Court File and Parties
Amended: 2015-10-29
Ontario Court of Justice
Between:
Walter Ellington Garrick
Applicant
— AND —
Nancy Saporowski
Respondent
Before: Justice Sheilagh O'Connell
Heard on: December 10, 14, 2012; January 23, 2013; March 25, 2013; June 9, 11, 13, 2014; August 11, 2015
Reasons for Judgment released: October 27, 2015
Counsel:
- Walter Garrick on his own behalf
- Jeffrey Hart, counsel for the Respondent, Nancy Saporowski
O'CONNELL J.:
1. Introduction
1The applicant father, Walter Ellington Garrick, ("the father" or "Mr. Garrick") seeks an order for access to the child, Zachariah Wolf Garrick, born November 30, 2004 ("Wolf") on a 'week about' basis, or in an alternative arrangement in which the child is with him for fifty percent of the time. Alternatively, he seeks liberal and generous access including overnight access.
2Mr. Garrick also seeks an order changing or setting aside the temporary order for child support made by Justice Zisman, dated December 22, 2009, and all arrears owing under that order. The child support arrears owing are now approximately $70,000.00.
3The respondent mother, Nancy Saporowski, ("the mother" or "Ms Saporowski") seeks an order that access between the child and the father continue to be on alternate Sundays during the day only, with the pick-up and drop off to occur at a supervised access centre. She further seeks an order that the current child support order continue on a final basis, with all arrears due and owing forthwith, as enforced by the Family Responsibility Office.
4This trial commenced in December of 2012, however, on March 26, 2013, the father was incarcerated on a number of fraud convictions following a sentencing hearing before Justice J. David McCombs of the Ontario Superior Court of Justice. As a result, the continuation of the trial was postponed until the father's release from custody. The father was eventually released on bail pending his appeal of his conviction and sentence. The family trial resumed upon the father's release on bail.
5The evidence in this family trial was completed in June of 2014. However, the court learned that following the conclusion of the trial, the father was returned to custody after the Ontario Court of Appeal dismissed his appeal of the convictions and sentence. The father was sentenced to a 12 month custodial sentence for the fraud related offences, in addition to pre-sentence custody of six months, for a total sentence of 18 months.
6Both parties sought leave to make further submissions regarding the impact of Mr. Garrick's re-incarceration on the issue of access, and in particular, any access between Wolf and Mr. Garrick's extended family while Mr. Garrick is incarcerated. The paternal grandfather, Mr. Wilfrid Garrick Senior, appeared on the father's behalf. The court delayed releasing its decision until hearing from the parties. As well, the paternal grandparents then commenced a separate application for access to Wolf while the father was incarcerated.
7Mr. Garrick was released from custody in July of 2015, after serving his sentence. The Court heard further submissions from the parties on August 11, 2015. At the same hearing, the father brought a motion for contempt against the mother for allegedly denying access and wilfully breaching the current access order.
2. Issues
8As is clear from the above introduction, the father's criminal history and his repeated incarcerations for a number of fraud related convictions loomed large in this trial and in particular, the impact of this history on the issues of access and child support.
9The issues for me to determine are as follows:
- What access order is in the child's best interests?
- What should the ongoing table amount of child support be? Should income be imputed to the father?
- What, if any, arrears of child support are owing?
3. Position of the Parties
3.1 The Father's Position
10The father submits that since the parties' separation, he has not been given the opportunity to parent Wolf because the mother has unreasonably restricted his access. He alleged that the mother disappeared with Wolf after the parties separated for a period of three months, and changed Wolf's school, his name and religion, suggesting a pattern of alienation and denial of access.
11The father submits that he has been a victim of repeated wrongful convictions for fraud and that he is an innocent man who has suffered great injustice. He and his family have vigorously appealed all of his convictions, and he is currently seeking leave to appeal to the Supreme Court of Canada the most recent decision of the Ontario Court of Appeal.
12According to the father, his numerous absences from Wolf's life as a result of periods of incarceration should have no bearing on the access order made by the court. He submits that there are fathers that go away to war and come back and resume a close and loving relationship with their children and that this situation is no different.
13The father submits that he and Wolf are very close and that he was actively involved in his care and custody prior to the separation, and that he is an excellent role model for Wolf. He asserts that it is in Wolf's best interests to have generous and frequent time with him and his extended family, including overnight access up to fifty percent of the time.
14The father submits that he was unable to pay child support while incarcerated and due to the very strict bail conditions upon earlier releases, he was unable to work or maintain employment at the time the temporary order for child support was made. He also states that it is virtually impossible for him to obtain employment after his last release from incarceration without identity documents and because of all of the media attention his cases has garnered, not to mention a lengthy criminal record.
15The father states that his current plan is to return to school or to seek employment and that he is in not able to pay any child support or arrears at this time.
3.2 The Mother's Position
16The mother submits that there should be no increase in access between Wolf and his father or his extended family members.
17Initially, the mother submitted that there should be no change in the temporary access order pending the outcome of the father's criminal matters, in accordance with the recommendations of Ms. Tracy Griffiths, the clinical investigator of the Office of the Children's Lawyer. However, after the father completed his most recent 12 month sentence in July of this year, the mother submits that given the father's past behaviour, his criminal activity will continue, the risk of further incarceration is probable, and it is not in Wolf's best interests to increase his access to his father at this time or in the future.
18The mother denies that the father was actively involved as a parent during the parties' relationship or since the separation. She asserts that he chose to exercise very little access to Wolf for a period of almost two years after the separation until he brought these proceedings. However, even the court ordered access was subject to numerous interruptions during the father's periods of incarceration.
19The mother also asserts that it is not in Wolf's best interests to be given greater exposure to his father because he is a very negative role model. According to Ms Saporowski, Mr. Garrick is a profoundly deceitful, self-centred and narcissistic person, who takes no responsibility for his actions and shows no remorse for the impact of his actions on his victims, including herself, her parents, Wolf, and her child of a previous relationship.
20The mother states that Wolf is only ten years old and she has tried to protect him from information about his father's past and criminal activity. Wolf believed that his father's lengthy absences from his life are because he is away on business. However, as he gets older, there is a substantial risk that he will learn the truth, particularly through social media, and this will be very difficult for him, particularly if his father continues to lie about his criminal past.
21Regarding the issue of child support, the mother submits that the father is fully capable of earning an income when he is not incarcerated and that the temporary child support order should not be set aside. When the parties were together, they enjoyed a comfortable lifestyle. The father has paid in excess of $500,000.00 to lawyers for his criminal proceedings and numerous appeals and has access to undisclosed income sources, including a trust fund in his name set up by his grandfather. He and his parents have bought gifts and clothing for Wolf, yet the father has refused to pay basic child support, but for one payment shortly after the temporary order was made. She seeks all of the arrears to be paid forthwith.
4. Duty of the Court to Self-Represented Litigants
22The father chose to represent himself at this trial. In his criminal matters, specifically his appeals and the civil law suits, he has been represented by a number of senior, high profile and experienced counsel. In this trial, the court endeavoured to ensure trial fairness to Mr. Garrick by ensuring that he was aware of the law, the rules of evidence and trial procedure. I also gave Mr. Garrick considerably latitude, particularly in the areas of cross-examination, and when he adduced evidence that was not always germane to the issues in this trial. Mr. Garrick was respectful of the court process and well-informed for a self-represented litigant.
5. Summary of the Relevant Evidence
23This trial is only about access and child support. It is not about custody. On April 30, 2012, the Honourable Justice Roselyn Zisman granted the mother sole custody of Wolf after the hearing of a summary judgment motion brought by the mother. This was a final order and never appealed by the father. Nevertheless, a great deal of the evidence advanced by the father was about the issue of custody as well. As indicated above, the court gave the father some leeway in advancing his case as he was self-represented.
24During the course of the trial, the court heard from nine witnesses, including both parties and extended family members. The court also had the benefit of two Children's Lawyer's Reports, dated July 2010, and March 14, 2011, admitted as evidence at trial pursuant to section 112 of the Courts of Justice Act.
25The first Children's Lawyer Report could not be completed because the father was incarcerated for approximately five months in 2010 for other unrelated criminal and civil matters. The Office of the Children's Lawyer subsequently agreed to continue their investigation once the father was released from custody and the final report was completed on March 14, 2011. Unfortunately, the clinical investigator, Ms. Tracy Griffith, could not give evidence in this trial due to a medical leave of absence and other scheduling difficulties.
