Most Negative Treatment: Recently added (treatment not yet designated)
Most Recent Recently added (treatment not yet designated): K.G. v. D.G. | 2023 BCSC 1162, 2023 CarswellBC 1966 | (B.C. S.C., Jul 7, 2023)
2010 ONSC 158
Ontario Superior Court of Justice
Katz v. Katz
2010 CarswellOnt 10854, 2010 ONSC 158, [2011] W.D.F.L. 5323, [2011] W.D.F.L. 5327, [2011] W.D.F.L. 5343, [2011] W.D.F.L. 5353, [2011] W.D.F.L. 5354, [2011] W.D.F.L. 5365, [2011] W.D.F.L. 5366, 1 R.F.L. (7th) 329, 204 A.C.W.S. (3d) 566
Orly Katz (Applicant) and Neil Ari Katz (Respondent)
Jayne E. Hughes J.
Heard: May 11-20, 2009
Judgment: April 26, 2010
Docket: Newmarket FC-06-23535-00

Counsel: Applicant, for herself
Respondent, for himself
Subject: Family; Property; Contracts

Related Abridgment Classifications

Family law
VII Division of property
VII.8 Matrimonial home
VII.8.e Deductions from proceeds of sale
Family law
VIII Support
VIII.1 Issues common to child and spousal support
VIII.1.a Determination of income
VIII.1.a.v Miscellaneous
Family law
VIII Support
VIII.1 Issues common to child and spousal support
VIII.1.c Lump sum award
VIII.1.c.ii Factors
Family law
VIII Support
VIII.2 Child support
VIII.2.c Extraordinary expenses
VIII.2.c.vii Miscellaneous
Family law
VIII Support
VIII.3 Spousal support
VIII.3.a Entitlement
VIII.3.a.i Compensatory support [economic disadvantage of marriage]
Family law
X Custody and access
X.1 Best interests of child generally
X.1.i Miscellaneous
Family law
XVII Practice and procedure
XVII.1 Jurisdiction
XVII.1.d Parentage, custody and access

Headnote

Family law --- Custody and access — Jurisdiction of courts — General principles
Parties separated in 2004 after 18 years of marriage — They had three sons — Wife applied for access — Application granted in part with respect to access — Evidence demonstrated that children had dire need for experienced professional to quarterback implementation of parenting plan, including actual timetable and to deal with strategic manoeuvring and power plays being engaged in by both parents — Accordingly, and despite lack of consent on part of parties, court exercised parens patriae jurisdiction to protect children and to do what was in best interests, to appoint parenting coordinator to serve as facilitator, with power to make recommendations respecting resolution of parenting disputes and to assist in implementing parenting plan smoothly, and negotiating separation process in most sensitive and supportive manner possible for children.
Family law --- Custody and access — Factors to be considered in custody award — Best interests of child generally — Multiple factors considered
Parties separated in 2004 after 18 years of marriage — They had three sons — Wife applied for custody — Application granted with respect to custody — Mother was to have sole custody of sons — Mother had final decision-making authority with regard to major decisions; however, she was to solicit input and opinion of father, in relation to any and all major decisions affecting children, including those decisions related to children’s physical and psychological health, their education, their religious training and education, any extra curricular activities that impact on both parents’ time, and any other major decision affecting children’s general welfare, prior to rendering final decision.
Family law --- Support — Child support under federal and provincial guidelines — Determination of award amount — Spouses’ means — General principles
Parties separated in 2004 after 18 years of marriage — They had three sons — Wife applied for child support — Application granted with respect to child support — Father had ongoing obligation to pay child support for sons J and C based on income as stipulated on income tax return — Father’s income for 2008 was $130,587.88, as set out in 2008 income tax return, he was ordered to pay child support in sum of $1,766 per month — Father’s evidence remained steadfast throughout wife’s questioning; there were no inconsistencies and documents produced by parties in action appeared consistent with father’s evidence — Father’s evidence was accepted and no basis for wife’s allegation that husband was understating his income, as declared in his income tax returns.
Family law --- Support — Child support under federal and provincial guidelines — Determination of award amount — Extraordinary expenses — General principles
Parties separated in 2004 after 18 years of marriage — They had three sons — Wife applied for s. 7 expenses — Application granted with respect to s. 7 expenses — It was reasonable to impute $3,000 per annum of income to mother for purposes of determining spousal support, but because of mother’s tendency to under-report actual income on tax returns, court was not prepared to order that parents share s. 7 expenses for children in proportion to respective incomes — It was fair and reasonable that they shared s. 7 expenses equally, particularly in light of subsequent provisions in order, which addressed and diminished disparity in respective incomes.
Family law --- Support — Spousal support under Divorce Act and provincial statutes — Lump sum award — Factors to be considered — Causal connection between need and marriage
Parties separated in 2004 after 18 years of marriage — They had three sons — Wife applied for lump sum spousal support — Application granted with respect to spousal support — Wife was entitled to compensatory support in lump sum amount of $25,000 — This sum was to be paid to her from insurance proceeds currently held at bank and would be compensation to wife absolutely, whether she used it to complete her interrupted course of studies, to enhance her current career, or otherwise — Given costs of pursuing higher education, even on part time basis, it would not be unreasonable for her to incur expenses of between $4,000 and $5,000 per year.
Family law --- Support — Spousal support under Divorce Act and provincial statutes — Entitlement — Economic disadvantage of marriage — Caused by breakdown
Parties separated in 2004 after 18 years of marriage — They had three sons — Wife applied for periodic spousal support — Application granted with respect to periodic spousal support — Husband ordered to pay periodic spousal support in amount of $800 per month — Commencing January 1, 2010, husband ordered to pay arrears of $20,800 at rate of $200 per month, to be reviewed on sale of matrimonial home and when child support changed — Given facts of case, and in particular respective advantages and disadvantages experienced by parties, as incidents of marriage and breakdown, duration of periodic spousal support suggested by guideline was appropriate — Husband had obligation to support wife for maximum duration of 17 years from date parties ceased cohabiting in May 2004.
Family law --- Division of family property — Matrimonial home — Deductions from proceeds of sale — General principles
Parties separated in 2004 after 18 years of marriage — They had three sons — Wife applied for division of assets — Application granted with respect to division of assets — Wife ordered to pay to husband from her share of proceeds from sale of matrimonial home, sum of $25,617.82 in order to equalize their net family property — Amount was fair and reasonable in particular circumstances of case and complied with legislative directive.

Table of Authorities

Cases considered by Jayne E. Hughes J.:
Amaral v. Amaral (1993), 1993 CarswellOnt 372, 50 R.F.L. (3d) 364 (Ont. Gen. Div.) — referred to
Bracklow v. Bracklow (1999), 1999 CarswellBC 532, 1999 CarswellBC 533, 169 D.L.R. (4th) 577, 236 N.R. 79, 44 R.F.L. (4th) 1, 120 B.C.A.C. 211, 196 W.A.C. 211, [1999] 1 S.C.R. 420, [1999] 8 W.W.R. 740, 63 B.C.L.R. (3d) 77 (S.C.C.) — followed
Caratun v. Caratun (1992), 42 R.F.L. (3d) 113, 47 E.T.R. 234, 96 D.L.R. (4th) 404, 10 O.R. (3d) 385, 58 O.A.C. 140, 1992 CarswellOnt 287 (Ont. C.A.) — considered
Dababneh v. Dababneh (2003), 48 R.F.L. (5th) 55, 2003 CarswellOnt 5004 (Ont. S.C.J.) — referred to
Dougherty v. Dougherty (2008), 2008 ONCA 302, 2008 CarswellOnt 2203, 51 R.F.L. (6th) 1, 292 D.L.R. (4th) 103, 235 O.A.C. 85, 89 O.R. (3d) 760 (Ont. C.A.) — referred to
Gale v. Gale (2002), 25 R.F.L. (5th) 40, [2002] 5 W.W.R. 645, 2002 MBCA 53, 2002 CarswellMan 196, 163 Man. R. (2d) 309, 269 W.A.C. 309 (Man. C.A.) — referred to
Karjama v. Karjama (2002), 2002 CarswellOnt 1135 (Ont. S.C.J.) — referred to
Moge v. Moge (1992), [1993] R.D.F. 168, [1993] 1 W.W.R. 481, 99 D.L.R. (4th) 456, [1992] 3 S.C.R. 813, 81 Man. R. (2d) 161, 30 W.A.C. 161, 43 R.F.L. (3d) 345, 145 N.R. 1, 1992 CarswellMan 143, 1992 CarswellMan 222 (S.C.C.) — followed
Passarello v. Passarello (1998), 64 O.T.C. 118, 1998 CarswellOnt 2983 (Ont. Gen. Div.) — referred to
Rick v. Brandsema (2009), 266 B.C.A.C. 1, 449 W.A.C. 1, [2009] 1 S.C.R. 295, 2009 SCC 10, 2009 CarswellBC 342, 2009 CarswellBC 343, 62 R.F.L. (6th) 239, 303 D.L.R. (4th) 193, [2009] 5 W.W.R. 191, (sub nom. N.R. v. B.B.) 385 N.R. 85, 90 B.C.L.R. (4th) 1 (S.C.C.) — followed
Statutes considered:
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)
Generally — referred to
s. 15.2 [en. 1997, c. 1, s. 2] — considered
s. 15.2(3) [en. 1997, c. 1, s. 2] — referred to
s. 15.3(3) [en. 1997, c. 1, s. 2] — considered
Family Law Act, R.S.O. 1990, c. F.3
Generally — referred to
s. 4(2) — considered
s. 4(2) [am. 2004, c. 31, Sched. 38, s. 2(1)] — referred to
s. 4(2) [am. 2009, c. 11, s. 22(5)] — referred to
s. 4(3) — considered
s. 5(6)(b) — considered
s. 24 — considered
s. 24(1)(c) — considered
s. 56 — considered
Insurance Act, R.S.O. 1990, c. I.8
Generally — referred to
Forms considered:
Family Law Rules, O. Reg. 114/99
Form 14B — referred to
Regulations considered:
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)
Federal Child Support Guidelines, SOR/97-175
Generally — referred to
s. 7 — considered
Sched. I, s. 4(a) — referred to
APPLICATION by wife for custody, access, child support, extraordinary expenses, ongoing spousal support, and division of assets.

Jayne E. Hughes J.:

I. Introduction — Nature of the Case

1      This seven-day trial was heard in Newmarket. The parties prepared written submissions, which were filed with the court by November 4, 2009.

2      Mrs. Orly Katz and Mr. Ari Katz separated for the final time in May 2004 following Mrs. Katz’s discovery that Mr. Katz was having an extra-marital affair. They had been married almost eighteen years and had been raising three sons together. At trial Mr. and Mrs. Katz presented with such divergent views of their marriage, their interactions, and their family life (pre-separation and post-separation) that it was hard to believe they were talking about the same relationship. They did agree that there had been several separations prior to the final one. They also agreed that they both had wanted the relationship to work and had made attempts at reconciliation, but in the end they were not successful.

3      It is clear from their evidence that this marital breakdown was very emotional and resulted in a total loss of trust and goodwill on the part of both parties. Both are convinced they were physically and emotionally abused during their marriage and that the emotional abuse continues to this day. Although both claim to want the fighting to end, their conflict has continued to escalate since separation, despite the intercession of therapists, assessors, and judges trying to assist in settling the matter. They remain embroiled in the highest level of conflict and their mutual mistrust, condemnation, and reactivity was amply displayed, when in open court, they could not agree on alternative arrangements for their son Corey, when Mr. Katz’s access time conflicted with his time in court. They each blamed the other and neither one could identify or take responsibility for their respective roles in the heated conflict, which played out in front of me. It is clear that their three children have suffered through the warring between their parents, both during this troubled marriage and following the final separation.

II. The Issues to Be Decided

4      In the face of this unfortunate tragedy, I must decide three things:
(a) What specific custody and access arrangements are in the best interests of the children and how will they be supported financially?
(b) Should spousal support be paid?
(c) How should this family’s property be divided and distributed?
I will deal with the issues concerning the children first.

III. Custody and Access

5      Three sons were born of this union: Samuel Jonathan Katz born September 7, 1987 (now 22 years of age), Jordan Allon Katz born May 31, 1992 (now 17 years of age), and Corey Solomon Katz born December 9, 1998 (now 11 years of age). They were 16, 11, and 5, respectively when their parents ceased cohabiting on May 18, 2004. Since separation, Sammy, as he is called by his parents, who continued to reside with his mother, had gone on to attend York University, and on October 27, 2008 got married.

6      Jordan and Corey have also resided with Mrs. Katz since separation and attend school full time.

7      Mr. Katz’s access to all three of his sons has been very problematic, with little or no access to his eldest sons, Sammy and Jordan — stretching into years. Mr. Katz had no relationship with Sammy from April 2006 and with Jordan from August 2006. In the midst of these difficulties Mrs. Katz’s father passed away suddenly on September 7, 2008. Mr. Katz expressed, in genuine terms, his sadness for his children and participated in the traditional Jewish Shiva observance. As sometimes happens, this tragic loss brought this father and his two oldest sons back together. However, much damage has been done in the interval and the steps necessary to help these young men heal should be followed.

8      In this regard, Linda Chodos completed a parenting plan dated July 3, 2007 and a comprehensive assessment report dated September 17, 2007.1 I find the recommendations to be well-founded based on the results of Ms. Chodos’ investigation, which results were consistent with the evidence I heard and the behaviour I observed at trial. I find the plan to be fair and in the best interests of the children, particularly the counselling provisions. Although the parties consented in 2007 to an order incorporating Ms. Chodos’ recommendations, two years later they have still been unable to settle the terms of the order or to cooperatively implement the specifics. During the trial, however, they both agreed that the recommendations of Linda Chodos should be incorporated into my final order, but with one significant exception: Mrs. Katz and Mr. Katz did not consent to the appointment of a parenting coordinator, although this was strongly recommended in the report.

9      Mrs. Katz objected to the appointment of a parenting coordinator on the basis that she believed it would simply keep her and Mr. Katz engaged in a negative cycle and that a clear parenting plan, giving her sole custody and final decision making authority in the event that she and Mr. Katz could not agree on any matter in issue, would be sufficient to resolve any difficulty that might arise. Unfortunately, she has not demonstrated that she will consistently wheel that authority in a manner that is in the best interests of her children. For instance, I find that she unilaterally changed and reduced the amount of access she would permit between Corey and his father, which placed her in contempt of a court order, an order made on consent, and despite the recommendations of Linda Chodos. According to the consent order signed by the parents on May 19, 2006, the children were to be with Mr. Katz every Monday from 4:30 p.m. until 8:15 p.m. and every Saturday from 10:00 a.m. until 7:00 p.m. Mrs. Katz unilaterally changed the access from Mondays to Tuesdays from 6:00 p.m. until 8:30 p.m. and Saturdays from 1:00 p.m. until 5:00 p.m. This was the evidence of Mr. Katz and confirmed in the Chodos report. Access remains very limited to date, despite Mrs. Katz’s consent in 2007 to an order incorporating Mrs. Chodos’ recommendations for expanded access.

10      Further, Mrs. Katz unilaterally altered and restricted the email communication protocol, set out in the recommendations of Linda Chodos; in her email to Mr. Katz dated June 26, 2009, she advised that she would not be reading or answering her emails until Monday, Labour Day, despite having already consented to the Chodos recommendations, which required, among other things, that
... [T]he parents will communicate only through written email communication ... restricted only to day-to-day issues that relate directly to the children (emergencies excepted) ... each parent may send one email per day pertaining only to child related issues. Each parent shall respond to each email within 24 hours.

11      Finally, and most telling, Mrs. Katz seemed to take delight in rejecting every suggestion Mr. Katz made to solve an access schedule conflict that arose during the course of the trial. One of Mr. Katz’s suggestions was that either of Corey’s paternal uncles, who were both available and willing to do so, could pick Corey up and care for him until Mr. Katz finished in court. Without providing to Mr. Katz or to this court any reasonable justification, Mrs. Katz rejected this suggestion and unilaterally arranged for a third party to pick up Corey, thereby reducing further Mr. Katz’s already very restricted access time. Mrs. Katz suggested to the court that this was evidence of how irresponsible Mr. Katz was and of his ineffectiveness as a parent. On the contrary, what I witnessed first hand was Mrs. Katz’s inability to willingly facilitate or foster a positive relationship between Corey and his father, or to accept any constructive input from Mr. Katz on how child related issues should be resolved.

12      Mr. Katz is not without some responsibility for this ongoing struggle for control. His first suggestion was that he contact his girlfriend to pick up Corey. In my court, he displayed no insight into, and little regard for, the difficulties Corey might have if Mr. Katz’s girlfriend picked him up from school and kept him until Mr. Katz finished court that day, despite the fact that Corey had no relationship with the woman. I find that Mr. Katz suffers from an insight deficit and it is apparent to me that he would benefit from the assistance of a parenting coach as recommended by Linda Chodos.

