COURT FILE NO.: FC-22-1333 (Hamilton UFC)
DATE: 2023/12/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANA BELLA DISLA AYBAR
Applicant
– and –
JEISER RAOLI VILLALONA DURAN
Respondent
Self-Represented
Self-Represented
HEARD: October 6 – 8, 2023
BREITHAUPT SMITH, J.
REASONS FOR JUDGMENT
[1] Throughout these reasons for judgment, I refer to the Applicant, Anna Bella Disla Aybar, as “Mother” and to the Respondent, Jeiser Raoli Villalona Duran, as “Father.” To their great credit, the parties were able to resolve decision-making for their two children and to reach a schedule addressing all holidays and special days except for Hallowe’en. These terms were incorporated, on consent of both parties, into my Endorsement of October 6, 2023. I would also acknowledge that, other than certain moments when Father became sarcastic and aggressive during his cross-examination of Mother, overall both parties conducted themselves with diligence and professionalism. I thank them both for their preparation and sincerity throughout the course of this trial.
[2] The only issues remaining for the court’s determination are:
a. regular parenting schedule and arrangements for Hallowe’en;
b. child support;
c. division of special and extraordinary expenses for the children;
d. the management of an outstanding loan to Maternal Grandmother;
e. property division arising from household contents; and
f. the divorce.
Parties’ Positions
[3] Very little was factually contested between the parties. Broadly-speaking, they do not actually disagree about most of the facts regarding their marriage, its conclusion and the family’s post-separation reality. This trial took place because they disagree on the practical implications of the facts for the legal analysis of the best interests of the children in formulating a regular parenting schedule. Effectively, it is this divergence of opinion that necessitates a decision from this court.
[4] Mother’s position is that the children should reside primarily with her and spend Tuesday evenings from 6:00 p.m. – 7:30 p.m. and alternate weekends in Father’s care, from Fridays at 6:30
p.m. through to Sundays at 6:00 p.m., to be extended to include statutory holiday Mondays as applicable. She would maintain the current pattern of exchanging the children at Oakville Place, waiting for them on Tuesday evenings, and facilitating the nightly WhatsApp video calls on the days that the children are not in Father’s care.
[5] Father’s proposal is reflective of his work obligations. He asks that the children be brought to visit with him at Oakville Place for dinner on Tuesdays, Thursdays, and alternate Fridays and that they spend alternate weekends in his care from Saturday at 9:00 a.m. until Sunday at 6:00
p.m. or 6:30 p.m. He suggests that this would be easier if Mother were to move to Oakville.
[6] Regarding the remaining issues, the parties agree that child support is payable pursuant to the Federal Child Support Guidelines[^1] (the “Guidelines”) and that expenses for the children should be divided. They further agree that the loan to Maternal Grandmother can continue to be managed as they have done to date. They agree that the Divorce Order should issue. The only issue about which they disagree is with respect to the household contents: Mother believes they should be divided in kind whilst Father seeks monetary compensation on the basis of the purchase value.
Undisputed Facts and Parties’ Additional Evidence
[7] Mother was born June 17, 1985 in the Dominican Republic. She studied at university there and became a medical doctor. She travelled to Spain to pursue post-graduate studies where she became an Ear, Nose and Throat (“ENT”) specialist. The certification process for foreign-trained doctors in Canada is arduous, and thus Mother has worked as an Administrative Assistant at a hearing aid clinic and, since October of 2021, with an ENT specialist based in Oakville. She has passed the first of her qualifying examinations from the Medical Council of Canada and is waiting for a residency opportunity. Meanwhile, she is considering an alternate career in diagnostic imaging and ENT aesthetics which would allow for the expansion of the practice where she is currently employed.
[8] Father was born December 19, 1979 in the Dominican Republic. He too pursued academic and post-graduate studies as an Architect and holds two master’s degrees in that field. Since arriving in Canada, he has worked consistently with Neff Beautiful Living Inc., a design-build company focused on interior woodworking and cabinetry. He is currently the Head of the Department of Interior Design and is responsible for production of drawings and co-ordination of implementation in the in-house workshop. He is responsible for five employees. His hours of work are long and demanding, and he regularly works on weekends. This court can well imagine that he is a diligent and focused employee and sincerely hopes that he is properly appreciated in his workplace.
[9] The parties met on New Year’s Day 2007 through mutual friends and dated until 2011. They were married on February 25, 2011 during a break between the completion of Mother’s specialist designation and her residency term. Mother returned to Spain in May of 2011 to complete her residency and Father joined her there in October. After exploring work options, the parties decided that they did not wish to remain in Spain in the long term, and Father returned home to the Dominican Republic in December of 2014, with Mother joining him in May of 2015.
