COURT FILE NO.: FC-20-1788

DATE: 2024/08/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Amanda Moss Applicant

– and –

Brodie Mark Jackson Respondent

John E. Summers for the Applicant

Sarah Kennedy for the Respondent

HEARD: May 13, 14, 15, 16, 17 and 21, 2024

REASONS FOR judgment

Shelston, J.

[1] The applicant (“Amanda”) met the respondent (“Brodie”) in 2012. They separated on January 1, 2019. They are the parents of one child, J., born in 2015. The child currently lives with Amanda in Ottawa while Brodie resides in Cobden and has parenting time.

[2] The issues for this trial are as follows:

a) Divorce order.

b) Decision-making responsibility for the child.

c) A determination of the child’s residence.

d) A parenting schedule.

e) Income determination.

f) Child support.

g) Spousal support.

h) Equalization of the Net Family Property.

i) Post separation adjustments.

j) Prejudgment interest

k) Costs.

BACKGROUND

[3] When the parties met in February 2012, Amanda was 25 years of age and working as a financial advisor with two years of experience with Sun Life Financial. She had previously obtained two diplomas from St. Lawrence College and Algonquin College. Brodie was 25 years of age and working as the manager of his father’s dental practice, Dr. Mark Jackson, in Cobden. He had previously obtained three previous diplomas including one in police foundations.

[4] By August 15, 2012, the parties moved into Brodie’s home in Eganville. Amanda continued to work for Sun Life Financial from her new residence until approximately the spring of 2013. Amanda then started working part-time at a long care home for approximately a year.

[5] When the parties started living together, Brodie paid for all the bills. Amanda had her own account and had debts of approximately $40,000.00.

[6] From August 2012 until September 2014, Brodie continued to work at his father’s dental practice. The parties became engaged in August 2014. Some time in 2014, Amanda started working as the office manager at Brodie’s father’s dental practice.

[7] While residing together, the parties discussed the idea of Brodie taking over his father’s dental practice with Amanda being the office manager. I accept Amanda's evidence that the parties discussed such a plan and Amanda was very supportive of Brodie obtaining a Bachelor of Science degree and then going on to dental school.

[8] In September 2014, Brodie started attending Carleton University pursuing a Bachelor of Science degree. Brodie was able to pay for his Bachelor of Science degree by receiving a scholarship and monthly sums from his parents ranging from $4200 to $4600 a month. Amanda was not able to help finance any part of Brodie’s education.

[9] On October 11, 2014, the parties married.

[10] In 2015, the parties’ child was born. Amanda went on maternity leave while Brodie pursued his education. Brodie testified that they divided the childcare obligations equally and that Amanda was a great mom with great ideas.

[11] In his first year of university from September 2014 to April 2015, I accept Brodie’s evidence that he commuted daily. Starting in September 2015, he would stay in Ottawa at a relative's home either one or two nights per week to reduce the travel between Eganville to Ottawa especially in the winter months.

[12] In February 2016, Amanda was diagnosed with stage III cervical cancer which required her to have cancer treatments five days a week for 10 weeks. This gruelling treatment schedule finished in May 2016. Amanda’s leave was extended for a further six months by Brodie’s father.

[13] In 2016, Amanda received approximately $100,000 in critical care payments which she used to pay off approximate $38,000 of personal debt and divided the balance into a TFSA for each spouse.

[14] During the summer of 2016, Brodie did not work and concentrated on renovating the house and spending time with Amanda and their child. Amanda acknowledges that Brodie was a great dad during this time.

[15] By September 2016, Brodie resumed his studies at Carleton University while Amanda cared for the child during the week and primarily on the weekends. Amanda returned to work in November 2016 working a full day from 9 AM to 5 PM. She would drop the child off at daycare in Eganville and then drive to the dental office for 9 AM. Brodie continued to attend his third year of university at Carleton University.

[16] In his fourth year of studies, Brodie sent out many applications for admission to dental school. In June 2018, Brodie was admitted to the University of Manitoba dental school to start in August 2018.

[17] The parties and their child moved to Winnipeg in August 2018 for Brodie to pursue his studies. Amanda registered the child on a list of daycare services with a plan to work and at some point, attend university. Amanda’s mother rented the matrimonial home and paid $1000 a month in rent.

[18] By August 2018, Brodie was a full-time student at the dental program requiring him to be in attendance Monday to Friday as well as working on weekends and nights. He would normally start school from 8:00 AM to 5:00 PM. Amanda cared for the child.

[19] Brodie obtained a line of credit that was being offered to dental students and paid for the operating expenses for the matrimonial home in Eganville and all the expenses in Winnipeg.

[20] Within a few months, Amanda felt that there was a change in the relationship and initiated counselling. On October 20, 2018, she contacted her current Ontario legal counsel for legal advice about separation while in Winnipeg. The parties attended couples counseling in November 2018 without resolution. By November 2018, the relationship was strained. Finances was a stress point and Amanda was upset on how things turned out in Winnipeg and her feeling that Brodie’s personality had changed.

[21] In December 2018, Amanda returned with the child for a previously scheduled cancer visit with her physician. Brodie remained in Winnipeg and returned before Christmas. During the Christmas break, the parties’ relationship continued to worsen. The parties returned to Winnipeg but on January 1, 2019, the parties separated with an agreement that Amanda would return to Eganville with the child while Brodie would pursue his education. Prior to leaving, Amanda prepared a parenting plan, entitled CHILD CUSTODY AGREEMENT, which provided that the parties would have joint legal custody of the child, that both are fit and proper persons to have joint responsibility for the care of the child, that the child will reside primarily with Amanda and that Brodie would have regular visitation schedule when back in town during his summer breaks and other holiday breaks given at school with the aim to share the child’s time 50/50.

[22] Brodie returned to Eganville when he could through the winter 2019. The parties tried reconciliation at the end of June 2019 without success. During the summer 2019, the parties equally shared care of the child.

[23] Brodie returned to pursue his studies in August 2019 while the child started the Cobden Public District school in junior kindergarten in September 2019.

[24] From September 2019 to spring 2020, Brodie remained in Winnipeg while Amanda cared for the child and worked for Dr. Mark Jackson. Brodie would have parenting time when he returned to Eganville.

[25] As a result of the pandemic, Brodie’s academic year was cut short in March 2020 causing him to return to Eganville. I accept Amanda’s evidence that during March 2020, Brodie told her that her employment at the dental clinic would end when he graduated. Amanda proposed mediation in March 2020 with a second appointment scheduled for May 2020. The second appointment never took place.

[26] During the pandemic, Brodie returned to Eganville and stayed from March to August 2020. During this period, he had the child approximately 50% of the time.

[27] Based on Brodie’s statements in March 2020, Amanda started applying for employment in the Ottawa Valley. She testified that she made approximately 100 to 200 applications. For many of the jobs, she was overqualified, or they were minimum wage jobs in a factory. She expanded her search and found a job in Ottawa in September 2020.

[28] In August 2020, Brodie returned to Winnipeg for his studies and continued to have FaceTime parenting time as well as whenever he came back to Eganville.