13      Mr. Katz objected to the appointment of a parenting coach and a parenting coordinator for two reasons. His first and primary reason was that it was not affordable, given the current circumstances of the parties. I have made provisions further on in this judgment that will ensure the affordability of implementing Ms. Chodos’ recommendations, as to both counselling and therapy for the children, and as to the appointment of a parenting coach and a parenting coordinator. Mr. Katz’s second reason was that he was doubtful that it could be effective given Mrs. Katz’s past conduct and her apparent disregard for agreed to recommendations and court orders.

14      The evidence in this case has demonstrated to me that these children have a dire need for an experienced professional to quarterback the implementation of the parenting plan, including the actual timetable and to deal with the strategic manoeuvring and the power plays being engaged in by both their parents.

15      Accordingly, and despite the lack of consent on the part of Mr. and Mrs. Katz, I am exercising my parens patriae jurisdiction, that is, my jurisdiction to protect these children and to do what I think is in their best interests, to appoint a parenting coordinator to serve as a facilitator, with the power to make recommendations respecting the resolution of parenting disputes and to assist in implementing the parenting plan smoothly, and negotiating the separation process in the most sensitive and supportive manner possible for the children. The parenting coordinator shall facilitate the resolution of issues regarding the implementation, maintenance, and compliance with the parenting plan.

16      To be clear, the parenting coordinator shall act as a facilitator only, but with the authority to make recommendations. In the event a reasonable consensus cannot be reached, the final decision making authority shall remain with the court.

17      The parenting coordinator shall be appointed for a period of one year from the date of his or her initial retainer and paid for from the parenting coach and parenting coordinator therapy fund established for this purpose, pursuant to paragraph [201] herein.2 This retainer may be extended on consent of the parties. In order to facilitate final decision making by the court, I shall remain seized of this matter for a period of eighteen months from the release date of these reasons for judgment.

IV. Custody and Access Order

18      Mrs. Katz shall have sole custody of Jordan Allon Katz born May 31, 1992 and Corey Solomon Katz born December 9, 1998. Mrs. Katz shall have final decision making authority with regard to major decisions; however, she shall solicit the input and opinion of Mr. Katz, in relation to any and all major decisions affecting the children, including those decisions related to the children’s physical and psychological health, their education, their religious training and education, any extra curricular activities that impact on both parents’ time, and any other major decision affecting the children’s general welfare, prior to rendering a final decision.

19      In order to facilitate this process, Mrs. Katz shall notify Mr. Katz, by email, of any potential major issues. She will provide him with all information she has and copies of any supporting documents that are important in making the decision. Mr. Katz shall provide his input by email. Mrs. Katz shall make the final decision taking into account Mr. Katz’s view, as well as consult professionals for opinions where she deems it appropriate to do so. Mr. Katz may request that the decision be reviewed by the parenting coordinator and a recommendation made by the parenting coordinator. In the event Mrs. Katz’s decision is contrary to the recommendation made by the parenting coordinator and Mr. Katz is convinced that the decision is not in the child’s best interest, then Mr. Katz may bring a motion to the court.

20      Mrs. Katz will be responsible for making and executing the children’s routine yearly medical and dental examinations and she shall inform Mr. Katz of the appointment times in advance, via email, within 24 hours of the appointment being made. Both parents shall have the option of attending for children’s appointments and should do so wherever possible.

21      Mr. Katz shall retain the services of Ms. Jan Schloss, MSW, or some other parenting coach agreeable to him, immediately upon the release of these reasons for judgment. Mr. and Mrs. Katz shall retain the services of Dr. Ted Horowitz, MSW, DSW, or someone recommended by Dr. Horowitz as their parenting coordinator immediately upon the release of these reasons for judgment.

22      The costs of this assistance shall be paid from the fund established pursuant to paragraph [201] of this judgment. A copy of Ms. Chodos’ assessment report dated September 17, 2007, shall be provided to both the chosen parenting coach and the parenting coordinator immediately and they shall be free to communicate directly with Ms. Chodos.

A. Interim Access to Corey

23      Mr. Katz shall immediately commence parenting time with his son Corey Solomon Katz born December 9, 1998, as follows: 
(1) Every Wednesday from after school or camp (whichever is applicable) or at noon during the school summer vacation (or so soon as Mr. Katz can arrange to leave work), with pick-up directly from school, camp, or Mrs. Katz’s home (whichever is applicable). Mr. Katz shall return Corey to Mrs. Katz’s home at 8:00 p.m.
(2) Every Saturday morning from 10:00 a.m. until 8:00 p.m. in the evening, with pick-up and drop-off from Mrs. Katz’s home.
(3) Mr. Katz shall provide age appropriate toys and resources in his home for Corey and shall seek guidance from his parenting coach on this issue.
(4) When exchanges take place at Mrs. Katz’s home, she shall remain in her residence and Mr. Katz shall wait in his vehicle for Corey. Mrs. Katz shall ensure that Corey is sent out to his father in a timely fashion.

B. Expanded Interim Access to Corey

24      Once Mr. Katz has retained and met with his parenting coach, for at least one session, he shall immediately commence parenting time with Corey as follows:
(1) Every Wednesday from after school or camp (whichever is applicable) or at noon during the school summer vacation (or so soon as Mr. Katz can arrange to leave work), with pick-up directly from school, camp, or Mrs. Katz’s home (whichever is applicable). Mr. Katz shall return Corey to Mrs. Katz’s home at 8:00 p.m.
(2) Every Saturday morning from 10:00 a.m. until Sunday morning at 10:00 a.m., with pick-up and drop-off from Mrs. Katz’s home.
(3) When exchanges take place at Mrs. Katz’s home, she shall remain in her residence and Mr. Katz shall wait in his vehicle for Corey. Mrs. Katz shall ensure that Corey is sent out to his father in a timely fashion.

C. Further Expanded Interim Access to Corey

25      Once Mr. Katz has met with his parenting coach for six sessions, anticipated to be once per week for six weeks, he shall immediately commence parenting time with Corey as follows:
(1) Every Wednesday from after school or camp (whichever is applicable) or at 3:00 p.m. during the school summer vacation (or so soon as Mr. Katz can arrange to leave work), with pick-up directly from school, camp, or Mrs. Katz’s home (whichever is applicable). Mr. Katz shall return Corey to Mrs. Katz’s home at 8:00 p.m.
(2) Alternating weekends from Friday after school or camp (whichever is applicable) or at 3:00 p.m. during the school summer vacation (or so soon as Mr. Katz can arrange to leave work) with pick-up directly from school, camp, or Mrs. Katz’s home (whichever is applicable). Mr. Katz shall return Corey to Mrs. Katz’s home at 8:00 p.m. Sunday.
(3) When exchanges take place at Mrs. Katz’s home, she shall remain in her residence and Mr. Katz shall wait in his vehicle for Corey. Mrs. Katz shall ensure that Corey is sent out to his father in a timely fashion.

D. Regular Access to Corey

26      Once Mr. Katz has met with his parenting coach for a further four sessions, anticipated to be once per week for a further four weeks (for a total of ten sessions to that point) he shall immediately commence parenting time with Corey as follows:
(1) Every Wednesday from after school or camp (whichever is applicable) or at 3:00 p.m. during the school summer vacation (or so soon as Mr. Katz can arrange to leave work), with pick-up directly from school, camp, or Mrs. Katz’s home (whichever is applicable) until Thursday morning when Mr. Katz shall drop Corey off directly to school, camp, or at Mrs. Katz’s home (whichever is applicable).
(2) Alternating weekends from Friday after school or camp (whichever is applicable) or at 3:00 p.m. during the school summer vacation (or so soon as Mr. Katz can arrange to leave work) with pick-up directly from school, camp, or Mrs. Katz’s home (whichever is applicable). Mr. Katz shall return Corey to Mrs. Katz’s home at 8:00 p.m.

E. Access to Jordan

27      In the course of Mr. Katz’s sessions with his parenting coach, he shall canvas recommendations and pursue reintegration therapy with a view to expanding and strengthening his relationship with his son Jordan. The cost for this therapeutic assistance shall be paid from the fund, established pursuant to paragraph [201] of this judgment. Mrs. Katz shall unconditionally encourage Jordan to participate in this therapy. She shall encourage Jordan to increase his time spent with his father. Mrs. Katz shall encourage and support Mr. Katz’s attendances at Jordan’s sports activities and shall encourage Jordan to provide Mr. Katz access to his sports schedules. Mrs. Katz shall also encourage Jordan to enjoy dinner with his father, at least once every two weeks. Any additional access between Mr. Katz and Jordan shall be in Jordan’s discretion.

F. School Summer Vacation Access

28      Beginning the school summer vacation in 2010, each parent shall have the option of spending one-week (seven days) of uninterrupted vacation time with the children.

29      Mrs. Katz shall have first choice in 2010 and all subsequent even-numbered years. Mr. Katz shall have first choice in 2011 and all subsequent odd-numbered years.

30      Notice shall be given, by email, by the parent with priority to the other parent by the 15th of May in each year. If notice has not been given by that date, then the right to priority shall shift to the other parent, who will provide notice to the other parent, by email, by the 31st of May. If neither parent complies with these notice provisions, then unless the parties otherwise agree, the regular access schedule shall apply.

G. School Christmas Break

31      Beginning with Christmas 2010, if the parties wish to travel with the children during this holiday, each parent shall have up to one-week (seven days) uninterrupted time; the parents shall alternate the first and second weeks of the holiday, with Mr. Katz having first choice in even-numbered years and Mrs. Katz having first choice in odd-numbered years.

32      The parent with priority in any given year must give the other parent notice, by email, of their preferred week by the 1st of October of each year. If neither parent is planning to travel with the children during this holiday, then the regular schedule shall prevail, unless otherwise agreed to by the parents.

H. School Spring Break

33      Beginning school spring break 2011, if either parent wishes to travel during this holiday, they shall have up to one-week (seven days) uninterrupted time. Mr. Katz shall have first choice in even-numbered years and Mrs. Katz shall have first choice in odd-numbered years. The parent with priority shall provide notice, by email, to the other parent by the 1st of February of each year. If notice has not been given by that date, then the right to priority shall shift to the other parent, who will provide notice to the other parent, by email, by the 15th of February. If neither parent complies with these notice provisions, then unless the parties otherwise agree, the regular access schedule shall apply.

I. Rosh Hashanah and Yom Kippur

34      The children shall spend the first night of Rosh Hashanah with Mrs. Katz in even-numbered years and with Mr. Katz in odd-numbered years, unless the parties otherwise agree. The children shall spend the second night of Rosh Hashanah with Mrs. Katz in odd-numbered years and with Mr. Katz in even-numbered years, unless the parties otherwise agree.

35      Transition to the other parent’s home shall take place three hours prior to the Rosh Hashanah dinner, to allow for travel time.

J. Passover

36      Mr. Katz shall have parenting time with the children for the first Seder in even-numbered years and Mrs. Katz shall have parenting time with the children for the first Seder in odd-numbered years, unless the parties otherwise agree.

37      Mr. Katz shall have parenting time with the children for the second Seder in odd-numbered years and Mrs. Katz shall have parenting time with the children for the second Seder in even-numbered years unless the parties otherwise agree.

38      The parents shall return the children to the other parent at least three (3) hours prior to the second Seder.

39      Corey shall remain with the parent with whom he celebrates the second (2nd) Seder each year until the next morning, when the regular schedule shall resume.

K. Other Holidays and Professional Development Days

40      Once the regular access schedule has been established (see page 7, D. [26]), it shall prevail for all other holidays, and should a long-weekend fall on Mr. Katz’s weekend with Corey, Mr. Katz shall return Corey to Mrs. Katz’s home on Monday evening at 8:00 p.m.

L. Mother’s Day and Father’s Day

41      Regardless of the regular access schedule, Corey shall spend Father’s Day with Mr. Katz and Mother’s Day with Mrs. Katz. The honoured parent shall be responsible for picking Corey up at 10:00 a.m. on Sunday and returning him to the residential parent at 8:00 p.m. Sunday evening.

M. Travel

42      If he has not already done so, Mr. Katz shall immediately sign passport application forms and provide them to Mrs. Katz, so that passports can be obtained for Corey and Jordan. In the event that Mr. Katz fails to do so, Mrs. Katz may bring a 14B motion before me to dispense with Mr. Katz’s consent and she shall have her costs on a full indemnity basis. In the event that Corey or Jordan shall be traveling away from either parent’s residence overnight, contact numbers and an itinerary for the children shall be provided by the parent organizing the travel to the other parent, in case of an emergency. Both parents shall place in their wallets the other parent’s name, address, and telephone number, in case of an emergency.

43      The written consent required by customs/immigration, the child’s passport and health card, shall be provided when requested to travel and will not be unreasonably withheld. The cost to prepare the written consent, if there is any cost, shall be borne by the parent intending to travel. The children’s itinerary shall be provided when requested and shall not be unreasonably withheld. The children may telephone the other parent while on vacation. Mrs. Katz shall provide the children’s passports to Mr. Katz when he requires them to travel with the children; otherwise she will hold them in safekeeping.

N. The Children’s Birthday

44      The children’s actual birthday shall follow the regular access schedule. The other parent may call the children on their birthdays at an agreed upon time.

O. Parents’ Birthdays

45      The parents’ birthdays shall be as per the regular access schedule and the parents shall ensure that the children contact the honoured parent by telephone.

P. Communication Between Parents

46      The parents will communicate only through written email communication. This communication shall be restricted only to day-to-day issues that relate directly to the children. The communication may include any pertinent child related information, medical information, including current prescriptions and medical appointments, information about extracurricular activities, discipline/structure routines and strategies, and any other information relevant to day-to-day care of the children.

47      Communication directly or through voice mail may only occur if urgency exists with respect to the communication. Each parent may send one (1) email per day, pertaining only to child related issues. Each parent shall respond to each email within 24 hours.

48      In the event that access and communication between Mr. Katz and Jordan remains problematic, Mrs. Katz shall prepare a written summary update on a monthly basis and provide this summary to Mr. Katz with relevant information about Jordan, including his current activities, school marks, programs, trips, school challenges, and any other relevant information.

49      The parents shall not communicate about issues or other non-emergency arrangements at transition times, activities, or special events. The parents will discuss only pleasantries in front of the children.

50      The parents will not speak to or speak in front of the children in a critical or disparaging manner about the other parent, nor shall they allow any other person to do so in front of the children. Further, the parents shall not show anger and/or frustration regarding the other parent in front of the children.

Q. Routine Decision Making

51      The day-to-day decisions regarding the children shall be the responsibility of the parent with whom the children reside at the time. These decisions include such issues as those pertaining to nutrition, discipline, routine, or emergency medical decisions (minor injuries, allergies, and the like) during the time the children are with them.

R. Education

52      Mr. and Mrs. Katz shall provide Corey’s school and Jordan’s school with a parenting schedule and both parents’ names and telephone numbers in case of an emergency. Mr. Katz shall be responsible to provide the schools with contact information and arrange on his own and directly to obtain copies of all information sent to parents.

53      Mr. and Mrs. Katz shall advise each other of any school calls regarding a child related matter. Mr. and Mrs. Katz shall both be entitled to attend school functions, regardless of the residential schedule. Mr. and Mrs. Katz may attend for parent/teacher interviews. Each parent will make his or her own arrangements for parent/teacher interviews.

54      In order to reduce conflict and prevent any further conflict, Corey shall have a Hebrew teacher other than his mother, Mrs. Katz.

55      Mrs. Katz shall notify Mr. Katz, by email, of any potential major educational issues. She will provide him with all information she has and any supporting documents that are important in making the decision. Mr. Katz shall provide his input by email. Mrs. Katz will make the final decision, taking into account Mr. Katz’s view, as well as consensus of professional opinions. Either parent may seek the input of the parenting coordinator and request a recommendation with regard to any issue. In the event Mrs. Katz’s decision is contrary to the recommendation made by the parenting coordinator, and Mr. Katz is convinced that the decision is not in the children’s best interest, then Mr. Katz may bring a motion to the court.

S. Major Medical Decisions

56      Major medical decisions shall include but are not limited to long term medications, treatments, surgery, orthodontic, therapy/counselling, etc. Mr. and Mrs. Katz shall ensure that permission is given to the children’s health care professionals to release information to the other parent. Mr. and Mrs. Katz shall ensure that each of them receives copies of all professional and/or medical reports pertaining to the children.

57      Mr. and Mrs. Katz shall continue to use the services of Dr. Sturm as the children’s paediatrician. Should either Mr. Katz or Mrs. Katz attend with either child for any reason at another doctor or at a walk-in clinic for issues other than the regular check-ups, they shall request that a record of that contact be sent to the child’s primary health care professional. In the event of an emergency, the parent who is responsible for the child at the time shall contact the non-resident parent by telephone, as soon as is reasonably possible. That parent shall have the authority to make emergency medical decisions until such time as the custodial parent is available. Both parents may attend in an emergency. Each parent shall furnish the other parent with contact information in the event it is required in an emergency.

