2013 ONSC 5190, 2013 ONSC 5190

CITATION : Sawatsky v. Rizzo 2013 ONSC 5190 COURT FILE NO.: 3452/11 DATE: 2013-08-09 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) Jack Sawatsky )) John DiFiore, for the Applicant Applicant ) ) - and - ) ) ) Loredana Rizzo )) Patricia Lucas, for the Respondent Respondent ) ) ) ))) HEARD : March 26, 27, and 28, and May 14, 15, 16, 17, 21, and 22, 2013 The Honourable Mr. Justice J.R.

Henderson REASONS FOR JUDGMENT INTRODUCTION 1 ) The applicant, Jack Sawatsky ("Sawatsky"), and the respondent, Loredana Rizzo ("Rizzo"), lived together in Niagara Falls in a common-law relationship from April 2009 until the end of January 2011. They are now before this Court with several unresolved issues arising out of their cohabitation, the most significant of which relate to their son, Michelangelo Jack Gioacchino Rizzo-Sawatsky, ("Michael") who was born on August 30, 2010. Both parties claim sole custody of Michael. THE BACKGROUND 2 ) Rizzo is 43 years old, and lives in her own house in Niagara Falls.

She has operated a hairdressing business out of the basement of her house for the past seven or eight years. She has never been married, and Michael is her only child. 3 ) Sawatsky is 41 years of age and lives in the lower level of his parents’ house in St. Catharines, Ontario. Sawatsky has worked for Peel Regional Police Services since approximately 1998, and he is currently a constable working out of the Mississauga office. 4 ) Prior to his relationship with Rizzo, Sawatsky was married to Maria Sawatsky ("Maria").

Sawatsky and Maria separated in approximately June 2008, and thereafter Sawatsky lived temporarily with his brother and sister-in-law in St. Catharines until he moved into Rizzo’s house in Niagara Falls in approximately April 2009.

5 ) Sawatsky and Maria have two children; Alana who was born July 22, 2002, and Larissa who was born June 17, 2004. Sawatsky and Maria share joint custody of their two daughters, and their primary residence is with Maria in Grimsby. Sawatsky has regular access with his two daughters, including Thursday after school until Sunday night every other weekend, and Thursday after school until Friday morning in the alternate weeks. 6 ) Rizzo and Sawatsky began dating in approximately June 2008. Their relationship was rocky from the start.

After they started to live together Rizzo and Sawatsky separated many times before their final separation in January 2011, including a one-month separation just prior to Michael's birth in August 2010, and another one-month separation in November/December 2010. In addition, while they were cohabiting Sawatsky and Rizzo attended couples therapy sessions to deal with their relationship issues. 7 ) Sawatsky vacated Rizzo's house when the parties finally separated at the end of January 2011. Michael was just 5 months old at the time.

Since the final separation Michael has continuously lived with Rizzo in Rizzo's house. 8 ) Upon separating from Rizzo, Sawatsky again moved in with his brother and sister-in-law until he moved to his parents’ house in the summer of 2012. Sawatsky now has the exclusive use of the lower level of his parents’ house, an area that includes a recreation room, bathroom, and two bedrooms. 9 ) After the separation there was continuous conflict between Rizzo and Sawatsky as to how much access Sawatsky should have with Michael.

Essentially, Rizzo took the position that because Michael was an infant, and because she was breast-feeding, Michael should be on a specific access

schedule that worked around his feeding and nap times. Therefore, Rizzo felt that Sawatsky should regularly see Michael, but only for a few hours at any one time. Sawatsky took the position that he was a capable father and he should have more access time and longer visits than Rizzo wished to permit. 10 ) For the first several months after the parties separated the parties did not have a fixed access schedule. Sawatsky regularly exercised access to Michael, but only for a few hours at a time because that was all he was permitted by Rizzo. 11 ) During this period, I find that Rizzo frequently requested that Sawatsky negotiate a specific access

schedule that would accommodate Michael’s routine, with little relevant response from Sawatsky. I find that Rizzo was also concerned about the possibility that Sawatsky would take Michael and not return him to her. Considering that their relationship was volatile, and that the parties did not have a written agreement or a court order regarding custody, I accept that it was reasonable for Rizzo to insist that they negotiate a specific access agreement. 12 ) The parties twice attended mediation to deal with the access issue, without success.