[29] In September 2020, with the consent of Brodie, the child attended school online because of the continuation of the pandemic. In September 2020, Amanda gave notice to Dr. Mark Jackson that she had accepted a job in Ottawa and was moving. The paternal grandparents offered Amanda to work part-time for the dental office which she accepted and did until July 9, 2022.

[30] On October 8, 2020, Amanda sent Brodie any email as follows:

Hi Brodie,

I am writing to let you know that I have gotten a job in Ottawa. As a result, J. and I are moving to Ottawa mid-October. I intend to register him at Muchmore Public School. I will also register him in the extended day program that is run on-site. I may require your signature to enroll him so I will send you the documents if that’s necessary. Sincerely Amanda Jackson

[31] On October 9, 2020, Brodie responded in an email as follows:

Hi Amanda,

Consider this email notice that I do not consent to moving J. to Ottawa nor do I consent to a change of J.’s attendance at Cobden District Public School. As such I will not be signing any documents agreeing to his new arrangement. Sincerely, Brodie Jackson

[32] On October 8, 2020, Amanda registered the child for daycare in Ottawa without Brodie’s consent.

[33] On October 18, 2020, Amanda moved with the child to a rental unit in Ottawa and started a job as an office manager for a private dental clinic at Carleton University where she was paid $33 an hour for an estimated annual income of $67,000 a year.

[34] On October 19, 2020, the child started attending Muchmore Public School in senior kindergarten. Amanda would drop the child off at 7:30 AM at daycare, he attended the regular school day and then she would pick him up at 5:30 PM at the same daycare. Amanda was working from 8 AM to 5 PM.

[35] On November 1, 2020, Amanda commenced this application where she sought various claims for relief including permission to move the child to Ottawa.

[36] After the move to Ottawa, Brodie continued to have FaceTime visits with the child from either Eganville, Ottawa or in his car. Due to the pandemic, Brodie could not come home monthly. Issues arose about Amanda's insistence that Brodie self isolate before seeing the child but eventually the parties were able to work through this issue.

[37] On January 29, 2021, Brodie filed an Answer and Claim where he sought various claims for relief including an order directing Amanda to return the child to the County of Renfrew, joint custody of the child with shared residence once Brodie graduates from his dental program and until graduation, Brodie would have primary residence of the child during the time he is off school on study breaks and summer holidays.

[38] On April 16, 2021, the parties attended a Case Conference which addressed various issues including procedural issues including Brodie amending his Answer to provide particulars of his claim for unequal division of the Net Family Property and to address the disposition of transfer of the matrimonial home.

[39] From late June 2021 until August 2021, the parties agreed to an alternating week about schedule. The situation remained the same in that Brodie studied for his dental degree in Winnipeg and when he was home, Amanda would ensure that he would see the child. Brodie flew home to see his son over the Labour Day weekend, Thanksgiving weekend, a weekend in November, and the Christmas school break.

[40] Amanda quit her employment on August 21, 2021 to pursue a Bachelor of Arts in human relations and spirituality with a minor in conflict studies at St. Paul’s University in Ottawa. She registered the child in daycare from 7:30 AM to 5:30 PM to ensure that he was either in daycare or in school while she pursued her studies.

[41] In January 2022, the matrimonial home was sold. The net proceeds of sale have remained in trust except that $115,000 was paid to Amanda and $190,000 to Brodie paid in April 2023.

[42] Brodie remained in Winnipeg and pursued his dental studies graduating on May 19th, 2022. After several trips, Brodie eventually returned home to Cobden for Canada Day 2022. Brodie started to work as an associate dentist for his father on July 14th, 2022.

[43] In July 2022, Amanda travelled to pick the child up in Cobden from the paternal grandparents’ home. Upon entering the home, Amanda was surprised to meet Brodie’s then girlfriend. Amanda testified that she was shocked. Amanda testified that the paternal grandmother approached Amanda to sign a termination agreement from the dental practice. By letter dated May 17, 2022, as amended, Dr. Mark Jackson terminated Amanda’s services as of July 9, 2022, maintained her medical coverage until October 31, 2022, and provided her with eight weeks severance.

[44] Starting in September 2022, Brodie had parenting time every second Friday until Sunday at 5 PM. Brodie would pick up and return the child from Eganville/Cobden area to Ottawa for his parenting time.

[45] On July 2nd, 2023, the child's parenting arrangements changed. At that time, during an exchange at a local beach, Amanda exhibited verbal aggression towards Brodie and his partner resulting in criminal charges against Amanda relating to impaired driving and assault. As a result of this incident, the child was placed in the sole care of Brodie while the issues were being investigated by the Children’s Aid Society (“CAS”). Further, one of the conditions of Amanda's release is that she was not to have any contact with Brodie. On July 17, 2023, three more charges were laid against Amanda regarding historical allegations of assault from an incident in March-April 2017, and two incidents on May 25, 2020. Amanda has pled not guilty to these charges, and they are proceeding through the criminal court system.

[46] From July 2nd, 2023 to August 24th, 2023, the child resided in the primary care of Brodie with Amanda having extremely limited contact. An urgent motion was heard before Justice Engelking on August 24, 2023, at which point she ordered the child returned to the care of Amanda. By September 2023, the CAS had closed their file as the matter was being litigated in Family Court.

[47] Since that time, the child has remained in Amanda's care and Brodie has had parenting time.

[48] Amanda graduated with her Bachelor of Arts degree in April 2024. She has been accepted in the master’s program to pursue a specialization on counselling with a focus on couples with a hope to become a psychotherapist. The master’s program will be completed in April 2026 and then she may pursue a PhD which will require an additional four years of study terminating in April 2030.

DIVORCE ORDER

[49] The parties married on October 11, 2014, and separated on January 1, 2019. The parties have not reconciled, and I find that grounds exist for the issuance of a divorce order. I grant a divorce order.

DECISION-MAKING RESPONSIBILITY and PARENTING TIME

[50] Amanda’s position is that the parties should have joint decision-making responsibility, that she would consult with Brodie before making any decision and if there was a disagreement, she should have final say on decision-making responsibility for the child. She proposes that Brodie have parenting time every second weekend after school until Sunday, Facetime at least twice per week, and a detailed holiday schedule including an equal sharing of the child’s summer school holidays.

[51] Brodie’s position is that the parties have joint decision-making responsibility for the child, that the parties shall consult an attempt to reach agreement regarding all major decisions, that the child shall return to Cobden and be enrolled in the Cobden District Public School. Should Amanda remain in Ottawa, the child would reside primarily with Brodie and Amanda would have parenting time with the child on an alternating weekend basis. Should Amanda relocate to Cobden, the parties would have equal parenting time on an alternating week basis. A detailed holiday schedule would override the regular parenting regime.

Legislative and Jurisprudential Framework

[52] Section 16 of the Divorce Act, R.S.C. 1985 c. 3 (2nd Supp.), provides as follows:

16(1) Best interests of child

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.

16(2) Primary consideration

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.

16(3) Factors to be considered

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.

16(4) Factors relating to family violence

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.

16(5) Past conduct

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.

16(6) Parenting time consistent with best interests of child

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.