58      Mrs. Katz shall notify Mr. Katz by email of any potential major medical or health care issue. She shall provide him with all information she has and any supporting documents that are important in making the decision. Mr. Katz shall provide his input by email. Both parents may obtain information from the medical professionals involved. The mother will make the final decision, taking into account the father’s view, as well as consensus of professional opinions.

59      Either parent may seek the input of the parenting coordinator and request a recommendation with regard to any issue. In the event Mrs. Katz’s decision is contrary to the recommendation made by the parenting coordinator, and Mr. Katz is convinced that the decision is not in the children’s best interest, then Mr. Katz may bring a motion to the court.

T. Extra Curricular Activities

60      Mrs. Katz shall continue to enrol the children in the activities they are used to, such as, hockey and soccer and Mr. Katz shall be able to attend the games. Mrs. Katz will inform the coaches that Mr. Katz has the right to attend the games and will provide Mr. Katz with team names and website locations. Mr. Katz will obtain the schedules directly. Mr. Katz may enrol Corey in an activity that occurs on his parenting time, if he chooses.

61      Both parents may attend the special events arising from the extra curricular activities.

V. Counselling

62      Both parents shall attend a seminar on the impact of high-conflict on children and strategies to reduce conflict provided by JFCS (Jewish Families in Conflict Services) for families in transition.

63      Corey shall be enrolled in play therapy to help him deal with his feelings around the separation and the untenable loyalty bind he has been placed in. A recommendation shall be sought by Mr. and Mrs. Katz from the parenting coordinator, as to a suitable therapist for Corey.

64      Jordan shall be encouraged by both parents to attend for counselling with a duly qualified mental health professional, with expertise in the needs of children and family systems, at a frequency and duration of time to be determined by the professional, in consultation with the family members and, if necessary, the parenting coordinator. This counselling will include joint sessions with Jordan and each of his parents, as well as individual sessions, as deemed necessary by the professional. The therapist chosen shall be given a copy of Linda Chodos’ assessment report and shall be free to contact Linda Chodos directly to consult with regard to this family.

65      In the event that Mr. and Mrs. Katz cannot agree on a therapist for Jordan, they shall seek the recommendation of the parenting coordinator. In the event that they still cannot agree on a therapist for Jordan, they shall request that Dr. Bardikoff and Dr. Radovanovic jointly recommend a suitable therapist.

66      In the event that Sammy chooses to obtain counselling, to assist him in dealing with his acute anxiety, whether that be as suggested by Dr. Chodos, for cognitive behaviour therapy, through the Sunny Brook Hospital, or the anxiety disorder clinic at the Centre for Addiction and Mental Health, or the assistance of any other therapeutic professional, Mr. and Mrs. Katz shall encourage him and support him in that regard.

67      The costs for Sammy, Jordan, and Corey’s therapy shall be paid from the fund established under paragraph [201].

VI. Responsibilities of the Parenting Coordinator

68      The parenting coordinator may:
(1) Address any anticipated conflicts in the children’s scheduling that occur and make recommendations with respect to reducing or eliminating that anticipated conflict.
(2) Assist the parties to develop any additional clarifying clauses that may be required given situations and events that unfold, that were not initially anticipated when the parenting plan was developed.
(3) Monitor Corey’s adjustment.
(4) Assist the parties to communicate more effectively.
(5) Make recommendations pertaining to temporary changes to the usual and/or holiday parenting time schedule, to accommodate special events and circumstances for the child(ren) and/or the parents.
(6) Address child(ren)’s travel arrangements.
(7) Clarify and facilitate the resolution of differing interpretations of the parenting plan.
(8) Assist in the resolution of conflict concerning day-to-day health care, day-to-day education matters, passports, and events that are not otherwise allocated for in the parenting plan.
(9) Make recommendations with regard to the children’s therapy needs and any other child related issue.

69      The involvement with the parenting coordinator shall be an open process, such that information shall be shared with the parties, Mr. and Mrs. Katz, and with the court if required in the future.

VII. Child Support

70      After the parties ceased cohabiting on May 18, 2004, Mr. Katz continued to pay the expenses at the matrimonial home. He paid for children’s expenses and purchased new appliances for the home. He continued to deposit his paycheques into the parties’ joint bank account, to which Mrs. Katz had full access. Mr. Katz continued this arrangement until February 2006. Commencing in February 2006 and continuing until April 2007 Mr. Katz paid Mrs. Katz the Federal Child Support Guideline table amount for three children based on his income, as disclosed in his income tax return.3

71      In May 2007 Mr. Katz became concerned that Sammy, who was then over the age of 18 years, may not be in school full time and so he reduced his payment to the Guideline table amount payable for two children. By July 2007 Mrs. Katz had provided proof which satisfied Mr. Katz that indeed Sammy was enrolled in full time attendance at school. Accordingly, commencing with the payment made on August 1, 2007, Mr. Katz adjusted the child support payment back up to the Guideline table amount for three children, and Mr. Katz continued these payments until Sammy no longer qualified. As previously mentioned, Sammy got married on October 27, 2008.

72      Mrs. Katz claims she is owed three months child support for Sammy; May 2007, June 2007, and July 2007, and I am compelled to agree ($2,283.00 - $1,760.00 × 3 = $1,569.00). Mr. Katz is seeking to set this amount off on account of seven months (February to August inclusive) in 2006 during which he was paying for three children when he claims Sammy was not enrolled full time in school.

73      I must reject Mr. Katz’s claim to a set-off. A close scrutiny of Mrs. Katz’s income tax returns and attachments for 2005 and 2006, confirmed tuition payments, including to York University were made, and that enrolment was on a full time basis. The letter from Dr. Heshy Sturm, which I accepted into evidence, states: “During the 2005 and 2006 academic year Samuel Katz was hospitalized with mononucleosis” satisfies me that if he was not physically in attendance at school, it was because of illness. It is unfortunate that because of the breakdown in the relationship between Mr. Katz and his son Sammy, and the dysfunctional state of communication between Mr. and Mrs. Katz, that Mr. Katz was not immediately aware of his son’s difficulties. However, I find that either because of full time attendance at school or debilitating illness, Sammy was dependant on Mrs. Katz throughout this period and unable to withdraw from parental control. Accordingly, Sammy was entitled to child support from his father, Mr. Katz, during this period.

74      Mrs. Katz argued at trial that Mr. Katz’s income tax return did not fully reflect his taxable income. She called Stanley J. Segal, a principal with Segal LLP, Mr. Katz’s employer, as a witness at trial. Mr. Segal was very forthright in his evidence. He confirmed that he had known Mr. Katz for ten years and that up until the marital difficulties in 2004 Mr. Katz had been a very hard working employee. Mr. Segal explained that as a result of Mr. Katz’s hard work, he had been promoted in 2004 to the position of principal, which is a senior manager of the firm and that Mr. Katz can never legally be a partner in the firm because he does not have his chartered accountant designation. Mr. Segal further explained that with the promotion, Mr. Katz’s base salary was bumped up to $130,000.00 on the basis of certain expectations, including hours of work, budget achieved, business brought in, and fees collected. It was the evidence of Mr. Segal that Mr. Katz has the opportunity to earn more, if he exceeds those expectations.

75      Mr. Segal expressed concern that since the separation Mr. Katz’s performance at work had suffered; he is distracted and his client base has deteriorated. Mr. Segal stated that the company values Mr. Katz as a member of their firm and it is hoped that once this matter is resolved, Mr. Katz will begin to perform as he did prior to the separation. Mr. Segal confirmed that Mr. Katz was lent money by the firm, as he explained that they did not want his financial stress to be any greater. They have a promissory note to secure the debt, which Mr. Katz is partially repaying with each of his pays.

76      Mr. Segal indicated that although Mr. Katz is not operating at the same level as pre-separation, something “very bad” would have to happen for the company to terminate him. His job appears secure, although he is subject to an annual performance review, which could affect his rate of remuneration. Mr. Segal also made it clear that Mr. Katz did not receive a car allowance, but was reimbursed his specific mileage and out-of-pocket expenses. Mr. Segal’s evidence remained steadfast throughout Mrs. Katz’s questioning; there were no inconsistencies and the documents produced by Mr. and Mrs. Katz in this action appear consistent with Mr. Segal’s evidence. For these reasons, I accept Mr. Segal’s evidence and I find no basis for Mrs. Katz’s allegation that Mr. Katz was understating his income, as declared in his income tax returns.

77      Accordingly, I find that Mr. Katz has an ongoing obligation to pay child support for his sons Jordan and Corey based on his income as stipulated on his income tax return and the Guideline table. I find that Mr. Katz’s income for 2008 was $130,587.88, as set out in his 2008 income tax return and in accordance with the Guideline table he shall therefore pay to Mrs. Katz child support in the sum of $1,766.00 per month.

78      Commencing the 1st of June 2010 and annually thereafter, Mr. Katz and Mrs. Katz shall exchange copies of their income tax returns, notices of assessment and reassessments, and child support shall be adjusted in accordance with the Guideline table retroactive to the 1st of January in the current year.

79      Mr. Katz did not dispute Mrs. Katz’s contention that a number of his cheques for child support were returned NSF or that he unilaterally reduced the amount of child support he was paying; indeed Mr. Katz’s evidence on this point was consistent with Mrs. Katz’s evidence.

80      Accordingly, given Mr. Katz’s past conduct, the payment of child support shall be enforced through the Family Responsibility Office, as requested by Mrs. Katz and shall be paid for a child, as long as that child qualifies as a child of the marriage pursuant to the provisions of the Divorce Act.4

VIII. Section 7 Expenses5

81      The sharing of section 7 expenses has been extremely problematic; the lack of trust between the parties is the biggest hurdle to resolving this issue.

82      Mr. Katz alleges that Mrs. Katz does not fully disclose her income on her income tax returns. More particularly, that she fails to include the earnings she receives from tutoring or the amount of her investment income, including interest on her Canada Savings Bonds. The evidence supports Mr. Katz’s allegation. Mrs. Katz confirmed that she has routinely done tutoring in the past to supplement the family income. She explained that the grief and stress she experienced as a result of her father’s untimely death on September 7, 2008, made it difficult for her to tutor and that as a result her income from this activity diminished. I accept her evidence on this point, however, I find that her disinclination would be relatively short-lived and would ultimately be superseded by her need to support herself and her family, as she had done in the past. Other than her father’s death, Mrs. Katz cited no other reasons that would diminish her ability to provide tutoring services. Mrs. Katz did not declare any income from tutoring in her tax returns for 2004, 2005, and 2007, and I was urged by Mrs. Katz to find that she really earned very little from tutoring in those years. However, it is now clear based on the records produced and on her own admissions that she owned Canada Savings Bonds in all those years, in addition to other investments, yet no income from those instruments is disclosed on the returns indicated either. Further, and in light of the fact that I find she was mounting a claim for spousal support by this time, it is more likely on a balance of probabilities that she choose not to declare the income from tutoring on her income tax returns in 2004, 2005, and 2007.

83      It falls to me to impute to Mrs. Katz a reasonable income from this endeavour. In doing so I am mindful of the fact that she is working full time, raising two boys, and running a household. In such circumstances, I find Mr. Katz’s argument that she should be earning many thousands of dollars from this endeavour unrealistic. At the same time, her career as a teacher does afford her a significant summer break, which presents a prime opportunity to tutor.

84      It was the evidence of both parties at trial that Mrs. Katz is a well-qualified and respected Hebrew teacher. Further, Mrs. Katz advised that she had been taking a night course at York University, which resulted in her being certified in special education in March 2009. As a result Mrs. Katz received a category change from her employer, which earned her a pay increase from $57,000.00 to $62,000.00 per year. It is not unreasonable to conclude that with such enhanced qualifications, Mrs. Katz’s tutorial assistance will be in even greater demand.

85      Mrs. Katz’s evidence was that she is usually paid $20.00 to $25.00 per hour to tutor. Mr. Katz did not produce any evidence to dispute this assertion and I accept that $25.00 per hour is reasonable remuneration for her services. Given the demands on her time previously highlighted, it is my view that she can easily earn an additional $2,600.00 per year from tutoring. This is an approximate amount which equates to roughly two (2) hours per week multiplied by fifty-two (52) weeks per year. Grossed up for income tax, I find that it is reasonable to impute $3,000.00 per annum of income to Mrs. Katz for purposes of determining spousal support, but because of Mrs. Katz’s tendency to under-report her actual income on her tax returns, I am not prepared to order that these parents share section 7 expenses for their children in proportion to their respective incomes. I think it is fair and reasonable that they share the section 7 expenses equally, particularly in light of the subsequent provisions in this order, which address and diminish the disparity in their respective incomes. Because of Mr. and Mrs. Katz’s inability to cooperate or reach a reasonable compromise, I will specifically identify and itemize the section 7 expenses to be shared by them equally in 2009 and in future:
(1) Orthodontics or the amount not covered by a benefits plan, whichever is less.
(2) Post-secondary education costs and the expenses incidental thereto, including without limitation tuition, books, supplies, equipment, residency, food, and transportation. Mrs. Katz shall continue to claim the tuition expense or the eligible portion thereof on her income tax return and the parties shall equally share the net expense.
(3) Soccer registration, equipment, and tournament expense.
(4) Hockey registration, equipment, and tournament expense, including any costs for additional ice time. To be clear, this shall not include any hotel accommodations or meals for Mrs. Katz.
(5) Summer camp.
(6) Auto insurance.

86      The table amount paid by Mr. Katz already includes some contribution towards the children’s extra curricular activity, entertainment, and travel expense. Accordingly, I would disallow the following as section 7 expenses:
(1) Rangers’ tickets.
(2) Swimming registration.
(3) School ski trip.
(4) Passport application.
(5) School bus transportation. This expense works out to approximately $65.00 per month per child. Mr. Katz’s share of that expense is included in his monthly child support payment currently at $1,766.00.

87      Given the particular financial circumstances of this family, I would also disallow the cell phone expense, which should be borne by the child using the cell phone and the parent who provided it to the child. Again, I would determine that Mr. Katz’s contribution to this expense is already included in the monthly table amount he is paying.

88      Should any other section 7 expense issue arise in the future, the assistance of the parenting coordinator shall be sought to resolve the dispute. In the event the parenting coordinator is unable to resolve the disagreement, then the matter may be decided by a court of competent jurisdiction. However, the court cautions the parties to weigh the potential costs of litigation against the amount of the expense in dispute and to be mindful of the court’s discretion to award costs to a successful party, whether that party is represented by a lawyer or not.

89      The assistance of the parenting coordinator shall also be sought with a view to maximizing the children’s entitlement to a subsidy, should they continue their education at a private Hebrew school. Any difference between the subsidy and the actual expense shall be shared equally by Mr. and Mrs. Katz. In the event there is any special tax treatment afforded such tuition, it shall be the net expense that is shared equally.

90      Mrs. Katz has made a claim for retroactive section 7 expenses totalling $44,600.97. After deducting items I have indicated previously that I would disallow, that amount is reduced to approximately $33,700.00.

91      I also find that Mrs. Katz has failed to prove her entitlement to reimbursement of Sammy’s tuition at York University. The documents produced at trial confirm that $5,000.00 was withdrawn from his RESP on August 27, 2007. Further, it appears from the documents produced, and I am satisfied that, Mrs. Katz paid Sammy’s tuition in 2005 and 2006 from insurance proceeds she had received in 2005, which were in fact payable to Mr. and Mrs. Katz jointly. The insurance proceeds and their disposition will be dealt with in more detail later. When Sammy’s tuition amounts are deducted from her section 7 claim, the amount at issue decreases to $25,981.00. Mr. Katz’s share of that sum would be approximately $13,000.00. However, Mr. Katz has paid for both Linda Chodos’ report and the psychological assessment completed by Dr. Holloway, which based on the invoices presented at trial, cost in excess of $24,000.00. These reports were very enlightening and of great assistance to the court. When implemented, the recommendations contained in Ms. Chodos’ report will undoubtedly be of tremendous benefit to these children and their parents.

92      To be fair, one should be set-off against the other and, accordingly, I must dismiss Mrs. Katz’s claim to arrears of section 7 expenses. Commencing the 1st of January 2010, Mrs. Katz shall submit to Mr. Katz, on a monthly basis, a summary of the children’s section 7 expenses, as itemized herein, with receipts attached. Mr. Katz shall reimburse Mrs. Katz his 50% share of those expenses or the net expense as the case may be, within 30 days of receipt of the summary with receipts.