Thereafter, Rizzo retained a lawyer who wrote letters to Sawatsky with requests to negotiate a specific schedule. I find that Sawatsky chose to ignore those requests. At the same time the relationship between the parties remained fractious. 13 ) By letter of June 27, 2011, Rizzo’s lawyer informed Sawatsky that because of the deteriorating relationship and because Sawatsky would not discuss an access schedule, Rizzo was suspending his access to Michael until they agreed on a

schedule or had one imposed by the court. Sawatsky did not immediately respond to this action. Instead, after approximately six weeks Sawatsky started the present application which was issued on August 12, 2011. 14 ) The parties were initially in motions court on August 24, 2011 at which time they consented to a temporary access arrangement. A subsequent order, dated September 21, 2011, provided for graduated access up to alternate weekends from Saturday at 10:00 a.m. to Sunday at 6:30 p.m., and every Tuesday and Thursday from 4:00 p.m. until 6:30 p.m.

That access regime has remained in place to date. 15 ) The issues before the Court are as follows: i. Both parties claim sole custody of Michael; ii. In the alternative, Sawatsky raises the possibility of a joint custody order; iii. The parties disagree as to the amount of parenting time that each of them should have with Michael; iv. Sawatsky acknowledges his obligation to pay child support, but he requests that the amount of support be reduced on the basis of undue hardship; v. Rizzo claims payment of spousal support from Sawatsky.

THE PARTIES 16 ) I find that Michael is a happy child who loves both his parents. I find that both Rizzo and Sawatsky are capable parents. Both can and will provide the love, guidance and care that Michael requires now and in the future. The custodial issue here is not the ability of either party to physically care for Michael; but rather their respective abilities to act in Michael’s best interests in Michael’s presence and in relation to Michael’s issues so as to nurture him as he develops. 17 ) Sawatsky portrays Rizzo as being rigid and overprotective, and I accept that there is some merit to that assessment.

I find that Rizzo is a bright independent woman who runs her own successful business. She lives her life pursuant to schedules and routines, and she is well aware that schedules and routines are very important for the development of a young child. I accept that she is very protective of Michael, her only child, to the point of being anxious. 18 ) The evidence of Rizzo’s protective nature comes from Dr. Szpejda, Michael’s pediatrician, who observed that Rizzo brought

Michael to the doctor for consultations about various problems approximately 12 times in less than one year, and that many of those consultations were unnecessary. 19 ) However, I find that Sawatsky fueled Rizzo’s anxiety about Michael by making unfounded and demeaning criticisms of Rizzo’s parenting ability.

For example, Sawatsky criticized Rizzo because Michael had a red and irritated penis; Sawatsky complained to Rizzo about the food that Rizzo was feeding to Michael; Sawatsky complained to Rizzo about chemicals that Rizzo was apparently using in her household; and Sawatsky complained to Rizzo about an ammonia smell coming from Michael’s diaper. 20 ) I find that Sawatsky did not insist with each complaint that Rizzo take Michael to a doctor, but his demeaning criticisms of Rizzo caused Rizzo to be concerned about Michael’s health and resulted in Rizzo taking Michael to his doctor.

In each case, Michael had no significant health issue. 21 ) Overall, I accept that Rizzo has a tendency toward rigidity and anxiety, but I also find that Rizzo takes very good care of Michael and is a fierce advocate for Michael’s well-being. 22 ) Sawatsky is also a capable parent, but he does not have the devotion to routine that Rizzo demonstrates. Sawatsky has a very loose, flexible access arrangement with his two older daughters, and wants the same type of loose arrangement with Michael.

Under the circumstances, given the nature of the relationship between Rizzo and Sawatsky, this is not possible. 23 ) Sawatsky may be good at his job as a police officer, but in his relationship with Rizzo, I find that Sawatsky is aggressive, intimidating, and single minded. In Sawatsky’s mind, Michael is his son and Sawatsky should be able to see Michael frequently, with little regard for the schedules of Rizzo or Michael.