[53] Decision-making responsibility is defined in s. 2(1) of the Divorce Act as:

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

a) health;

b) education;

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

d) significant extra-curricular activities[.]

[54] The child’s best interests are not merely “paramount” – they are the only consideration in this analysis: see Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at para. 28; Mattina v. Mattina, 2018 ONCA 641.

[55] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents: see Gordon, at para. 69.

[56] The court is required to give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being. None of the factors in the non-exhaustive list in s. 16(3) of the Divorce Act is more important than any other. Rather, the list is a guide or checklist of several customary factors that the court should ordinarily consider when determining what is in the best interests of the child. Not all the factors will apply in each case, and there may be other factors not in the list which may be relevant in other cases: see Cote v. Parsons, 2021 ONSC 3719, at para. 130.

Analysis

[57] The sole issue to be determined is what is in the child’s best interests and not what is in the parents’ best interests. In determining the child’s best interests, I have also considered the factors set out in the Divorce Act as described herein:

The child's needs, given the child's age and stage of development, such as the child's need for stability.

[58] The child is currently nine years of age and is in good health. He is doing well in school; he has friends in Ottawa as well as friends and family in Cobden. He has been attending the same school since October 2020 and lived in the same residence since that time.

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.

[59] I find that Amanda and Brodie are excellent parents. Both have the necessary skills to care for this child on a full-time basis. The parties agree that the summer should be shared equally which occurred in 2020, 2021, 2022, and was to take place this summer. In 2023, because of the incident that occurred on July 2nd, 2023, the child spent July and most of August in the care of his father.

[60] Both parties appear as serious, mature, and loving parents for their child. Despite the stresses of the litigation and the unfortunate incidents that have occurred in the past, they continue to respect each other and support each other's role in their child's life.

[61] The paternal grandparents are an important part of the child's life and have a close and loving relationship with him. Brodie's partner, Megan, has been involved with the child since April 2023 when she moved to live with Brody in Cobden and presented as a very kind and loving person.

[62] I find that there is evidence that the parties have been able to work together to change parenting times, to exchange belongings, and to provide updates on the child.

[63] Both Amanda and Brodie have referred to each other as excellent mother or father as applicable. There is no allegation that either parent is incapable of parenting the child.

[64] With the consent of both parties, Amanda was permitted to file affidavits from supporters regarding her parenting of the child, her communication skills, and their personal observation of the bond between the child and Amanda. The evidence of these nine witnesses starting at exhibit 29 to 37, provided glowing recommendations regarding Amanda as a parent to the child including, but not limited to, that Amanda is an excellent mother, that she has a close bond with her child, that she nurtures the child's relationship with the father, that she is thoughtful and kind and that she demonstrated excellent parenting skills.

[65] Brodie has provided evidence from Megan and his mother who have also spoken of the excellent parenting of the child by Brodie, his ability to communicate, and the close bond between the child and his father.

Each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse.

[66] I find that both parties are willing to continue to support the child's relationship with the other.

The history of care of the child.

[67] I find that since the child’s birth, Amanda has been the primary caregiver. She was originally on maternity leave in 2015 while Brodie was studying. She then went through a period of cancer treatment in 2016 and returned to work in the late fall of that year. She was the main caregiver for the child from the fall of 2016 until the parties separated. From January 1, 2019, to date, Amanda has been the main caregiver for the child.

[68] Brodie has had an integral role to play in raising his child, but the reality is that he was studying at Carleton University during the school year and then for his four years at dental school. I accept that Brodie has had the child as often as he could while studying including equal time in the summer.

[69] From the child’s perspective, Amanda has been a constant presence in his life. He has rarely been away from Amanda for any significant period except for the summer 2023.

[70] Amanda did not serve Brodie with a notice of relocation. Brodie seeks an order that Amanda be directed to return to Renfrew County. Amanda sought an order confirming her relocation after the fact. The court does not condone self help remedies.

[71] Despite filing an Answer and Claim on January 29, 2021, Brodie did not bring a motion to compel the child’s return to Renfrew County.

[72] I agree with Brodie that Amanda should have provided him with a notice of relocation before she moved to Ottawa. However, the reality is that Brodie was in dental school in October 2020, and he did not return to Cobden until Canada Day 2022.

[73] I find that Amanda made efforts to find similar employment which would pay her approximately the same amount of income that she received from Dr. Mark Jackson’s practice but that her efforts were fruitless. Amanda’s evidence that she was required to look outside of the Ottawa Valley to find more remunerative employment which she did find in Ottawa. There is no evidence that this type of job was available for her in the Ottawa Valley. I find that Amanda made bona fide efforts to stay in the Ottawa Valley.

[74] I find that it was reasonable for Amanda to expect that when Brodie graduated in June 2022 from dental school and that he would return to Cobden and assume the carriage of his father’s dental practice. I accept Amanda’s evidence that the original plan, prior to separation, was that Brodie would attend dental school, graduate, and return to Cobden where he would perform the dental services and Amanda would be the office manager. That plan was discarded when the parties separated in January 2019, less than six months after Brodie had started his dental studies. I accept Amanda’s evidence that Brodie told her while he was studying at dental school that she would not be working for him when he returned.

[75] Brodie was not able to care for the child until June 2022. While I accept that his family and friends are in the Cobden area and that the child had attended the Cobden Public School for junior kindergarten and started senior kindergarten, I do not think it is reasonable for Amanda to wait for Brodie to return to Cobden to investigate her future financial security. I find there was no financial security working with Dr. Mark Jackson as the plan was for Brodie to take over the practice.

[76] In cross examination, Brodie admitted that his son has some relatives in Ottawa including a paternal aunt and paternal uncle and he has friends in Ottawa and is doing well in school.

[77] Brodie submits that removing the child from Cobden away from his father, paternal family, school, and community was inconsistent with the child’s need for stability. However, the child moved to Ottawa in October 2020, has been attending school since that time and has made friends in Ottawa. Further, despite litigation being started in November 2020, Brodie took no action to have the child return to Cobden. I recognize that at that time he was studying in Winnipeg and was not able to care for the child. The reality is that the child has not lived in Cobden since October 2020.

The child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained.

[78] In his submissions, Brodie submits that there is no evidence of the child’s views and preferences as there is no parenting assessment and no Voice of the Child report other than a single interview with the child protection worker. In December 2023, Brodie sought an adjournment of the trial seeking to have a parenting assessment. His request was denied.

[79] After conducting a voir dire, I ruled that the statements made by the child to the child protection worker were inadmissible.

[80] At the date of the trial, the child was nine years of age. While the views and preferences of children are an important factor for the court to take into consideration in arriving at a decision as to the child’s best interests, in this case, due to the child’s age, even if his views and preferences may have been provided, the weight to be attached to such views and preferences would be minimal.

The child's cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage.

[81] This factor was not raised by either party and will not be considered in this decision.

Any plans for the child's care.

[82] Brodie’s plan is that the child would be enrolled in Cobden Public School which starts at 9:25 AM until 3:45 PM. Brodie testified that he now works four days a week. During week 1, he works Monday to Thursday while in week 2, he works Tuesday to Friday. He normally works from 8:15 AM to 4:30 PM.