5.1 Background
26The father is 45 years old. He resides in Oakville, Ontario with his parents, Wilfrid and Denise Garrick. As noted, the father is not unemployed, having been released from prison in July 2015 after serving a 12 month custodial sentence for a number of fraud-related offenses. The father has no other biological children.
27The father described himself as a venture capitalist and that previous to his various criminal charges and convictions, he was a financial investor and advisor. The father has a high school education as well as some post-secondary education at Columbia University in New York, where the father was apparently in a pre-med program. According to the father, he did not complete this program so that he could pursue his financial investments.
28The mother is 41 years old. She resides in Oakville, Ontario with her parents, the child Wolf, and her child of a previous relationship, Denzil John, born October 26, 1991 ("Denzil"). Denzil is now 22 years of age. The mother has no other children.
29The mother has a high school education and has completed a post-secondary early childhood education program. She is currently a Montessori teacher. At the time of the trial, she was working on contract and then later as a supply teacher for a Montessori school.
30The parties met while the mother was still in high school in Oakville, through mutual friends, sometime in 1990. Other than this fact, the parties' description of their relationship following their first meeting is diametrically opposed on almost everything else.
31The father states that the parties were in an exclusive relationship from on or about 1991 to 2007, a period of almost 17 years. The father left Oakville for Columbia University in New York shortly after the parties met. He states that their relationship continued throughout the entire time that he was living in New York.
32The mother states that the father called her after he moved to New York and they remained in contact, but they were not involved in a relationship during that time. When the father returned to Canada in or about 1994, they dated briefly for approximately 12 to 18 months when Denzil was approximately three years old. However, the mother ended the relationship.
33The mother states that the parties became re-involved in approximately 1999 or 2000, when Denzil was approximately eight or nine years old.
34The mother states that the parties never married and only lived together, although the father promised to marry her. The father states that the parents went through a marriage ceremony in the Bahamas and for all intents and purposes, they were married.
35The father states that he introduced Ms Saporowski to everyone as his wife and he introduced Denzil as his son. The mother does not dispute this, however, she states she went along with this only because the father promised to marry her and he promised to adopt Denzil, neither of which occurred.
36The mother states that the parties did not start cohabiting until approximately 2003 and separated in August of 2006, when the mother left their rental accommodation with both of her children and returned to her parents' home.
37The father states that the parties started living together in Canada in either 2000 or 2002 and separated in August of 2007, shortly before he was arrested on the first series of fraud related charges in Oakville.
5.2 Post-Separation
38The father acknowledges that at the time of the separation the mother returned with Denzil and Wolf to reside with her parents in Oakville, although he states that she and Wolf disappeared for a period of three months in late 2008 or early 2009. He believes that she went to California to live with her sister.
39The mother denies disappearing with Wolf after she returned to her parents' home and denies going to California with Wolf. She testified that she and the children have continuously lived in her parents' home since the separation and that the father was well aware of this. Her parents' home is only a short drive from his parents' home.
40The mother admits that she did not inform the father that she had enrolled Wolf in kindergarten at a Catholic public school in the fall of 2008 and that she did not identify the father correctly on the school's registration form. She testified that she was trying to protect Wolf from the father's notoriety. At the time, there was considerable media coverage about the father, given his arrest, the nature of the criminal charges and the people involved.
41It is not disputed that there was no agreed-upon parenting schedule after the parties' separation and that Wolf's primary residence along with Denzil's residence, remained with the mother, and have continued to remain with the mother.
42The mother testified that after the separation, the father's access to Wolf was sporadic, irregular and infrequent and that he expressed little interest in maintaining regular contact with Wolf. He expressed no desire to remain in contact with Denzil. She stated that she was present when the father spent time with Wolf and that they would meet in the park or at various public locations, sometimes with his surety present, not more than two or three times a year.
43The father testified that he had great difficulty exercising access to Wolf. He confirms that there were some visits to parks and other public locations but that he desired more time with Wolf. It is not disputed that there was no access between the father and Denzil after the parties' separation.
44In February of 2008, the parties attempted to resolve the issues of custody, access and child support with the assistance of a pastor at the father's family church. The mother states that she initiated the pastor's involvement after she no longer wished to communicate directly with the father without someone else present. The father states that he initiated the involvement with his family's pastor.
45Both parties met with the pastor at a meeting at the father's family's church on February 26, 2008. No agreement was reached. The father did not commence his application for custody until April of 2009, more than one year later.
46The father testified that his application for custody in 2009 was prompted by the mother's disappearance with Wolf, referred to above. He testified that he had no idea where Wolf was and feared that the mother had absconded with him and moved to California where her sister resides. He stated that he had hired a private investigator to eventually track Wolf down and ascertain the school where he was registered.
47The mother denies this and testified that the only reason the father commenced this application for custody was because the father learned that she was cooperating in the police investigation regarding the fraud investigation against him. It is the mother's belief that the father was hoping to obtain an ex parte order (without notice to her) for custody of Wolf based on false allegations, to use as leverage against her for cooperating with the police investigation.
5.3 The Criminal Charges and Convictions
48Mr. Garrick has a lengthy history of being involved in conflict with the criminal justice system, dating back to 1994, mostly on fraud related charges. Mr. Garrick has been incarcerated for various periods of time as a result. Several of the charges have led to criminal convictions. Mr. Garrick was also incarcerated for contempt in a related civil proceeding in 2009 regarding one of the fraud related offenses.
49It is not disputed that in 2008, Mr. Garrick was charged criminally with ten counts of fraud over $5000 and related theft by the Toronto police. The charges involved five complainants, and covered a three period between February 16, 2004 and January 31, 2007. Around the same time, Mr. Garrick was charged by the Halton police with four counts of fraud over $5000 involving four complainants and covering a period of time between January and April 2007.
50The charges led to considerably press coverage and notoriety for the father in both the Halton and Toronto media. Two of the five complainants in the Toronto charges were well known football celebrities. Three of the four complainants in Halton were the parents of school-friends of Denzil. The fourth charge involved Holy Trinity High School, where Denzil attended school and was a member of the football team.
51According to Justice McCombs in his Reasons for Judgment regarding the Toronto charges, in both sets of charges Mr. Garrick's method of operation was very similar:
"Mr. Garrick's general method of deceit was to falsely pose as a wealthy, well-educated person with prominent and powerful friends, and with knowledge and connections that had allowed him to become a savvy, successful investor. He also presented himself as a person who wanted to give back to the community through work with disadvantaged youth and other charitable causes."
52In one of the cases, the court found that Mr. Garrick held himself out to a graduate of Columbia University medical school who chose to defer the remaining accreditation process required to practice medicine because his investment and philanthropic activities required his full attention.
53The criminal court in Toronto found that Mr. Garrick "went to great lengths to win the confidence of his victims, cultivated and nurtured their trust, and then defrauded them."
54In the Halton charges, Mr. Garrick met three of the complainants through Denzil's football team. They were parents of Denzil's friends or team mates. According to the factual findings made by Justice Ricchetti in these proceedings, Mr. Garrick convinced the parents to give him money to invest in an IPO of interactive brokers which he promised would yield significant returns. These parents invested large amounts with Mr. Garrick, totaling $159,000.
55With respect to the fourth criminal charge, Mr. Garrick is alleged to have promised the principal at Holy Trinity High School a scoreboard and change facilities in exchange for the exclusive right to use the high school's football field for a football team that he had apparently purchased. Although the high school declined, Mr. Garrick was alleged to have offered to let the school keep the scoreboard in exchange for a $7000 deposit. The school advanced the $7000 payment to Mr. Garrick however the scoreboard was never delivered and the school never recovered its money from Mr. Garrick.
56Following very lengthy criminal trials in both of these matters, Mr. Garrick was convicted of three counts of fraud over $5000 with respect to the Halton charges. He was convicted of defrauding the parents of Denzil's friends or teammates, but not his high school. Mr. Garrick was convicted of four counts of fraud over $5000 with respect to the Toronto charges, including defrauding the two football icons and a doctor that treated Wolf at the Hospital for Sick Children.