If Sawatsky does not get his way about Michael, he becomes aggressive and demeaning towards Rizzo. 24 ) On this point the evidence of the seven neighbours and friends of Rizzo who testified at this trial was significant. In total, those witnesses made observations as to ten separate incidents that occurred when Sawatsky dropped off or picked up Michael at Rizzo’s house.

I find those seven witnesses were all generally credible; that none of them were prone to exaggerate or embellish their testimony; and that they all limited their testimony to what they actually saw or heard. 25 ) In general, the evidence shows that there were regular disputes between Rizzo and Sawatsky on drop-offs and pick-ups of Michael. When disputes occurred, Sawatsky usually became loud, vulgar and aggressive toward Rizzo, often in front of Michael, and occasionally in front of his two daughters.

I accept the evidence that generally Rizzo’s response to Sawatsky’s aggression was to become distraught, fearful and quiet. 26 ) In particular, I accept the evidence of Andrea Willett who described an incident in which Sawatsky returned Michael to Rizzo while Sawatsky said, “Go ahead buddy; go see your useless mother”.

Andrea Willet also testified, and I accept, that she has witnessed many incidents in which Sawatsky spoke in a loud aggressive manner toward Rizzo, resulting in Michael coming into the house crying and clinging to Rizzo. 27 ) I also accept the evidence of Jason Maves who testified that on one occasion Sawatsky was swearing at Rizzo in Rizzo’s driveway so loudly that Maves had to tell his own ten-year-old child to go inside.

At the time, Maves said that Rizzo was in tears and Michael was forcibly trying to pull away from Sawatsky. 28 ) I also accept the evidence of Tina Myers who testified that in April 2011 she heard Sawatsky say to Rizzo, in Michael’s presence, “I hope you rot in hell, Loredana.” 29 ) I further accept the evidence of Marie Haase who described an incident that occurred in the fall of 2012 in which Sawatsky was aggressive and angry when he returned Michael. Rizzo was shaken up and Michael came to Rizzo very clingy and would not let go of her. 30 ) I find that these were not isolated incidents.

I find that there is a regular pattern in which a dispute occurs; Sawatsky becomes loud and aggressive; Rizzo becomes fearful and quiet; and Michael clings to Rizzo. 31 ) Regarding the credibility of the parties, I have some concerns about Sawatsky. I felt that he tried to avoid answering questions that he felt could hurt his case, and that he tended to embellish his evidence. For example, in reply evidence Sawatsky testified that he was concerned about Rizzo and Michael travelling to Italy because Rizzo was an Italian citizen and Michael was a dual citizen.

However, in cross-examination Sawatsky acknowledged that Michael is a Canadian citizen and does not have dual citizenship. 32 ) Also, Rizzo testified that on one occasion Sawatsky called her a “drama whore” when he dropped off Michael. In his reply evidence, Sawatsky agreed that he called her a drama whore in an email, but that in person he did not say “you’re a drama whore”, but said “you’re a drama, Lor”. I find this explanation unbelievable, and I am concerned that Sawatsky would say such a thing under oath. 33 ) I am also concerned about Sawatsky’s lack of respect for orders of this court.

On September 21, 2011, Justice Maddalena made an order that the parties use a communication journal, and thereafter they did so until Sawatsky unilaterally chose to stop using it. When asked to explain his actions on the witness stand, Sawatsky said that the communication journal consisted of loose pieces of paper; that they needed to obtain a new journal; and that it was Rizzo’s idea in the first place. So, Sawatsky chose to stop writing in the journal, contrary to the court order. 34 ) I do not have the same concerns regarding Rizzo’s credibility or integrity.