[10] Their eldest child, daughter Sara Maria Duran Disla (“Sara”) was born in the Dominican Republic on February 12, 2016 and was monitored in the Neonatal Intensive Care Unit for respiratory depression for five days. Mother remained in hospital for three days; by February 17, 2016 the family was home together. Mother reports that Sara was healthy and ate well, but sleep training was a challenge. The couple determined that Sara was relying too much on nursing herself to sleep, and they agree that things turned quickly for the better when Father started to take over Sara’s bedtime routine.
[11] Daily life in the Dominican Republic for a family of two professionals fell into a comfortable routine: both parents would work weekdays from 9:00 a.m. to 5:00 p.m. or 6:00 p.m. with Sara attending daycare. Most days, Mother and Father would meet at home for lunch. The relationship was stable and, other than minor issues such as any couple might have, they did not experience major conflict.
[12] The parties’ son, Fabian Andres Duran Disla was born in the Dominican Republic on August 31, 2018. He too stayed briefly in the Neonatal Intensive Care Unit for respiratory issues but was discharged after three days and has otherwise been healthy since. At four months of age, Fabian joined his sister at daycare as both parents were back to work.
[13] Mother attests that, throughout this period when the children were very small, both parties shared responsibilities in their day-to-day routines. Father indicated his agreement with all of Mother’s testimony regarding their early years in the Dominican Republic.
[14] Sometime in 2018 the parties started to come to terms with the fact that the living conditions (including safety) in the Dominican Republic were much lower than in Spain,
especially for professionals. When Father’s employment required him to drive to job sites a lengthy and unpredictable commute away from the family home, the stress took its toll and the parties decided to emigrate to Canada. At that time, with help from friends, they both engaged with the Federal Skilled Worker Program to apply for Permanent Residency. By June of 2019 their residency was approved and the family arrived in Canada on August 7, 2019. They lived first in a short-term rental in Etobicoke and then moved into their rented matrimonial home in Mississauga, where they lived from October of 2019 until December 29, 2021 when Father moved out. Mother remained in the rented condominium with the children until March of 2022 when she moved to Hamilton.
[15] Reflecting on their move to Canada, Father noted that perhaps they ought to have taken more time to prepare themselves for the transition. He noted that starting from scratch and “being a nobody” was extremely hard for both of them as professionals. He expressed empathy for Mother because, while he was employed in his field within five months, her credentials have not yet been recognized.
[16] Father has re-partnered with Dipleen Kaur, a woman who reports to him directly at work. He attests that his workplace is a family company and his employer is aware of the relationship and has no concerns provided that all involved behave professionally. Father and Ms. Kaur moved in together in January of 2023 and reside in a two-bedroom basement apartment in Brampton; Father is looking to relocate to a condominium or apartment in a high-rise building in the area, which is close to the lake, parks and a conservation area.
[17] Father currently sees the children on Tuesday evenings and on alternate weekends, with alternate Fridays being an evening visit (roughly during his dinner break at work) and with the children staying Saturday overnight to Sunday on his weekends unless his work commitments intervene. If he is required to work on the weekend, he will request a daytime weekend visit.
[18] Mother lives alone with the children in a three-story, two-bedroom townhouse in Stoney Creek. She described their daily routine as follows:
a. Wake up between 7:00 a.m. - 7:15 a.m.; if Mother is working from home and it was a rough night, she lets them sleep later; get dressed, then breakfast, get backpacks ready.
b. Arrive at before care by about 8:15 a.m. - 8:20 a.m.
c. School starts at 9:15 a.m.
d. School dismissed at 3:30 p.m.
e. After care until between 4:30 p.m. – 5:30 p.m. when Mother picks them up.
f. Dinner, downtime and/or “watch time” for electronics.
g. Sara has weekly homework that is reported on Friday, so she doesn’t necessarily do it on the day assigned.
h. Bath and bedtime routine starts around 7:00 p.m.
i. Call with Dad between 7:30 p.m. – 8:15 p.m.
j. Mother’s goal is to have them in bed around 8:15 p.m., 8:30 p.m. at the latest.
[19] On Tuesday evenings, Mother drives the children to Oakville Place where they have dinner with Father. This also takes place on alternate Friday evenings, as Father’s work schedule requires him to work late into the night. Father takes a dinner break to meet the family for 6:30 p.m. and Mother waits in the area, collecting the children at 8:00 p.m. and returning home to Stoney Creek.