93      If Mrs. Katz is required to bring a motion to enforce this provision, she shall be entitled to her costs on a full indemnity basis. I include this provision to eliminate any tendency Mr. Katz may have to be tardy in honouring this obligation to Mrs. Katz.

94      Finally, on the issue of the children, Mr. Katz shall be entitled to information, including game and practice schedules, directly from all professionals dealing with the children Jordan Katz and Corey Katz, including without limitation dentists, doctors, teachers, therapists, and in particular the children’s coaches, regardless of who has paid for the registration in any sport or activity.

IX. Spousal Support

95      Mr. Katz has made a claim for spousal support which I must dismiss, as I find his argument has no merit whatsoever. In the particular circumstances of this case, the property equalization is not relevant to the issue of his entitlement to spousal support.

96      Mr. Katz earns $130,000.00 per annum and shares his living expenses with a partner who is also employed and there are no children residing with them. He seeks spousal support from Mrs. Katz who earns less than half of what he does and she has two dependent children living with her. Even imputing income, as I do to Mrs. Katz of $3,000.00 per year from her tutoring endeavours, her income remains substantially less than Mr. Katz. Clearly Mr. Katz has no entitlement to spousal support from Mrs. Katz.

97      Mrs. Katz has made a claim for both compensatory support and periodic support. Based on the evidence presented by the parties, I find that both these claims must succeed.

X. Compensatory Support

98      It was the evidence of Mrs. Katz that the parties met while they were both at university; Mr. Katz planned to be a chartered accountant and Mrs. Katz a teacher.

99      It was the evidence of Mrs. Katz that she took leave of her studies at university to marry and to support Mr. Katz completing his post-secondary university degree. She had only completed one year. Apparently, Mr. Katz studied very hard to become a chartered accountant but failed in his attempts to obtain his chartered accountant designation. He did, however, obtain his certified general accountant designation and to the date of separation had been very successful in that occupation.

100      It was Mrs. Katz’s evidence that the parties had agreed that once Mr. Katz had finished his education, she would return to university to complete her degree in education, but that she never got the opportunity. She currently teaches at a faith-based school (Associated Hebrew Schools) but without the qualifications required of a teacher in the public school system. She is concerned that should faith-based schools become publicly funded, she does not have a teaching designation recognized by the public school system and would surely loose her job.

101      Further, should they cut teaching positions in the faith-based schools, her ability to compete for a teaching position is compromised, because of her lack of qualifications. She also argues that the pension and other benefits are far more generous in the publicly funded school systems and that if she had been permitted to complete her education as originally planned, she would be far better off today financially.

102      Mr. Katz for his part did not deny that he and Mrs. Katz had agreed that once he was done his studies she could return and complete university with a view to becoming a teacher. Accordingly, I find that the parties had just such an agreement. However, his evidence was that Mrs. Katz was not a good university student. He claimed at trial that her university grades were quite low, as she preferred to socialize and mingle with her friends, rather than to truly concentrate on her studies. He felt that there was absolutely no reason to think her approach would have been any different, if she had in fact returned to school full time during the marriage, and she would have been unsuccessful in any event.

103      I must reject Mr. Katz’s evidence on this point. It is both self-serving and completely inconsistent with the following other evidence he gave the court, which was corroborated by Mrs. Katz:
(1) Firstly, that Mrs. Katz started out as a secretary at Associated Hebrew Schools and that she became a Hebrew teacher with Associated Hebrew Schools because she successfully completed a certificate program, offered in the evening by the Jewish Board of Education, which required attendance six hours per week for two years.
(2) Secondly and as previously stated in these reasons, shortly before trial Mrs. Katz had successfully completed a night course at York University and in March 2009 became certified in special education. As a consequence, her teaching category with Associated Hebrew Schools was enhanced and resulted in a pay increase for her of approximately $5,000.00 per year.

104      I find that as a result of the marriage and the support she provided to Mr. Katz in the completion of his studies and becoming established in his career, Mrs. Katz lost the opportunity to obtain her bachelor of education degree and secure employment in the public education sector, which would have provided her greater job security, income, and benefits, including a generous pension. In short, her earning power following the relationship has been limited by what failed to happen during the relationship.

105      The Supreme Court of Canada in Moge v. Moge, pronounced that the general purpose of spousal support is to address and adjust for the economic inequalities arising from a marriage after it has broken down and the tools to do that adjustment are compensatory support, be it lump sum or ongoing, and periodic support.6

106      Mr. Katz has argued that Mrs. Katz is self-sufficient and therefore he should not have to pay her any spousal support. But where a spouse has suffered a specific economic disadvantage, as a result of the marriage or the role assumed during the marriage, they may be entitled to compensatory support to redress the loss incurred, especially where they have not been fully compensated by the property division or other benefits during the marriage. See Gale v. Gale.7 I find this to be such a case.

107      As stated by McLachlin J. (as she then was), in Bracklow v. Bracklow, at paragraph 1:8
It is now well settled law that spouses must compensate each other for foregone careers and missed opportunities during the marriage upon the breakdown of their union.

108      Self-sufficiency is not enough. The law now recognizes that each spouse is an equal social and economic partner in marriage, regardless of the function they perform; caring for children and keeping a household organized is just as important as the career that supports that household.

109      The court is required to examine the financial reality of the marriage, and adjust support to reflect the financial advantages and disadvantages that continue to flow after the breakdown of the relationship.

110      It appears that in order to obtain the necessary certificate to teach in the public school system, Mrs. Katz must first complete her bachelor of arts degree, which would require a two-year full time course and her bachelor of education degree, normally a one-year full time course. Given her past pattern of part time studies, I would not anticipate that she would give up her full time job. She has a proven track record for both diligence and academic success. It would be reasonable to anticipate that properly motivated, she could complete her bachelor of arts degree in approximately four years and her bachelor of education degree in approximately two years.

111      Given the costs of pursuing higher education, even on a part time basis, it would not be unreasonable for her to incur expenses of between $4,000.00 and $5,000.00 per year.

112      Accordingly, I find that Mrs. Katz is entitled to compensatory support in a lump sum amount of $25,000.00. This sum shall be paid to her from the insurance proceeds currently held at the TD Bank and shall be compensation to Mrs. Katz absolutely, whether she uses it to complete her interrupted course of studies, to enhance her current career, or otherwise.

XI. Periodic Support

113      It was the evidence of Mrs. Katz that she supported Mr. Katz through school, first as he pursued his chartered accountant designation and then his certified general accountant designation. When he left his employment with Arthur Anderson and started his own practice, she supported him in his relocation and even acted as his secretary. This evidence was not disputed by Mr. Katz, who also acknowledged the financial assistance of his father in opening his own practice. Ultimately, this venture was not successful.

114      Mr. Katz eventually joined Segal LLP where, prior to separation, his performance had been stellar. Indeed, Mr. Segal gave evidence praising Mr. Katz for the long hours he had committed to the success of the firm. As a result of his excellent work performance, Mr. Katz had been promoted to principal of the firm in 2004 (just before the parties ceased cohabiting), which based on Mr. Segal’s evidence is the highest position afforded an employee who does not have a chartered accountant designation; only a chartered accountant can become a partner in a firm such as Segal LLP. The promotion resulted in a substantial increase in salary for Mr. Katz; $130,000.00 annually, plus the opportunity to earn an additional bonus depending on his performance.

115      I accept the evidence of Mrs. Katz that it was she, with some assistance from her parents, who was responsible for keeping the home fires burning, as it were, while Mr. Katz was putting in the time and energy to obtain this kind of recognition and financial success in his field. I accept her evidence that throughout the relationship she was the primary caregiver and Mr. Katz the primary wage earner. This evidence is consistent with the evidence of Mr. Segal who praised Mr. Katz for his outstanding work ethic pre-separation and with Mr. Katz’s own evidence of the long hours he was putting in prior to the separation. Mr. Katz, in trying to explain his vulnerability, conceded that the long hours he was working away from home contributed to the occurrence of an extra-marital affair with a co-worker.

116      I find that as a result of the role Mrs. Katz assumed during the marriage, she conferred a substantial career enhancement opportunity on Mr. Katz, which should be reflected in an award of periodic spousal support. This provision is consistent with the principles enunciated by the Court of Appeal for Ontario in Caratun v. Caratun.9

A. Commencement Date of Periodic Support

117      Mrs. Katz claims that Mr. Katz should pay her spousal support retroactive to the date of separation, which she states in her application, issued February 23, 2006, was August 2005. It is acknowledged by the parties that Mr. Katz has paid no spousal support directly to Mrs. Katz since the parties separated, which Mr. Katz maintains was May 18, 2004.

118      It was, however, conceded by Mrs. Katz that Mr. Katz did pay virtually all expenses at the matrimonial home, where Mrs. Katz and the children continued to reside, post-separation, to March 2006 and that he also purchased for the household additional items including a new dryer, freezer, and air conditioner. I find that by doing so Mr. Katz discharged his obligation to provide spousal support to Mrs. Katz following their separation, up to the date her application was issued (February 23, 2006).

119      Mrs. Katz also acknowledges that thereafter, but for a period of three months, Mr. Katz paid Mrs. Katz child support for the three children based on his income from employment, as disclosed in his income tax returns to October 2007. At paragraph [72] hereof, I have obligated Mr. Katz to also pay child support for the three months he missed.

120      Accordingly, and it is not in dispute, Mr. Katz will have paid Mrs. Katz $2,035.00 per month for the support of his three children from March/April 2006 to December 2006 and $2,283.00 per month for his three children from January 2007 to October 2007.

121      I have examined all the circumstances of the parties from March 2006 to October 2007. To this point, child support for the three children took priority and any amount that could have been awarded for periodic spousal support would have been modest. However, once Sammy was no longer eligible and child support for him was terminated, the annual incomes of Mr. Katz and Mrs. Katz were such that Mr. Katz should have begun making periodic monthly spousal support payments to Mrs. Katz.

122      The parties acknowledge and agree that Mr. Katz continued to pay Mrs. Katz child support for their three children to October 2007. Accordingly, I find that the commencement date for the payment of periodic spousal support from Mr. Katz to Mrs. Katz was November 1, 2007. Furthermore, the law is clear that where, as a result of giving priority to child support, the spousal support order is lower than it would have been or is not made (as has been the case here), any subsequent reduction or termination of the child support constitutes a change in circumstances for the purposes of applying for a spousal support order or a variation of a spousal support order, as the case may be.10

123      To be clear, when child support ends for Jordan, the spousal support payable in this case should be reviewed, and when child support ends for Corey, the spousal support payable in this case should again be reviewed.

B. Quantum of Periodic Support

124      To assist me in determining the appropriate amount of spousal support which should have been paid and what amount should be paid on an ongoing basis, I must look to the law for guidance. In that regard the leading cases which set out the principles for determining spousal support, are Mogue and Bracklow, supra.

125      The cases direct me first and foremost to the relevant legislation, which in this case is subsection 15.2 of the Divorce Act, pursuant to which I am directed to take into consideration the following factors:11 the conditions, means, needs, and other circumstances of each spouse, including the length of time these spouses cohabited and the functions performed by each spouse during cohabitation. I must also be mindful of the objectives enunciated in the legislation which are relevant to the making of a spousal support order in this particular case, which are that I must recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown. I must also 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), and to the extent possible, I am directed to relieve any economic hardship of the spouses arising from the breakdown of the marriage.

C. Length of Cohabitation

126      Mr. and Mrs. Katz agree that they were married on August 19, 1986. Although, they do not agree on the date of separation, they do agree that they ceased cohabiting on May 18, 2004. Accordingly, these spouses, with the exception of two prior brief periods of separation, resided together for in excess of seventeen (17) years.

127      Moge dictates that the length of the marriage is relevant and that the longer the relationship the greater will be the presumptive claim to equalize the standards of living on dissolution.

D. Functions Performed by Each Spouse During Cohabitation

128      I have already reviewed the respective roles assumed by the parties in the course of their marriage. To briefly summarize, they raised three children together. Mrs. Katz was the primary caregiver and Mr. Katz the primary breadwinner. Mrs. Katz suffered an economic disadvantage in that her university studies to become a teacher were interrupted and despite the agreement of the parties that she could return to school and complete those studies once Mr. Katz was established in his career, she never got the opportunity.

129      Accordingly, I find that when the marriage broke down she had less job security, less income, and fewer benefits than she would have had if her studies had not been interrupted. Further, her ongoing childcare responsibilities post-separation will continue to inhibit her ability to overcome this disadvantage for the foreseeable future.

130      Mr. Katz on the other hand enjoyed a significant economic advantage in the course of the marriage, by virtue of the primary care giving role assumed by Mrs. Katz, such that he was able to rise to principal of his firm, Segal LLP, which is the highest management position available to a certified general accountant. I find that this advantage has not been diminished by the breakdown of the marriage and that it is likely to continue indefinitely.

E. Incomes of the Parties

131      For the purposes of determining the amount of spousal support, Mrs. Katz’s income for the relevant years was as follows:
Year	Income Tax Return	Imputed Income From Tutoring	Total	
2007	$ 57,775.04	$ 3,000.00	$ 60,775.04	
2008	$ 62,062.79	$ 3,000.00	$ 65,062.79	
2009	$ 62,927.00	$ 3,000.00	$ 65,927.00	

132      Mr. Katz’s income has been:
Year	Income Tax Return	
2007	$ 130,952.00	
2008	$ 130,587.88	

133      Given that Mr. Katz is paid a salary and that the evidence of Mr. Segal was that Mr. Katz’s job performance has been less than stellar since separation, it is anticipated that his income for 2009 will remain approximately the same, at approximately $130,500.00.

134      Further, it is also relevant to this determination that since Mr. Katz’s obligation to pay child support for Sammy ceased, he has continued to pay to Mrs. Katz child support for their children Jordan and Corey, and he is currently paying the amount of $1,760.00 per month.

135      Based on the facts of this case, as I have found them, and the principles of law, which guide my determination, I find that Mr. Katz had an obligation to pay to Mrs. Katz periodic spousal support in the amount of $800.00 per month, commencing November 1, 2007. When I review the Spousal Support Advisory Guidelines12 “with child support” formula, I find that the amount of $800.00 puts the recipient’s share of the total individual net disposable income in the “middle” to “upper” range. Although, not binding in law, it has been said that the SSAG provides a good acid test in a determination of spousal support.

136      Although, Mr. Katz as the payor may see this amount as too generous, he should be mindful of the fact that it leaves Mrs. Katz supporting herself and two children and leaves him free to enjoy the benefits derived from the income brought into his household by his common law spouse, which is not taken into consideration in this determination.

137      In view of the foregoing, I find that at December 31, 2009, Mr. Katz owes Mrs. Katz arrears of periodic spousal support, fixed in the amount of $20,800.00, calculated as follows:
Year	Periodic Spousal Support per Month	Total	
Nov and Dec 2007	$800.00 × 2 =	$1,600.00	
Jan to Dec 2008	$800.00 × 12 =	$9,600.00	
Jan to Dec 2009	$800.00 × 12 =	$9,600.00	
Total periodic spousal support arrears	$20,800.00	

138      Commencing 1 January 2010 Mr. Katz shall pay to Mrs. Katz periodic spousal support in the amount of $800.00 per month. Commencing 1 January 2010 Mr. Katz shall pay to Mrs. Katz the arrears of $20,800.00 at the rate of $200.00 per month, to be reviewed on the sale of the matrimonial home and when child support changes.

F. Duration of Periodic Support

139      Given the facts of this case, and in particular the respective advantages and disadvantages experienced by the parties, as incidents of this marriage and its breakdown, I find that the duration of periodic spousal support suggested by the SSAG is appropriate. For clarity, I find that Mr. Katz has an obligation to support Mrs. Katz for a maximum duration of 17 years from the date the parties ceased cohabiting (May 18, 2004). This obligation is subject to variation in the event of a material change in circumstances, foreseeable or not foreseeable, including Mr. Katz’s retirement, and to a review pursuant to clause 15.2(3) of the Divorce Act, upon the termination of child support for Jordan or Corey.

XII. How Should this Families’ Property be Divided and Distributed? (equalization of Net Family Property)

140      There are a significant number of issues I must resolve before I can begin to calculate an equalization of the parties’ net family property, and those issues can be summarized as follows:
(1) The valuation date.
(2) The validity of the marriage contract entered into by Mr. and Mrs. Katz dated October 25, 2004.
(3) The validity of the amendment to the marriage contract entered into by Mr. and Mrs. Katz dated July 29, 2005.
(4) Entitlement to and proper disposition of the house insurance proceeds, received by Mrs. Katz post-separation, in the amount of $104,000.00.
(5) The validity of loans from parents, claimed as deductions in the calculation of net family property.
(6) The validity of gifts from parents, claimed as exclusions in the calculation of net family property.
(7) Whether an accounting is necessary with regard to funds spent on Jordan’s Bar mitzvah.
(8) Who should have ongoing responsibility for the children’s “in trust” funds?

