swimming. G.E. brings N.E. to the cottage owned by his paternal grandparents where they hike, bike, swim, kayak, snorkel and engage in water sports. While J.E. has to some extent participated with N.E. in such activities, it is clear that G.E. is the parent who has actively engaged with N.E. in such activities on a regular basis.

[45] N.E. is presently twelve years old. He has attended the French Immersion program at Castor Valley Elementary School and at the time of trial, was in grade 6. The school is near the matrimonial home in Greely, Ontario. The parties chose this school for N.E. to attend even before N.E. was born based upon its high ratings for early immersion and being in this school’s catchment area influenced their choice when choosing their home in Greely when they first moved to the Ottawa area from Michigan.

[46] N.E. is a strong student academically and works well beyond his grade level. N.E. has done well in the immersion program. He is quite proficient in French despite it being his second language. He fits in well with his peers at school and they have encountered no behavioural problems with him. He has remained at the same school since junior kindergarten.

[47] N.E. has also formed friendships in his present neighbourhood. He has school friends who also live in their neighbourhood. A couple of his friends who play soccer with him were in his class this past year.

[48] There were a number of factors which led to the parties’ separation. G.E. believes that the greatest stress on their relationship arose as a result of their difficulty conceiving children. N.E. was conceived by in vitro fertilization and in 2015 and 2016, the parties were trying to have a second child. This resulted in their having many cycles of in vitro fertilization. J.E. undertook a number of treatments in New York City, then in Toronto, and then in Colorado. This was a huge financial burden. The parties spent over $200,000 on the treatments and this cost was on G.E.’s shoulders alone to bear. He worked a large number of overtime shifts to pay for this expense. It became a significant point of contention between them as G.E. did not wish to continue the treatments while J.E. did.

[49] G.E. and J.E. also agree that they had very different communication styles. As the disconnect grew, they stopped doing much together as a couple.

[50] J.E. felt that the parties’ relationship was beginning to strain in 2014. They were both busy with their respective roles, G.E. at his work, and J.E. looking after N.E. She perceived G.E. to become increasingly distant and that they were no longer spending time together.

[51] Shortly after N.E.’s birthday in May 2016, G.E. informed J.E. that he wished to separate. The parties disagree on the specific date the parties began to live separately. However, they agree that it was either in late May or early June 2016.

[52] The parties initially shared parenting time of N.E. on an informal basis. Since at least March 2017, the regular parenting schedule for N.E. has been as follows: a. G.E. parents N.E. from 4:00 pm on Saturday until Wednesday at 7:00 am; b. J.E. parents N.E. from Wednesday at 7:00 am until Saturday at 4:00 pm.

[53] G.E. works on Mondays and Tuesday at a pain clinic. This allows him to not work overtime on those days so that he is available for N.E.

[54] G.E. currently resides with his current partner, Sofya and Sofya’s daughter Lisa. N.E. was introduced to them in 2017. G.E. began to cohabit with Sofya in 2020.

[55] While G.E.’s family is centred in the Ottawa region, this is not the case with J.E. Her extended family reside in the Sarnia / Windsor area. J.E. grew up there. Her parents separated when she was young. Both her parents still reside in that region. J.E. also has a brother. He lived in Western Canada for many years but has now moved back to Windsor.

[56] During the marriage, the parties visited the maternal grandparents two to three times a year. As a result, N.E. has had the opportunity to form a positive relationship with his maternal extended family as well even if there has not been the opportunity to have the same frequent interaction with his mother’s side of the family that N.E. has enjoyed with his paternal side of the family due to the geographic distance between them.

[57] Because J.E.’s family all reside in the Sarnia area, she wishes to relocate with N.E. to Sarnia. J.E. believes this would be an opportunity for N.E. to get to know his maternal side of the family the way he has gotten to know his paternal side. Because her family is there, this would be a support for her. J.E. maintains that she does not have a support network in Ottawa. G.E.’s family had been a previous support for her. However, J.E.’s relationship with them has become strained due to the proceedings. Part of the conflict arose when G.E. was frequently getting his parents to pick N.E. up when it was G.E.’s parenting time. J.E. objected to this as she felt that if a parent was not available to parent, the other parent should have the benefit of this time.

[58] J.E. has also found that her employment prospects in Ottawa are restricted because she is not fluent in French. J.E. has made some job applications subsequent to the parties’ separation - to work in a kitchen, housekeeping, home staging position, and home design stores. Other than a few interviews, none have yet resulted in her finding employment.

[59] This prompted J.E. to return to upgrade her qualifications and therefore attended Algonquin college in 2018. She graduated in 2020.

[60] One issue she has been encountering in the Ottawa area is that most businesses expect employees to be bilingual. She believes her employment prospects would be better if she were to relocate to Sarnia. She has not, however, found employment there nor does it appear that she has actively searched.

[61] J.E. believes that a move with N.E. to the Sarnia area would also relieve the parties from the disputes caused from the need for frequent interaction and resulting conflict.