[20] Sara, almost eight years old now, was described by both of her parents as calm, loving and creative. Mother called her a “social butterfly” who makes friends easily and who takes the lead in arranging playdates with her classmates. Father declared her to be an angel sent by God and lovingly observed that they could order fancy craft supplies for her but that she would prefer to make something spectacular out of the Amazon box. He values the special connection that he developed with Sara during sleep training in her infancy. There is no doubt that both parents love Sara deeply and that she is closely bonded to each of them.
[21] At age five, Fabian is even more social than Sara. Father called him a “rockstar” and described a recent attendance at school when Fabian guided Father through the hallways
introducing him to almost every teacher along the way. Mother agreed that he is outgoing with a great sense of humour that appeals to many people: children and adults alike. Both parents agree that Fabian is dealing with some oversized emotions for which they are seeking assistance from a child psychologist (at Mother’s suggestion). Mother further noted that Fabian will experience separation anxiety and will occasionally fabricate excuses to stay home from school so as to spend more time with her; Fabian has said on these occasions “I just want to be with you.” As with Sara, the depth of the connections between Fabian and each of his parents is not in question.
[22] Similarly, the parties agree that the children are closely bonded to one another. They may have occasional disagreements as are to be expected between siblings, but they clearly love one another very much.
[23] Both parties testified as to minor difficulties that arose in the cancellation and rescheduling of Father’s parenting time (almost entirely due to Father’s work schedule). However, only one challenge involving the children stood out as potentially significant. This was in relation to Father’s disciplining of the children around Fabian’s wearing of nail polish. However, as these incidents, which allegedly took place in December of 2022 and September of 2023, were not put to Father in cross-examination I have not considered them in my analysis.
Assessment of Parties’ Credibility
[24] As I noted in the introductory paragraphs of this judgment, both parties were generally respectful and civil with one another. However, Father was aggressive in his body language and tone of voice from the outset of his cross-examination of Mother and defensive during her cross- examination of him.
[25] It was very apparent that Father still harbours significant anger toward Mother even though he was the one who ended their relationship. As to the emotional end of the marriage, Father’s evidence was that he overheard Mother speaking on the telephone to a friend who was describing how to “destroy the life of a man.” After that point, he believed that their marriage “was unsustainable” as, based on the overheard conversation, he could no longer continue being married to Mother. I note that Father did not allege that Mother had implemented any destructive strategies
against him prior to separation. Mother’s suggestion to Father in cross-examination, with which he agreed, was that their relationship had already been damaged following an argument between Father and Mother’s sister in the Spring of 2016 which resulted in Father prohibiting Mother from taking Sara to visit her family at her parents’ home. For clarity, the reason for a separation is not relevant to any analysis of parenting or support issues; I make note of these points only to contextualize Father’s emotional state at trial. If Father finds himself distracted by unaddressed emotion during a court hearing, it is likely that such unaddressed emotion would impact his daily dealings with Mother in co-parenting the children.
[26] Mother’s evidence was straightforward. Although there were toxic moments in the parties’ relationship, she did not allege violence or coercive control. Despite Father’s initial emotional struggles, her evidence was unshaken in cross-examination. She does seem to favour the children’s comments to her over any explanations offered by Father, but perhaps that is to be expected where trust has been broken. As noted, there was little about which the parties disagreed – most of their evidence was consistent – however where any such disagreement arose, I prefer Mother’s evidence.
Evidence and Assessment of Other Witnesses
[27] The other two witnesses were Carlos Fuentes, a mutual acquaintance; and Father’s partner, Ms. Kaur.
[28] Mr. Fuentes’ evidence was focused on the parties’ immigration process and some periods of after school care that he and his wife provided to support Mother.
[29] Ms. Kaur attested that the children see her as a friend and that she does not take on any parenting role. She confirmed that Father’s employer praises him for prioritizing his work commitments by bringing the children to his workplace. She was truthful about her observations of Father raising his voice and admitted that she has seen Father “getting aggressive,” emphasizing that it did not happen very often. I conclude from Ms. Kaur’s evidence that Father is passionate about his work and about his parenting, and that sometimes that passion gets the better of him. I
further conclude that the children are developing a friendly connection with Ms. Kaur and note that no concerns were expressed regarding her ability to care for them occasionally.
Law & Discussion
[30] There are seven issues for the court’s determination:
a. regular parenting schedule and arrangements for Hallowe’en;
b. child support;
c. sharing of special and extraordinary expenses for the children;
d. the management of an outstanding loan to Maternal Grandmother;
e. property division arising from household contents;
f. the divorce; and
g. costs.
A. Parenting Schedule
[31] The parties need this court’s assistance with the regular parenting schedule during the academic year and the arrangements for Hallowe’en. Their positions regarding the regular schedule are set out at paragraphs 4 and 5 above. With respect to Hallowe’en, Mother seeks to have the children celebrate in their neighbourhood every year for safety and convenience, while Father seeks to alternate the evening celebration annually.