57On April 26, 2012, Mr. Justice Ricchetti sentenced Mr. Garrick to 23 months, to be served as a conditional sentence, less ten months of pre-sentence custody that he had already served. He also ordered three years of probation following his conditional sentence and that he make restitution to the victims in the amount of $159,000.
58On March 26, 2013 Mr. Justice McCombs sentenced Mr. Garrick to 12 months of imprisonment. The indictment was endorsed to reflect the fact that Mr. Garrick served six months of pre-sentence custody, so the sentence was equivalent to 18 months. Justice McCombs ordered two years of probation following the custodial sentence.
59Justice McCombs also ordered Mr. Garrick to pay a fine of $172,000 for the Toronto offenses. He was given three years from the completion of his probation to pay the fine. In default of payment, Mr. Garrick was ordered to serve an additional consecutive sentence of two years in custody.
60In his reasons for decision on sentence, Mr. Justice McCombs states the following at paragraph 30:
"The evidence shows that Walter Garrick set out on a course of action years ago that was founded almost entirely on deceit. He pretended for years to be someone he was not, and in the process he has defrauded and hurt multiple victims. When his crimes came under scrutiny, he blamed others, often making mean-spirited, audacious, unfounded allegations against his accusers and other perceived enemies.… His fraudulent conduct has not only hurt the victims; it has also profoundly hurt his family members."
61At paragraph 32 of the same decision Justice McCombs states as follows:
"Although Garrick concedes errors in judgment, and states that he is "100% responsible" for the losses suffered by the complainants, he does not acknowledge that his conduct was criminal. In that sense, there is an absence of remorse and a staggering lack of insight into the seriousness of his criminal misconduct."
62In October of 2014, the Ontario Court of Appeal dismissed Mr. Garrick's appeal of the convictions and the sentence and Mr. Garrick was then returned to custody to serve a twelve month sentence.
63Mr. Garrick advised during the course of submissions in the family trial on August 11, 2015 that he is now seeking leave to appeal his convictions and sentence to the Supreme Court of Canada. Mr. Garrick did not appeal the convictions and sentences imposed Justice Ricchetti.
64In addition to the multiple and lengthy criminal proceedings, Mr. Garrick was sued by Dr. Rahim Valani, one of the victims in the Toronto criminal proceedings. Dr. Valani obtained a default judgment against Mr. Garrick in the amount of $123,000 on October 26, 2007. On July 16, 2009, Mr. Garrick was sentenced to three months of imprisonment for his contempt of court. The findings of contempt related to Mr. Garrick's repeated and persistent failure to respect court orders relating to the execution of the judgment.
65On December 14, 2009, Mr. Garrick was sentenced to serve a further four months in prison for failing to show that he had purged his contempt. According to the judgment, Mr. Garrick's contempt was repeated and continuing. His lack of cooperation made it impossible to determine whether he was impecunious as he claimed, or whether he had simply managed to places assets the on the reach of his creditors. Although Ms Saporowski was named as a defendant in these proceedings, there were no findings made against her.
66During the course of the contempt proceedings before Mr. Justice Strathey, the court found the following in his reasons for judgment:
"It is clear from your own evidence as well of the evidence of Nancy Saporowski that you transferred funds to accounts in her name and in Denzil's name, and that you exercised control over those accounts, but you have provided no direct or detailed evidence of the source or disposition of those funds. In this regard, I accept the evidence of Nancy's Saporowski that you exercised control over those accounts."
67As a result of the above history, it is not disputed that Mr. Garrick has spent a significant time in prison throughout Wolf's formative years after the parties separated. During the family trial, prior to being sentenced to a further 12 month custodial sentence after this trial, Mr. Garrick estimated that he had spent approximately 524 days in prison and over 1000 days of house arrest. Further, given Justice McCombs' final order that Mr. Garrick serve a consecutive jail term of two years in default of paying the fine of $172,000, there is a risk that he will be subject to further incarceration.
68Mr. Garrick acknowledged during this trial that he is not paid any of the fines or restitution ordered by either of the criminal judges in the fraud matters, totalling more than $300,000.00.
5.4 History of These Court Proceedings
69On April 30, 2009, the father commenced this application for sole custody or in the alternative specified access and ancillary relief. He also filed an emergency ex parte motion for custody of Wolf.
70His motion was not granted and he was ordered to provide notice to the mother that he was bringing the application by serving her with the court documents. An early "first appearance" court date was granted to the father pending service on the mother. The mother did not attend the first appearance court date, despite the affidavit of service filed matter indicating that she had been served. The matter was then scheduled for an uncontested hearing sought by the father regarding custody.
71In reviewing the materials at the uncontested hearing, the Honourable Justice Theo Wolder was not satisfied that the mother had been properly served and declined to make an uncontested order. The court staff was requested to send correspondence to the mother to advise her of the next court date.
72On the return date, the mother did attend and she advised that she had not been served. The father did not attend this court appearance, but his father, Mr. Wilfrid Garrick, attended and advised the court that the father could not attend because he was in jail on an unrelated matter.
73A temporary custody order was made at that hearing in favour of the mother. The court also ordered that the father have no access pending the return of the proceeding. A date was set for a case conference.
74At the first case conference, the father was present, having been released from custody. The parties agreed to the appointment of the Office of the Children's Lawyer to conduct an investigation of the issues of custody and access. The father sought unsupervised access and the mother sought no access until the father's outstanding criminal charges were resolved. The parties consented to a temporary order that the father have supervised access at a supervised access centre, to be reviewed.
75On December 22, 2009, following a period of supervised access, the parties consented to expand the father's access be to unsupervised access, to be exercised on alternate Sundays from 10:00 a.m. to 4:00 p.m. On June 19, 2011, the father's access was increased to 6:00 p.m. on alternate Sundays, again pursuant to a Consent Order.
76On December 22, 2009, Justice Zisman made also temporary child support order that the father pay child support in the amount of $1,000.00 per month on a without prejudice basis to the mother, based on an imputed income of $66,900.00. The Family Responsibility Office has subsequently commenced enforcement proceedings as there are considerable arrears owing under this Order.
77On April 30, 2012, Justice Zisman granted the mother sole custody of the Wolf following a summary judgment hearing on the issue of custody. The issue of access and support were referred to trial. In her Reasons for Judgment following the summary judgment motion, Justice Zisman made the following factual findings at page at paragraphs 38 to 40 of her reasons:
"38 Even assuming every fact in the father's affidavit was proven at trial, they would not bolster his case for joint custody. Based on the father's own affidavit it is clear that the mother has been the primary parent since the separation, that the father had limited contact from 2006 to 2009 and that they are unable to communicate about anything that involves this child.
39 Although there are factual disputes between the parents, none of them are material to the issue of joint custody and none raise a genuine issue for trial.
40 Therefore, I find that the evidence establishes, on a balance of probabilities that the child has been on the mother's sole care and custody since 2006. The mother has been able to meet all of his needs and she has shown herself to be a competent and caring parent. Wolf is doing well in school, involved in extra-curricular activities and is a healthy and happy child. The father in his materials has not provided any evidence to dispute these facts that would support the conclusion that there is a genuine issue for trial on the issue of joint custody is necessary."
78The father did not appeal the above decision. During the case management process, there have been numerous court attendances and several motions. There were numerous allegations by the father that the mother was consistently late for access visits or caused the father to miss access visits and that generally she was intentionally interfering with his desire to have a relationship with his son.
5.6 The Reports from the Office of the Children's Lawyer
79Two reports prepared by The Office of the Children's Lawyer were filed as evidence in these proceedings. The social worker and clinical investigator in both reports was Ms Tracy Griffith.
80In the first Report, dated May 27, 2010, the investigation could not be completed. Mr. Garrick was incarcerated on April 11, 2010 and remained incarcerated at the time the report was released. However, Ms. Griffith was able to meet with Wolf and to conduct one observation visit with Mr. Garrick prior to his incarceration. Wolf was described as a happy, confident and well-adjusted child with a lot of energy.
81The observation visit between Wolf and his father place at the Garrick family home. Also present were Mr. Garrick's parents, Denise and Wilfrid Garrick. Ms. Griffith made the following observations:
"The family had just returned from church services where Wolf had attended Sunday school. While waiting for lunch and for Mr. Garrick Senior to return from driving other parishioners, Wolf and Mr. Garrick played a variety of games in the family's backyard, including tag, football and hide and seek. Wolf demonstrated a strong level of comfort and familiarity with the adults present, however did not appear familiar with the home as he had to ask where the kitchen garbage was, and then commented on how "cool" the garbage can was. Wolf appeared to enjoy himself and had no difficulty questioning the adults in the home in a respectful manner. Wolf spent most of the visit running and playing. Mr. Garrick was careful to remind Wolf each time he went in and out of the home to take off his shoes, and always to wash his hands before touching any food."