[83] Brodie is in a relationship with Megan who works as a dental hygienist for him working the same hours. The parties have been living together in the apartment over the dental office since April 2023.

[84] Megan testified that she has been in contact with the child every second weekend or holidays since April 2023. She presented as a very nice individual who truly appears to enjoy time with the child. Megan’s relationship with Amanda can only be described as difficult mainly because of Amanda's reaction to Brodie having a girlfriend interact with the child. The incident of July 2nd, 2023, at the exchange supports such a finding.

[85] Because of the Brodie’s work hours, Brodie’s plan is that his parents would pick the child from Brodie’s residence and take the child to school in the morning. After school, the bus would take the child to the paternal grandparents’ home, or he would return straight home and that his parents would watch him until the father finished work at 4:30 PM. Brodie submits that there are many activities that the child can partake including hockey, kayaking, guitar as well as playing with his cousins. Brodie proposes to maintain relationships with his friends in Ottawa.

[86] Brodie testified that he is currently receiving 45% of his billables which would not be available if he moved into Ottawa. Secondly, he is working in his father's existing dental practice, and he testified that his father may retire within the next year. The economic benefits of remaining in Cobden with an existing practice receiving a high percentage of his billables could not be replicated anywhere else and for that reason, it makes no economic sense for him to leave Cobden.

[87] Amanda’s plan is that the child will continue attend the Muchmore Public School, she will pursue her master’s degree at St. Paul’s University in September 2024, that the child will be having equal time with the father during the summer and every second weekend as well as Facetime two times per week. At this juncture, the mother is a student, has no employment income and that her goal is to pursue this education which she hopes will provide her with financial stability in the future.

[88] Brodie submits that he is fearful that after completing her studies, Amanda may seek to move away from Ottawa for either future school or job opportunities. Amanda’s evidence is that she will be pursuing her master’s and maybe PhD studies at St. Paul’s University in Ottawa until April 2030. However, if her plans change and Amanda seeks to relocate, she will be required to serve Brodie with a notice of relocation at which time the court will ultimately decide on the merits of the relocation considering the best interests of the child at that time.

[89] I agree with Brodie that the paternal grandparents, the maternal grandmother, and extended family live in Cobden while Amanda has some relatives in the Ottawa area, none of which she is close. I have no doubt that the child has a very close relationship with his paternal grandmother and that he has many friends and cousins in the Cobden area.

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.

[90] I find that both parents have the ability and willingness to properly care for and meet the needs of the child.

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.

[91] I agree with Brodie that there are numerous instances where the parties have been able to have very cordial communications and that most of the stress in the relationship is related to this litigation.

Any family violence and its impact on, among other things, the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and 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.

[92] I find there have been incidents of domestic violence between the parties with all the allegations based on actions taken by Amanda towards Brodie.

[93] On July 2, 2023, in front of her child, during an exchange of the child, Amanda acted completely inappropriately and resulted in criminal charges that are still before this court. I accept Amanda’s evidence that she is extremely sorry for the incident, she admitted she acted badly, she is not proud of how she acted and admitted she lost her temper and yelled at both Brodie and his girlfriend. Further, she admits that she used totally inappropriate foul language in front of the child and that she is taken remedial measures to address her issues including reconnecting with Mark Anderson. Finally, I note that the CAS closed their file confirmed in their letter dated September 18, 2023.

[94] Even though significant trial time was spent on the incident of July 2, 2023, including the evidence of Brodie who was the target of Amanda’s yelling and swearing, Brodie does not request sole decision-making responsibility and primary residence. He requests joint decision-making responsibility and if Amanda returns to Cobden, equal sharing of the child. Brodie requests that he have primary residence only if the child is not returned to Cobden. I find that the incident of July 2, 2023, was unfortunate. I find that there have been incidents in the past where Amanda has been overly aggressive with Brodie as admitted by Amanda and confirmed by Ms. Thompson but that these incidents have been historical. Further, I find that Brodie recognizes by his position at trial that Amanda can parent the child and the concerns about aggression and alcohol issues are not the most significant factor for this court to take into consideration.

[95] Further, the CAS recommended, in a letter dated August 18th, 2023, that Amanda seeks assistance for substance abuse and anger management. Amanda's response is that she is receiving assistance by Mark Anderson, her therapist, who she has contact with her by FaceTime or on phone. Despite this recommendation, Brodie does not seek to have it part of any final order.

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

[96] There is no ongoing CAS investigation or proceeding. There is an ongoing criminal proceeding based on the various charges against Amanda, who has pled not guilty. The criminal litigation will eventually be completed.

Decision on decision making responsibility and parenting time

[97] I find that Amanda has been the main caregiver of the child since birth. She moved to Ottawa to improve her financial future, she has pursued education in furtherance of that goal and that the child is stable and happy in Ottawa.

[98] I find that Brodie is an excellent parent who has pursued his education while Amanda was primarily responsible to raise the child. The child was born in the Ottawa Valley, his father, paternal grandparents, maternal grandmother, extended family and friends live in that area and that the father has a professional career as a dentist in Cobden that cannot be transferred to Ottawa.

[99] My decision is focused solely on the best interests of the child. I find that since the child’s birth, the mother has been a constant presence in his life. I do not find it is in the child’s best interests that the child be removed from the primary care of his mother and be returned to Cobden to live primarily with his father. I recognize that the father cannot move to Ottawa and that the mother’s career aspirations are to be pursued here in Ottawa. I find it is in the child’s best interest that the child’s primary residence be with Amanda and that Brodie have parenting time. This decision is not to reduce Brodie’s role in his child’s life. It is intended to ensure that he has an equal right to participate in major decisions and continue to play a significant role in his son’s life.

[100] On the issue of decision-making responsibility, I reject Amanda’s request to have the final say if there’s a disagreement. I find that Amanda and Brodie are both excellent parents who have shown an ability to communicate and make decisions in the best interests of the child. I see no reason why either parent should have the final say on any major decision regarding the child. Consequently, I will order that both parents have joint decision-making responsibility.

[101] There has been a dispute raised about summer camp. Amanda proposes that the child should be allowed to attend sleepaway summer camp for a total of two weeks and that this camp shall be attributed to each parties’ summertime with the child equally. Brodie rejects this proposal as he wishes to spend as much time as possible with his own son. I accept Brodie’s position and if Amanda wants to send the child away for summer camp for two weeks, she shall do so on her own time.

[102] I make the final order as follows:

1. The parties shall have a joint decision-making responsibility for the child of the marriage, namely J., born in 2015.

2. The parties shall consult and attempt to reach an agreement with regards to all major decisions concerning the child, including, but not limited to, medical and dental treatment, education, religion, and extracurricular activities such as summer camps. If the parties are unable to agree on any such major decisions, the parties may proceed to mediation failing which the issue shall be submitted to the Superior Court for adjudication.

3. The parties may both make inquiries and be given information by the child’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with the child. The parties shall both be entitled to access to any information or documentation related to the child and shall cooperate in executing any required authorization or direction necessary to enforce the right of the party to obtain that information.