[32] The parties were married and thus the Divorce Act[^2] applies. In determining whether the best interests of the children require decisions to be made primarily by one parent or jointly by both parents, section 16 of the Divorce Act:
a. mandates that the primary consideration be each child’s “physical, emotional and psychological safety, security and well-being”;
b. incorporates and expands upon the inclusive list of factors delineated at sections 24(2) through 24(5) of the former text of the Children’s Law Reform Act, which factors guided many Ontario decisions before March 1, 2021;
c. adds the consideration of “any civil or criminal proceeding, order, condition or measure” relevant to the child’s circumstances;
d. sets out a non-exhaustive list of seven factors to be taken into account in assessing family violence; and
e. clarifies that the “Maximum Contact Principle” does not presume equally- shared parenting but rather means “that a child should have as much time with each spouse as is consistent with the best interests of the child.”
[33] Sections 16.1 through 16.4 and 16.6 are applicable to this family’s situation.[^3] The complete text of these sections, together with section 16, is reproduced at Appendix “A” to these Reasons. The same factors apply both to the determination of decision-making responsibility and the apportionment of parenting time. The factors for consideration, distilled from the above-listed sections, are:
a. each child’s needs having regard to his or her developmental stage;
b. each child’s relationship(s) with each of the parents[^4], extended family members and other people special to him or her;
c. each parent’s willingness to support the other’s role in the child’s life;
d. the history of care for the child;
e. each child’s views and preferences;
f. each child’s cultural heritage, inclusive of language and faith as applicable;
g. any plans for the child’s care;
h. each parent’s ability and willingness to meet each child’s needs;
i. the parents’ ability to communicate and co-operate with one another;
j. an assessment of family violence, taking into account:
i. the timing, severity and frequency of the incidents;
ii. any pattern of coercive or controlling behaviour;
iii. whether the child was subjected to or witnessed aspects of the violence;
iv. the harm or risk of harm to the child;
v. other compromises to the safety of the child or another family member;
vi. current fear experienced by the child or another family member arising from the family violence;
vii. any remedial steps taken by the violent parent; and
viii. any other relevant factor;
k. the impact, if any, of family violence on the ability of the offending parent to care for and meet the needs of each child;
l. the impact, if any, of family violence on the parents’ co-operation moving forward;
m. any legally-founded order, condition or measure relevant to the child’s safety, security and well-being;
n. past conduct only insofar as it is relevant to a parent’s participation in decision-making for, or parenting time with, the child;
o. the child’s entitlement to as much time with each parent as is consistent with his or her best interests;
p. a presumption that day-to-day decisions are to be made by the parent caring for the child at the time the decision arises, unless otherwise ordered by the court;
q. the best allocation of decision-making responsibility (regarding major decisions) as between the parents and/or any other participating individual;
r. the means by which information regarding each child’s health and education is to be sourced, i.e. whether as between the parents or from third parties directly;
s. the existence of a parenting plan submitted jointly by the parents to the court.
[34] Some of the above factors are not applicable to this family’s situation. Keeping in mind that it is only parenting time (regular and Hallowe’en), not decision-making, that must be addressed, I have applied the evidence to the above-listed factors and conclude:
a. that Mother’s proposed regular parenting schedule is generally in the children’s best interests; and
b. that the children should be in Father’s care for Hallowe’en from 5:30 p.m. to 8:00 p.m. in even-numbered years provided that he confirms, not later than October 24th in each year, that he is not required to work during that time.
[35] The primary driver for my conclusions with respect to the children’s parenting time with Father is his work schedule. He attested that he arrives at work between 7:00 a.m. and 7:30 a.m. and attends a mandatory daily meeting at 8:00 a.m. Tuesdays through Thursdays he is home between 7:00 p.m. and 7:30 p.m., however on Mondays and Fridays “you go there and don’t know when you will be done.” He said that he cannot leave for the day without completing the work assigned for that day and he finishes work on Friday nights anywhere between 9:00 p.m. and 11:00
p.m. Because of his authority at work, he is able to meet the children for a dinner visit at Oakville Place on Friday evenings but would be unable to take them overnight on a regular basis. He says that he tries not to work on the weekends when the children are in his care but that they do accompany him on occasion.
[36] Father suggests that the children should prioritize meeting him for dinner on alternate Fridays, on Tuesdays and on an additional weeknight rather than attending an activity such as swimming lessons. I disagree. Father has been very successful in his workplace and has risen quickly to a position of authority; the cost of this, however, has been his unavailability for
parenting time. It is not correct for the children to be deprived of other activities so as to accommodate Father’s extraordinary commitment to his workplace.