82The matter was referred to the Office of the Children's Lawyer again after Mr. Garrick was released from custody and the second Report was completed on March 10, 2011. This investigation was completed. Further interviews with the parties and the child were conducted as well as observation visits with the child and the parents at their respective homes. Ms. Griffith also interviewed a number of collateral sources, including the principal and teachers at Wolf's school, and reviewed the police and child welfare reports.
83At the time of the second Report, Wolf was spending time with his father every second Sunday from 10 a.m. until 4 p.m. He was six years of age and in grade one, French immersion at a public school in Oakville.
84Wolf was again described as a happy, well-adjusted, confident child. He presented as "polite, forthcoming and inquisitive" to the clinical investigator and interacted with her in an age-appropriate manner. Wolf interacted comfortably with both parents and his grandparents. According to the investigator, Wolf reported that he was happy with the way things are and did not want things to change, when discussing the parenting arrangements.
85Ms. Griffith made the following conclusions at page 12 to 13 of her Report:
"The evidence collected in this investigation supports no change to the parenting schedule at this time as Mr. Garrick is still before the courts on serious fraud charges, and the outcome may not be known until the fall of 2011. Wolf is reported to be doing well. There should be no change prior to the known outcome of the charges in the interest of avoiding a potential traumatic separation between Wolf and his father should Mr. Garrick be incarcerated for a period of time. In the event that Mr. Garrick is acquitted of all charges, he has reported that his plan is to move out of Oakville. This will impact on his availability to participate in Wolf's day-to-day life. During Mr. Garrick's last incarceration, between April 11 and July 30, 2010, Wolf is reported to have easily accepted both parents' explanation that Mr. Garrick was working and therefore unavailable to see him. This suggests that Wolf is not traumatized by separation from Mr. Garrick based on the current relationship he has with Mr. Garrick.
Mr. Garrick and Saporowski report different experiences and perceptions of both their time together and of events since separation. Most recently, Mr. Garrick and Saporowski report differences about the timing of the exchange, and both reports frustration and distress. Police have been called regarding missed exchanges in the community. Supervised exchange will provide the appropriate external reporting of what happens at exchange, and in the interim, will provide structure and continuity for Wolf and his parents.
Both Mr. Garrick and Ms Saporowski expressed concern about the impact of Mr. Garrick's notoriety in the community of Oakville on Wolf. Ms Saporowski has attempted to protect Wolf by not informing Mr. Garrick of changes in school, and not providing the school was accurate information about Mr. Garrick. Mr. Garrick is concerned with the community's impression of him and feels that he has been falsely accused. He is insistent on demanding relief in the form of public printed apologies at the same level of exposure as the original accusations. It appears that the community may have moved on from the events of 2007, and these notions may only remind the community of what transpired, and may negatively impact on Wolf, contrary to Mr. Garrick's intentions."
86Ms Griffith made the following recommendations:
- Ms Saporowski shall have sole custody of Wolf.
- Mr. Garrick shall have parenting time with Wolf every second Sunday from 10 AM until 4 PM, with exchanges to take place at a supervised access facility in the community.
- Mr. Garrick shall have reasonable telephone access with Wolf. Telephone contact will be limited to one outgoing call per day from Wolf to Mr. Garrick. Telephone contact should not be reasonably withheld and should be at the expressed wish of the child only.
- When all of Mr. Garrick's outstanding charges are dealt with that criminal court, the schedule shall be reviewed to ensure it continues to meet Wolf's developmental and emotional needs.
5.7 Evidence of Walter Garrick
87Mr. Garrick testified that he is the beneficiary of a trust fund set up by his grandfather. His grandfather paid for his Columbia school education. He testified that when he attended Columbia University, he started in the pre-med program with the intention of becoming a doctor, having obtained very high marks prior to admission.
88However, Mr. Garrick testified that he decided to invest the money that he received from his grandfather for his education in the stock market instead. He testified that in the early nineties, he made quite a bit of money on the stock market, estimating millions. As a result, he left school and decided to continue investing in the stock market, where he was very successful. Initially, he did not tell his parents or his grandfather that he had dropped out of Columbia.
89Mr. Garrick also testified that he purchased a penthouse apartment in New York through the family trust in 1998. The apartment is worth approximately $1.8 million. During this time, Ms Saporowski and Denzil visited him in New York on a number of occasions. He testified that they usually stayed the penthouse and on at least one occasion, the Waldorf Astoria. He further testified that they took frequent vacations together, to Collingwood, Blue Mountain, Jamaica, the Bahamas, and other places.
90Mr. Garrick testified that he is Jewish and that the reason he "chose" or "sought out" Ms Saporowski as his intended wife was because she was Jewish and they were "going forward" as a Jewish family. Mr. Garrick testified that he decided to convert to Judaism in the 1990s while he was living in New York.
91When asked in cross-examination how he thought that Ms Saporowski was Jewish as she was attending a Catholic Christian school when he met her, he initially denied meeting her at her school, or that the school was Catholic, then retracted that and testified that her parents were Polish Jews and in any event, that she agreed to covert to Judaism. He acknowledged that his own family is Pentecostal Christian. He testified that they gave Hebrew names to both Wolf and Denzil: Zachariah and Benzi, and that they agreed to raise their children in the Jewish faith. His own parents are Pentecostal Christians.
92Mr. Garrick testified that he was very upset when he discovered after the separation that Ms Saporowski had registered Wolf in a Catholic school and arranged for his baptism without his knowledge or consent. He did not want Wolf to be baptized. He wanted Wolf to be registered in a private school paid for by his parents, and raised in the Jewish faith as per their previous agreement.
93Mr. Garrick testified that in 1994, he sent $10,000 to Ms Saporowski's father so that Denzil could be enrolled in a private school. He further testified that he would send money regularly to Ms Saporowski to help financially support Denzil in those early years. He testified that while he was in New York studying at Columbia University he was working three jobs to send money back to the mother to pay for Denzil's private school
94Mr. Garrick testified that he became a father to Denzil and that he raised him as his own son for 13 years. He also testified that for "two decades" he conducted himself and treated Ms Saporowski as one would treat a wife.
95He described treating Denzil as his biological son, although he denied telling Denzil that he was his biological father. Once Mr. Garrick was back in Canada on a more long-term basis in the late 1990s, he testified that he became fully involved in Denzil's school activities, homework and parenting. He coached his soccer team and helped his football team. According to Mr. Garrick, it is because of him that Denzil had several college football scholarships and was afforded an opportunity to go to private school, such as Glenburnie and Appleby College, albeit briefly. He introduced Denzil to everyone as his son, not his stepson. He stated that he intended to adopt Denzil.
96According to Mr. Garrick, his commitment to Denzil, including paying for his private schooling, proves how great his commitment is to Wolf, who is his biological son. As he put it, "the fact that I was so committed to Denzil means that I was and am completely committed to Wolf".
97When confronted in cross-examination, Mr. Garrick denied that he did not in fact pay for Denzil's private schooling in 1994-95, or later, and that Ms Saporowski's parents had to pay the balance owing to the school before Denzil was withdrawn. He testified that he had given money to Ms Saporowski's father to pay for Denzil's schooling. He further denied taking any money from Ms Saporowski's father, promising to match the money loaned for Denzil's schooling. He testified that in 2002, he sued Ms Saporowski's father in small claims' court for the money that he had claimed that Ms Saporowski's father had in fact stolen from him.
98Mr. Garrick testified that he and Ms Saporowski started cohabiting or had "a common residence" as early as 2000 in Canada. He stated that her parents had forced her out of their home and that Ms Saporowski and Denzil came to live with him and his parents. He testified that Ms Saporowski and Denzil were living with him in his parents' home in Canada and at his penthouse apartment (owned by his paternal Aunt) in New York.