4. The child shall attend Muchmore Public School as of September 2024.

5. The following holiday schedule shall override and replace the regular schedule:

(a) Professional Development days: if a PD Day falls on either Friday or Monday (except for the holidays mentioned below), Brodie’s parenting time shall be extended to include that day. If a PD Day falls on a Friday, Brodie shall pick the child up after school on Thursday. If the PD Day falls on Monday, Brodie shall return the child on Monday at 5 PM.

(b) March break: Brodie shall parent the child during the March break in odd-numbered years and Amanda shall do so in even-numbered years. The March break shall be deemed to commence on the Friday at 5 PM preceding the break and shall end at 5 PM on the Sunday preceding the child schedule return to school following set break.

(c) Easter: Brodie shall parent the child from Thursday at 5 PM preceding the Easter weekend and shall end on Monday at 5 PM preceding the child’s schedule return to school following the Easter weekend in odd-numbered years. Amanda will have the child for the same weekend in even-numbered years.

(d) Mother’s Day: irrespective of the parenting schedule, Amanda shall have the child every Mother’s Day from Saturday at 7 PM.

(e) Father's Day: irrespective of the parenting schedule, Brodie will have the child every Father's Day from Saturday at 7 PM until Sunday at 5:00 PM with Brodie being responsible to picking up and returning the child to Amanda.

(f) Summer break: each parent shall be entitled to have the child for four weeks during the child's summer break from school taken in two-week blocks of time or on an altering week about basis. In odd numbered years, Brodie shall have the first choice of weeks and he shall confirm with Amanda no later than March 15th. Amanda shall have the first choice in even numbered years to be confirmed by March 15th. If either party fails to provide notice by March 15th in any given year, that parent is still entitled to take vacation time with the child, but the selection of dates shall be subject to the choices made by the other parent.

(g) Labour Day weekend: Brodie shall parent the child on Labour Day long weekend in even numbered years and Amanda shall do so in odd numbered years. The Labour Day weekend shall be deemed to commence on Friday at 5:00 PM and shall end Monday at 5:00 PM

(h) Thanksgiving: Brodie shall parent the child throughout the Thanksgiving long weekend in odd numbered years and Amanda shall do so in even numbered years. The Thanksgiving weekend shall be deemed to commence at 5:00 PM on Friday preceding the weekend and shall end the following Monday at 5:00 PM

(i) Christmas break: Brodie shall parent the child throughout the week of Christmas in even numbered years and Amanda shall do so in odd numbered years. The Christmas break shall be deemed to commence at 5:00 PM on the Friday preceding Christmas Day and shall continue for seven consecutive days ending at 5:00 PM

CHILD SUPPORT AND SECTION 7 EXPENSES

[103] Based on my finding that the child's primary residence shall be with Amanda and based on a finding that Brodie's annual income is $200,649, I order that commencing January 1, 2024, Brodie shall pay to Amanda table child support in the amount of $1664 per month.

[104] I order the parties shall exchange copies of their personal or corporate income tax returns by May 15th of each year. The parties shall exchange copies of their Notice of Assessment or Notice of Reassessment both corporate and personal within 15 days of receipt. Child support shall be adjusted, if required, as of January 1 of each year.

[105] Brodie has never paid any costs of Amanda’s daycare, summer camps, skating lessons, piano lessons, or cubs. However, Amanda indicates that there is no claim for retroactive contributions to these expenses.

[106] Other than the daycare expenses incurred by Amanda, to which Brodie should contribute his net after tax contribution, I order that Amanda seek Brodie's consent before incurring any other Section 7 expenses and that Brodie's consent is not to be unreasonably withheld. The parties should keep in mind that to qualify as a Section 7 expense, the expense must be necessary, affordable, and reasonable. If the parties are unable to reach an agreement, the first step is to attend mediation failing which the parties will have no other alternative but to commence court proceedings and the risks associated with costs payable by the losing party.

[107] I order that the parties shall share all Section 7 expenses in proportion to their incomes including but not limited to:

(a) Net after tax daycare costs.

(b) Summer camp costs.

(c) Any uninsured medical and or dental expenses.

[108] Amanda has requested that certain expenses be included has Section 7 expenses being a tutor, counseling expenses, and a psycho educational assessment for the child. I decline to make such order as there is no evidence that those expenses are currently required. If Amanda seeks Brodie’s contribution, she must justify the expense and if there is a disagreement, the parties should attend mediation failing which she will be required to bring a motion to this court.

SPOUSAL SUPPORT

Entitlement

[109] Amanda seeks spousal support commencing January 1, 2024, and payable until December 31st, 2031, with the current request being $5071.00 per month. Despite the separation on January 1, 2019, Amanda seeks that spousal support commence as of January 1, 2024, based on Brodie’s income. In addition, Amanda seeks an adjustment every January with respect to spousal support which is to continue at the mid range level based on the parties’ incomes.

[110] Brodie's position is Amanda's claim for spousal support be dismissed.

[111] Section 15.2 of the Divorce Act, R.S.C. 1985 c. 3 provides:

Spousal support order

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

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim 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, pending the determination of the application under subsection (1).

Terms and conditions

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

Factors

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

o (a) the length of time the spouses cohabited;

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

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

Spousal misconduct

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Objectives of spousal support order

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

o (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

o (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

o (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

o (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[112] The spousal support provisions of the Divorce Act are intended to achieve an equitable sharing of the economic consequences of marriage and its breakdown. (Moge v Moge 1992 25 (SCC), [1992] 3 S.C.R. 813.)

[113] There are three bases for the entitlement to spousal support being compensatory support, non-compensatory support, and contractual support. (Bracklow v Bracklow 1999 715 (SCC), [1999] 1 SCR 420).

[114] Compensatory support is meant to acknowledge the contributions of a spouse to the relationship and any financial opportunities which the spouse has forgone for the sake of the family or other spouse. Generally, compensatory awards are seen where one spouse has sacrificed career opportunities, has made significant contributions to the household, and where one spouse has made significant contributions to the other spouse’s career. It may also apply where one spouse has received the benefit as result of roles assumed by the other spouse. (Moge v Moge)

Analysis

[115] Prior to meeting Brodie, Amanda obtained a diploma in Fitness and Health Promotion at St. Lawrence College and a diploma in Recreation Facility Management at Algonquin College. When she met Brodie, she was 25 years of age and was working as a financial advisor. She then worked at a long-term care facility for about a year and in the spring 2014, started to work as an office manager for Dr. Mark Jacksons dental practice. By May 2015, she was on maternity leave which lasted, after an extension due to her cancer diagnosis, to November 2016. She then worked as an office manager for Dr. Mark Jackson until July 9, 2022. From October 2020 to August 2021, she worked as an office manager at a dental office in Ottawa. By the time she left her employment in Ottawa, she was earning approximately $67,000 a year.

[116] When Brodie met Amanda, he was 25 years of age and started university in 2014. I accept the evidence from Amanda that she was very supportive of Brodie’s pursuit of a science degree with an eventual hope that he would get into dental school, graduate, and take over his father’s dental practice. I accept Amanda’s evidence that they discussed her working as the office manager and him being the dentist in Cobden. Amanda's evidence was not contradicted by Brodie.