[62] She points out that N.E. can still continue French immersion if he chooses in the schools there and that Michigan has several ski hills within an hour’s driving distance.

[63] Sarnia and Windsor are border towns. N.E. has extended paternal family in the United States. J.E. believes that N.E. would therefore have opportunities to explore the United States if his relocation to Sarnia were to be permitted.

[64] The parties introduced a large number of their email and text communications into evidence at the trial. It is clear based upon these communications that both have struggled with keeping their anger and frustration with each other contained and both have allowed it to colour their communications.

[65] J.E. finds many of G.E.s communications to be lengthy and insulting. J.E. acknowledges that G.E. needs to have responses to his communications more immediately. She finds his communications to often be overly critical, hostile and demanding. She finds it difficult to read these texts and respond.

[66] J.E. has attempted to improve their difficulty communicating by taking two communications classes and she reads self-help books in the hope of getting advice to improve their communications. She believes this has helped her to become clearer in her communications.

[67] While J.E. has tended to shut down and refuse to communicate, she has many times communicated through email or text in a manner which evidences her disappointment with how the marriage ended and her perception that G.E. has not been respectful to her.

[68] G.E. asserts that J.E. frequently does not respond to his text communications and while they always had issues with communication, he feels it has been more pronounced subsequent to the parties’ separation.

[69] Based upon the texts and emails produced at trial, G.E. shown himself to be prone, in his communications, to making assertions which are critical and patronizing of J.E. He makes statements to J.E. such as, “it’s time to move on…I am not going to spend my life arguing with you about how many sides there are on a circle;” “given you contribute zero…;” “free ride;” “get a grip.”

Voice of the Child

[70] Valerie Morinville (“Morinville”), was jointly retained by the parties to interview N.E. and provide a “Voice of the Child Report.” She gave evidence as a joint witness. Morinville is an accredited family mediator and a custody assessor. She conducts parenting plan assessments and Voice of the Child reports. She has a Bachelor of Arts majoring in psychology and her Masters of Social Work. She has been conducting assessments and Voice of the Child reports for at least the past ten years.

[71] Morinville was made aware of the parenting issues in this proceeding by way of intake forms completed by both parties. She then met with N.E. on two occasions, August 25, 2021 when J.E. brought N.E. to the interview, and then on September 14, 2021 when G.E. brought N.E. to the interview.

[72] Morinville found N.E. to be very articulate, with a large vocabulary and a good command of language.

[73] An initial concern which arose from these interviews was Morinville’s understanding that N.E. was not sleeping in his own bed when at his mother’s home and that not only was there a concern as to whether sleeping on his own was not encouraged but that N.E. did not have an appropriately private space to do so when at J.E.’s home.

[74] Morinville expressed concern that N.E. reported knowing stories of how J.E. felt she was treated by the paternal extended family during the relationship. She suspected that perhaps J.E. has shared these stories in an effort to validate N.E.’s complaints of not being listened to by G.E. She points out that there were healthier ways to approach validating N.E.’s feeling.

[75] Morinville also questioned whether N.E. was treated like a confidante by his mother at times and she was of the view that it was not developmentally appropriate for N.E. to know what his mother thought of his father, or his father’s new partner.

[76] Morinville concluded that N.E. has felt caught in the middle and she felt that both parents seem to be responsible for this. Both have “overshared” their thoughts with N.E. respecting disagreements they have had with the other.

[77] N.E. also raised with Morinville that he does not feel listened to by his father. He clearly felt that J.E. respects his opinion more. Morinville concluded that G.E. ought to consider N.E.’s perspective more often.

[78] N.E. also expressed a negative perception of G.E.’s partner, Sofya. He feels that she played a role in the demise of his parents’ marriage and Morinville did feel that N.E. likely felt abandoned by his father as a result of the attention given to Sofya and that N.E. might benefit from some therapeutic help to understand that it is not an “all or nothing” situation.

[79] Morinville advised that N.E. does not want a parenting arrangement which would involve his living with one parent during the school year and seeing the other during the summer vacation period. This being stated, he also informed Morinville and she found it concerning that he was prepared to live with whatever option might reduce the conflict between his parents and bring “peace” to his life.

[80] Ultimately, Morinville’s findings were as follows: i) N.E. wishes his parents would stop fighting; ii) N.E. does not want to know what his parents are arguing about and being caught in the middle; iii) N.E. does not want to carry messages between his parents; iv) N.E. feels very secure in J.E.’s care and that she is sensitive to his needs and listens to him; v) N.E. does not feel heard at G.E.’s house; vi) N.E. would like G.E. to give him more choices, about what to eat, activities to do, gifts purchased or bedtime; vii) N.E. wishes G.E. was more prompt in ensuring that N.E. had appropriate clothing and footwear at G.E.’s home; viii) N.E. enjoys skiing. He would like to continue to participate and would like J.E. to facilitate this. He is not participating only because his father wishes him to. ix) N.E. wishes to spend time with each parent on a regular basis. He does not want to live far away from one parent; x) N.E. would like both his parents to respect his capacity to form his own opinions and express them.