99Mr. Garrick testified at length about the lavish gifts that he gave Ms Saporowski, including a $350,000.00 yellow canary engagement ring, expensive vehicles, including a BMW which he purchased for approximately $85,000, and frequent trips. He testified that they owned a Porsche and two BMWs. They had a full-time nanny and cleaning lady. Every weekend while living together, they would go to Blue Mountain or his parents' cottage. He was also attempting to purchase a home for them in Connecticut. He stated that all of the money he spent on the family was from his financial investing work.
100Mr. Garrick gave evidence that in 2005, he was depositing $8,000.00 per week into Ms Saporowski's account for her own spending, the boys' education and for other expenses. He produced a letter from a bank representative which he wanted entered as an exhibit at trial. Mr. Garrick believed that this proved that he was making deposits of $8,000.00 weekly into Ms Saporowski's account. The person who wrote the letter was not called as witness at the trial.
101It is Mr. Garrick's position that the money he deposited in Ms Saporowski's bank account is now "missing" and that Ms Saporowski is hiding it somewhere. He further suggested that she has assets hidden in the Bahamas. He denies that she needed to apply for social assistance after the separation because he was not providing financial assistance or support. He believes that she still has access to these funds and that she has transferred some of the funds to her parents. He further denied causing the account to be overdrawn by approximately $5,000.00.
102Mr. Garrick also denied opening an account in Denzil's name without Denzil's or Ms Saporowski's knowledge and consent. He testified that he and Ms Saporowski opened this account together to pay for Denzil's education and sports activities among other expenses. He stated that he opened the account when Denzil was approximately 16 years old. He denied using the account for his own purposes or having any knowledge that the account was overdrawn by approximately $5,000.00. He testified that Denzil's legal name is Denzil Garrick and that Denzil signed the bank account that was opened in his name.
103A great deal of Mr. Garrick's testimony also focused on his numerous criminal charges and convictions for fraud, dating back to 1994. Regarding the charges in the early 1990s, he described being falsely accused for attempted fraud after he and his father brought 4 million dollars into a bank from his grandfather's trust account. The charges were dismissed and the money was then returned to his grandfather's trust.
104Regarding the more recent charges and convictions, Mr. Garrick firmly believes that he is innocent of all of the charges and that he has been a victim of wrongful convictions and "a witch hunt". Mr. Garrick acknowledged that nine separate individuals as well as Denzil's former high school have alleged that he had committed fraud against them. He denied committing any fraud. He spoke at length about the injustice, shame and public embarrassment the criminal charges and convictions have caused him and his family and his fight to clear his name.
105Mr. Garrick implied throughout his testimony that the multiple criminal charges against him were a part of a larger conspiracy or a malicious prosecution by police services and the Crown's office. He testified that he is currently suing a Halton Crown prosecutor, among other individuals.
106Mr. Garrick acknowledged that he has been incarcerated on multiple occasions as a result of the criminal charges and convictions for lengthy periods of time. However, it was clear from Mr. Garrick's testimony that he believes one of the principle investigating officers and Ms Saporowski were working together to build a case against him to have him falsely arrested and detained.
107During his testimony, Mr. Garrick stated that the chief investigating officer in the fraud investigation was "on a mission" to keep falsely arresting him to thereby restrict his access to Wolf. It was his belief that there was some form of conspiracy or relationship with Ms Saporowski and the investigating officer to ensure that he was continually arrested so that his access to Wolf would be limited.
108When asked to clarify his position by the court, Mr. Garrick initially acknowledged that his periods of custody may have had some impact on his ability to have generous access to Wolf, however, Mr. Garrick subsequently revised his position and testified on the following day of trial that "any interruption in my efforts to see Wolf is exclusively because of Nancy [Ms Saporowski]."
109He made it clear that Ms Saporowski was solely responsible for the denial of his access and the limitations on his time with Wolf. He did not acknowledge that his periods of incarceration since 2008 would have had an impact on his relationship with Wolf.
110Throughout Mr. Garrick's testimony his entire focus was on his innocence, that he had been wrongfully persecuted, that he was a complete victim and that Ms Saporowski had denied him access to Wolf.
111Mr. Garrick testified that he has been an exceptional husband and father. He testified that he was an exceptional father to Denzil and he is an exceptional father to Wolf. He described Wolf as a brilliant child with a strong sense of self. Wolf is confident, conscientious and very respectful of adults. He describes Wolf as having an extraordinary capacity to learn. He is upset that Wolf is not in private school as he believes that Wolf would thrive in a private school education, which his parents are willing and able to pay for.
112He described his parenting style as firm and consistent. He does not act like a friend to Wolf, but as his father. It is his hope that Wolf will eventually be able to go back and forth between his home and Ms Saporowski's home in an equal parenting arrangement.
113Mr. Garrick testified he originally intended to move to Toronto after returning from New York, but he will likely remain in Oakville. He is currently in a relationship but his new partner has not met Wolf. He plans to marry her after the criminal proceedings are completed. He did not disclose the person's name nor was she a witness in this trial.
114Mr. Garrick described his life as focused on Wolf's happiness. He hopes that Wolf will be able to attend his alma mater, Columbia University, one day. He further testified that he would like to raise Wolf in the Jewish faith although he understands that his mother is currently raising him in the Christian faith and his parents are Christian. He recognizes that Christmas day is still an important day because the entire family gets together to celebrate although he stated that his family approaches the holidays from a Judaic point of view.
115Mr. Garrick described the importance of his extended family in Wolf's life. Wolf is his father's only grandchild. His sister and his parents are very involved in Wolf's life. He stated that his family is rich in culture and will provide that to Wolf.
Child Support and Arrears
116Mr. Garrick acknowledged that he is not made any monthly child support payments to Ms Saporowski, except for one payment after Justice Zisman's temporary order in 2009, which he described as an "illegal order". The one child support payment made was paid by his parents. Mr. Garrick stated that at the time that Justice Zisman made the temporary order, he was subject to strict bail conditions requiring his surety to be present with him "24/7", thereby making it impossible for him to work.
117He acknowledged that those bail conditions were changed in 2011 to permit him to obtain employment. He further testified that because of his repeated incarcerations, it was impossible for him to hold steady employment. In addition, he had all of his personal identity documents removed from him, again restricting his ability to apply for employment.
118According to the sworn financial statement filed by Mr. Garrick in this trial, Mr. Garrick has no income or source of income, other than a monthly parental allowance of $100.00 for Wolf's visits. In the schedule attached to the Financial Statement, he states that he "has no money and no money from any other sources anywhere in the world."
119Mr. Garrick's CRA notices of assessment were produced by the mother's counsel at trial. According to Revenue Canada, Mr. Garrick earned $128, 662.00 in 2008, $146,000.00 in 2007, and $26,000.00 in 2005. Mr. Garrick testified that the notices of assessment were falsely created by the investigating officer in the fraud investigations and that he has not filed income taxes in years.
120Mr. Garrick testified that although he does not pay child support to Ms Saporowski he and his parents have been very generous. He testified that they buy expensive clothing for Wolf, pay for all of his extracurricular activities, such as swimming lessons and French lessons, and are willing to fully fund a private school education for Wolf, such as at Appleby College, where Mr. Garrick attended and where Denzil attended for a brief period of time, paid for by Mr. Garrick.
121Currently, Mr. Garrick is permitted to work under his probation order and he has now recovered his identity documents. However, he states that he is not able to find employment as a result of his criminal record. He plans to return to school to further his education and or alternatively continue his investment work and work in the family business.
122Mr. Garrick provided very little information about his grandfather's trust, except to say that he was a beneficiary of that trust. He also testified that the trust paid for his education at Columbia, and that he has been able to withdraw significant funds from the trust. At one point he withdrew 3.5 million from the trust, which he states that he subsequently returned. He also purchased an apartment in New York using trust funds of approximately 1.8 million dollars, according to his evidence.
123No documentation regarding the family trust, including the trust settlement agreement or the trust fund statements was provided at trial, nor was it disclosed in Mr. Garrick's financial statement.
124Mr. Garrick testified that the legal fees for his defense and appeal of the various criminal offenses and the civil litigation arising out of those criminal charges has been approximately $600,000, paid for by his family.
5.8 Evidence of Nancy Saporowski
125At the time that Ms Saporowski met Mr. Garrick she was a 17 year old high school student at St. Ignatius of Loyola, a Catholic high school in Oakville. She was soon to be a young single mother. Ms Saporowski testified that Denzil's biological father was briefly involved in the early years, but later not involved with his life at all until very recently.