It is true that counsel for Sawatsky showed that there was a conflict between the testimony of Leigh Bradley (“Bradley”) and the testimony of Rizzo. That is, Bradley, Michael’s speech pathologist, testified as to an exchange that she had with Sawatsky, and Rizzo swore an affidavit as to what Bradley later told her about the exchange. In my view, the discrepancies between Rizzo’s evidence and Bradley’s evidence were not significant. Further, the discrepancies could be explained by the fact that Bradley was caught in the middle of a stressful situation, and she spoke separately to each of Rizzo and Sawatsky.

35 ) In

summary, I find that Rizzo and Sawatsky are both capable parents who have the ability to physically care for Michael. I find that Rizzo is a bright woman who is somewhat rigid. She is also very protective of Michael. I find that Sawatsky is single minded and aggressive in his dealings with Rizzo. He insists on getting his own way. Clearly, the dynamics of the relationship between the parties create on-going problems.

THE CUSTODY ISSUES 36 ) Sawatsky’s position is that the court should apply s.20(1) of the Children’s Law Reform Act (“ CLRA” ) which states: “… the father and the mother of a child are equally entitled to custody”. 37 ) I accept that s.20(1) is the starting point in custody disputes. However, in any contentious custody dispute a court must make specific custody and access orders to define the parenting regime that is to apply to the litigants.

A court cannot, in most cases, simply order that both parents are equally entitled to custody, particularly where the parents are unable to maintain a co-operative relationship. Therefore, in my view, s.20(1) simply means that there is no presumption of custody in favour of either party. 38 ) In the present case, I reject the possibility of a joint custody order. Rizzo and Sawatsky are not able to co-operate with one another regarding the parenting of Michael, and their interactions to date suggest that they will never be able to co-operate on any issue.

They can generally communicate through texts and emails, but in the past these communications have accomplished very little. 39 ) Moreover, Rizzo and Sawatsky do not have any history of a stable, co-operative relationship. They lived together for only a short period of time, and throughout that period they had significant relationship issues, spiced with multiple separations. 40 ) Further, in rejecting the joint custody suggestion, I do not accept the submissions that either Rizzo or Sawatsky is attempting to marginalize the other as a parent.

I find that neither Rizzo nor Sawatsky is attempting to push the other out of his/her place as Michael’s parent. Both parties are well educated, and they both understand that Michael needs to have a relationship with both parents. 41 ) Therefore, in my view, this is a case for sole custody to one party or the other, not for joint custody. 42 ) Section 24(1) of the CLRA states in part: “The merits of an application under this

part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child …” Section 24(2) then lists some of the factors that a court shall consider in making any decision as to the best interests of the child. 43 ) In determining Michael’s best interests I have taken several factors into consideration. First, s.24(2)(

a) refers to the “love, affection and emotional ties between the child and …” the persons claiming custody and other members of their extended families. In this case I accept that Michael and Rizzo have a close bond as Michael has been with Rizzo in her care for all of his life. I also accept that Sawatsky has a close bond with Michael as he has seen Michael regularly and seems to be a good parent to him.

Both Sawatsky and Rizzo have extended families, all of whom seem to care for Michael and have a good relationship with him. 44 ) Also, I recognize that Michael has two half-sisters, the children from Sawatsky’s first marriage. The evidence is that Michael and his half-sisters have a good relationship and they all look forward to seeing one another. It is important for the Court to attempt to preserve that relationship by way of a custody order or an ancillary order that deals with access time. 45 ) In that respect, I accept Rizzo’s testimony that she loves Sawatsky’s two daughters and misses them.

She still has pictures of them displayed in her home. Thus, I find that there should be no difficulty in preserving this relationship regardless of whether Rizzo or Sawatsky has custody of Michael. 46 ) Second, s.24(2)(

c) refers to “the length of time the child has lived in a stable home environment”. In that respect, I find that Michael has lived in a stable home with Rizzo, under her care, since his birth. The evidence is that Rizzo returned to occasional work as a hairdresser shortly after Michael’s birth, and while she was working in the lower level of her house she took Michael to her work area with her, or had a relative watch Michael in the upstairs area.

