Joan M. Cushon

The parties in this family law case disagreed on their date of separation.

The applicant wife argued the date was May 1, 2018, when she began moving out of the matrimonial home, while the respondent husband argued it was October 15, 2015, when he moved into a separate bedroom.

After a focused trial, the court applied the Oswell indicia for separation under the same roof and found that the parties' financial arrangements, social activities, and communications did not support a 2015 separation.

The court concluded that the parties separated on May 1, 2018, with no reasonable prospect of resuming cohabitation.

The applicant mother brought a motion for an order requiring the respondent father to undergo a psychiatric assessment under s. 105 of the Courts of Justice Act, and for production of his former lawyer's file.

The respondent brought a cross-motion for production of the parties' marriage counsellor's file.

The court dismissed the motion for a psychiatric assessment, finding it unnecessary for the financial and contractual issues, and lacking evidentiary basis for parenting issues.

However, applying the amended Divorce Act, the court ordered a s. 30 Children's Law Reform Act parenting assessment on its own initiative.

The court ordered production of the respondent's former lawyer's file as he had waived privilege by pleading duress and lack of understanding regarding a separation agreement.

The court dismissed the request for the marriage counsellor's file, citing statutory privilege under the Divorce Act.

The applicant father brought a motion for summary judgment seeking sole custody of the parties' 13-year-old child, child support, and an order striking the respondent mother's pleadings.

The mother brought a cross-motion seeking joint custody and increased parenting time.

The court dismissed the father's motion for contempt and to strike pleadings, finding no pattern of deception and noting the mother's offer to secure support arrears against her property.

The court also dismissed the father's motion for summary judgment, concluding that genuine issues for trial existed regarding the child's views and preferences and the appropriate parenting schedule.

The mother's cross-motion was granted in part, establishing a specified parenting schedule and securing her arrears against her property.