126Ms Saporowski was baptized and raised Catholic by her parents. She testified that she has never been Jewish, contrary to Mr. Garrick's testimony and she is currently attending a Christian Bible Chapel.
127Ms Saporowski testified that she and Mr. Garrick met through mutual friends before Mr. Garrick moved to New York. He contacted her by telephone after he moved to New York and they became friends. During that period of time, she understood that Mr. Garrick was at Columbia University, living in New York and studying to be a doctor. Ms Saporowski testified that she never visited Mr. Garrick in New York, with or without Denzil during that period of time, or at any other time.
128Ms Saporowski testified that they first started dating in 1994, when Mr. Garrick had returned to Canada for a period of time. Denzil was approximately three years old. Ms Saporowski described ending their dating relationship in 1995 because Mr. Garrick was creating a lot of problems between her and her parents. One of the biggest issues was Mr. Garrick's insistence that Denzil attend private school. Mr. Garrick offered to pay as she did not have the money. Denzil was enrolled at a private school called Fernhill. After approximately six months, Ms Saporowski was asked by the school to pay the $10,000 tuition fee. She confronted Mr. Garrick. Ms Saporowski's parents eventually paid the tuition and Denzil was withdrawn from the school.
129Ms Saporowski testified that she was very young at the time and she did not understand why this had happened and why Mr. Garrick had insisted on sending Denzil to private school and promising to pay for it when he had not.
130Ms Saporowski and Mr. Garrick became re-involved in or about 1999 or 2000, when Denzil was approximately 8 or 9 years old. Mr. Garrick told her that he was sorry, that he had made mistakes and that he had changed. At that time, Ms Saporowski would often take Denzil to the park to play soccer with his friends. Ms Saporowski testified that Mr. Garrick would "just show up" at the park. She described Mr. Garrick as "pushing" his way back into her life and although it was not immediate, she gradually started to trust him once again and they became re-involved.
131Ms Saporowski described Denzil as being a very athletic child who did very well in every sport in which he participated. At the time that she resumed her relationship with Mr. Garrick, Denzil was playing soccer. He had many friends. When she and Mr. Garrick started dating again, Mr. Garrick became very involved in Denzil's soccer and wanted to coach his soccer team, which he did.
132Mr. Garrick also became very involved with the parents of the other players, ensuring that he had all of their phone numbers to arrange games and practices. Ms Saporowski testified that during this time period, she was impressed at how involved and committed he was to Denzil, which was very important to her.
133Ms Saporowski testified that looking back on it now, she realizes that Mr. Garrick had become Denzil's soccer coach in order to gain access to other parents so that he could defraud them, as he did to the parents on Denzil's high school football team.
134During this time, she described Mr. Garrick as putting a lot of pressure on her to move into his parents' home with Denzil. Mr. Garrick started creating problems at her parents' home between her and her parents. He would call her parents or come to the house and threaten them when she was at work.
135In 2002, Mr. Garrick sued Ms Saporowski's father in small claims court, claiming that her father had stolen the $10,000.00 that he had given him for Denzil's private school education. Ms Saporowski's father denied this and stated that he had given money to Mr. Garrick to invest which he never returned.
136The lawsuit caused a rift between Ms Saporowski and her parents. Ms Saporowski testified that she did not know who was lying. Mr. Garrick would say that her parents were not speaking the truth. Ms Saporowski testified that she knows now that her parents were speaking the truth and that Mr. Garrick was just instigating problems to force her to leave her home and move into his parents' home with him.
137Ms Saporowski described an incident where there was another confrontation between her parents and Mr. Garrick at her parents' home involving the police. She remembers crying and being very upset and Mr. Garrick pushing her out the door and telling her that she could just stay with him and his parents for a few days until they figured things out.
138Ms Saporowski stayed at his parents' home with Denzil for approximately three months until she and Mr. Garrick moved into their own rental accommodation in 2003. Wolf was born in 2004.
139Ms Saporowski acknowledged that after she became re-involved with Mr. Garrick, she went to court in 2002 to obtain full custody of Denzil with Mr. Garrick's assistance. She further acknowledged swearing an affidavit in support of her claim for custody in which she deposed that Mr. Garrick acted as a father to Denzil in every way and that he planned to adopt him.
140Ms Saporowski acknowledged that her biggest mistake as a parent was allowing Mr. Garrick to convince her that Denzil should be led to believe that he was his biological father. When they discussed Mr. Garrick adopting Denzil, he explained to her that it would be better for Denzil to believe that he was actually his biological father, according to his research. They agreed that they would continue to proceed with the adoption of Denzil but allow Denzil to believe that Mr. Garrick was his biological father.
141Ms Saporowski testified that although Mr. Garrick appeared very attentive and involved with Denzil initially, things changed significantly when they started living together and after Wolf was born. Mr. Garrick was never home, and left all of the child care and home responsibilities to her. He would be gone all hours of the day and night. She did not know where had been or what he was doing. When home, he was absent or abusive.
142Denzil grew increasingly resentful at his absences and his behavior. Mr. Garrick appeared more concerned with setting up meetings with the other parents for various business dealings.
143She acknowledged that the family would spend weekends at his parents' cottage or Blue Mountain but even then he would be distracted and always on the phone, and not involved in family life, parenting or childcare.
144Notwithstanding his promises and repeated assurances, Ms Saporowski testified that Mr. Garrick never adopted Denzil or proceeded with the adoption process and lied to her that he had submitted the adoption papers. Similarly, she testified that although he had promised to marry her, they were never legally married.
145She testified that she tried to discuss her concerns about Mr. Garrick's lack of involvement in his home life with his father, Wilfrid Garrick, to whom she was initially close. She came to rely more and more on the support of her mother and eventually returned with the children to her parents' home.
146After the separation, Denzil started to hear stories at school about Mr. Garrick stealing money from his friends' parents, and from his high school and became very upset. He also saw some of the newspaper coverage. He did not understand why his father (or who he believed was his father) had disappeared from his life. Ms Saporowski testified that after the parties separated and the criminal charges came to light, she told Denzil that Mr. Garrick was not his biological father.
147Ms Saporowski testified that after the separation, Mr. Garrick made no effort to see Denzil, although she acknowledged at some point, Denzil did not want to see him and continues to be very angry with him.
148Ms Saporowski described the profoundly negative emotional impact of Mr. Garrick's behavior on Denzil. Denzil had a very difficult time. He has been engaged in counselling and therapy to address his trauma.
149Ms Saporowski believes that her relationship with Mr. Garrick was "a lie". She testified that Mr. Garrick used her and Denzil so that he could present as a family unit to gain access to other parents at Denzil's schools to defraud them. The only reason that he encouraged her to enrol Denzil in private schools was so that he could gain access to affluent parents. When he encouraged her to enrol Denzil in Glenburnie private school, he sent emails to the school principle as "Dr. Garrick." According to the mother, she and Denzil were simply covers for Mr. Garrick's fraudulent activities.
150Ms Saporowski testified that Mr. Garrick also made very little effort to see Wolf after the separation. He saw Wolf no more than three or four times each year, always in her presence. The mother testified that during these visits, the father was more focused on whether the police had contacted her regarding the fraud investigations and questioned her repeatedly about that.
151After the failed attempt at negotiating a parenting agreement in February of 2008, Mr. Garrick did not make any efforts to seek custody or a specified access schedule until April of 2009, when he started these proceedings. The mother testified that the father commenced the custody application after he learned that she was cooperating with the police in the fraud investigation against him.
152Ms Saporowski denied disappearing with Wolf for three months prior to the father commencing his application for custody. She and Wolf lived continuously with Denzil and her parents since the separation. However, the mother did acknowledge that when she registered Wolf for Junior kindergarten in the fall of 2008 she did not inform the father that she had registered Wolf in a Catholic school nor did she tell the father where Wolf was registered. She further acknowledged that she gave the school an incorrect name and address for the father. This information came to light once the father discovered where Wolf had been registered.
153The mother stated that she was trying to protect Wolf from her father's notoriety at the time. There was extensive media coverage of the father's criminal charges and she was concerned that Wolf would experience problems at school. She acknowledged that currently the father is now involved in Wolf's schooling and has the opportunity to meet or speak to his teachers.
154Ms Saporowski describes Wolf as a very good boy, who is very honest and never lies. He is a very good student and is well-liked. He does well at school.