[37] I find that a continuation of the Tuesday evening dinner parenting time (from 6:00 p.m. – 7:30 p.m.) with Father is in the children’s best interests. I further find that full alternate weekends would be in their best interests wherever Father’s work schedule can accommodate such time. The evidence regarding Ms. Kaur’s work schedule is not clear; it is possible that she may be able to care for the children on alternate Friday evenings such that they could sleep at Father’s residence that night. If this is possible, then the children will be in his care on alternate weekends from 6:30
p.m. on Friday to 6:00 p.m. on Sunday. If Father is unable to take the children on Friday evenings, even with Ms. Kaur’s assistance, then his parenting time would take place on alternate weekends from 9:00 a.m. on Saturday to 6:00 p.m. on Sunday. For clarity, no alternate Friday evening dinner visit will be continued if Father (and Ms. Kaur) cannot host the children overnight on Friday.
[38] With respect to Hallowe’en, again Father’s work schedule is the impediment. If he can confirm in writing by October 24th that he is not working and is able to have the children in his care on October 31st from 6:30 p.m. to 8:00 p.m., then he may take them out to celebrate in even- numbered years. Mother will continue to be responsible for the children’s costumes, the cost of which is not to exceed $50 per child unless otherwise agreed in advance and is to be divided equally between the parties.
B. Child Support
[39] It is undisputed that the children have lived primarily with Mother since the date of Father’s departure from the rented family condominium. In her Application, Mother confirmed that Father “has been paying child support based on his last year income disclosed to me by him of
$67,931.60.” Having regard to that statement, this Court presumes that Mother did not intend to make any claim to adjust child support back to January 1, 2022 which would be the first day of the month immediately following separation. Consequently, child support is to be addressed commencing December 1, 2022, being the first day of the month following the issuing of the Application.
[40] Father’s income in 2021 was $67,932. This is the figure referenced by Mother in her Application. In 2022, Father earned $76,477. At trial, Father confirmed in his testimony that he anticipates an income for 2023 of $96,000.
[41] In his Answer and in his opening statement at the outset of trial, Father asked the court to conclude that the payment of child support on the basis of the Guidelines figure would cause him financial hardship. Section 10 of the Guidelines speaks to this issue, and the full text of that section is attached as Appendix “B” to these reasons. Section 10 lists certain categories of circumstance in which undue hardship may be found. There is no category that is applicable to Father’s situation. He is not responsible for unusually high marital debt or expenses to exercise his parenting time. He does not have any legal obligation to support any other dependent. The list at section 10 is “inclusive,” however, meaning that a further unlisted rationale could potentially support a finding of undue hardship. For clarity, I conclude that there is no rationale supporting a finding of undue hardship.
[42] If I am wrong, and a rationale for undue hardship exists, the analysis would then proceed with section 10(3) of the Guidelines, which requires the court to consider the standards of living in each household. The mathematical calculation guiding the court in that regard, referenced at section 10(4), is found at Schedule II to the Guidelines.
[43] As the calculation requires the input of Mother’s income, those figures are:
a. 2021: $38,389;
b. 2022: $44,370;
c. 2023 (estimated based on paystub for 9 months): $45,990.
[44] Father did not present either legal argument or mathematical analysis of this issue. To do the calculation properly, the Court would require evidence of Father’s partner’s income during the years of their relationship, which was not presented at trial. Even if no income is attributed to Ms. Kaur, however, Father’s position on undue hardship fails the household standards of living test. The calculation itself is set out below.
[45] I note here that I do not have clear evidence on Father’s taxes and statutory deductions. The calculation is based on Father’s Financial Statement dated September 28, 2023 (Exhibit 37 at trial). As no paystubs were filed by Father, it is unclear whether his estimated statutory deductions are reasonable; with respect to monthly income taxes, Father’s figure was $2,600 on $8,000, which is a flat rate of 32.5% annually. It is possible that Father has applied his marginal tax rate to his entire income (which would artificially inflate the anticipated tax owed by him).
[46] Using only the parties’ 2023 incomes, the calculation would be:
| Mother’s Household | Father’s Household |
|---|---|
| Calculated income: $45,990 | Estimated income: $96,000 |
| Less: Calculated taxes and statutory deductions[^5]: ($9,265) | Less: Estimated taxes and statutory deductions: ($37,884) |
| Plus: Child support payable ($1,423/month x 12 months) $17,076 | Less: Child support payable ($1,423/month x 12 months) ($17,076) |
| Household Income = $53,801 | Household Income = $41,040 |
| Low-income measures amount (3 people = 1 adult + 2 children) $17,649 | Low-income measures amount (1 adult) $10,382 |
| RATIO $53,801 ÷ $17,649 = 3.05 | RATIO $41,040 ÷ $10,382 = 3.95 |
[47] Even giving Father the benefit of the analysis on his household income, by declining to include any amount for Ms. Kaur, and the benefit of the doubt on his statutory deductions, the standard of living is still higher in his household. His undue hardship claim fails.