Support

[81] There is no formal order or agreement in place respecting support. However, since January 2018 until the end of 2021, G.E. has paid to J.E. the following: a. G.E. has paid the following yearly amounts of child support to J.E.: i. 2017 - $0 (for November to end of that year) ii. 2018 - $33,500 iii. 2019 – $28,800 iv. 2020 – $17,700 v. 2021 – $18,000 b. G.E. has paid the following yearly amounts of spousal support to J.E., which amounts have been deducted from G.E.’s taxable income and included in J.E.’s taxable income for each year: i. 2017 - $10,042.29 (from November to end of year) ii. 2018 - $90,215.19 iii. 2019 - $77,569.04 iv. 2020 - $70,550.17 v. 2021 - $69,069.86

[82] A key issue in this proceeding concerns how the income for both parties is to be determined.

[83] J.E.’s reported line 150 income has been as follows: 2014: $1.00 2015: $7,220. 2016: $860. 2017: $10,667 (includes support of $10,042.29) 2018: $92,835 (includes support of $90,215.19) 2019: $77,802.44 (includes support of 77,569.04) 2020: $72,932.67 (includes support of $70,550.17)

[84] G.E.’s net (line 150) income has been the following: 2012: $483,755.00 2013: $472,964.00 2014: $447,321.00 2015: $462,936.00 2016: $448,002.00 2017: $441,531.00 2018: $366,878.00 2019: $406,396.00 2020: $502,622.00 2021: $384,887.00

[85] Included in the expenses claimed by G.E. from his gross professional income in determining his net income have been the following: medical fees/dues and professional insurance costs, motor vehicle expense, telephone and utilities, paging system, home office expenses, and a fraction (10%) of his heat, electricity, insurance, maintenance and mortgage interest at his residence. He has also had the advantage of claiming a capital cost allowance for certain office equipment (ie. Ipad, office equipment, office chair, lead jacket, x-ray vest).

[86] In 2020, G.E.’s income grew as he took over as chair of his business group. He was paid for some additional anticipated hours and he was also paid for some hours he worked to temporarily replace a retired colleague.

Analysis

Mobility and Parenting Time

[87] The Divorce Act R.S.C. 1985, c. 3 (2nd Supp.) (“Divorce Act”) sets out a non-exhaustive list of factors to be considered when determining whether it would be in the best interests of a child to permit a parent to relocate with that child. These provisions are to be considered in conjunction with the additional factors to be considered when making a parenting order. This framework of analysis, as codified, replaces the common law test set out by the Supreme Court of Canada in Gordon v. Goertz, [1996] S.C.J. No. 52.

[88] Section 16.92 provides as follows: 16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16, (a) the reasons for the relocation; (b) the impact of the relocation on the child; (c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons; (d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement; (e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside; (f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and (g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance. (2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

[89] In determining the best interests of the child regarding relocation, section 16.92 requires the court to also take into consideration the factors referred to in section 16 which states as follows: 16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order. (2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. (3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including (a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (d) the history of care of the child; (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child’s care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. (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. (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. (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.

[90] The legislation sets out a complete guide for the court to follow when faced with these very challenging applications. Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If a parent is permitted to move with the child, inevitably the relationship between the other parent and the child will be affected and may suffer. Typically, the court attempts to balance the custodial parent’s legitimate interest in relocating with the non-custodial parent’s legitimate interest in maintaining a relationship with the child.

[91] In every case, the ultimate question is what is in the best interests of the child.