This arrangement has evolved to the point where Rizzo now works in her home either while Michael is on an access visit or while Michael is being cared for upstairs. 47 ) I also find that in the five months between Michael’s birth and the separation of the parties Michael spent most of his time with Rizzo, not Sawatsky. I accept that Sawatsky took a parental leave from work after Michael’s birth, but I find that even during this period Rizzo was the primary caregiver for Michael. Moreover, during the five months after Michael’s birth, there was a separation during which Sawatsky left the house for about one month.

Thus, for almost all of his life Michael has lived in a stable home with Rizzo under Rizzo’s immediate care. This factor favours Rizzo. 48 ) Next, s.24(2)(

d) refers to “the ability and willingness of each person applying for custody … to provide the child with …” guidance, education, the necessaries of life, and any special needs. In my view, both Rizzo and Sawatsky are capable parents in the sense that they would provide the basic necessaries, guidance and education for the child. Michael will be well cared for in the custody of either party. 49 ) Under this

section I find that Rizzo will generally be more available to provide day-to-day care for Michael. Rizzo works from home and Michael is a young child who will be in or around his primary home for much of the time for the next several years. Sawatsky works in Mississauga, a one-hour drive from his residence. I accept that Sawatsky has some flexibility in his hours, but it is clear that Michael would be in the care of one of his parents more often if he had his primary residence with Rizzo. 50 ) Next, as to the provisions of s.24(2)(

f) I find that there is no real distinction between Rizzo and Sawatsky as to the “permanence and stability of the family unit”. Sawatsky lives in the lower level of his parents’ home and intends to live there long term, presumably with his parents living upstairs. Rizzo lives alone in her own house and has no plans to move.

51 ) Next, I have considered s.24(2)(

g) which refers to “the ability of each person applying for custody … to act as a parent”. In my view, this factor favours Rizzo. In the courtroom Sawatsky came across as a controlling, demanding, aggressive person. He no doubt has wanted more time with Michael for a long period and that desire is understandable. However, he has attempted to achieve this goal through aggression and manipulation. 52 ) For example, Sawatsky claims that he was concerned about Michael’s speech development.

He blamed Rizzo for Michael’s problem and suggested that the problem was caused by Rizzo speaking too much Italian to Michael and not enough English. His solution to the problem was to secretly arrange for Michael to be assessed by a speech pathologist. When he was asked why he did not inform Rizzo in advance of Michael’s pending speech assessment he said that he did not want Rizzo to start flooding Michael with English so as to skew the results.

Leaving aside the merits of Michael learning two languages, in my view, if Sawatsky had been sincere about his concern about Michael, he would have wanted Rizzo to flood Michael with English in order to improve his English skills. Therefore, instead of trying to help Michael with this alleged problem, Sawatsky chose to secretly obtain evidence that he hoped would discredit Rizzo.

In this case, Sawatsky was not acting in Michael’s best interests; but acting in his own self-interest. 53 ) Similarly, I find that Sawatsky has had difficulty controlling his anger toward Rizzo, and thus Sawatsky has made demeaning comments about Rizzo in Michael’s presence. Rizzo’s behaviour during these conflicts is generally to remain quiet and get Michael into her house.

This pattern of interactions between Rizzo and Sawatsky also suggests that Rizzo is more capable of acting in Michael’s best interests in any stressful situation. 54 ) On this same point, I have considered the issue of whether one party would prevent the other from obtaining pertinent information about Michael from school or medical authorities. In this case, this is a non-issue.

In my view, regardless of whether Rizzo or Sawatsky is the custodial parent, I can include terms in any order so as to ensure that all relevant information will be made available to the non-custodial parent. 55 ) For these reasons, I find that it is in Michael’s best interests for Rizzo to have sole custody of Michael.

OTHER PARENTING ISSUES 56 ) Given that Rizzo will have sole custody, it is important to make court orders that will provide significant quality time for Michael with Sawatsky, preserve Michael’s relationship with Sawatsky’s two daughters, and ensure that Sawatsky is provided with timely information regarding Michael. 57 ) Sawatsky has expressed a strong desire to have parenting time with Michael at approximately the same time as he has parenting time with his two daughters.