[117] I accept Amanda’s evidence that both Amanda and Brodie’s focus was on Brodie obtaining the highest marks so he could be admitted into dental school. I accept her evidence that he missed a lot of family functions to study as everything was about his school. I accept Amanda’s evidence that it was a team approach with her caring for the child and him focusing on becoming a dentist where he could take over his father’s dental practice.

[118] I accept Amanda’s evidence that she raised the idea that she wanted to pursue a university degree, but that Brodie told her he would make enough money so there would be no need for her to go to school and the cost of such education would be too expensive. Brodie did not deny Amanda's evidence on this point.

[119] When Brodie was studying for his Bachelor of Science degree at Carleton University, I accept that he participated as much as he could in raising their child. I recognize that he would sleep in Ottawa to reduce the commute from Eganville to Carleton University but otherwise would assist the applicant in caring for the child in the evenings, weekends and during the summer school break. However, the bulk of the childcare responsibility fell to Amanda.

[120] When the parties decided to move to Winnipeg so that Brodie could pursue his dentistry degree, it was Amanda who flew to Winnipeg to find a residence to rent, and it was Amanda who gave up her full-time employment with Dr. Mark Jackson to care for the child and support Brodie in his studies.

[121] When the parties separated in January 2019, despite attempts at reconciliation later that year, the plan that Amanda would be the office manager and Brodie would be the dentist was no longer viable and Amanda would eventually have to leave.

[122] As part of that restructuring of her financial plan for supporting herself with the child, Amanda pursued employment opportunities in the Ottawa Valley without success. I accept Amanda’s evidence that she could not find similar employment opportunities in the Ottawa Valley. Consequently, she expanded her search and found a job in Ottawa.

[123] The birth of the child had no impact on Brodie’s educational pursuit. On the other hand, the birth of the child became Amanda’s responsibility and once the parties separated, her financial future was at risk because she could no longer remain working for Dr. Mark Jackson when Brodie finished his education.

[124] In her application dated November 1, 2020, Amanda claimed spousal support on a compensatory and needs basis as of November 2020. However, at trial, she seeks spousal support as of January 1, 2024, five years after separation. The commencement date for spousal support is discretionary. (Kerr v Baranow 2011 SCC 10.)

[125] I do not find that the income disparity between Brodie and Amanda that has existed since 2023 is a ground for finding that Amanda has an entitlement to spousal support. Further, the fact that the parties married is not in itself a ground for an entitlement to spousal support.

[126] I do not find that Amanda is entitled to non-compensatory spousal support because during the period of cohabitation, once Brodie started his Bachelor of Science degree in September 2014, the main source of income was from Brodie’s parents. After separation, Brodie lived on the line of credit and money from his parents. Amanda’s standard of living did not change when she moved back from Winnipeg in January 2019 as Brodie was paying for the housing expenses.

[127] I accept Amanda’s evidence that Brodie told her during the marriage that she should not go to university because he would earn enough income for both. I find that Amanda relied on this statement by Brodie and did not pursue a university education.

[128] I agree with Brodie’s submissions that the purpose of spousal support is not the compensate Amanda for the marriage that she planned for but rather, for the marriage that they had. In their marriage, and until Brodie started working in July 2022, Amanda was the main caregiver for the child allowing Brodie to pursue his professional degree. I reject Brodie’s submission that Amanda did not suffer any negative consequences of this marriage. The provisions of the Divorce Act specifically identify childcare responsibility as a factor for the court to take into consideration as well as the benefit derived by one party based on one party assuming responsibility. That is exactly the case here.

[129] Based on my finding, I find that Amanda has an entitlement to compensatory spousal support.

Imputation of income

[130] Amanda has not been employed on a full-time basis since August 2021 as she has been pursuing her education. Brodie has been working as a dentist since July 2022 and is currently earning $200,648.

[131] Brodie seeks to impute an income of $65,000 a year to Amanda arguing that she is intentionally under-employed and that such underemployment is not required for the needs of the child or by the reasonable educational needs of Amanda.

[132] Amanda’s position is that it is a reasonable educational plan, and an income should not be imputed to her while she is pursuing these studies.

[133] I make the following findings of fact with respect to the parties’ incomes:

a) In 2020, Amanda earned $55,871 while Brodie earned $8000 while attending dental school.

b) In 2021, Amanda earned $52,407 while Brodie had no income as he was attending dental school.

c) In 2022, Amanda earned $18,768 while Brodie earned $55,394.

d) In 2023, Amanda did not have any employment income while Brodie earned $200,648.

[134] Section 19 of the Federal Child Support Guidelines, S.O.R./97-175, as am. [“Guidelines”] provides:

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

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

(b) the parent or spouse is exempt from paying federal or provincial income tax;

(c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

(e) the parent’s or spouse’s property is not reasonably utilized to generate income;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

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

(h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[135] The Court of Appeal in Drygala v. Pauli (2002), 61 O.R. (3d) 771 (C.A.), at para. 23, set out a three-part test for determining whether income should be imputed on the basis of intentional under-employment or unemployment as follows:

1. Is the spouse intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[85] The jurisprudence has set out various principles that apply to the imputation of income as follows:

a) A spouse is intentionally underemployed if he or she chooses to earn less than he or she is capable of earning having regard to all of the circumstances (Drygala, at para. 28). There is no requirement that the under-employment or unemployment be undertaken in bad faith or with the intention of avoiding support payments (Drygala, at paras. 29-36).

b) The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is intentionally under-employed or unemployed (Homsi v. Zaya, 2009 ONCA 322 at para.28.).

c) The second step of the Drygala test is generally treated as an overall test of reasonableness. In Jackson v. Mayerle, 2016 ONSC 72, at para. 702, the court held that:

Once intentional underemployment is established, the onus shifts to the payor to show one of the exceptions of reasonableness.

d) Where the spouse is intentionally and unreasonably under-employed or unemployed, the court has a large range of discretion to impute as income an amount founded on a rational basis. D.D. v. H.D., 2015 ONCA 409

[136] On the issue of reasonable educational needs, the Court of Appeal in Drygali, provided the factors for the court to consider when determining reasonable educational needs of a claimant in para 38-41 as follows:

[38] There is a duty to seek employment in a case where a parent is healthy. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs.

[39] There are two aspects to this stage of inquiry. The trial judge must first determine whether the educational needs are reasonable. This involves a consideration of the course of study. A spouse is not to be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.

[40] But, s. 19(1)(a) speaks not only to the reasonableness of the spouse's educational needs. It also dictates that the trial judge determines what is required by virtue of those educational needs. The spouse has the burden of demonstrating that unemployment or under-employment is required by virtue of his or her reasonable educational needs. How many courses must be taken and when? How much time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands such that the spouse is excused from pursuing part-time work? Could the program be completed over a longer period with the spouse taking fewer courses so that the spouse could obtain part-time employment? If the rigours of the program preclude part-time employment during the regular academic school year, is summer employment reasonably expected? Can the spouse take co-operative courses as part of the program and earn some income in that way? These are the types of considerations that go into determining what level of under- employment is required by the reasonable educational needs of a spouse.