[92] On the evidence introduced at trial, I find the following: (a) Both parties clearly have a close and loving relationship with N.E. (b) Both parties are capable and willing to provide N.E. with a stable and caring home. (c) Both parties have demonstrated flexibility and an obvious desire to accommodate what might be best for N.E. at any point in time. (d) While it is clear that both parties are continuing to pursue what is best for N.E., they differ in their perception of what that would be. I do not question that both parties take their position in good faith, believing they are promoting what is in N.E.’s best interests. (e) N.E. has been accustomed to have frequent, quality contact with both of his parents both prior to and subsequent to the parties’ separation. (f) N.E. has resided in the same house and neighbourhood his whole entire life. He has attended the same school throughout. (g) N.E. has been primarily cared for by J.E. while G.E. has worked onerous hours as a medical doctor. However, G.E. has also been an active and engaged parent to N.E. throughout. (h) The parties have shared the parenting of N.E. since the parties’ separation. (i) N.E. does not wish to relocate if such a move entails his seeing one of his parents less frequently. (j) N.E. has a positive and loving relationship with a number of extended family members, on his paternal side, who are located in the Ottawa region. The move inevitably negatively impacts N.E.’s ability to have frequent and ongoing contact with his extended paternal family. (h) Given that G.E. has played an active role in N.E.’s day-to-day life, the proposed move would significantly impact the amount of time they would spend together. A move to Sarnia would create an enormous gap in the personal contact between G.E. and N.E. Communicating with his father over the internet could not replace the consistency and frequency of contact that N.E. has come to know and enjoy with G.E. (h) G.E. has principally supported N.E.’s involvement in extracurricular sports and activities. The proposed move would disrupt and negatively impact the level of interaction they have enjoyed together with these activities and would likely interfere with N.E.’s continued involvement in these activities. (j) J.E. has not presented any evidence which sufficiently supports the reasons for her move. Her stated purpose in relocating is to find employment and to be closer to her family. While N.E. would clearly benefit from J.E. pursuing employment opportunities, there is insufficient evidence to satisfy me that a move of this distance would actually improve or be necessary to achieve this desired objective. Further, J.E.’s desire to be closer to her family, while understandable, is not, from a child-centred perspective, of sufficient benefit to N.E. to outweigh the loss N.E. would feel in being separated from G.E. and his extended paternal family. They are the individuals with whom N.E. has been accustomed to having frequent and ongoing contact. (i) No evidence was led which would suggest that either party had conducted themselves in a manner which could be seen as “family violence.” I do not find this factor therefore impacts the ability of either party to parent N.E.

[93] Both parties have, at times, struggled as a result of their differing perceptions as to what is in N.E.’s best interests. However, these instances have not been major and in my view they are not sufficient to justify excluding the other from the very positive shared role they each play in N.E.’s life. Notwithstanding difficulties in their communication, I am satisfied that the parties are capable of the level of communication and coordination between necessary to coordinate N.E.’s schooling, medical appointments and extra-curricular activities.

[94] In taking into account N. E.’s physical, emotional and psychological safety, security and well-being as set out in subsection 16(2), and on the evidence presently before me, I find that a relocation to Sarnia would be a significant disruption in N.E.’s life and would not be in his best interests.

[95] Further, I conclude that the equal-parenting time arrangement which has been implemented by the parties following their separation continues to be in N.E.’s best interest and should continue, subject to minor changes only.

[96] It is important for J.E. to be able to travel to Sarnia and for N.E. to travel with her. N.E.’s relationship with the maternal relatives is important. The shared parenting arrangement which has otherwise worked for the parties has proven to be an obstacle to travelling and spending some time in Sarnia in this respect. My order with respect to the sharing of Christmas, long weekends and the summer vacation attempts to accommodate some travel so that J.E. can bring N.E. to spend time with her family.

Decision making

[97] Both parties should share decision making. With the day-to-day decisions, each party shall have the exclusive authority to make the day-to-day decisions during the time N.E. is in their care.

[98] With respect to the more substantial issues (ie. medical and decisions concerning N.E.’s education), I am satisfied, once again, that the parties have both demonstrated a sufficient ability to communicate well on the more significant issues and the decision making should remain shared.

[99] With respect to N.E’s extracurricular activities in particular, both parties are to take into consideration N.E.’s views on whether he wishes to participate in a particular activity and whether he shall participate during their time with N.E. Ultimately both parties shall retain the ability to decide upon whether N.E. shall participate in a particular activity during their parenting time with N.E.

Spousal support

[100] G.E. does not dispute J.E.’s entitlement to support. That said, he disputes the quantum claimed by J.E. based upon the argument that his income should not include certain sources of income or post separation increases. He seeks to exclude from the calculation of his income amounts properly deducted from his gross professional income, overtime earned, and the income generated as a result of his position as chair of his business group of physicians. He also argues that the SSAG formula should be capped at $ 350,000.

[101] J.E. takes the position that both spousal and child support should be calculated based upon G.E.’s gross professional income for any given year, less his association fees, membership dues, and CMPA expenses for a given year. Additionally, she takes the position that the amounts paid by the Applicant for his life and disability insurance shall be treated as cash flow adjustments “decrease NDI” for the purpose of calculating the Applicant’s support obligation.

[102] The relevant provisions in section 15.2 of the Divorce Act provides as follows: 15.2 Spousal Support Order – (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. (3) TERMS AND CONDITIONS – 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 eh order as it thinks fit and just. (4) FACTORS -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. (6) OBJECTIVES OF SPOUSAL SUPPORT ORDER – 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 souses 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 ariasing 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.

[103] These statutory objectives must be considered when the court considers entitlement, quantum, and duration of spousal support.

[104] I first propose to address my views with respect to J.E.’s entitlement. While G.E. does not dispute J.E.’s entitlement, its basis needs to be considered nonetheless as it can impact any determination of quantum and duration of support.

[105] In the leading Supreme Court of Canada decisions of Moge v. Moge, [1992] 3 S.C.R. 813, and Bracklow v. Bracklow, [1999] 1 S.C.R. 420, the court held that spousal support entitlement must be determined in accordance with the Divorce Act with consideration to the following models: (1) compensatory support, which primarily relates to the first two objectives of the Divorce Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support. Entitlement may be established on more than one ground.