[48] As much of Father’s 2023 anticipated income is based on overtime hours, and as Father voluntarily paid child support throughout 2022 based on his 2021 income, the fairest approach to
addressing child support for December of 2022 is for him to pay on the 2021 income for that month and to pay based upon his 2022 income for the twelve months of 2023. Moving forward January 1, 2024, Father will pay based upon his estimated 2023 income. Child support can be adjusted thereafter commencing July 1, 2024 based on the prior year’s actual Line 15000 figure from his Notice of Assessment.
[49] To conclude, then, child support is payable by Father to Mother:
a. for December 2022 (on 2021 income) in the amount of $1,035;
b. for the twelve months of 2023 (on 2022 income), at the rate of $1,161 monthly; and
c. effective January 1, 2023 (on 2023 income), at the rate of $1,423 monthly.
C. Special and Extraordinary Expenses
[50] The parties’ incomes, and their respective proportionate shares of special and extraordinary expenses pursuant to section 7 of the Guidelines, are as follows:
a. 2021 (for 2022): Mother: $38,389 = 36%; Father: $67,932 = 64%
b. 2022 (for 2023): Mother: $44,370 = 37%; Father: $76,477 = 63%
c. 2023 (for 2024): Mother: $45,990 = 32%; Father: $96,000 = 68%
[51] Although Mother sought only an equal sharing of expenses, I find that this is not a satisfactory resolution having regard to the higher standard of living in Father’s household. Mother seeks contribution toward only two expenses: the children’s portion of the Residency Application fee ($200) and the out-of-pocket dental expense for the children ($152.60 + $384.10). All of these were incurred in 2023; the total is $736.70 and Father’s share (at 63%) is $464.12. I note that Father did not object to contribution to these expenses, he simply was unaware of the calculation of the proportionate shares. Commencing January 1, 2024, the parties’ proportionate
shares are Mother: $45,990 = 32%; Father: $96,000 = 68%. Terms of the order will issue accordingly.
D. Loan Owing to Maternal Grandmother
[52] Mother’s Mother, Ms. Anna Bella Aybar, loaned funds jointly to the parties some time ago, paid to them in Dominican pesos. The loan’s term ends in February of 2024. The parties have been managing this loan between them to their mutual satisfaction thus far. Having regard to the fluctuating exchange rate, Ms. Aybar sends Mother a screenshot of the amount payable in Canadian dollars, Mother forwards that to Father, Father sends Mother one-half of that amount, and Mother then transfers it to Maternal Grandmother (in Dominican pesos) via Mother’s Dominican bank account. There is no reason to interfere with this arrangement. The Final Order will simply read: “Payments toward the personal loan owed by the parties to Anna Bella Aybar shall continue to be divided equally between them until the said loan is paid in full.”
E. Division or Equalization of Household Contents
[53] Both parties prepared a list of household contents: Father’s (Exhibit 35) provides the purchase prices for the individual items. Mother agrees that Father’s list of household contents is accurate; however, she disputes the purchase price for the IKEA Kivic couch and produced the receipt for the purchase (and delivery) of same. The correct purchase price was $1,071.24, not
$1,600 as indicated by Father. Having made this correction, the total value of the items on Father’s list is $4,336.94.
[54] Mother seeks to divide the physical items, as she feels that a monetary value cannot be ascribed to them having regard to the passage of time. Father has already furnished his post- separation residence and has no use for further items; he asks for half their purchase price. The court’s approach to the valuation of household contents is neither their purchase price nor their replacement (or insured) value; the value of household contents is their appraised or resale value as at the date of separation. No evidence regarding any such value was presented at trial.