In my view, that is a reasonable request and such an arrangement would be in Michael’s best interest. 58 ) Therefore, Sawatsky will have access to Michael on a two-week rotating schedule, to correspond generally with Sawatsky’s access with his two daughters. Specifically, in week one, Sawatsky will have access from Thursday at 4:00 p.m. to Sunday at 6:30 p.m., extended to Monday at 6:30 p.m. on long weekends. In week two, Sawatsky will have access from Thursday at 4:00 p.m. to Friday at 6:30 p.m.

This term will be changed when Michael starts attending school on Friday mornings, so that Sawatsky will return Michael on Friday in week two by dropping Michael off at school on Friday morning. 59 ) Regarding parenting time on holidays, special occasions, and vacations, it is difficult to ascertain the precise positions of the parties from their written submissions as both parties made a claim for sole custody. Therefore, I order that the parties attempt to negotiate an agreement regarding parenting time on special occasions, holidays, and vacations.

If the parties resolve these issues, then the resolution will be incorporated into this order. If the parties cannot resolve these issues, then they may

schedule a motion before me supported by affidavits and factums. I will then hear oral argument on these issues, and make a final order. 60 ) In addition, regarding parenting issues, I make the following orders: i. Rizzo shall consult with Sawatsky with respect to all matters relating to the health and education of Michael; ii. Rizzo shall notify Sawatsky of any medical, dental or educational appointments for Michael, and Sawatsky shall be entitled to attend those appointments; iii.

Sawatsky shall be entitled to receive information directly from all medical, dental, and educational authorities involved with Michael, and Rizzo shall execute such authorizations as may be necessary; iv. Sawatsky and Rizzo shall not speak negatively about one another in the presence of Michael; v. Sawatsky shall be responsible for the pick-up and drop-off of Michael at the home of Rizzo, subject to any other arrangements agreed upon between the parties in writing.

CHILD SUPPORT 61 ) Sawatsky earned income from employment in 2012 in the amount of $98,282, which included pay for regular hours in the amount of $94,676, plus overtime pay. 62 ) The table amount of child support for one child that is set out in the Child Support Guidelines, based on income of $98,282 per year, is $866 per month. Therefore, this is the presumptive amount of child support that Sawatsky should be paying for the support of Michael.

63 ) However, relying on s.10(1) of the Guidelines , Sawatsky asks this Court to order that he pay a lower amount of child support, as Sawatsky submits that an order to pay the presumptive amount of child support would cause Sawatsky to “suffer undue hardship”. 64 ) Sawatsky relies on the factors set out in s.10(2)(

c) and s.10(2)(

e) of the Guidelines which read as follows: s.10(2)(

c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person; s.10(2)(

e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education; 65 ) Specifically, Sawatsky is subject to a final order made by Justice Milanetti, dated June 15, 2010, with respect to his marriage to Maria.

That order requires Sawatsky to pay child support for his two daughters in the amount of $1,281 per month, spousal support of $400 per month, daycare expenses of $150 per month, and life insurance of $134 per month. 66 ) The onus is on Sawatsky to prove that the presumptive amount of child support would cause him to suffer undue hardship.

The evidence I have on this issue is Sawatsky’s testimony that he lives rent-free in the lower level of his parents’ home; that Sawatsky pays the court ordered amounts for the support of Maria and his daughters as set out above; and that Sawatsky has a current budget surplus of only $253 per month. 67 ) There was no specific evidence submitted at trial as to whether Sawatsky or Rizzo had a higher standard of living than the other, and neither party made use of the Comparison of Household Standards of Living Test that is set out in

Schedule II of the Guidelines . 68 ) I do not accept Rizzo’s submissions that it is mandatory for this Court to make a finding that Rizzo has a higher standard of living than Sawatsky before this Court can consider a reduction of child support on the ground of undue hardship. Although the title above s.10(3) reads, “Standards of Living Must Be Considered”, the text of s.10(3) does not make the consideration of the respective standards of living mandatory. 69 ) That being said, a comparison of the standards of living of the two parties is very useful in any s.10(1) application.