[41] The burden of proof is upon the spouse pursuing education as he or she is the person with access to the requisite information. The spouse is in the best position to know the particular requirements and demands of his or her educational program. He [page721] or she will have information about the hours of study necessary to fulfill such requirements, including the appropriate preparation time. He or she is in the best position to show whether part-time employment can be reasonably obtained in light of these educational requirements.

Analysis

[137] By August 2021, Amanda had been working fulltime as the office manager in two dental clinics since 2014. She worked with Dr. Mark Jackson from 2014 until July 9, 2022.

[138] Amanda has the burden of proof to that her educational plan was reasonable in July 2021 and whether the pursuit of a master’s degree program and possibly a PhD is a reasonable decision.

[139] Amanda testified that when she started her education in September 2021, her hours of in class/online learning fluctuated between 6 to 18 hours per week, that every semester was different and that the program ran from September to April of every year. Brodie testified that when he was attending Carleton University, he took four courses a semester and was in class 12 to 18 hours per week sometimes four days per week. It appears that both parties had similar school schedules while they were pursuing their bachelor’s degrees.

[140] In cross examination, when asked why she was taking a bachelor’s degree, she testified, because she could. In cross examination, Brodie admitted that while living together, he told Amanda that she did not have the work ethic to go to university.

[141] Since she started her Bachelor of Arts degree in September 2021, Amanda has received annual grants such as the $18,506 received for the 2023- 2024 school year. In addition, she receives the Canada Tax Benefit of $656.82 per month and pays daycare expenses of $557 per month.

[142] Amanda admits that she has not made any applications for employment since August 2021 and is focusing on single parenting, going to school, and the ongoing litigation. In 2023, she sought an internship through the federal government but was unable to do so because of the outstanding criminal charges.

[143] For the summer 2024, Amanda testified she did not plan on working as she wanted to celebrate the end of the court case and have more time with her child because of her not having her child from July 2nd, 2023, to August 24th, 2023. She hopes to get an internship while pursuing her master’s program.

[144] In her testimony, Amanda did not provide any evidence as to whether the degree could be taken on a part-time basis, no evidence as to the potential employment opportunities and no evidence as to what her actual plan was. She mentioned that she wanted to become a psychotherapist but indicated she was unsure if she needed to have a PhD which, according to Amanda’s evidence, would require three-year bachelor’s degree, two-year master’s degree, and four years for a PhD for a total of nine years. Starting in September 2021 at age 35, Amanda’s plan would require her to be in school until April 2030, when she would be 44 years of age.

[145] Since Amanda is seeking support for a two-year master’s program and then four years for a PhD program, I must determine if that is a reasonable educational plan based on the evidence presented. I make the following findings of fact:

a) The parties lived together from August 2012 to January 1, 2019, a period of 6 ½ years.

b) It was a reasonable decision for Amanda to move from Cobden to Ottawa.

c) It was a reasonable decision for Amanda to pursue a Bachelor of Arts degree as she had no university degree, was on her own and supporting her child. I accept that she pursued post-secondary education to improve her financial future.

d) Amanda testified she is to start the master’s program September 2024 and she is hoping to be paid an internship while working on her master’s degree.

e) In response to a question from her own counsel, she testified that after pursuing the master’s degree and the PhD, she testified that she may be a psychotherapist. However, she was unsure if she even needed a PhD to obtain that designation.

[146] I accept that it was reasonable for Amanda to obtain a bachelor’s degree and to pursue a master’s degree. However, it is not reasonable for her not to seek part time employment or summer employment during her studies. Most students work part time a during the four months of summer holidays. In this case, since being terminated by Dr. Mark Jackson on July 9, 2022, Amanda has chosen not to work part-time or during the summer. I find that Amanda believes the Brodie should pay for her education without any financial contribution by herself. I do not find that this is a reasonable position to take and consequently, I find it is fair and reasonable to impute an income to her.

[147] To impute an income to Amanda, I must be guided by her previous income, her ability to work while pursuing the master’s degree considering reasonable childcare arrangements.

[148] When Amanda moved to Ottawa in October of 2020, her annualized salary was approximately $67,000 but Amanda testified that she would have only earned $60,000. This evidence was not contradicted in cross examination.

[149] In 2022, while working part-time for Dr. Mark Jackson, Amanda earned $18,622 for 8 months work as she was terminated on July 9, 2022, and received eight weeks severance.

[150] Amanda has provided no information as to her school schedule while pursuing the master’s degree but advised that the child was in daycare from 7:30 AM to 5:30 PM while she studied for her undergraduate degree.

[151] I find that it is fair and reasonable to impute an income to Amanda. I have a discretion in the amount of income to impute to Amanda. Most students work while pursuing their education. The current minimum wage in the province of Ontario for a 40-hour work week is approximately $35,000 a year. ($2916 per month).

[152] Further, Amanda has an obligation to contribute to her own son’s expenses. I will impute an income to Amanda for the eight months when Amanda is in school at a rate of $1500 per month and $3000 per month for the four months of the summer holidays resulting in an annual income of imputed income of $24,000.

[153] Based on Brodie’s income of $200,649, Amanda is imputed income of $24,000, the DIVORCEMATE calculations attached to these reasons for judgment indicate that the range of spousal support is $3526(low), $4154(mid) add $4762(high).

[154] The applicant has provided a DIVORCEMATE calculation indicating that based on 6.5 years of cohabitation with the recipient being 32 years of age at the date of separation the Spousal Support Advisory Guidelines (“SAAG”) recommend an indefinite (unspecified) duration, subject to variation and possibly review with the minimum duration of 3.25 years and a maximum duration of 15 years from the date of separation.

[155] Amanda seeks spousal support from January 1, 2024, to December 31, 2031, a period of eight years to permit her to complete her master’s degree and PhD. In her application Amanda sought spousal support as of November 2021. Brodie did not start to earn income over $8000 until 2022. The first full year that Brodie was employed was in the year 2023. In that year, Amanda was in full-time studies, caring for the child and Brodie was working as a dentist.

[156] I reject Amanda’s request that spousal support should start January 2024. The spousal support should start when Brodie had an ability to pay and working fulltime. I see no reason why spousal support should not have started as of January 2023.

[157] I reject Amanda’s claim to receive spousal support until December 2030. During her testimony, she provided no reasonable educational plan of a PhD or even if she was going to seek a PhD.

[158] It is anticipated that Amanda would complete her master’s degree in April 2026, and I find that it is reasonable to allow Amanda a period after obtaining her master’s degree to start to work and in the circumstances, the spousal support should be paid until the end of 2026.

[159] In determining the amount of spousal support, the court is to take into consideration the nature of entitlement, the childcare arrangement, the equalization payment, the needs of the recipient and the ability to pay of the payor. Based on the 6 ½ years of cohabitation, Amanda’s entitlement to compensatory spousal support, Amanda’s pursuit of education to improve her earning capacity, Brody’s ability to pay, Amanda being the primary caregiver for the child and Amanda’s need, I order that Brodie pay to Amanda spousal support of $4,000 per month commencing on January 1st, 2023, terminating on December 1, 2026.