[55] Household contents tend to have more intangible importance to parties in matrimonial litigation than they take on in the mathematically-driven legal analysis of equalization. Where no valuation evidence has been presented, courts have taken a variety of approaches:
a. In White v. White, 2014 ONSC 33 (at paragraph 25), Justice L. Walters simply removed the line item for household contents from the equalization calculation where no evidence as to the actual value of same had been adduced.
b. Similarly, in Testani v. Haughton, 2019 ONSC 174 (at paragraph 38), Justice Jarvis observed that: “to arbitrarily pick a value in circumstances where there is no evidence even minimally identifying the contents, their cost, their date of purchase, or their condition on the valuation date, or at some later point in time, is to simply engage in guesswork. I am not prepared to guess.”
c. However, in Rebiere v. Rebiere, 2015 ONSC 1324 (at paragraph 14), Justice Minnema, referencing the Court of Appeal, noted that it is not always necessary to call expert evidence to prove values for minor assets; instead, the court can estimate values, perhaps arriving at harsh choices or simply ascribing no value to the usual items that people need and use in a matrimonial household.
d. In Scheibler v. Scheibler, 2022 ONSC 6472 (at paragraph 165), Justice Fregeau valued household contents on the basis of one party’s unchallenged best estimate of “old and used” items.
e. Courts have further addressed unvalued household contents through processes to be undertaken separately from the equalization calculation and payment. In some situations, courts have ordered contents for which no value is available to be divided in kind, setting up a mechanism for so
doing.[^6] In others, courts have ordered contents to be professionally valued.[^7] In still others, courts have ordered contents to be auctioned and the proceeds divided between the parties.[^8]
[56] Here, where the parties’ household and its contents were modest, I echo the view of Justice Minnema: an expert’s involvement is unnecessary; this Court can ascribe resale values, however harsh they may seem, to the items on Father’s list. It is reasonable to discount the purchase price values of the household contents by 67% (two-thirds) to discern a used sale price. That figure is
$1,445.64 (being 33% x $4,336.94). In equalizing that figure (on the basis that Mother owns half of these contents), Mother will pay Father the sum of $722.82 for his one-half share of the resale value.
F. Divorce
[57] Evidence supporting the issuing of the Divorce Order was provided by both parties. The Divorce Order will issue on consent. So as to provide the parties with a clean document for future use, the substantive terms of my decision will be included in one Final Order, with the Divorce Order to be issued as a stand-alone document.
G. Costs
[58] Mother was extraordinarily well-prepared for this trial; Father struggled considerably with his responsibilities to manage his own exhibits early on, but that situation resolved itself with direction and a short adjournment. The parties resolved the major issue, decision-making, before the start of trial and were very open to my assistance in the process of negotiating and documenting holiday parenting time. Very little was factually uncertain, and it was only the issue of undue hardship that was a loose end at trial, so to speak. The trial itself was short and focused. The parties are sincerely attempting to rebuild some trust between them with a view to properly co- parenting their young children. While Mother’s position on the regular parenting schedule was successful, Father received some payment toward household contents and was successful on
Hallowe’en. Other than the undue hardship claim, the remaining issues were effectively undisputed. Overall, I exercise my discretion pursuant to Rule 24(6) to apportion costs between the parties on the basis that each will bear his or her own expense in that regard.
Final Order
[59] I note that my Endorsement of October 6, 2023 delineating the parties’ agreement regarding decision-making and parenting time did not include a mobility provision. A term with standard language will be added to the Final Order to ensure that there is no confusion.
[60] On the basis of all of the foregoing, Final Order to issue:
The children, Sara Maria Duran Disla born February 12, 2016 and Fabian Andres Duran Disla born August 31, 2018, shall reside primarily in the care of the Applicant, Anna Bella Disla Aybar (“Mother”).
The children, Sara Maria Duran Disla born February 12, 2016 and Fabian Andres Duran Disla born August 31, 2018, shall spend the following time in the care of the Respondent, Jeiser Raoli Villalona Duran (“Father”):
a. Tuesday evenings from 6:00 p.m. – 7:30 p.m.;
b. alternate weekends in Father’s care, from Fridays at 6:30
p.m. through to Sundays at 6:00 p.m., to be extended to include statutory holiday Mondays as applicable;
c. in the event that Father is unable to care for the children overnight on the Fridays of his parenting weekend due to his work commitments, even with the assistance of his partner, then his parenting time shall take place on alternate weekends from 9:00 a.m. on Saturday to 6:00 p.m. on Sunday;
d. for clarity, if Father is unable to care for the children overnight on the Fridays of his parenting weekend, there will be no evening visit and make-up time shall be arranged in Mother’s sole discretion;
e. the exchange location shall be at Oakville Place, with Mother to wait for the children in the area during their Tuesday evening visits; and
f. Mother shall further facilitate video calls (currently using WhatsApp) on days when the children do not otherwise have parenting time with Father.
Regarding Hallowe’en, if Father can confirm in writing by October 24th that he is not working and is able to have the children in his care on October 31st from 6:30 p.m. to 8:00 p.m., then he may take them out to celebrate in even-numbered years. Mother will continue to be responsible for the children’s costumes, the cost of which is not to exceed $50 per child unless otherwise agreed in advance and is to be divided equally between the parties.