Thus, in the absence of a comprehensive comparison of the standards of living, I will still make some general observations. In general terms, Sawatsky has the exclusive use of the lower level of a house owned by his parents. Rizzo lives alone in a house with Michael. The lower level of Rizzo’s house is used as a hairdressing salon. There are no obvious differences in the standards of living in the two households, and the budgets set out in the two financial statements are not significantly different. 70 ) Furthermore, Sawatsky receives some economic benefit from his parents because he lives in his parents’ house.

Thus, in order to truly compare the standards of living I would need much more evidence as to Sawatsky’s parents’ income and expenses, and the standard of living for the entire household. 71 ) Further, Sawatsky makes a significant income, has no rent expense, and has no debt other than a car loan. His spousal and child support obligations are fairly typical for a separated father of three children.

His present financial circumstances are not unusual, nor oppressive. 72 ) Lastly, I observe that Sawatsky is paying child support for his two daughters based on income of $89,961 per year, approximately $9,000 per year less than his current income. Thus, at this point Sawatsky is underpaying child support for his two daughters. 73 ) On the evidence before me I find that Sawatsky has not proved that an order for child support for Michael pursuant to the presumptive rule under the Guidelines would cause Sawatsky to suffer undue hardship as set out in s.10(1).

Therefore, child support will be paid pursuant to the table set out in the Guidelines . 74 ) As to retroactivity, I find that Sawatsky’s income for the past three years is as follows: i. 2010 - $94,604; ii. 2011 - $107,987; iii. 2012 - $98,282. 75 ) I accept that child support should have been paid commencing February 1, 2011, and that Sawatsky initially paid some child support voluntarily, and then paid child support pursuant to court orders starting on October 1, 2011. 76 ) Rather than perform a year by year calculation of retroactive child support, I find that Sawatsky’s most recent income figure (for 2012) is representative of Sawatsky’s income from the time that the parties separated.

Therefore, I order that child support be paid from February 1, 2011, based on Sawatsky’s income of $98,282 per year. 77 ) Therefore, it is ordered that Sawatsky pay to Rizzo for the support of Michael the sum of $866 per month based on annual income of $98,282 commencing February 1, 2011, and on the first day of each month thereafter. In calculating any arrears, Sawatsky is to be given credit for all payments made on account of child support to date. 78 ) I also make the following orders regarding child support: i.

The periodic child support amount shall be varied effective July 1 st of each year, and will be based on the previous year’s line 150 income; ii. Each party shall provide his/her income tax return to the other by June 1 st of each year, and

shall provide his/her notice of assessment or reassessment within ten days of receipt of same; iii. The parties shall share s.7 expenses on a proportionate basis, based on their line 150 incomes for the previous year. Prior to incurring any s.7 expense for which a contribution is sought, the requesting party shall obtain the consent of the other party, which consent shall not be unreasonably withheld; iv.

Sawatsky shall maintain Michael as beneficiary of all medical, health and extended benefit plans available to him through his place of employment for as long as the benefits are available and Michael is eligible for coverage. LIFE INSURANCE 79 ) Sawatsky has a life insurance policy on his life in the amount of $250,000. That policy should be maintained in trust for Michael for as long as Sawatsky is obliged to pay child support for Michael. I accept Rizzo’s submissions that Rizzo should be the trustee for Michael. 80 ) Therefore it is ordered that: i.

Sawatsky shall maintain the Empire Life insurance policy on his life, policy number 023467204L, in the sum of $250,000, and shall name Rizzo irrevocably as beneficiary in trust for Michael on that policy for as long as he has an obligation to provide support for Michael. Sawatsky shall annually provide evidence to Rizzo that the policy remains in full force and effect, and Sawatsky shall be restrained from borrowing against such policy or cancelling same. SPOUSAL SUPPORT 81 ) Rizzo and Sawatsky had a very short period of cohabitation.

They lived together approximately 20 months with multiple periods of separation. 82 ) I accept that the cohabitation of the parties has negatively affected Rizzo’s ability to earn an income because she was necessarily out of the work force completely for a short time after Michael was born.