[106] In Bracklow, at para. 23, the court emphasized the needs-based model of support, where the primary burden of meeting the needs of the spouse falls on the former spouse rather than the state. Support is aimed at narrowing the gap between the parties’ needs and means upon a breakdown of the marriage.

[107] On the other hand, 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. Compensatory support recognizes sacrifices, contributions, and benefits of the parties during their interconnected economic lives.

[108] Moge and Bracklow set out the following examples of compensatory support: a) A spouse's education, career development or earning potential have been impeded as a result of the marriage because, for example: a) A spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing a career or economic independence to provide care for children and/or spouse; b) A spouse's education or career development has been negatively affected by frequent moves to permit the other spouse to pursue these opportunities; c) A spouse has an actual loss of seniority, promotion, training or pension benefits resulting from absence from the workforce for family reasons; d) A spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or career development.

[109] The Spousal Support Advisory Guidelines (“SSAG”) set out following examples of economic disadvantage:

1. Home with children full-time or part-time;
2. Secondary earner;
3. Primary caregiver of the children after separation;
4. Moving for payor’s career;
5. Support for payor’s education or training;
6. Working in family business.

[110] In Bracklow (para 32), the Supreme Court stated, that while it is important to acknowledge and encourage self-sufficiency, it is also critical to recognize that “the goals of actual independence are impeded by patterns of marital dependence.” The Court also stated that marriage is an “economic partnership” based on mutual support.” The legislation requires courts to consider compensatory factors and the “needs” and “means” of the parties. “It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court”.

[111] Further, the Supreme Court stated that “Even if a spouse has foregone no career opportunities or has not otherwise been handicapped by the marriage, the court is required to consider that spouse’s actual ability to fend for himself or herself and the effort that has been made to do so, including efforts after the marriage breakdown”. The Court states that the legislation requires a consideration of the parties’ financial positions “not just those related to compensation”. The provisions of the Divorce Act require the court to consider the “condition, means, needs and other circumstances of each spouse”. “…they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application” (see: Bracklow, para 40).

[112] Therefore, all of the statutory objectives must be considered as no one objective is paramount, but the court has discretion to determine the weight that should be placed on each objective based on the parties’ circumstances.

[113] In Moge (para 870), the court stated that “the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution”.

[114] J.E.’s career advancement became secondary to that of G.E.’s upon their marriage. J.E. moved to accommodate G.E.’s career development, first to London and then to Michigan and then to Ottawa. Timing was everything. J.E. was mobile and easily able to follow G.E. but this was at the cost of her own ability to develop a career. Any employment opportunities were, as a result of the moves, short term in their nature. Then, upon settling in Ottawa, J.E. immediately gave birth to N.E. She then remained in the home throughout the marriage. Not only was she in the home to support G.E.’s onerous work schedule, but she cared for N.E. during his early years in particular.

[115] Further, the parties were trying to grow their family. It made sense that the parties were not focussed at that time on J.E.’s career development. G.E. worked long hours to afford the cost of in vitro fertilization. While this became a source of stress on the marriage, this was their reality. These were the respective roles each undertook. J.E.’s career development or earning potential was therefore impeded as a result of the marriage. The career she would have otherwise “launched” when she first met G.E. simply did not get started. Instead, she moved to accommodate and support G.E.’s education and development. She then withdrew from the workforce to care for N.E. and support G.E.’s demanding career.

[116] Fast forward to the parties’ date of separation. J.E. now finds herself having been out of the work force for a period of approximately 14 years. She settled with G.E. in the Ottawa region and she therefore finds herself faced with the further challenge of securing employment in a region where bilingualism is a definite asset. Given G.E.’s position on her request to locate with N.E. to Sarnia, and my findings on that issue, her employment prospects are made more difficult because her option to move outside the Ottawa region is not realistic.

[117] J.E. is unable to become self-sufficient. I conclude that J.E.’s entitlement to spousal support is premised on both a compensatory and non-compensatory basis.

Duration and quantum

[118] Duration and quantum of support are separate and interrelated tools available to courts to best achieve the purposes of an Order for spousal support, which are to: i. recognize any economic advantages or disadvantages to the spouse arising from the marriage or its breakdown; ii. apportion between the spouses any financial consequences arising from the care of any child over and above any obligation for the support of any child; iii. relieve economic hardship of the spouses arising from the breakdown of the marriage; and iv. promote economic self-sufficiency of each spouse within a reasonable period of time.

[119] The SSAG, while only advisory, are a useful starting point to assess the quantum and duration of spousal support, once entitlement is established.

[120] The SSAG formulas when the payor’s income is above $350,000 are not presumptive. The formulas in such instances are not to be applied automatically even though they may be appropriate in an individual case (see: J.E.H. v. P.L.H. 2014 BCCA 310, leave to appeal to SCC refused [2014] S.C.C.A. No. 412).