Current Access Schedule
155Once an access schedule was established, Ms Saporowski acknowledges that Wolf enjoys spending time with his father and his extended family, particularly his grandparents. The father's access has been consistent when he is not in prison. When the father was incarcerated, the mother would generally permit Wolf to continue visiting his grandparents.
156Ms Saporowski concedes that during his access time with Wolf, Mr. Garrick often plans fun activities with him and that Wolf appears to enjoy himself and have fun. However, she stated that he also disappoints Wolf and makes false promises to him.
157Ms Saporowski testified that she has never disclosed any of his father's criminal activities to Wolf, nor has Denzil. During the periods of time that Mr. Garrick was in prison, she told Wolf that his father was away on business, which Wolf believed. Now that Wolf is older, she worries that he will start to learn through social media or otherwise about his father's criminal activity and notoriety.
158Ms Saporowski testified that Wolf had started to disclose to her that his father has told him that he has been wrongly accused. She is very concerned that his father and his extended family members will start to tell lies to Wolf about the father's criminal activities and have a corrupting influence on him. She described the entire family as "corrupt".
159She worries about the impact on Wolf of Mr. Garrick's lies, and his complete lack of remorse or acceptance of responsibility for the harm that he has caused people. She is concerned that Mr. Garrick will harm Wolf as he has harmed Denzil. She is also concerned that his father will have a detrimental impact on the development of Wolf's character.
Financial Issues
160Ms Saporowski described a comfortable, but not lavish, lifestyle while the parties were cohabiting. Ms Saporowski acknowledges that Mr. Garrick purchased an $85,000.00 BMW and registered the car in her name, however, she was rarely permitted to drive it. She testified that Mr. Garrick drove it almost always and that he would often hide the keys under his pillow while sleeping. She testified that Mr. Garrick strictly controlled her access to funds. She acknowledged that the family had vacations in the Bahamas and Jamaica, and often went to Blue Mountain or his parents' cottage.
161Ms Saporowski denied that the parties had a live-in nanny or a maid, although she concedes that there was a person helping her for a short period of time when Wolf was a toddler.
162Ms Saporowski acknowledged receiving an engagement ring from Mr. Garrick. He told her that it was a yellow canary diamond worth over $300,000. After the separation, she brought the engagement ring to an appraiser who advised her that it was a zirconium, worth only a few hundred dollars.
163Ms Saporowski denied receiving $8000 per week from Mr. Garrick while they were together. She acknowledged that in 2005, Mr. Garrick had wired approximately $60,000 into her personal bank account over a period of approximately four months. According to Mr. Saporowski, Ms. Garrick explained to her that he needed to wire money from his accounts in the United States into her personal account because he did not have any bank accounts in Canada. All of his accounts were in the United States, where he had gone to school and was conducting his business. He explained to her that he was trying to establish himself in Canada so she allowed him to deposit funds into her account.
164Ms Saporowski testified that after he wired the money into her account, he immediately withdrew it and she did not know what had happened to it. Ms Saporowski did not understand how Mr. Garrick was able to withdraw money from her account without signing authority. Since the separation, she learned that he was able to do this by speaking to the managers at her bank.
165In cross-examination, Ms Saporowski was confronted with a letter dated November 28, 2005, signed by Andrew Jack, a personal banking officer with her bank. The letter stated that the bank receives weekly deposits in the name of Nancy Saporowski and "that these deposits on average have never been below $8000 US".
166Ms Saporowski recognized the letter and acknowledged that Mr. Jack signed the letter, but stated that it was inaccurate or misleading. This letter reflected a period of approximately four or five months wherein a total of $60,000 was deposited into her account at various times by Mr. Garrick and then immediately withdrawn for his own purposes. This is the same letter that Mr. Garrick attempted to introduce as an exhibit in his evidence however, he did not produce Mr. Jack to be cross-examined on the letter, and the contents of which were objected to by the mother.
167Ms Saporowski testified that both her and Denzil's credit rating have been destroyed as a result of Mr. Garrick's unauthorized use of their name and personal identification and the numerous debts that he has left in her name, some of which she is struggling to pay or have forgiven.
168After the parties separated, Ms Saporowski discovered that her personal account had been overdrawn by almost $5000. She did not understand why. The overdrawn amount went to a collection agency. Numerous collection agencies started calling her as she discovered that Mr. Garrick was writing cheques from this account and distributing them to people in the community.
169Ms Saporowski described a long battle with the bank over a number of years. It has only been recently that the bank acknowledged that her account was used fraudulently by Mr. Garrick and that he was in fact the person that had overdrawn the account. A letter from the bank was entered as an exhibit in these proceedings confirming that the bank had conducted an internal investigation of the mother's bank account, determined that she had been a victim of fraud and that her account had been used without her consent.
170Ms Saporowski further became aware through collection agencies that a number of cell phones with Telus, Rogers, and Bell Canada had all been taken out in her name by Mr. Garrick, without her permission, using her personal identification, including her social insurance number. She described a seven year battle with various collections agencies over these numerous unpaid accounts.
171Ms Saporowski also discovered that Mr. Garrick used Denzil's personal information to apply for a credit card in Denzil's name without his knowledge or her permission, as Denzil was a minor. She discovered after the separation that Denzil owed $5000 to a credit card company for a credit card that was never authorized by her which she is also attempting to have rescinded.
172After the separation, Ms Saporowski and her mother were sued by the landlord for rental arrears and damage to the property to the former family residence as Mr. Garrick had asked Ms Saporowski and her mother to co-sign this lease while they were together for reasons unclear to the court. Mr. Garrick remained in the property and stopped paying the rent after the parties separated. Mr. Garrick also caused significant damage the property.
Child Support
173At the time of their separation, Ms Saporowski was not working. She was a full-time mother and homemaker to Wolf and Denzil, who were then two and almost 15 years old. According to Ms Saporowski, when she left in August 2006, the only thing she took from the home were the photo albums and her engagement ring (later proven to be worthless). She had no money in her bank account. When she returned to her parents' home, she and her parents purchased clothing, a crib, a highchair and all of the other necessities to raise a two-year-old. She applied for and received social assistance.
174Since the separation, she has received one payment of child support in the amount of $1,000.00 in February of 2010. She acknowledged that his parents purchase clothing, gifts and school supplies for Wolf.
175Ms Saporowski disputed that the Garrick family have paid for all of Wolf's extracurricular programs. Mr. Garrick has paid for one swimming program for Wolf approximately two years ago and more recently, he registered and paid for Wolf's tae kwon do lessons. He did not pay for French or guitar lessons despite assurances. Mr. Garrick made one or two payments and then stopped. Ms Saporowski suspended French lessons when she could no longer afford to pay for the lessons herself.
176Ms Saporowski is now employed as a Montessori teacher, having obtained her diploma or early childhood qualifications after the separation. According to her CRA notice of assessment filed, Ms Saporowski's income in 2014 was approximately $17,000. In previous years her income was significantly less as she returned to school to upgrade her qualification and worked part-time while caring for Wolf and Denzil. Her employment was also disrupted by the numerous court appointments as a summoned witness in Mr. Garrick's criminal and civil court proceedings, as well as these family proceedings.
177Ms Saporowski has struggled financially. She testified that without her parents she could not have managed to raise and support Wolf and Denzil. They have provided shelter and food, and significant financial assistance. Her father is a retired engineer with a pension. Her parents have assisted her in registering the children in a number of extra-curricular programs. Wolf has taken swimming, skating and French lessons. He has also taken art programs and basketball programs.
5.9 Ms. Elizabeth (Betty-Ann) Yamoah
178Ms. Yamoah is a friend of Mr. Garrick and his parents. She also acted as Mr. Garrick's surety for a period of time regarding some of the criminal charges. Ms. Yamoah testified that she came to know Mr. Garrick and Ms Saporowski through Mr. Garrick's parents approximately 16 years ago. Ms. Yamoah and Mr. Garrick's parents belong to the same church.
179At that time, she believed that Mr. Garrick and Ms Saporowski were 'a couple'. She also met Denzil. She testified that she did not know that Denzil was Mr. Garrick's stepson as Mr. Garrick introduced him as his son.