141      In order to resolve any of these issues, I must first examine the credibility of the parties.

A. Credibility of Mrs. Katz

142      I did not find Mrs. Katz to be a credible witness on the issues impacting on the equalization of property in this case. She failed to make early, full, and accurate financial disclosure and I find that her failure to do so was ongoing and deliberate. On the stand, I found her to be coy and often evasive in her answers. I make these findings based on the following evidence presented at trial:

143      Undisclosed Bank of Montreal Account — Mr. Katz was able to secure Bank of Montreal records, documenting transfers from Mrs. Katz’s personal account with that bank to her father, Victor Reubeni, and his Royal Bank account exceeding $21,000.00 in the month of May 2004; the same month that she discovered Mr. Katz’s infidelity and asked him to leave the matrimonial home. When she was questioned on the reason for these transfers, she said it was to repay money she had borrowed from her parents, to treat Mr. Katz and the family to a holiday in Jamaica, and for one of the children to go on a school trip overseas to Poland and Israel.

144      A review of this account discloses ample funds to cover those expenses without obtaining a loan as she claimed, and a significant amount of the funds in this account came from bonus and income tax refunds received by Mr. Katz. Mrs. Katz’s mother was in attendance at court and could have been called as a witness to substantiate Mrs. Katz’s claim that this money was transferred in repayment of a legitimate loan from Mrs. Reubeni and her husband, but she was not called by Mrs. Katz, even though I instructed her that if she was claiming an exclusion, the onus was on her to prove the exclusion and that she should call her mother to give evidence on that point or produce passbooks or other evidence to substantiate her position. Pursuant to subsection 4(3) of the Family Law Act,13 the onus of proving a deduction under the definition of “net family property” or an “exclusion” under subsection 4(2) is on the person claiming it.14 Where, as is the case here, a party claims a reduction and has access to evidence that supports their claim, but chooses not to produce or call that evidence, the court may draw an adverse inference with regard to the legitimacy of the claimed deduction; see Amaral v. Amaral15 and Dababneh v. Dababneh16 and Passarello v. Passarello.17 I do so in this case.

145      It does not appear that this account was disclosed in the first financial statement, sworn February 17, 2006 and served with Mrs. Katz’s original application. It was the evidence of Mr. Katz that he had no access to this personal account belonging to Mrs. Katz, and no knowledge of the transactions it contained until he obtained the document disclosure from the Bank of Montreal, and I accept his evidence on this point.

146      The Undisclosed Canada Savings Bonds — Through diligent review of bank accounts, records, income tax returns, assessments and reassessments, Mr. Katz was also able to expose the fact that Mrs. Katz had acquired in excess of $18,000.00 in Canada Savings Bonds. Mrs. Katz, when confronted, acknowledged that she owned the bonds; however, she claimed that they should be excluded, as they were gifts from her parents. Mr. Katz, who prepared the income tax returns for the parties throughout the marriage, claimed that Mrs. Katz intentionally withheld the T5’s related to the Canada Savings Bonds, so that he would be unaware of their existence. Mrs. Katz claimed that the T5’s were sent to her parents’ home address and were not provided to her because they were a gift. I find Mrs. Katz’s evidence on this point not credible.

147      Mrs. Katz on her own evidence was very close to her parents; she saw them frequently. I cannot accept that her parents would not have passed on her mail; particularly T5’s which were relevant to the completion of her income tax returns. I believe it is significant that these parties had separated on two prior occasions and I find it more probable that Mrs. Katz had begun accumulating assets in her own name, which she did not intend to disclose in the event of a further separation. This conclusion is supported by the fact that Mrs. Katz failed to disclose her ownership of these bonds in her first financial statement, sworn February 17, 2006, and served with her original application.

148      Once again, Mrs. Katz’s mother was available at court and could have been called as a witness to substantiate Mrs. Katz’s claim that these Canada Savings Bonds had been purchased by Mr. and Mrs. Reubeni, as a gift for their daughter. Once again Mrs. Katz did not do so. Nor did she produce any documents to establish the source of the funds used to purchase these Canada Savings Bonds. As previously stated, the court may draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. Again, I draw that adverse inference and I find that Mrs. Katz has not discharged the onus on her to prove, on a balance of probabilities, that these Canada Savings Bonds were indeed a gift and therefore should be excluded from equalization of net family property. On the contrary, I find that they were acquired during the marriage and must be included in the calculation of net family property.

149      The Undisclosed Insurance Claim Proceeds — On August 19, 2005, substantial damage was suffered at the matrimonial home, caused by a massive flood. Mrs. Katz filed the claim, which resulted in the issuance of cheques from Royal and Sun Alliance payable jointly to Mr. and Mrs. Katz, totalling $104,000.00. At that time Mr. Katz was still paying all expenses at the matrimonial home, including the home insurance and he continued to do so until March 2006. This evidence is not disputed. Although, the cheques were made payable to both Mr. and Mrs. Katz, Mrs. Katz did not request that Mr. Katz endorse the cheques. She had the cheques deposited at a TD Branch where she had accounts established for herself and her children, and where her father had also established bank accounts. Mr. Katz had no accounts at this TD branch.

150      The proceeds from the insurance claim were quickly disbursed into various accounts, including an internal TD account and Mrs. Katz’s father’s accounts, as well as various GICs. All this was done without Mr. Katz’s endorsement or knowledge. This evidence is not in dispute.

151      When questioned about the timing of these transactions, Mrs. Katz indicated that she simply did what “Mirella” the TD advisor directed her to do, which was to sign forms. Mrs. Katz stated under oath that she had no idea of what wrongdoing “Mirella” was guilty of thereafter, and what numerous mistakes she made in moving the funds around. It was the evidence of Mrs. Katz that “Mirella” was in no way instructed by her to do anything but to put the money in a GIC.

152      Again, I find Mrs. Katz’s evidence very hard to believe. It is telling that when Mrs. Katz issued her application for divorce on February 23, 2006, several weeks after she had deposited these funds with the TD Bank, she failed to disclose the existence of these funds in her sworn financial statement. Two explanations are plausible: either she knew this money was in her father’s name at the time, pursuant to her direction, and as such thought that she did not have to disclose it, or she knew it was in her name, but at a branch and in an account of which Mr. Katz was unaware and so chose not to disclose it. Either way, I find that she actively concealed this money, which was relevant to both the property issues and potentially her spousal support claim.

153      Mr. Katz found out about the insurance claim from his insurance broker sometime after the event and ultimately had to secure the details of the transactions by obtaining a court order, which compelled a tracing and an explanation by TD Bank.

154      Finally, on the issue of Mrs. Katz’s credibility, the parties agreed that they had ceased cohabiting on May 18, 2004, following Mrs. Katz’s discovery that Mr. Katz was having an extra-marital affair with a co-worker. Mrs. Katz gave evidence that they subsequently resumed their relationship as husband and wife, and on her return from Israel in August 2004 had sexual intercourse. Mr. Katz in his cross-examination strenuously challenged her evidence, claiming the parties had no sexual relations following their separation in May 2004.

155      Sometime later, Mr. Katz in his evidence in-chief, stated that Mrs. Katz would not consider reconciliation or commence marriage counselling until after he had a complete physical, including an AID’s test, which examination and testing he completed in the spring of 2005 and that marriage counselling commenced in June 2005.

156      Mrs. Katz did not challenge Mr. Katz on this evidence at all. I find it incomprehensible that Mrs. Katz would insist on an AID’s test as a precondition to the commencement of marriage counselling in 2005, but not to the resumption of conjugal relations in August 2004. As such, I must conclude that she lied while giving her evidence on the stand and under oath. I therefore reject Mrs. Katz’s evidence that upon returning from Israel the parties resumed their relationship as husband and wife.

157      It was the evidence of Mr. Katz that in fact, Mrs. Katz avoided contact with him and if they did attend social functions together they travelled there in separate vehicles, and although they did sit at the same table, there was no dancing and very little communication.

158      What emerges before me in all of this is a disturbing pattern of dishonesty and premeditated deceit on the part of Mrs. Katz. I realize that the circumstances of this marriage breakdown were extremely unpleasant, but Mr. Katz’s infidelity does not justify Mrs. Katz’s conduct in providing false or incomplete financial information and intentionally misleading the court.

159      I did not identify the same tendency in Mr. Katz and consequently, where the evidence of the two parties conflicts, I accept the evidence of Mr. Katz as more credible.

160      I turn now to the issues to be resolved in order that I may calculate an equalization of the parties’ net family property.

B. Valuation Date

161      It was the evidence of Mr. Katz that the parties separated for the final time on May 18, 2004 and although he desperately wanted to reconcile with Mrs. Katz, she had no intention of doing so; instead she held reconciliation out to him like a carrot to a mule and used the promise of reconciliation and the resumption of cohabitation to extract from him a marriage contract and an amendment to the marriage contract, which would strip him of ownership of his principal asset, the matrimonial home and its contents, and saddle him with considerable debt.

162      It was the evidence of Mrs. Katz however, that she genuinely intended on reconciling with Mr. Katz and that although they were separated, there was a possibility of reconciliation right up until August 22, 2005, in her words “almost one year after the marriage contract was signed”.

163      I find that Mrs. Katz took this position in the hope of buttressing her argument that the marriage contract, dated October 25, 2004 and the amendment to marriage contract signed July 29, 2005, are valid and enforceable, and she took this position following her consideration of Mr. Katz’s argument, that the marriage contract and the amendment to marriage contract, contemplated the resumption of cohabitation and therefore a post-separation date of May 18, 2004.

164      I find the position of Mrs. Katz that the parties did not separate until August 2005 contrived and self-serving. I find that the parties did in fact separate with no possibility of reconciliation on May 18, 2004. In support of these findings I rely on the following:
(1) As was the evidence of both parties, they ceased cohabitating May 18, 2004, as a result of Mr. Katz’s infidelity and never resumed cohabitation.
(2) I have already found as fact that:
(a) Prior to the May 18, 2004, Mrs. Katz had begun acquiring assets in her own name, specifically Canada Savings Bonds that she was concealing from Mr. Katz.
(b) She concealed the existence of her Bank of Montreal accounts. In May 2004 Mrs. Katz transferred monies in access of $21,000.00 from her sole account at the Bank of Montreal to her father V. Reubeni (two cheques were drawn: May 13, 2004 in the amount of $17,249.38 and May 17, 2004 in the amount of $3,963.92) both with the endorsement of Victor Reubeni on the back of the cheques and both went into a Royal Bank account in Thornhill.
(c) Following their separation on May 18, 2004, Mr. and Mrs. Katz never resumed a relationship as husband and wife.
(d) By holding out to Mr. Katz the promise of reconciliation, Mrs. Katz was able to secure Mr. Katz’s willingness to continue to pay all expenses at the matrimonial home, and to maintain some semblance of a family unit until after Jordan’s Bar mitzvah in the summer of 2005.
(3) I accept Mr. Katz’s evidence that he was required to provide Mrs. Katz with an unconditional show of his love and commitment to her, before she would allow cohabitation to resume and that was why he prepared and executed the marriage contract, then it was the amendment, then an AIDS test, and then counselling. Each time he overcame one hurdle, she presented another.
(4) The parties had ceased cohabiting for over one year before they even saw a marriage counsellor.
(5) The foregoing conduct on the part of Mrs. Katz looks far more like an exit strategy than a plan for reconciliation and I find as such. Once Mrs. Katz ran out of challenges, by which Mr. Katz could prove his commitment to their relationship, Mrs. Katz declared her intention not to resume cohabitation, and I find that this was her true intention from May 18, 2004.

165      In law, only one of the spouses needs to form the intention to separate in order for a valuation date to be established and that intent cannot fraudulently be concealed: See Caratun, supra, and Karjama v. Karjama.18

166      Accordingly, I find the valuation date for the purpose of calculating the parties’ net family property is May 18, 2004.

C. Validity of the Marriage Contract Entered into by Mr. and Mrs. Katz dated October 25, 2004

167      The burden is on the party seeking to escape the effect of a domestic agreement to show that there are grounds for setting it aside. See Dougherty v. Dougherty.19

168      In this case I find that the respondent, Mr. Katz, has met that burden. I find that the agreement was not fairly negotiated, did not represent the intention or expectation of the parties, and did not substantially comply with the Divorce Act or Family Law Act. My jurisdiction for doing so is section 56 of the Family Law Act.20

169      I find that it was the expectation of Mr. Katz that once the marriage contract was executed by the parties that they would resume cohabitation. I find that this was a reasonable expectation, given recital B. of the marriage contract dated October 25, 2004, which reads:
Orly and Ari acknowledge that ...
B. They have been living separate and apart from each other since on or about May 18, 2004, but intend to resume cohabitation. ...

170      It was the evidence of Mr. Katz that he was desperate to reconcile; he regretted the affair and wanted to save his marriage, he missed his children, and the commute from his parents’ home in Hamilton where he was staying temporarily was killing him. This evidence was not challenged by Mrs. Katz.

171      The Supreme Court of Canada in Rick v. Brandsema,21 has given clear direction on the special considerations that must come into play when we are called upon to evaluate the enforceability of domestic contracts as distinct from other forms of contract. We must be mindful of the emotional environment that surrounds the disintegration of a spousal relationship. We must recognize the uniquely difficult and vulnerable context within which the negotiation of domestic contracts takes place. In order to encourage the negotiation of agreements which substantially reflect the objectives of the governing legislation, the law imposes a duty on separating spouses to provide full and honest disclosure of all relevant financial information.

172      In Rick, supra, the Supreme Court of Canada made it clear that where there has been defective disclosure and exploitation of a spouse’s vulnerability, which results in an agreement which does not distribute the assets of the former relationship in a manner that meets the objectives of the governing legislation, that agreement may be found to be unconscionable and therefore unenforceable.

173      To my mind, three questions must be posed to determine in this case if the marriage contract is unconscionable:
(1) Did either spouse fail to comply with the duty to make full and honest disclosure of all relevant financial information?
(2) Did either spouse exploit the vulnerability of the other?
(3) Did the failure to disclose or the exploitation of the other spouse result in an agreement that substantially deviates from the property distribution stipulated in the governing legislation?

174      In the case before me I find that the answer to all three questions is, yes. I find that Mrs. Katz failed to comply with the duty to make full and honest disclosure of all relevant financial information. I have already found on the evidence that Mrs. Katz failed to disclose that she was accumulating Canada Savings Bonds in her name solely and accumulating savings in a Bank of Montreal account in her name solely.

175      Indeed, I have previously found that she actively concealed these assets and took steps to transfer a substantial amount of the funds in the Bank of Montreal account into her father’s name. I find on a balance of probabilities that this failure to disclose all relevant financial information on the part of Mrs. Katz was deliberate.

176      Mrs. Katz argued that because Mr. Katz was a certified general accountant there was no duty of disclosure. I reject this argument as nonsensical. Mr. Katz’s occupation is irrelevant in my assessment of her compliance with the duty to disclose and I find that it does not diminish her obligation in any way. A certified general accountant may be brilliant in his field — it does not make him clairvoyant.

177      Further, I accept Mr. Katz’s evidence that he would have done anything to resume cohabitation and reconcile with his wife. This made Mr. Katz particularly emotionally vulnerable. I find that Mrs. Katz was well aware of Mr. Katz’s desperation. She did not dispute his evidence that he told her he would do anything she wanted to be able to resume life with her and the children as a family. I find that he was prepared to give her anything and that she exploited his vulnerability by asking for virtually everything of value they owned; the matrimonial home and its contents, and she did so while she was actively accumulating and concealing other assets. I find that although Mr. Katz had independent legal advice, it did not diminish his vulnerability.

178      I turn now to the governing legislation, being the Family Law Act, which put simply, directs that the property acquired during the marriage (subject to a few specific exceptions) should be divided equally between the parties upon the marriage breakdown. The domestic contract under review here purports to transfer to Mrs. Katz by far the most significant and valuable asset acquired by the parties during their almost eighteen-year marriage; the matrimonial home and contents. Clearly by doing so it deviates significantly from the property distribution directed in the legislation.

179      To summarize, I find that in this case there has been defective disclosure and an exploitation of one spouse’s vulnerability, which has resulted in an agreement on the distribution of the assets of the former relationship, which deviates so greatly from the distribution contemplated in the legislation that it fails entirely to meet the objectives set out in the legislation.

180      As a result, I find that the marriage contract between Mr. and Mrs. Katz dated October 25, 2004, to be unconscionable and therefore unenforceable.

D. The Validity of the Amendment to the Marriage Contract Entered into by Mr. and Mrs. Katz dated July 29, 2005

181      I find the amendment to the marriage contract entered into by Mr. and Mrs. Katz dated July 29, 2005, unconscionable and therefore unenforceable for the same reasons as the marriage contract.