[121] Where income is far above the $350,000 “ceiling”, support will usually be based on the low end of the SSAG range (see: Climans v. Latner (2019), 21 R.F.L. (8th) 96 (Ont. S.C.J.), aff’d (2020), 45 R.F.L. (8th) 283 (Ont. C.A.); Derbyshire v. Derbyshire, 2016 CarswellOnt 11992 (S.C.J.), aff’d 2017 CarswellOnt 16594 (C.A.); M.T. v. J.S., 2018 CarswellBC 909 (S.C.).

[122] In my view, the SSAG continues to be the appropriate formula by which spousal support should be calculated in this instance. G.E.’s income may be greater than $350,000, but not exceedingly so. The low end of the SSAG range should be employed. It should be indefinite in duration but subject to review in 10 years or in the event of a material change in circumstances.

G.E.’s Post-Separation Increases in Income

[123] G.E. submits that his post-separation increases in income as well as the income he earns as the Chair of his business group and his overtime should not included in the calculation of income for the purposes of support.

[124] A recipient spouse is not automatically entitled to increased spousal support based on a payor spouse's post-separation increase in income (Patton-Casse v. Casse, 2012 ONCA 709 (C.A.), at paras, 26-27; Carr v. Condon, 2017 ONSC 173 (S.C.J.), aff'd 2018 ONCA 509 (C.A.); Choquette v. Choquette, 2018 ONSC 1435 (S.C.J.), aff'd 2019 ONCA 306 (C.A.)). The question of whether there should be a sharing of post-separation income increases is not an "all or nothing" matter. Partial sharing of such increases, and/ or sharing for a specified period of time, are issues that the court should also consider when the issue arises (Fisher, at para. 89; Frank; Helle v. Helle, 2019 BCCA 97 (C.A), at para. 38).

[125] The determination of whether there should be any sharing of income increases, and if so the extent of any such sharing, must take place within the framework of the general spousal support objectives and factors set out in the relevant legislation. Accordingly, in a proceeding governed by the Divorce Act, the factors and objectives outlined in section 15.2(4) and (6) must inform the overall analysis.

[126] In Want v. Gauthier, 2021 ONSC 7595, the court set out the factors which should be considered when deciding whether a spouse should share in the other spouse’s post-separation increases in income: (a) Is there a link between the recipient spouse’s efforts and the post-separation increases in income. The recipient spouse will usually be permitted to share if they can demonstrate that they made contributions that can be directly linked to the increased income. If there is a link which includes the recipient spouse’s direct and indirect contributions, then the recipient spouse’s spousal support is based on a compensatory elements and he/she will be entitled to share in some or all of the post-separation income. (b) Did the recipient spouse sacrifice their own career for the benefit of the other’s career advancement. While the sharing of post-separation income increases is not necessarily dependent on the recipient spouse having sacrificed their own career advancement during the relationship for the benefit of the payor spouse's progression in their career. However, evidence that they did so is a further factor that may support a sharing of the increases. In these cases, the general strength of the compensatory claim is an important factor. The analysis should therefore include consideration of the length of the relationship, the extent of the recipient's contributions and sacrifices both during the relationship and post-separation and the duration of time during which those efforts and sacrifices were made. (c) What length of time has elapsed since the date of separation. The closer the temporal link, the more likely it is that the court will find that the recipient's efforts supported the other party's post-separation financial success. (d) What was the reason for the subsequent income increase (new job vs. promotion with same employer, or career continuation vs. new venture). The court must consider whether the change in position was attributable to the knowledge, skills and experience that the payor had acquired during the relationship with the support of the recipient's efforts. (e) Are there other compensatory elements. While there may be a weak link between the recipient wife’s efforts, e.g. he/she made no sacrifices, did not lose career opportunities, did not move for the spouse’s career, there may still be elements of a compensatory nature, such as the career trajectory started during the marriage. In these cases, the recipient spouse may be entitled to share in some of the post-separation income increases. (f) Is there a strong non-compensatory claim, seen for example in some cases of long-term relationships and disability or illness. These cases open the possibility for the sharing of the post-separation income. (g) Would the sharing of post-separation increases of income meet the objective of maintaining a reasonable standard of living, as measured by the standard enjoyed during the relationship. (h) Did the income increases take place closer to separation and reflect a continuation of previous employment, training and experience during the relationship. (i) Was the increase in income is primarily attributable to the payor's decision following the separation to increase their work effort through means such as working more overtime, accepting work that is more lucrative but involves significant personal sacrifices or taking on extra jobs. These types of circumstances may support no sharing, or only partial sharing, of income increases following the termination of the relationship.