Further, I accept that when Rizzo returned to work, Rizzo was unable to work the hours that she had worked previously because of her obligation to care for Michael. 83 ) For these reasons, I find that a small amount of spousal support is payable for a short period of time. 84 ) For the purposes of calculating the quantum of spousal support, I find that Rizzo’s net income is approximately $20,000 per year, and Sawatsky’s income is approximately $98,282 per year. On that basis, I order spousal support of $500 per month for a fixed period of 18 months. This should be paid in one lump sum of $9,000.

Judgment will go accordingly.

SUMMARY AND CONCLUSION 85) In

summary, I make the following orders: 1. The Respondent, Rizzo, shall have sole custody of Michael. 2. The Applicant, Sawatsky, shall have access to Michael on a two-week rotating schedule. In week one, Sawatsky will have access from Thursday at 4:00 p.m. to Sunday at 6:30 p.m., extended to Monday at 6:30 p.m. on long weekends. In week two, Sawatsky will have access from Thursday at 4:00 p.m. to Friday at 6:30 p.m. This term will be changed when Michael starts attending school on Friday mornings, so that Sawatsky will return Michael on Friday in week two by dropping Michael off at school on Friday morning. 3.

The parties will attempt to negotiate an agreement regarding parenting time on special occasions, holidays, and vacations. If the parties resolve these issues, then the resolution will be incorporated into this order. If the parties cannot resolve these issues, then the parties may

schedule a motion before me to deal with these issues. 4. Rizzo shall consult with Sawatsky with respect to all matters relating to the health and education of Michael. 5. Rizzo shall notify Sawatsky of any medical, dental or educational appointments for Michael, and Sawatsky shall be entitled to attend those appointments. 6. Sawatsky shall be entitled to receive information directly from all medical, dental, and educational authorities involved with Michael, and Rizzo shall execute such authorizations as may be necessary. 7.

Sawatsky and Rizzo shall not speak negatively about one another in the presence of Michael. 8. Sawatsky shall be responsible for the pick-up and drop-off of Michael at the home of Rizzo, subject to any other arrangements agreed upon between the parties in writing. 9. Sawatsky shall pay to Rizzo for the support of Michael the sum of $866 per month based on his annual income of $98,282 commencing February 1, 2011, and on the first day of each month thereafter. In calculating any arrears, Sawatsky is to be given credit for all payments made on account of child support to date.

10. The periodic child support amount shall be varied effective July 1 st of each year, and will be based on the previous year’s line 150 income. 11. Each party shall provide his/her income tax return to the other by June 1 st of each year, and shall provide his/her notice of assessment or reassessment within ten days of receipt of same. 12. The parties shall share s.7 expenses on a proportionate basis, based on their line 150 incomes for the previous year.

Prior to incurring any s.7 expense for which a contribution is sought, the requesting party shall obtain the consent of the other party, which consent shall not be unreasonably withheld. 13. Sawatsky shall maintain Michael as beneficiary of all medical, health and extended benefit plans available to him through his place of employment for as long as the benefits are available and Michael is eligible for coverage. 14.

Sawatsky shall maintain the Empire Life insurance policy on his life, policy number 023467204L, in the sum of $250,000, and shall name Rizzo irrevocably as beneficiary in trust for Michael on that policy for as long as he has an obligation to provide support for Michael. Sawatsky shall annually provide evidence to Rizzo that the policy remains in full force and effect, and Sawatsky shall be restrained from borrowing against such policy or cancelling same. 15.

Sawatsky shall pay to Rizzo a lump sum of $9,000 for spousal support. 86) If either party wishes to make submissions with respect to costs, they may contact the trial coordinator to arrange to do so either orally (in conjunction with oral argument on the access issue) or in writing. ___________________________ Henderson, J. Released: August 9, 2013 CITATION : Sawatsky v. Rizzo 2013 ONSC 5910 COURT FILE NO.: 3452/11 DATE: 2013-08-09

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Jack Sawatsky Applicant – and – Lorendana Rizzo Respondent r e a s o n s f o r j u d g m e n t Henderson, J.