182      However, I find that the debts itemized in that agreement being:
(1) TD Canada Trust Loan No. 10761038596-01 in the amount of $10,632.97;
(2) Scotia Bank Line of Credit 453815266993 in the amount of $7,382.28; and
(3) Scotia Bank Value Visa in the amount of $5,436.44
should not be used to reduce Mr. Katz’s net family property.

183      It was the evidence of Mrs. Katz that these debts related to high-risk investments of which she was not aware and expenses related to Mr. Katz’s extra-marital dalliance. When questioned on the investments, Mr. Katz admitted that they were a big gamble and he stated that he did not discuss borrowing the money to make these investments with Mrs. Katz because she would not have agreed, it would have resulted in a huge fight, and he frankly did not need the hassle.

184      Mr. Katz did not dispute Mrs. Katz’s claim that the balance of the debt related to his extra-marital affair. As such, I find that these debts were incurred by Mr. Katz, either recklessly or in bad faith, and I find that it would be unconscionable to allow Mr. Katz to claim these debts in reduction of his net family property.

185      My jurisdiction for disallowing this deduction is found at clause 5(6)(b) of the Family Law Act.22

E. The Validity of Loans from Parents Claimed as Deductions in the Calculation of Net Family Property

186      Both Mr. and Mrs. Katz claimed to have borrowed substantial monies from their respective parents and sought to deduct these amounts in the calculation of their respective net family property. The evidence produced to substantiate such loans was wholly inadequate; the loan documents were quite dated, long past any applicable limitation period; and there was absolutely no evidence of a pattern of repayment on the part of either party.

187      Mrs. Katz, to her credit, abandoned this claim to a deduction at trial.

188      Mr. Katz for his part, failed to call either of his parents to give evidence on the validity of these loans. As previously stated, the court may draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts and I do so in this case.

189      I do, however, find that both Mr. Katz’s parents and Mrs. Katz’s parents were extremely generous with this couple and gave them substantial monetary gifts over the course of their marriage.

F. The Validity of Gifts from Parents as Exclusions in the Calculation of Net Family Property

190      As previously discussed under credibility, Mrs. Katz claimed a deduction from her net family property for the value of the Canada Savings Bonds she claimed were purchased for her by her parents. However, she failed to discharge the onus on her of proving the gift; she produced no evidence that these assets were indeed purchased by Mr. and Mrs. Reubeni and failed to call Mrs. Reubeni as a witness to substantiate her claim. It was open to the court to draw an adverse inference from Mrs. Katz’s failure to do so and the court did so.

G. Jordan’s Bar Mitzvah Fund

191      A considerable amount of time was spent at trial reviewing the expenses and receipts related to Jordan’s Bar mitzvah. Although Mr. Katz had initially demanded a full accounting from Mrs. Katz, he ultimately conceded in his oral evidence that he anticipated that Jordan’s Bar mitzvah would cost somewhere between $25,000.00 and $30,000.00 and that he was satisfied with the explanation and documentation provided by Mrs. Katz at trial, that roughly that amount had indeed been spent.

192      Within thirty (30) days of the release of this judgment, Mrs. Katz shall provide to Mr. Katz a copy of the pictures taken at Jordan’s Bar mitzvah and a copy of the video recorded at the event.

H. Ongoing Responsibility for the Children’s Trust Funds

193      Given Mrs. Katz’s tendency in the past to withhold information and actively conceal financial information, I find that it is not appropriate that she continue to be solely responsible for the ongoing management of the funds held in trust for the children. Within thirty (30) days Mrs. Katz shall take the steps necessary to transfer all of the children’s accounts into the names of herself and Mr. Katz jointly. Henceforth, the signatures of both parties shall be required on all withdrawal/transfer related transactions. This includes, without limitation, accounts held in trust for the children at the TD Bank, the Bank of Montreal, and the Royal Bank.

I. Entitlement to and Proper Disposition of the House Insurance Proceeds in the amount of $104,000.00

194      As previously stated herein, Mrs. Katz filed an insurance claim as a result of the flood at the matrimonial home. Cheques totalling $104,000.00 payable to both Mr. and Mrs. Katz were received by Mrs. Katz. Mrs. Katz conceded that without Mr. Katz’s knowledge, consent, or endorsement, Mrs. Katz deposited these funds with the TD Bank and began to spend them. In her opening trial statement Mrs. Katz’s claims, and I quote:
... [T]here was significant damage to the home, loosened bricks, water damage, foundation problems, and the claim was settled for $104,000.00. Royal Sun Alliance paid on the basis that there was significant damage to the structure of the home.

195      In her closing arguments, however, she argued that her parents had moved from a large home to a condo and had stored contents in her basement, which were a gift to her and made up a substantial portion of the amount received on the insurance claim. Once again I find Mrs. Katz’s evidence to be inconsistent and self-serving. As a result, I can give her evidence no weight on this point.

196      In the absence of a proof of loss/claim declaration, which no one could produce, it is impossible to accurately determine what portion of the amount relates to structural damage and what portion relates to chattels. According, I am compelled to find that the cheques were made payable jointly to the parties, to compensate them for their joint loss and they are therefore equally entitled to these funds.

197      I find, based on the documents produced, and as conceded by Mr. Katz, that Mrs. Katz used some of that money to pay for Sammy’s tuition to York University ($4,590.80 on August 29, 2006), she used some of that money to pay off the parties’ overdraft ($3,260.00), and she used some of that money to pay for necessary repairs at the home. I accept the evidence of Mrs. Katz that she also paid off the following debts of Mr. Katz, which he did not dispute: Royal Bank VISA $6,000.00; 407 ETR $1,000.00; and promissory note to Associated Hebrew Schools $2,110.00.

198      I find therefore, that Mrs. Katz did not misappropriate any of these funds, and despite her failure to disclose the existence of these monies in her sworn financial statement, which accompanied her application for divorce in February 2006, I find that she spent the money responsibly and on items for which Mr. Katz was also responsible. In reaching this conclusion, I accept that the refund by RB Contractors in the amount of $2,932.40 deposited to the joint account of Victor and Mrs. Reubeni, was just one more error on the part of TD Bank, which amount I have credited to Mrs. Katz, but also I take into account that Mrs. Katz was responsible for payment of the judgment obtained by Sinai for the alarm system at the matrimonial home. In reaching this conclusion I have not accounted to the penny, as Mr. Katz may prefer, but I have used round numbers and I am satisfied no injustice has occurred.

199      There currently remains approximately $84,000.00 of these insurance proceeds in two (2) GICs, currently held at the TD Bank and I find that Mr. and Mrs. Katz are each entitled to a fifty percent (50%) share.

200      Accordingly, I order TD Bank to release to Mrs. Katz half that amount, being approximately $42,000.00. Further, from Mr. Katz’s share, I direct that the lump sum compensatory support, in the amount of $25,000.00 be paid to Mrs. Katz, as set out at paragraph [112], as well as the child support arrears of $1,569.00, as set out in paragraph [72].

201      The balance of Mr. Katz’s share remaining, in the amount of approximately $15,431.00 shall be set aside as a parenting coach and parenting coordinator therapy fund and used to provide to Mr. Katz and the children the therapeutic support services recommended in the Chodos report. Should any amount remain in this fund at the end of twenty-four (24) months from the date of release of this judgment, that amount shall be paid to Mrs. Katz and applied to reduce any then outstanding spousal support arrears, as set out at paragraphs [137] and [138] hereof; thereafter, any balance remaining shall be paid to Mr. Katz.

J. Matrimonial Home

202      The parties shall continue to own the matrimonial home at 313 Yorkhill Blvd., Thornhill, Ontario, however, the joint tenancy is severed, and title shall be held by Mr. and Mrs. Katz as tenants in common, until the earlier of Corey’s commencement of high school or Mrs. Katz’s decision to sell. At that time, the property shall be listed with an agent agreed to by the parties at a price recommended by the listing agent. In the event the parties cannot agree on an agent, they shall each pick an agent and those two agents so picked by the parties, shall agree on a listing agent.

203      Until the sale of the matrimonial home, Mrs. Katz shall be entitled to exclusive possession of the matrimonial home. She will also be responsible for all ongoing expenses at the matrimonial home, including without limitation: insurance, utilities, mortgage, and taxes.

204      The parties shall equally contribute to the costs of capital expenditures and necessary structural repairs. Mr. Katz and Mrs. Katz shall jointly retain a qualified expert to inspect the current condition of the property, assess the outstanding damage, and determine the necessary repairs. Upon the sale of the matrimonial home, the net proceeds following payment of all outstanding mortgages and expenses incidental to the sale of the property (real estate commissions, GST or HST etc.), shall be divided equally between the parties.

205      From Mr. Katz’s share shall be paid to Mrs. Katz any spousal support arrears then outstanding pursuant to paragraphs [137] and [138] herein.

206      I am delaying the disposition of the matrimonial home in order to avoid unnecessary disruption and instability for the children, Jordan and Corey, as they have already been significantly traumatized by the breakdown of this marriage. I intend for there to be ongoing stability, at least in the area of housing, until the parties have an opportunity to implement the terms of this order, and in particular, the therapeutic intervention provisions of the Chodos report. Section 24 of the Family Law Act gives me the authority to grant exclusive possession of the matrimonial home to Mrs. Katz in the particular circumstances of this case.23

K. Occupation Rent

207      Mr. Katz has made a claim for occupation rent, which was raised in his answer filed in March 2006. Normally, pursuant to clause 24(1)(c) of the Family Law Act, such a claim can only be successful where an order has been made granting one spouse exclusive possession and there are other factors in the case making such an award equitable.24

208      I do not find the matter before me to be such a case for the following reasons:
(1) The income of Mrs. Katz (the occupying spouse) was roughly half of that of Mr. Katz.
(2) Mr. Katz (the non-occupying spouse) disputed the payment of spousal support and indeed paid no spousal support right up to the release of this judgment.
(3) Since Mr. Katz began paying child support, Mrs. Katz has been paying all expenses at the matrimonial home and she shall continue to do so, with the exception of capital expenditures.
(4) The children reside with Mrs. Katz (the occupying spouse).

209      Accordingly, Mr. Katz’s claim to occupation rent is dismissed.

L. Equalization of Net Family Property

210      I have reviewed the numerous financial statements, the net family property statements sworn and filed by the parties, as well as the numerous source documents filed as exhibits. I believe I have arrived at a calculation of the parties’ net family property, which is fair and reasonable in the particular circumstances of this case and complies with the legislative directive.

211      In accordance with my calculations, Mrs. Katz shall pay to Mr. Katz from her share of the proceeds from the sale of the matrimonial, the sum of $25,617.82 in order to equalize their net family property. This sum was calculated as follows:
FINAL NET FAMILY PROPERTY STATEMENT	
PART 7(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS	
Category	Institution	Account Number	Mrs. Katz	Mr. Katz	
RRSP	Altamira	9[text omitted]	$ 2,968.69	$0	
RRSP	T.D. Waterhouse	6[text omitted]	$ 9,169.17	$0	
Savings	TD Canada Trust	0[text omitted]	$ 300.00	$0	
CSB	Canada Savings Bonds	 	$18,659.00	$0	
Savings	Bank of Montreal	 	$21,200.00	$0	
Chequing	TD Canada Trust	5[text omitted]	$ 450.00	$0	
Judgment	Against Intine & JDKB	 	$0	$ 2,375.00	
Pension	 	 	$10,940.00	$0	
RRSP	T.D. Waterhouse	 	$0	$ 9,560.82	
Sub Totals	$ 63,686.86	$11,935.82	
Table 2: Value of Debts and Liabilities on Valuation Date	
RRSP	Tax deduction of 20%	$ 2,427.57	$ 1,912.16	
Total Net Family Property:	$ 61,259.29	$ 10,023.66	
EQUALIZATION PAYMENT	Mrs. Katz pays Mr. Katz	 	
$ 61,259.29 - $10,023.66 = $51,235.63 ÷ 2 = $25,617.82	$ 25,617.82	$0	

212      In completing the calculation of net family property equalization, I took into account the following considerations:
(1) The valuation date used was May 18, 2004, the date the parties ceased cohabiting.
(2) Given the conflicting evidence of the parties, the actual values specified are based on what I determined to be the most reliable evidence.
(3) The GMP Securities Investments Limited were excluded from the calculation, as was the related debt per paragraph [182] hereof and the debt incurred with regard to Mr. Katz’s affair, see paragraph [184] hereof.
(4) I did not treat Mr. Katz’s income tax refund for 2003 ($7,577.11) or his income tax refund for 2004 ($7,011.00) as money owed to him and therefore an asset for purposes of calculating his net family property, although he set it out as such on his net family property statement. This would have been unfair to him, as what he was actually seeking was an accounting from Mrs. Katz as to how this money was spent. As established at trial, the 2003 refund went into Jordan’s in-trust account and was utilized to pay for his Bar mitzvah related expenses. Any funds remaining in his interest account, whether they be at TD, Bank of Montreal, or Royal Bank, must be transferred into the joint names of Mr. and Mrs. Katz, pursuant to paragraph [193] hereof. I accept that Mr. Katz continued to pay all expenses at the matrimonial home until February 2006. I accept Mr. Katz’s evidence, on a balance of probabilities that his 2004 income tax refund went into the parties’ account following separation, at Mrs. Katz’s request and was used for family related purposes, as had been the past practice of the parties, even during their initial period of separation, during which Mr. Katz believed the resumption of cohabitation was imminent.
(5) I have not deducted any amount for the joint chequing account overdraft, as I find this was paid from the joint house insurance proceeds, and is therefore not a proper deduction to either party. Similarly, I have not allowed deductions for the joint VISA, the promissory note to Associated Hebrew Schools, the debt to Sinai, or the 407 ETR account, which I find were all paid from the joint house insurance proceeds.
(6) I have also disallowed Mr. Katz’s credit card debt related to the new appliances for the matrimonial home, which I find was incurred several months after the valuation date, and therefore not relevant to an equalization of property as at the valuation date.
(7) I have disallowed the deduction for loans from parents for the reasons given at page 34, section E. hereof.
(8) Mr. Katz claimed a deduction for property owned on the date of marriage totalling $27,000.00, but I find that he failed to prove his entitlement to this deduction on a balance of probabilities and I have therefore disallowed the deduction. I find that the values he gave were guestimates at best, and insufficient to discharge the onus on him of proving his entitlement to a deduction.
(9) For purposes of calculating net family property I have disregarded Mrs. Katz’s TD account 1076/6333281, which was opened November 6, 2006, over two years post-separation.

213      Finally, Mr. Katz made a claim for the return to him of certain personal property, which Mrs. Katz agreed at trial he could have. Accordingly, I order that Mrs. Katz provide to Mr. Katz, within thirty (30) days of the release of this judgment, the following items: his university degree; his clothes which remain at the matrimonial home; his boardroom table and chairs. Mr. Katz shall be responsible for transporting these items from the matrimonial home.

XIII. Life Insurance

214      Mr. Katz shall obtain and maintain life insurance in the amount $500,000.00, with the children as beneficiaries and the applicant, Mrs. Katz, as trustee, and:
(1) He shall provide Mrs. Katz a copy of the said policy within sixty (60) days of the release of these reasons for judgment.
(2) He shall pay all policy premiums when due and if he does not, and Mrs. Katz pays any premiums, interest, or penalties to prevent the policy from lapsing, those amounts shall be construed as child support and enforceable against Mr. Katz through the Family Responsibility Office. If the policy lapses because Mr. Katz has failed to pay the premiums, he shall also pay Mrs. Katz all necessary costs incurred by her to reinstate the policy.
(3) When Mr. Katz’s obligation to pay child support and spousal support ends, he will be free to deal with the policy as he deems fit, and Mrs. Katz shall sign whatever documents are necessary in order to effect this intention.
(4) Within fourteen (14) days of the policy’s anniversary date, if requested by Mrs. Katz, Mr. Katz will provide her with proof that the annual premium has been paid.
(5) In the event of a review of child support, section 7 expenses, and/or spousal support, the requirement for life insurance may be adjusted and shall reflect sufficient security.

XIV. Benefits

215      Mr. Katz shall continue to cover both Jordan and Corey on his dental benefits and extended health care benefits, available through his employment. Any dental or health related expenses incurred by the children, which are not covered by the benefit plans, shall be shared equally by the parties as section 7 expenses.

XV. Divorce

216      Orly Katz and Neil Ari Katz who were married on August 19, 1986, are hereby divorced and this divorce takes effect 31 days from the date of the release of my reasons for judgment.

XVI. Direction to TD Canada Trust

217      TD Canada Trust shall be given a copy of this order and directed to comply with the payment directives contained at paragraphs [200] and [201] and will otherwise lift the restraints currently imposed on the accounts of Mrs. Katz forthwith.

XVII. Costs

218      I find that the parties in this case must share equal responsibility for the protracted nature of these proceedings. I find that success was mixed: Mrs. Katz was successful in her spousal support claim; Mr. Katz successfully disputed the validity of the domestic contracts. Accordingly, each of the parties shall bear their own costs.