[127] I find it appropriate that J.E. be entitled to share in G.E.’s post-separation increases in income to date for the following reasons: a) J.E. is entitled to spousal support on a compensatory basis; b) Increases in income are due to his work as a doctor at the hospital in the same manner he experienced increases throughout the marriage; c) Additional income derived from the income earned as chair of his business group is closely connected to and a natural progression from his work throughout the marriage. His opportunities have about as a result of his successful career that he built throughout the marriage; d) This was a relationship where the parties’ personal and financial affairs were completely integrated; e) The increases have occurred in the years closely following the parties’ separation; and f) No intervening change in G.E’s career was responsible for the increases.

Expenses deducted from G.E.’s gross profession income

[128] In my view the expenses deducted from G.E.’s gross profession income are fair, legitimate and reasonable. I would not, in calculating G.E.’s income, require that any of those deductions be added back to his income to determine his net income.

Imputing Income to J.E.

[129] G.E. submits that an income of $30,000 to $40,000 be imputed to J.E.

[130] The same test for imputing income in child support cases as set out in Drygala v. Pauli (2002), 61 O.R. (3d) 711 (Ont. C.A.) applies in spousal support cases. In Drygala, the Court of Appeal held that the court must consider the following three questions under s. 19(1)(a) of the Child Support Guidelines when someone is claiming that the payor of child support is “intentionally underemployed or unemployed”:

1. is the parent intentionally underemployed or unemployed?
2. if #1 is “yes”, then is the intentional underemployment or unemployment required because of reasonable educational needs?
3. if the answer to #2 is no, what income is appropriate to impute in the circumstances to the payor?

[131] The Court of Appeal decided that the court did not have to find a specific intent to evade child support obligations before income can be imputed.

[132] The “burden of proof” is on the parent claiming that the other parent should be imputed income. The court will look at the payor’s “age, education, experience, skills and health” and possibly their historical income earning record, among other things, in determining how much income to impute.

[133] In the circumstances of this case, I consider it appropriate to impute income to J.E. in the amount of $35,000 per annum commencing in 2022. Given she used the initial period of time post-separation to return and update her education, I do not consider it appropriate to impute income to J.E. when making the retroactive calculations before 2022.

Child support

[134] Section 4 of the Federal Child Support Guidelines (SOR/97-175 as amended) (the “Guidelines”) provides that a court can calculate child support for a parent who earns over $150,000 by: a) either applying the Table amount, or b) if that’s “inappropriate,” another amount based on the circumstances of the child(ren) and the parent’s financial resources and any section 7 expenses.

[135] The Supreme Court of Canada in Francis v. Baker, [1999] S.C.J. No. 52, 50 R.F.L. (4th) 228 (SCC) held that there is a presumption that the Table in the Guidelines is appropriate to calculate child support even where the payor’s income is over $150,000 and the burden of proof to convince a court otherwise is on the payor of child support. The court was more concerned with whether the amount in the Table was so more than a child’s reasonable needs that it no longer qualified as child support. In that case, the Supreme Court of Canada upheld the Trial Judge’s decision to order the payor pay Table child support of $10,034 for two children based on his income of $945,538.

[136] I am not satisfied that the table amount which is calculated based upon G.E.’s income would be inappropriate in this instance.

[137] Child support shall be calculated based upon a set off of the parties’ respective incomes. The parties’ incomes for the purpose of calculating the child support payable shall be determined in the same manner as is set out by me for the purpose of calculating the quantum of spousal support payable and in accordance with section 4 (a) of the Guidelines.

Disposition

[138] Based upon the above findings, there shall be an Order as follows:

Decision-making

1. The parties shall share decision-making responsibility for the child of the marriage, N.E., born May 16, 2010;
2. Prior to making a decision for N.E., the parties shall exchange all necessary information required to make the decision, including any recommendations from treating professionals or teachers, to ensure both parents can make an informed decision;
3. For the purpose of these communications, the parties shall use the computer App “Our Family Wizard” or comparable application to communicate regarding N.E. They shall share the cost.
4. Each party shall have the right to contact and obtain information relating to N.E. from their third party care givers involved with N.E., including but not limited to care providers, medical professionals, and teachers.
5. With the day-to-day decisions, each party shall have the exclusive authority to make the day-to-day decisions during the time N.E. is in their care.
6. With respect to more substantial issues concerning N.E.’s medical and decisions concerning N.E.’s education, the decision-making should remain shared. Both parties are to take into account N.E.’s views and preferences, when appropriate.
7. J.E. shall keep N.E.’s birth certificate, health card and vaccination records, and will provide G.E. with notarized photocopies of them.
8. With respect to N.E’s extracurricular activities, both parties shall continue to share decision-making. They are to take into consideration N.E.’s views on whether he wishes to participate in a particular activity and/or whether he shall participate in the activity during the time he is with one party or the other. Ultimately both parties shall have the ability to decide upon whether N.E. shall participate in a particular activity during their parenting time with N.E.
9. Neither party shall require the consent of the other to provide such directions to the school / school bus regarding N.E.’s travel arrangements to that party’s residence during the time N.E. is with them.