[160] The quantum of spousal support is subject to a material change in circumstances.

LIFE INSURANCE AS SECURITY FOR SUPPORT

[161] In her Application, Amanda seeks $400,000 of life insurance designating her as the irrevocable beneficiary interest for the child as security for child support. Amanda makes no claim for any life insurance to secure any spousal support entitlement. In her draft order, Amanda seeks the same relief.

[162] Neither party testified as to the amount of insurance requested, the amount of insurance that Brodie had available, the amount recommended in the DIVORCEMATE child\spousal support calculation, and no submissions were made in closing arguments with respect to life insurance. Consequently, I make no order as to life insurance.

EQUALIZATION OF THE NET FAMILY PROPERTY

[163] Amanda submits that each party receive an equal amount of the proceeds from the sale of the home. In May 2023, the parties agreed to release part of the net proceeds of sale with Amanda receiving $115,000 and Brodie receiving $190,000 resulting in approximately $168,978.89 being held in trust.

[164] The parties have settled the equalization calculation. The Net Family Property statement filed as exhibit 49 indicates that with each party receiving 50% of the net proceeds of sale of the matrimonial home, Amanda owes Brodie an equalization payment of $113,106.30.

[165] I order that the proceeds of sale of the matrimonial home are not to be released until the costs of this trial are resolved by either agreement or a further order of this court.

POST SEPARATION ADJUSTMENTS

[166] Brodie seeks an order that Amanda pay to him $28,161.30 related to post separation adjustments paid by him mainly with respect to the carrying costs of the matrimonial home for the period of January 2019 to January 2022, when the residence was sold.

[167] Amanda admitted during the trial that her share of the post separation adjustments amounted to $28,161.30. However, Amanda argues that there was an agreement that Brodie would not pay child support but rather would pay the mortgage, insurance, and some property taxes on the matrimonial home where she and the child were residing after separation. As such, she should not be responsible to pay any post separation adjustments.

[168] Firstly, there is no written documentation to corroborate that there was an agreement in writing or by text message or e-mail confirming any such agreement.

[169] Secondly, from 2019 to 2022, Brodie was a student in dental school where he received a line of credit to help fund his education. In 2020, Brodie earned $8000, in 2021, he earned no income, and in 2022, he earned $55,394.

[170] Ms. Thompson, the paternal grandmother, testified that her and her husband provided financial support to Brodie by paying for his tuition, buying his cars, paying for his housing expenses, paying for his wedding and honeymoon, and transferred money to his account every month from 2015 to 2018. According to a summary of funds transferred between June 6, 2014, and December 27th, 2018, the paternal grandparents transferred to Brodie approximately $286,000.

[171] I find that from January 1, 2019, until November 2019, Amanda, the child, and her mother lived in the matrimonial home and Brodie paid for the mortgage, property insurance and municipal taxes for 2020 and 2021. Amanda paid hydro expenses. I find that Amanda received and kept the $1000 rental charge received from her mother while she remained in the matrimonial home.

[172] I find that Amanda and the child remained in the home until she moved to Ottawa in October 2020 and thereafter, the matrimonial home was vacant.

[173] Brodie testified that he wanted to have the home appraised in 2021 so that he could possibly purchase Amanda's interest, but she refused access and told him he was going to pay the bills in lieu of child support. Although afforded an opportunity to provide reply evidence, Amanda declined.

[174] I find that on December 27, 2021, Brodie paid for a new dishwasher in the amount of $649.75 and that by email dated December 31, 2021, he requested that Amanda pay her share in the amount of $329.33. Amanda never paid her share.

[175] I reject Amanda’s submission that there was an agreement for Brodie to pay the carrying costs of the residence instead of paying child support. As a joint owner of the matrimonial home, Amanda had a liability towards paying half of the mortgage, property insurance, and taxes. I reject Amanda's submission and prefer the evidence of Brodie that he would have had no legal obligation to pay child support from 2019 to January 2022 because he had little if any income. I order Amanda to pay to Brodie the sum of $28,161.30.

PREJUDGMENT INTEREST

[176] Brodie seeks prejudgment interest $12,196.88 from January 1st, 2019, to May 21st, 2024, or $2088.59 based on a calculation from November 9th, 2020, to May 21st, 2024, set out in an e-mail from counsel for Brodie dated May 21st, 2024.

[177] Brodie submits that he is presumptively entitled to prejudgment interest, that prejudgment is compensatory, and the circumstances of this case do not give rise to the exception to the general rule that prejudgment interest is owing from the date upon which the cause of action arose.

[178] Amanda submits that a claim for prejudgment interest is discretionary and submits that in refusing such a claim, the court should take into consideration that most of the funds came from the sale of the matrimonial home and that the respondent only withdrew his claim for unequal division just before the trial commenced.

[179] While the parties separated on January 1st, 2019, they attempted reconciliation in June 2019 and mediation in 2020. The main asset of the parties was the matrimonial home which only sold in January 2022. In Brodie’s Answer and Claim dated January 29, 2021, he gave notice to Amanda that he was seeking prejudgment interest on the equalization payment. It was only in May 2023 that the parties were able to receive some of the proceeds of sale of the matrimonial home.

[180] Upon review of the Net Family Property statement filed as exhibit 49, Amanda's assets comprise of her half interest in the matrimonial home, her 2011 motor vehicle, a 2011 skidoo, bank accounts, and a TFSA.

[181] The Ontario Court of Appeal in Burgess v Burgess (1995) 1995 8950 (ON CA), 24 O.R. (3d) 547 and Fielding v Fielding 2015 ONCA 901 confirm that the decision to award prejudgment interest is discretionary. Until Brodie withdrew his claim for an unequal division, the calculation of the Net Family Property was problematic. Further, the matrimonial home only sold in January 2022 and the funds were held in trust until the parties agreed in May 2023 to release $115,000 to Amanda and $190,000 to Brodie.

[182] I do not find that this is an appropriate case to award prejudgment interest as the main asset was the matrimonial home and the calculation of the equalization payment was only concluded in 2024 prior to the trial. Considering all these factors, I decline to award Brodie any prejudgment interest.

COSTS

[183] On the issue of costs, I order Amanda to provide her costs submissions by August 28th, 2024, with said submissions limited to five pages plus a detailed bill of costs and any offers to settle. I order that Brodie provide his cost submissions by September 11, 2024, with said submissions limited to five pages plus a detailed bill of costs and any offers to settle. Amanda may file a reply to submissions no longer than two pages by September 18, 2024.

[184] If the parties settle the issue of costs, they are to advise the court by letter sent to scj.assistants@ontario.ca

Mr. Justice Mark Shelston

Released: August 14, 2024

COURT FILE NO.: FC-20-1788

DATE: 2024/08/14

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Amanda Moss, Applicant

AND

Brodie Mark Jackson, Respondent

BEFORE: Justice Shelston

COUNSEL: John E. Summers, for the Applicant

Sarah Kennedy, for the Respondent

Reasons for judgement

Mr. Justice Mark Shelston

Released: August 14, 2024