XVIII. Order

219      For all the foregoing reasons, I hereby order:
1. A parenting coordinator shall be appointed, to serve as a facilitator, with the power to make recommendations respecting the resolution of parenting disputes and to assist in implementing the parenting plan smoothly, and negotiating the separation process in the most sensitive, supportive manner possible for the children. The parenting coordinator shall facilitate the resolution of issues regarding the implementation, maintenance, and compliance with the parenting plan.
2. The parenting coordinator shall act as a facilitator only, but with the authority to make recommendations. The parenting coordinator may:
(a) Address any anticipated conflicts in the children’s scheduling that occur and make recommendations with respect to reducing or eliminating that anticipated conflict.
(b) Assist the parties to develop any additional clarifying clauses that may be required given situations and events that unfold, that were not initially anticipated when the parenting plan was developed.
(c) Monitor Corey’s adjustment.
(d) Assist the parties to communicate more effectively.
(e) Make recommendations pertaining to temporary changes to the usual and/or holiday parenting time schedule, to accommodate special events and circumstances for the child(ren) and/or the parents.
(f) Address child(ren)’s travel arrangements.
(g) Clarify and facilitate the resolution of differing interpretations of the parenting plan.
(h) Assist in the resolution of conflict concerning day-to-day health care, day-to-day education matters, passports, and events that are not otherwise allocated for in the parenting plan.
(i) Make recommendations with regard to the children’s therapy needs and any other child related issue.
(j) The involvement with the parenting coordinator shall be an open process, such that information shall be shared with the parties, Mr. and Mrs. Katz, and with the court if required in the future.
In the event a reasonable consensus cannot be reached, final decision-making authority shall remain with the court.
3. The parenting coordinator shall be appointed for a period of one year from the date of his or her initial retainer and paid for from the fund established for this purpose, pursuant to paragraph [201] herein. This retainer may be extended on consent of the parties. In order to facilitate final decision making by the court, I shall remain seized of this matter for a period of eighteen months from the release date of these reasons for judgment.
4. Mrs. Katz shall have sole custody of Jordan Allon Katz born May 31, 1992 and Corey Solomon Katz born December 9, 1998. Mrs. Katz shall have final decision making authority with regard to major decisions; however, she shall solicit the input and opinion of Mr. Katz, in relation to any and all major decisions affecting the children, including those decisions related to the children’s physical and psychological health, their education, their religious training and education, any extra curricular activities that impact on both parent’s time, and any other major decision affecting the children’s general welfare, prior to rendering a final decision.
5. In order to facilitate this process, Mrs. Katz shall notify Mr. Katz, by email, of any potential major issues. She will provide him with all information she has and copies of any supporting documents that are important in making the decision. Mr. Katz shall provide his input by email. Mrs. Katz shall make the final decision taking into account Mr. Katz’s view, as well as consult professionals for opinions where she deems it appropriate to do so. Mr. Katz may request that the decision be reviewed by the parenting coordinator and a recommendation made by the parenting coordinator. In the event Mrs. Katz’s decision is contrary to the recommendation made by the parenting coordinator, and Mr. Katz is convinced that the decision is not in the child’s best interest, then Mr. Katz may bring a motion to the court.
6. Mrs. Katz will be responsible for making and executing the children’s routine yearly medical and dental examinations, and she shall inform Mr. Katz of the appointment times in advance, via email, within 24 hours of the appointment being made. Both parents shall have the option of attending for children’s appointments, and should do so wherever possible.
7. Mr. Katz shall retain the services of Ms. Jan Schloss, MSW, or some other parenting coach agreeable to him, immediately upon the release of these reasons for judgment. Mr. and Mrs. Katz shall retain the services of Dr. Ted Horowitz, MSW, DSW, or someone recommended by Dr. Horowitz as their parenting coordinator immediately upon the release of these reasons for judgment.
8. The costs of this assistance shall be paid from the fund established pursuant to paragraph [201] of this judgment. A copy of Ms. Chodos’ assessment report dated September 17, 2007, shall be provided to both the chosen parenting coach and the parenting coordinator immediately and they shall be free to communicate directly with Ms. Chodos.
9. Mr. Katz shall immediately commence parenting time with his son Corey Solomon Katz born December 9, 1998, as follows:
(a) Every Wednesday from after school or camp (whichever is applicable) or at noon during the school summer vacation (or so soon as Mr. Katz can arrange to leave work), with pick-up directly from school, camp, or Mrs. Katz’s home (whichever is applicable). Mr. Katz shall return Corey to Mrs. Katz’s home at 8:00 p.m.
(b) Every Saturday morning from 10:00 a.m. until 8:00 p.m. in the evening, with pick-up and drop-off from Mrs. Katz’s home.
(c) Mr. Katz shall provide age appropriate toys and resources in his home for Corey and shall seek guidance from his parenting coach on this issue.
(d) When exchanges take place at Mrs. Katz’s home, she shall remain in her residence and Mr. Katz shall wait in his vehicle for Corey. Mrs. Katz shall ensure that Corey is sent out to his father in a timely fashion.
10. Once Mr. Katz has retained and met with his parenting coach, for at least one session, he shall immediately commence parenting time with Corey as follows:
(a) Every Wednesday from after school or camp (whichever is applicable) or at noon during the school summer vacation (or so soon as Mr. Katz can arrange to leave work), with pick-up directly from school, camp, or Mrs. Katz’s home (whichever is applicable). Mr. Katz shall return Corey to Mrs. Katz’s home at 8:00 p.m.
(b) Every Saturday morning from 10:00 a.m. until Sunday morning at 10:00 a.m., with pick-up and drop-off from Mrs. Katz’s home.
(c) When exchanges take place at Mrs. Katz’s home, she shall remain in her residence and Mr. Katz shall wait in his vehicle for Corey. Mrs. Katz shall ensure that Corey is sent out to his father in a timely fashion.
11. Once Mr. Katz has met with his parenting coach for six sessions, anticipated to be once per week for six weeks, he shall immediately commence parenting time with Corey as follows:
(a) Every Wednesday from after school or camp (whichever is applicable) or at 3:00 p.m. during the school summer vacation (or so soon as Mr. Katz can arrange to leave work), with pick-up directly from school, camp, or Mrs. Katz’s home (whichever is applicable). Mr. Katz shall return Corey to Mrs. Katz’s home at 8:00 p.m.
(b) Alternating weekends from Friday after school or camp (whichever is applicable) or at 3:00 p.m. during the school summer vacation (or so soon as Mr. Katz can arrange to leave work) with pick-up directly from school, camp, or Mrs. Katz’s home (whichever is applicable). Mr. Katz shall return Corey to Mrs. Katz’s home at 8:00 p.m. Sunday.
(c) When exchanges take place at Mrs. Katz’s home, she shall remain in her residence and Mr. Katz shall wait in his vehicle for Corey. Mrs. Katz shall ensure that Corey is sent out to his father in a timely fashion.
12. Once Mr. Katz has met with his parenting coach for a further four sessions, anticipated to be once per week for a further four weeks (for a total of ten sessions to that point) he shall immediately commence parenting time with Corey as follows:
(a) Every Wednesday from after school or camp (whichever is applicable) or at 3:00 p.m. during the school summer vacation (or so soon as Mr. Katz can arrange to leave work), with pick-up directly from school, camp, or Mrs. Katz’s home (whichever is applicable) until Thursday morning when Mr. Katz shall drop Corey off directly to school, camp, or at Mrs. Katz’s home (whichever is applicable).
(b) Alternating weekends from Friday after school or camp (whichever is applicable) or at 3:00 p.m. during the school summer vacation (or so soon as Mr. Katz can arrange to leave work) with pick-up directly from school, camp, or Mrs. Katz’s home (whichever is applicable). Mr. Katz shall return Corey to Mrs. Katz’s home at 8:00 p.m.
13. In the course of Mr. Katz’s sessions with his parenting coach, he shall canvas recommendations and pursue reintegration therapy with a view to expanding and strengthening his relationship with his son Jordan. The cost for this therapeutic assistance shall be paid from the fund, established pursuant to paragraph [201] of this judgment. Mrs. Katz shall unconditionally encourage Jordan to participate in this therapy. She shall encourage Jordan to increase his time spent with his father. Mrs. Katz shall encourage and support Mr. Katz’s attendances at Jordan’s sports activities and shall encourage Jordan to provide Mr. Katz access to his sports schedules. Mrs. Katz shall also encourage Jordan to enjoy dinner with his father, at least once every two weeks. Any additional access between Mr. Katz and Jordan shall be in Jordan’s discretion.
14. Beginning the school summer vacation in 2010, each parent shall have the option of spending one-week (seven days) of uninterrupted vacation time with the children. Mrs. Katz shall have first choice in 2010 and all subsequent even-numbered years. Mr. Katz shall have first choice in 2011 and all subsequent odd-numbered years. Notice shall be given, by email, by the parent with priority to the other parent by the 15th of May in each year. If notice has not been given by that date, then the right to priority shall shift to the other parent, who will provide notice to the other parent, by email, by the 31st of May. If neither parent complies with these notice provisions, then unless the parties otherwise agree, the regular access schedule shall apply
15. Beginning with Christmas 2010, if the parties wish to travel with the children during this holiday, each parent shall have up to one week (seven days) uninterrupted time; the parents shall alternate the first and second weeks of the holiday, with Mr. Katz having first choice in even-numbered years and Mrs. Katz having first choice in odd-numbered years. The parent with priority in any given year must give the other parent notice, by email, of their preferred week by the 1st of October of each year. If neither parent is planning to travel with the children during this holiday, then the regular schedule shall prevail, unless otherwise agreed to by the parents.
16. Beginning school spring break 2011 if either parent wishes to travel during this holiday, they shall have up to one week (seven days) uninterrupted time. Mr. Katz shall have first choice in even-numbered years and Mrs. Katz shall have first choice in odd-numbered years. The parent with priority shall provide notice, by email, to the other parent by the 1st of February of each year. If notice has not been given by that date then the right to priority shall shift to the other parent, who will provide notice to the other parent, by email, by the 15th of February. If neither parent complies with these notice provisions, then unless the parties otherwise agree, the regular access schedule shall apply.
17. The children shall spend the first night of Rosh Hashanah with Mrs. Katz in even-numbered years and with Mr. Katz in odd-numbered years, unless the parties otherwise agree. The children shall spend the second night of Rosh Hashanah with Mrs. Katz in odd-numbered years and with Mr. Katz in even-numbered years, unless the parties otherwise agree. Transition to the other parent’s home shall take place three hours prior to the Rosh Hashanah dinner, to allow for travel time.
18. Mr. Katz shall have parenting time with the children for the first Seder in even-numbered years and Mrs. Katz shall have parenting time with the children for the first Seder in odd-numbered years, unless the parties otherwise agree.
19. Mr. Katz shall have parenting time with the children for the second Seder in odd-numbered years and Mrs. Katz shall have parenting time with the children for the second Seder in even-numbered years unless the parties otherwise agree.
20. The parents shall return the children to the other parent at least three (3) hours prior to the second Seder.
21. Corey shall remain with the parent with whom he celebrates the second (2nd) Seder each year until the next morning, when the regular schedule shall resume.
22. Once the regular access schedule has been established, as per paragraph 12 above, it shall prevail for all other holidays and should a long-weekend fall on Mr. Katz’s weekend with Corey, Mr. Katz shall return Corey to Mrs. Katz’s home on Monday evening at 8:00 p.m.
23. Regardless of the regular access schedule, Corey shall spend Father’s Day with Mr. Katz and Mother’s Day with Mrs. Katz. The honoured parent shall be responsible for picking Corey up at 10:00 a.m. on Sunday and returning him to the residential parent at 8:00 p.m. Sunday evening.
24. Mr. Katz shall immediately sign passport forms and provide them to Mrs. Katz, so that passports can be obtained for Corey and Jordan. In the event that Mr. Katz fails to do so, Mrs. Katz may bring a 14B motion before me, to dispense with Mr. Katz’s consent and she shall have her costs on a full indemnity basis. In the event that Corey or Jordan shall be traveling away from either parent’s residence overnight, contact numbers and an itinerary for the children shall be provided by the parent organizing the travel to the other parent, in case of emergency. Both parents shall place in their wallets the other parent’s name, address, and telephone number, in case of an emergency.
25. The written consent required by customs/immigration, the child’s passport and health card, shall be provided when requested to travel and will not be unreasonably withheld. The cost to prepare the written consent, if there is any cost, shall be borne by the parent intending to travel. The children’s itinerary shall be provided when requested and shall not be unreasonably withheld. The children may telephone the other parent while on vacation. Mrs. Katz shall provide the children’s passports to Mr. Katz when he requires them for travel with the children; otherwise she will hold them in safekeeping.
26. The children’s actual birthday shall follow the regular access schedule. The other parent may call the children on their birthdays at an agreed upon time.
27. The parents’ birthdays shall be as per the regular access schedule and the parents shall ensure that the children contact the honoured parent by telephone.
28. The parents will communicate only through written email communication. This communication shall be restricted only to day-to-day issues that relate directly to the children. The communication may include any pertinent child related information, medical information including current prescriptions and medical appointments, information about extracurricular activities, discipline/structure routines and strategies, and any other information relevant to day-to-day care of the children.
29. Communication directly or through voice mail may only occur if urgency exists with respect to the communication. Each parent may send one (1) email per day, pertaining only to child related issues. Each parent shall respond to each email within 24 hours.
30. In the event that access and communication between Mr. Katz and Jordan remains problematic Mrs. Katz shall prepare a written summary update, on a monthly basis, and provide this summary to Mr. Katz with relevant information about Jordan, including his current activities, school marks, programs, trips, school challenges, and any other relevant information.
31. The parents shall not communicate about issues or other non-emergency arrangements at transition times, activities, or special events. The parents will discuss only pleasantries in front of the children.
32. The parents will not speak to or speak in front of the children in a critical or disparaging manner about the other parent, nor shall they allow any other person to do so in front of the children. Further, the parents shall not show anger and/or frustration regarding the other parent in front of the children.
33. The day-to-day decisions regarding the children shall be the responsibility of the parent with whom the children reside at the time. These decisions include such issues as those pertaining to nutrition, discipline, routine or emergency medical decisions (minor injuries, allergies, and the like) during the time the children are with them.
34. Mr. and Mrs. Katz shall provide Corey’s school and Jordan’s school with a parenting schedule and both parents’ names and telephone numbers in case of an emergency. Mr. Katz shall be responsible to provide the schools with contact information and arrange on his own and directly to obtain copies of all information sent to parents.
35. Mr. and Mrs. Katz shall advise each other of any school calls regarding a child related matter. Mr. and Mrs. Katz shall both be entitled to attend school functions, regardless of the residential schedule. Mr. and Mrs. Katz may attend for parent/teacher interviews. Each parent will make his or her own arrangements for parent/teacher interviews.
36. In order to reduce conflict and prevent any further conflict, Corey shall have a Hebrew teacher other than his mother, Mrs. Katz.
37. Mrs. Katz shall notify Mr. Katz, by email, of any potential major educational issues. She will provide him with all information she has and any supporting documents that are important in making the decision. Mr. Katz shall provide his input by email. Mrs. Katz will make the final decision, taking into account Mr. Katz’s view, as well as consensus of professional opinions. Either parent may seek the input of the parenting coordinator and request a recommendation with regard to any issue. In the event Mrs. Katz’s decision is contrary to the recommendation made by the parenting coordinator, and Mr. Katz is convinced that the decision is not in the children’s best interest, then Mr. Katz may bring a motion to the court.
38. Mr. and Mrs. Katz shall continue to use the services of Dr. Sturm as the children’s paediatrician. Should either Mr. Katz or Mrs. Katz attend with either child for any reason at another doctor or at a walk-in clinic for issues other than the regular check-ups, they shall request that a record of that contact be sent to the child’s primary health care professional. In the event of an emergency, the parent who is responsible for the child at the time shall contact the non-resident parent by telephone, as soon as is reasonably possible. That parent shall have the authority to make emergency medical decisions until such time as the custodial parent is available. Both parents may attend in an emergency. Each parent shall furnish the other parent with contact information in the event it is required in an emergency.
39. Mrs. Katz shall notify Mr. Katz by email of any potential major medical or health care issue. This shall include but is not limited to long term medications, treatments, surgery, orthodontic, therapy/counselling, etc. Mr. and Mrs. Katz shall ensure that permission is given to the children’s health care professionals to release information to the other parent. Mr. and Mrs. Katz shall ensure that each of them receives copies of all professional and/or medical reports pertaining to the children. Mrs. Katz shall provide Mr. Katz with all information she has and any supporting documents that are important in making the decision. Mr. Katz shall provide his input by email. Both parents may obtain information from the medical professionals involved. The mother will make the final decision, taking into account the father’s view, as well as consensus of professional opinions. Either parent may seek the input of the parenting coordinator and request a recommendation with regard to any issue. In the event Mrs. Katz’s decision is contrary to the recommendation made by the parenting coordinator, and Mr. Katz is convinced that the decision is not in the best interests of the child, then Mr. Katz may bring a motion to the court.
40. Mrs. Katz shall continue to enrol the children in the activities they are used to, such as, hockey and soccer and Mr. Katz shall be able to attend the games. Mrs. Katz will inform the coaches that Mr. Katz has the right to attend the games and will provide Mr. Katz with team names and website locations. Mr. Katz will obtain the schedules directly. Mr. Katz may enrol Corey in an activity that occurs on his parenting time, if he chooses.
41. Both parents may attend the special events arising from the extra curricular activities.
42. Both parents shall attend a seminar on the impact of high-conflict on children and strategies to reduce conflict provided by JFCS (Jewish Families in Conflict Services) for families in transition.
43. Corey shall be enrolled in play therapy to help him deal with his feelings around the separation and the untenable loyalty bind he has been placed in. A recommendation shall be sought by Mr. and Mrs. Katz from the parenting coordinator, as to a suitable therapist for Corey.
44. Jordan shall be encouraged by both parents to attend for counselling with a duly qualified mental health professional, with expertise in the needs of children and family systems, at a frequency and duration of time to be determined by the professional, in consultation with the family members and, if necessary, the parenting coordinator. This counselling will include joint sessions with Jordan and each of his parents, as well as individual sessions, as deemed necessary by the professional. The therapist chosen shall be given a copy of Linda Chodos’ assessment report and shall be free to contact Linda Chodos directly to consult with regard to this family.
45. In the event that Mr. and Mrs. Katz cannot agree on a therapist for Jordan, they shall seek the recommendation of the parenting coordinator. In the event that they still cannot agree on a therapist for Jordan, they shall request that Dr. Bardikoff and Dr. Radovanovic jointly recommend a suitable therapist.
46. In the event that Sammy chooses to obtain counselling, to assist him in dealing with his acute anxiety, whether that be as suggested by Linda Chodos, for cognitive behaviour therapy, through the Sunny Brook Hospital, or the anxiety disorder clinic at the Centre for Addiction and Mental Health, or the assistance of any other therapeutic professional, Mr. and Mrs. Katz shall encourage him and support him in that regard.
47. The costs for Sammy, Jordan, and Corey’s therapy shall be paid from the fund established under paragraph [201].
48. Commencing January 1, 2010, the respondent, Mr. Katz shall pay to the applicant, Mrs. Katz for the support of their children Jordan Allon Katz born May 31, 1992 and Corey Solomon Katz born December 9, 1998, the sum of $1,766.00 per month, which is based on the respondent’s income in 2008 of $130,587.88 and the Guidelines.
49. Commencing the 1st of June 2010 and annually thereafter, Mr. Katz and Mrs. Katz shall exchange copies of their income tax returns and notices of assessment (and reassessments) for the previous year, and child support shall be adjusted in accordance with the Guideline table retroactive to the 1st of January in the current year.
50. Support deduction order to issue.
51. The parties shall share the section 7 expenses equally. Section 7 expenses shall include the following:
(a) Orthodontics or the amount not covered by a benefits plan, whichever is less.
(b) Post-secondary education costs and the expenses incidental thereto, including without limitation tuition, books, supplies, equipment, residency, food, and transportation. Mrs. Katz shall continue to claim the tuition expense or the eligible portion thereof on her income tax return and the parties shall equally share the net expense.
(c) Soccer registration, equipment, and tournament expense.
(d) Hockey registration, equipment, and tournament expense, including any costs for additional ice time. To be clear, this shall not include any hotel accommodations or meals for Mrs. Katz.
(e) Summer camp.
(f) Auto insurance.
(g) The cost of private Hebrew school; any difference between the subsidy and the actual expense shall be shared equally by Mr. and Mrs. Katz. In the event there is any special tax treatment afforded such tuition, it shall be the net expense that is shared equally.
Should any other section 7 expense issue arise in the future, the assistance of the parenting coordinator shall be sought to resolve the dispute. In the event the parenting coordinator is unable to resolve the disagreement, then the matter may be decided by a court of competent jurisdiction. Commencing the 1st of January 2010, Mrs. Katz shall submit to Mr. Katz, on a monthly basis, a summary of the children’s section 7 expenses, as itemized herein, with receipts attached. Mr. Katz shall reimburse Mrs. Katz his 50% share of those expenses or the net expense as the case may be, within 30 days of receipt of the summary with receipts. If Mrs. Katz is required to bring a motion to enforce this provision, she shall be entitled to her costs on a full indemnity basis. Mr. Katz shall be entitled to information, including game and practice schedules, directly from all professionals dealing with the children Jordan Katz and Corey Katz, including without limitation dentists, doctors, teachers, therapists, and in particular the children’s coaches, regardless of who has paid for the registration in any sport or activity.
52. To December 31, 2009, Mr. Katz owes Mrs. Katz arrears of periodic spousal support, fixed in the amount of $20,800.00.
53. Commencing January 2010 Mr. Katz shall pay to Mrs. Katz periodic spousal support in the amount of $800.00 per month, and a further $200.00 per month to be applied against arrears.
54. I find that Mr. Katz has an obligation to support Mrs. Katz for a maximum duration of 17 years from the date the parties ceased cohabiting (May 18, 2004). This obligation is subject to variation in the event of a material change in circumstances, foreseeable or not foreseeable, including Mr. Katz’s retirement, and to a review pursuant to clause 15.2(3) of the Divorce Act, upon the termination of child support for Jordan or Corey.
55. There currently remains approximately $84,000.00 of insurance proceeds in two (2) GICs, currently held under restraint at the TD Bank and I find that Mr. and Mrs. Katz are each entitled to a fifty percent (50%) share of those proceeds.
56. The TD Bank shall release to Mrs. Katz one-half of the amount of insurance proceeds, being approximately $42,000.00. Further, from Mr. Katz’s share, I direct that the compensatory support, in the amount of $25,000.00 be paid to Mrs. Katz, that being her entitlement to compensatory support as set out at paragraph [112] of my reasons for judgement, as well as the child support arrears of $1,569.00, as set out in paragraph [72] of my reasons for judgment.
57. The balance of Mr. Katz’s share remaining, in the amount of approximately $15,431.00 shall be set aside as a parenting coach and parenting coordinator therapy fund and used to provide to Mr. Katz and the children the therapeutic support services recommended in the Chodos report. Should any amount remain in this fund at the end of twenty four (24) months from the date of release of this judgment, that amount shall be paid to Mrs. Katz and applied to reduce any outstanding spousal support arrears, as set out at paragraphs [137] and [138] of my reasons for judgment, any balance remaining shall be paid to Mr. Katz.
58. Within thirty (30) days Mrs. Katz shall take the steps necessary to transfer all of the children’s accounts into the names of herself and Mr. Katz jointly. Henceforth, the signatures of both parties shall be required on all withdrawal/transfer related transactions. This includes, without limitation, accounts held in trust for children at the TD Bank, the Bank of Montreal, and the Royal Bank.
59. Within thirty (30) days of the release of this judgment, Mrs. Katz shall provide to Mr. Katz a copy of the pictures taken at Jordan’s Bar mitzvah and a copy of the video recorded at the event.
60. Within thirty (30) days of the release of this judgment, Mrs. Katz shall provide to Mr. Katz, the following items: his university degree; his clothes which remain at the matrimonial home; his boardroom table and chairs. Mr. Katz shall be responsible for transporting these items from the matrimonial home.
61. The parties shall continue to own the matrimonial home at 313 Yorkhill Blvd., Thornhill, Ontario, however, the joint tenancy is severed, and title shall be held by Mr. and Mrs. Katz as tenants in common, until the earlier of Corey’s commencement of high school or Mrs. Katz’s decision to sell. At that time, the property shall be listed with an agent agreed to by the parties at a price recommended by the listing agent. In the event the parties cannot agree on an agent, they shall each pick an agent and those two agents so picked by the parties, shall agree on a listing agent.
62. Until the sale of the matrimonial home, Mrs. Katz shall be entitled to exclusive possession of the matrimonial home. She will also be responsible for all ongoing expenses at the matrimonial, including without limitation, insurance, utilities, mortgage, and taxes.
63. Until the sale of the matrimonial home, the parties shall equally contribute to the costs of capital expenditures and necessary structural repairs. Mr. Katz and Mrs. Katz shall jointly retain a qualified expert to inspect the current condition of the property, assess the outstanding damage, and determine the necessary repairs. Upon the sale of the matrimonial home, the net proceeds following payment of all outstanding mortgages and expenses incidental to the sale of the property (real estate commissions and GST or HST etc.), shall be divided equally between the parties.
64. From Mr. Katz’s share shall be paid to Mrs. Katz any spousal support arrears outstanding pursuant to paragraphs [137] and [138] of my reasons for judgment.
65. Mrs. Katz shall pay to Mr. Katz from her share of the proceeds from the sale of the matrimonial, the sum of $25,617.82 in order to equalize their net family property.
66. Mr. Katz shall obtain and maintain life insurance in the amount $500,000.00, with the children named as beneficiaries and the applicant, Mrs. Katz named as trustee, and:
(a) He shall provide Mrs. Katz a copy of the said policy within sixty (60) days of the release of these reasons for judgment.
(b) He shall pay all policy premiums when due and if he does not, and Mrs. Katz pays any premiums, interest, or penalties to prevent the policy from lapsing, those amounts shall be construed as child support and enforceable against Mr. Katz through the Family Responsibility Office. If the policy lapses because Mr. Katz has failed to pay the premiums, he shall also pay Mrs. Katz all necessary costs incurred by her to reinstate the policy.
(c) When Mr. Katz’s obligation to pay child support and spousal support ends, he will be free to deal with the policy as he deems fit, and Mrs. Katz shall sign whatever documents are necessary in order to effect this intention.
(d) Within fourteen (14) days of the policy’s anniversary date, if requested by Mrs. Katz, Mr. Katz will provide her with proof that the annual premium has been paid.
(e) In the event of a review of child support, section 7 expenses, and/or spousal support, the requirement for life insurance may be adjusted and shall reflect sufficient security.
67. Mr. Katz shall continue to cover both Jordan and Corey on his dental benefits and extended health care benefits, available through his employment. Any dental or health related expenses incurred by the children, which are not covered by the benefit plans, shall be shared equally by the parties, as section 7 expenses.
68. Orly Katz and Neil Ari Katz who were married on August 19, 1986 are hereby divorced and this divorce takes effect 31 days from the date of the release of my reasons for judgment.
69. TD Canada Trust shall be given a copy of this order and directed to comply with the payment directives contained at paragraphs 55, 56, 57, and 58 above and will otherwise lift the restraints currently imposed on the accounts of Mrs. Katz forthwith.
70. There shall be no order as to costs, as each party shall bear their own costs.