Mobility

10. J.E. shall not relocate N.E.’s residence from the Ottawa region.

Parenting time

11. The parenting time schedule shall, unless agreed /amended in writing by both parties, be as follows: a) N.E. shall be in G.E.’s care from Saturday at 7:00 pm until Wednesday at 7:00 am.; b) N.E. shall be in J.E.’s care from Wednesday at 7:00 am until Saturday at 7:00 pm. c) Each party shall be responsible for transporting N.E. to his parenting time with the other party, unless the parties agree upon a different arrangement. d) The parties shall alternate March break of each year with J.E. having N.E. for the full of the March break with her for 2023 (unless the parties agree otherwise); e) Each party shall be permitted to have two weeks of vacation with N.E. during the summer. These weeks may be scheduled consecutively or non-consecutively. The parties shall alternate who is to have the first choice of weeks with G.E. shall have the first choice of weeks for 2023 and J.E. having the first choice of weeks for 2024. The person with the first choice shall inform the other of their intended weeks at the earliest reasonable opportunity but in any event no later than 4 weeks in advance of the summer break. In turn the other party shall inform of their chosen weeks no later than three weeks prior to the summer break; f) N.E. shall stay with G.E. on Easter weekend on odd-numbered years and with J.E. on even-numbered years (from after school Thursday until the start of school the following Tuesday); g) N.E. shall stay with J.E. on Thanksgiving weekend on odd-numbered years and with G.E. on even numbered years, from after school on the Friday before the Thanksgiving weekend until the start of school the following Tuesday. In the event there is a school PA day on the Friday before Thanksgiving weekend, it shall be included in the weekend so that the party having N.E. with them shall have N.E. from Thursday after school; h) The parties shall share the Christmas holiday school break equally. G.E. shall have the first week in 2023 and with J.E. having the first week in 2024 (unless the parties’ agree otherwise).

Child and Spousal support

12. In regard to child support, there shall be a set off of the table amounts for each parties’ income. The income for this purpose shall be calculated in the same manner as income for the purpose of spousal support.
13. Unless and until further order of this court in the event of a material change in circumstances, no ceiling or cap shall be employed in calculating the Federal Child Support Guideline amount payable.
14. J.E.’s income from the date of separation until the end of 2021 will be as set out on line 150 of her income tax return. From 2022 forward, I conclude that an income of $35,000 should be imputed to J.E. unless her line 150 income is higher.
15. G.E.’s income shall be calculated based upon his net professional income as set out on line 150 of his income tax return. The amounts paid by G.E. for his life and disability insurance shall be treated as cash flow adjustments “decrease NDI” for the purpose of calculating G.E.’s support obligation. His income shall include overtime worked and post-separation increases in income, unless and until varied by the Court.
16. The SSAG shall be used to calculate the spousal support payable in any given year, on an indefinite basis. The low end of the SSAG range shall be employed.
17. Spousal support shall be payable indefinitely, subject to variation in the event of a material change in circumstances and also subject to review after ten years following the parties’ date of separation.
18. The parties shall within 15 days of this judgment submit calculations to me based upon the method of calculation the parties’ income set out above so that an order for spousal and child support can be incorporated into the final order. This shall include calculations of retroactive support owing.
19. The retroactive lump sum support shall be discounted by 53.53% to account for G.E. top marginal tax rate.
20. The parties shall exchange their Income Tax Returns and Notices of Assessment annually and no later than by June 1 in a given year for the prior tax year.

Equalization

21. On consent, G.E. shall pay J.E. an equalization payment of $22,543.04. This equalization payment accounts for the Audi vehicle that was transferred into J.E.’s name by G.E. The equalization payment shall be paid from G.E.’s share of the proceeds from the sale of his interest in the matrimonial home as provided herein.

Matrimonial home

22. On consent, and unless the parties agree within 30 days to an arrangement which would have J.E. purchase G.E.’s interest in the matrimonial home, being 6736 Suncrest Drive, Greely, Ontario, K4P 0B3, then it shall be sold pursuant to section 2 of the Partition Act, R.S.O 1990, c. P.4. The matrimonial home shall be listed within 30 days of this order with a real estate agent acceptable to both parties, at a listing price recommended by that listing agent.
23. Upon the sale of the matrimonial home, the net sale proceeds shall be divided as follows: (a) J.E. shall be paid her one-half share of the proceeds; (b) G.E.’s one-half share of the proceeds shall be disbursed as follows: i. $22,543.04 shall be paid to J.E. to account for the adjusted equalization payment from G.E.’s share; ii. The arrears of support owing to J.E. by G.E. shall be paid to J.E.; iii. The remainder shall be paid to G.E.

Costs

24. If the parties are unable to agree on the issue of costs, I shall receive brief submissions of no more than three pages in length plus attachments, together with a bill of costs and any pertinent offers to settle from G.E. within 30 days of the release of this decision, and from J.E. on the same basis within 14 days thereafter, with G.E. having a five day right of reply.

Justice M. A. Fraser

Released: January 20, 2023