Mother shall not move the children’s residence outside of the City of Hamilton without Father’s prior written consent, which consent shall not be unreasonably withheld, or until further Order of the Court. Notice of any intention to move shall be provided by the moving parent not less than ninety (90) days prior to the anticipated moving date. Should either party move within their current regions (i.e., the City of Hamilton for Mother and Peel Region for Father), or otherwise change contact information, he or she shall provide the other with the updated contact information in advance if possible, and otherwise not later than 24 hours after the said change.
Child support shall be payable by the Respondent, Jeiser Raoli Villalona Duran, to the Applicant, Anna Bella Disla Aybar, in accordance with the Federal Child Support Guidelines for the support of the children, Sara Maria Duran Disla born February 12, 2016 and Fabian Andres Duran Disla born August 31, 2018:
a. for December 2022 (on 2021 income) in the amount of
$1,035;
b. for the twelve months of 2023 (on 2022 income), at the rate of $1,161 monthly; and
c. effective January 1, 2024 (on 2023 income), at the rate of
$1,423 monthly; and
d. not later than January 10, 2024, the Applicant, Anna Bella Disla Aybar, shall advise the Director of the Family Responsibility Office of the exact amounts paid by the Respondent, Jeiser Raoli Villalona Duran, for the period from December 1, 2022 through to December 31, 2023 so that a proper accounting can be completed by that agency.
- Within thirty (30) days of the date of this Order, the Respondent, Jeiser Raoli Villalona Duran, shall pay to the Applicant, Anna Bella Disla Aybar,
the sum of $464.12 on account of all outstanding special and extraordinary expenses for the children owing to October 6, 2023.
Commencing January 1, 2024, the parties’ proportionate shares special and extraordinary expenses for the children are Applicant, Anna Bella Disla Aybar: $45,990 = 32%; and Respondent, Jeiser Raoli Villalona Duran: $96,000 = 68%.
Payments toward the personal loan owed jointly by the parties to Anna Bella Aybar shall continue to be divided equally between them until the said loan is paid in full.
Within thirty (30) days of the date of this Order, the Applicant, Anna Bella Disla Aybar, shall pay to the Respondent, Jeiser Raoli Villalona Duran, the sum of $722.82 for his one-half share of the resale value of contents of the former rented family residence. This payment is in full and final satisfaction of all property or equalization claims between the parties.
Divorce Order to issue separately as a stand-alone document.
There shall be no costs payable by either party to the other.
J. Breithaupt Smith, J.
Date: December 8, 2023
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.
(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.
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; or
(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.
(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.
(3) A person described in paragraph (1)(b) may make an application under subsection
(1) or (2) only with leave of the court.
(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.
(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.
(6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.
(7) The order may authorize or prohibit the relocation of the child.
(8) The order may require that parenting time or the transfer of the child from one person to another be supervised.
(9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.
16.2 (1) Parenting time may be allocated by way of a schedule.
(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.
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.
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.
16.6 (1) The court shall include in a parenting order or a contact order, as the case may be, any parenting plan submitted by the parties unless, in the opinion of the court, it is not in the best interests of the child to do so, in which case the court may make any modifications to the plan that it considers appropriate and include it in the order.
(2) In subsection (1), parenting plan means a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree.
10 (1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:
(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;
(b) the spouse has unusually high expenses in relation to exercising parenting time with a child;
(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.
(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.
(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.
(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.
(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so.
COURT FILE NO.: FC-22-1333 (Hamilton UFC)
DATE: 2023/12/08
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ANA BELLA DISLA AYBAR
Applicant
– and –
JEISER RAOLI VILLALONA DURAN
Respondent
REASONS FOR JUDGMENT
J. Breithaupt Smith, J.
Released: December 8, 2023
[^1]: SOR/97-175, as am. [^2]: R.S.C. 1985, c. 3 (2nd Supp.), as am. [^3]: Section 16.5 addresses “Contact Orders” between children and non-spouses (such as extended relatives) and sections 16.7 and onward relate to residential moves and relocations. [^4]: Note that the Divorce Act, in its focused application to married parents and their children, uses the term “spouse”. I have substituted the word “parent” to reflect each litigant’s role vis-à-vis the children. [^5]: Based on year-to-date figures on paystub for period ending September 29, 2023, Exhibit 11 at trial. [^6]: Florek v. Vandenbroek, 2019 ONSC 1753 at paragraph 38. [^7]: Vickers v. Vickers, 2012 ONSC 973 paragraph 25(10) – 25(13). [^8]: Leu v. Joca, 2018 ONSC 4745 at paragraph 55.