Order accordingly.
Footnotes	
1	Ms. Linda Chodos’ assessment report dated September 17, 2007, hereinafter sometimes referred to as the “Chodos report”.
	
2	Parenting coach and parenting coordinator therapy fund hereinafter referred to as the “fund”.
	
3	Federal Child Support Guidelines, SOR/97-175 [Guidelines].
	
4	Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am.
	
5	Federal Child Support Guidelines, SOR/97-175-Section 7: Special or Extraordinary Expenses.
	
6	Moge v. Moge, [1992] 3 S.C.R. 813 (S.C.C.). [Mogue].
	
7	Gale v. Gale, [2002] M.J. No. 177, 2002 CarswellMan 196 (Man. C.A.) [Gayle].
	
8	Bracklow v. Bracklow, [1999] 1 S.C.R. 420 (S.C.C.). [Bracklow].
	
9	Caratun v. Caratun (1992), 42 R.F.L. (3d) 113 (Ont. C.A.) [Caratun].
	
10	Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), clause 15.3(3). Priority to child support — Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.
	
11	Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), subsection 15.2. Spousal support order — (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. 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 (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. 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 (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
	
12	Prof. Carol Rogerson and Prof. Rollie Thompson, Spousal Support Advisory Guidelines University of Toronto, Faculty of Law; and Dalhousie Law School July 2008. [SSAG].
	
13	Family Law Act, R.S.O. 1990, c. F-3. Subsection 4(3) Onus of proof re deductions and exclusions — (3) The onus of proving a deduction under the definition of “net family property” or an exclusion under subsection (2) is on the person claiming it.
	
14	Family Law Act, R.S.O. 1990, c. F-3. Subsection 4(2) Excluded property — (2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property: 1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage. 2. Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse’s net family property. 3. Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages. 4. Proceeds or a right to proceeds of a policy of life insurance, as defined under the Insurance Act, that are payable on the death of the life insured. 5. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced. 6. Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property. 7. Unadjusted pensionable earnings under the Canada Pension Plan. R.S.O. 1990, c. F.3, s. 4 (2); 2004, c. 31, Sched. 38, s. 2 (1); 2009, c. 11, s. 22 (5).
	
15	Amaral v. Amaral, 1993 CarswellOnt 372, 50 R.F.L. (3d) 364 (Ont. Gen. Div.).
	
16	Dababneh v. Dababneh, 2003 CarswellOnt 5004, 48 R.F.L. (5th) 55 (Ont. S.C.J.).
	
17	Passarello v. Passarello, 1998 CarswellOnt 2983, [1998] O.J. No. 2792 (Ont. Gen. Div.).
	
18	Karjama v. Karjama, [2002] O.J. No. 1202 (Ont. S.C.J.)
	
19	Dougherty v. Dougherty, [2008] O.J. No. 1502, 2008 ONCA 302 (Ont. C.A.)
	
20	Family Law Act, R.S.O. 1990, c. F-3. Section 56. Provisions that may be set aside or disregarded — Contracts subject to best interests of child (1) In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child. R.S.O. 1990, c. F.3, s. 56 (1); 1997, c. 20, s. 10 (1). Contracts subject to child support guidelines (1.1) In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract. 1997, c. 20, s. 10 (2); 2006, c. 1, s. 5 (8). Clauses requiring chastity (2) A provision in a domestic contract to take effect on separation whereby any right of a party is dependent upon remaining chaste is unenforceable, but this subsection shall not be construed to affect a contingency upon marriage or cohabitation with another. R.S.O. 1990, c. F.3, s. 56 (2). (3) A provision in a domestic contract made before the 1st day of March, 1986 whereby any right of a party is dependent upon remaining chaste shall be given effect as a contingency upon marriage or cohabitation with another. R.S.O. 1990, c. F.3, s. 56 (3). Setting aside domestic contract (4) A court may, on application, set aside a domestic contract or a provision in it, (a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made; (b) if a party did not understand the nature or consequences of the domestic contract; or (c) otherwise in accordance with the law of contract. R.S.O. 1990, c. F.3, s. 56 (4). Barriers to remarriage (5) The court may, on application, set aside all or part of a separation agreement or settlement, if the court is satisfied that the removal by one spouse of barriers that would prevent the other spouse’s remarriage within that spouse’s faith was a consideration in the making of the agreement or settlement. R.S.O. 1990, c. F.3, s. 56 (5). (6) Subsection (5) also applies to consent orders, releases, notices of discontinuance and abandonment and other written or oral arrangements. R.S.O. 1990, c. F.3, s. 56 (6). Application of subss. (4, 5, 6) (7) Subsections (4), (5) and (6) apply despite any agreement to the contrary. R.S.O. 1990, c. F.3, s. 56 (7).
	
21	Rick v. Brandsema, [2009] S.C.J. No. 10, 2009 SCC 10 (S.C.C.). [Rick].
	
22	Family Law Act, R.S.O. 1990, c. F-3. Clause 5.(6)(b) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to, (b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
	
23	Family Law Act, R.S.O. 1990, c. F-3. Section 24: Order for possession of matrimonial home (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order, (a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents; (b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part; (c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse; (d) direct that the contents of the matrimonial home, or any part of them, (i) remain in the home for the use of the spouse given possession, or (ii) be removed from the home for the use of a spouse or child; (e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes; (f) authorize the disposition or encumbrance of a spouse’s interest in the matrimonial home, subject to the other spouse’s right of exclusive possession as ordered; and (g) where a false statement is made under subsection 21 (3), direct, (i) the person who made the false statement, or (ii) a person who knew at the time he or she acquired an interest in the property that the statement was false and afterwards conveyed the interest, to substitute other real property for the matrimonial home, or direct the person to set aside money or security to stand in place of it, subject to any conditions that the court considers appropriate. R.S.O. 1990, c. F.3, s. 24 (1).
	
24	Family Law Act, R.S.O. 1990, c. F-3. Clause 24(1)(c) Order for possession of matrimonial home (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order, (c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;

 	
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