180Ms. Yamoah testified that she became more involved with Mr. Garrick several years later, in January of 2008, after the criminal charges have been brought against him. His parents asked her to be his surety and she agreed. Mr. Garrick lived in her home for approximately four years. She was not exactly sure when the parties separated that based on what Mr. Garrick and his parents told her, she believed it was sometime in the fall of 2007.
181Ms. Yamoah testified that at the beginning of 2008, Mr. Garrick always talked about Wolf and wanted to see him. On a few occasions, she would supervise his visits with Wolf and they would meet in a park with her children, who were friends of Wolf. Ms. Yamoah testified that Mr. Garrick took the initiative to arrange visits at the park. Ms. Yamoah also delivered clothing for Wolf on approximately five occasions and on one occasion, she also dropped off groceries at the Saporowski home.
182It was her opinion that Mr. Garrick's primary focus was Wolf. Ms. Yamoah recalled that Mr. Garrick attempted to arrange for access through the pastor at their church. Ms. Yamoah testified that to Garrick was very upset when he found out that Wolf had been registered in a Catholic school by Ms Saporowski without his knowledge. It is her understanding that Wolf is Jewish.
183From her perspective, Mr. Garrick is a father who wants to spend time with his son and based on what Mr. Garrick had told her, Ms Saporowski is attempting to block or restrict his access to Wolf.
5.10 Dr. Krauss
184Dr. Krauss is the pastor at Mr. Garrick's parents' church. He testified that he has known the Garrick family since 1985, although he is closer to Mr. Garrick's parents. He knew Mr. Garrick as a teenager but did not see him very much during the 1990s. He saw Mr. Garrick's parents more often and would have conversations with them about how Mr. Garrick was doing.
185He became aware that Mr. Garrick was in a relationship with Ms Saporowski in the late 1990s, but he really had only met Mr. Garrick one or two times during that period. He learned of this relationship more through a connection with Mr. Garrick's parents. He has only met Ms Saporowski on approximately two occasions. He has only met Wolf on one occasion.
186Dr. Krauss became more involved in Mr. Garrick's life after he was criminally charged. He started visiting Mr. Garrick in 2007 while he was in prison. He described his role as more of an informal mentor/counselor over the past few years.
187Dr. Krauss recalled the meeting between the parties at the Garrick's church in February of 2008. The purpose of the meeting was to try to reach a mutually agreeable arrangement regarding the support and parenting issues. Dr. Krauss recalled seeing a document that had been prepared, however he does not recall if the mother signed it. He did recall that the mother wish to consult counsel before signing any agreement at that meeting.
188Dr. Krauss testified that during his many conversations with Mr. Garrick, it is clear that he wishes to be a father and to spend time with his son. He acknowledged that it is clear that the criminal charges have limited the kind of participation that Mr. Garrick could have with his son, particularly during periods of incarceration and restrictive bail conditions.
5.11 Wilfrid Garrick
189Mr. Wilfrid Garrick ("Wilfrid Garrick" or "the grandfather") is Mr. Garrick's father and Wolf's grandfather. He testified on his son's behalf.
190Wilfrid Garrick testified that he did not recall when his son's relationship with Ms Saporowski started, but he believed that it was when he was at Columbia University in the 1990s.
191Wilfrid Garrick testified that he became very close to Denzil and he recalled a time when Mr. Garrick approached him to ask him to give Denzil the family name of Garrick. He testified that Denzil used to call him "grandpa". He did not recall when Denzil's name was changed to Garrick, however he testified that Denzil was aware that he had been adopted by Mr. Garrick.
192When asked whether his son and Ms Saporowski are married, he testified, "Walter says yes, Nancy says no, so I don't know….I was told that Walter and Nancy married in the Bahamas." Neither he nor his wife was present.
193Wilfrid Garrick testified that his relationship with Nancy was very close until she began having problems with his son. He recalled that during the parties' relationship, Nancy did not work and that she was entirely supported by his son. He further testified that his son bought her a BMW and at the time his son had his own Porsche and another BMW.
194When asked whether there was any effort by him to reach out to Denzil after the separation, and after the criminal charges came to light, the grandfather testified that his son tried to make efforts to get in touch with Denzil but he never responded. The grandfather denied that his son and their family had abandoned or cut off all contact with Denzil after the separation.
195He further denied that his son made little effort to remain in contact with Wolf after the separation. He recalled the meeting with the pastor at his church to work out a parenting schedule in 2008. He testified that for a period of time, Ms Saporowski was allowing his family to see Wolf however, their access to Wolf was suddenly cut off and they did not know where he had gone. He testified that they went to a number of different schools to find Wolf and could not locate him so eventually, his son called the police. He testified that this search for Wolf took approximately three months.
196When asked what efforts he made to find Ms Saporowski and Wolf, Mr. Garrick testified that he did not make any efforts. It was his son who was trying to get in touch with Ms Saporowski.
197Wilfrid Garrick has been very involved in the access exchanges between the parties. He has testified that on numerous occasions, Ms Saporowski has been very late in delivering Wolf on Sunday morning, causing them to be late for church. He testified that on most occasions she is approximately five to ten minutes late and that at least 85 percent of the time, she is 35 to 40 minutes late for access exchanges.
198He also described an incident at Christmas 2013 when they waited for more than one hour for her to arrive at the agreed-upon location. After waiting an hour, they returned home and that she arrived shortly thereafter at their home with the police officer to pick up Wolf.
199Wilfrid Garrick believes that his son is a good father. He brought his son up in the church and that they have a strong background of faith. He testified that a faith-based background is very important in his home.
200Wilfrid Garrick described the relationship between Wolf and his son as very close and very respectful. His son has no challenge disciplining Wolf. When his son speaks to Wolf, Wolf is very attentive. He described his son as being great with Wolf. He believes his son is a good role model for Wolf
201He described the Sunday visits with Wolf as very much a family event. As he put it, "whatever we do, we do together". They take Wolf to their church service in the morning. After the service, they go home and have a snack and then they start activities with Wolf. Some Sundays, Wolf gets to make the decision about what he would like to do but most of the time his father makes that decision. Wilfrid Garrick is always involved with the activities, as well as his wife, although not on every occasion.
202Wilfrid Garrick testified that they have been very supportive of Wolf financially. He testified that they pay for Wilkes school supplies, clothing, and extracurricular activities. He testified that they bought Wolf a "brand-new computer" and that at the next visit, Wolf told him the computer was not working and was missing. He testified that often when they buy clothes or gifts for Wolf, these items go missing. He cited as examples the computer, a pair of skates and a bicycle.
203Wilfrid Garrick testified that they have paid for Wolf swimming lessons, his French lessons and tae kwon do. He testified that they stopped paying for Wolf's French lessons when they found out that Ms Saporowski stopped taking Wolf to French lessons.
204Wilfrid Garrick stated that he and the Garrick family would like to participate in raising Wolf. Wolf is his only grandchild so he will pay for whatever he needs. They are willing to pay for Wolf's private school education, but Ms Saporowski has prevented this from happening.
205As he put, "Whatever Wolf's needs, I will put out the money." However, he testified that he will not pay Guideline child support to Wolf's mother on his son's behalf.
206When asked why his son has not provided any financial assistance since the separation, Wilfrid Garrick initially explained that because of the criminal court cases, the periods of incarceration and the very strict bail conditions, he was prevented from working.
207When it was pointed out to him that the bail conditions had been changed so that his son had not been under any restrictions with respect to employment for several months, the grandfather then said his could not pay child support because his bank accounts were frozen by the Family Responsibility Office.
208Wilfrid Garrick also acknowledged that there is a trust fund set up by his father for Mr. Garrick. He testified that both he and his son have access to this trust fund. He further testified that the money from the trust fund was actually supporting Mr. Garrick and Ms Saporowski when they were together. He testified that they both benefited from this trust fund.
209When asked directly by the court, Wilfrid Garrick testified that the trust fund set up by his father is only in Walter Garrick's name.
210When asked in cross-examination why his son apparently had no problem supporting Ms Saporowski and the children while they were together, but after their separation not at all, the grandfather testified that he did not know and that this was a question for his son.
211When pressed again out as to why his son has not provided any support to Wolf, even though he has access to a trust fund, Wilfrid Garrick testified that his son cannot deposit any funds into his bank account because the accounts are frozen and "the banks will seize any money deposited there".
212When it was put to him in cross-examination that his son has no money in his bank account because he knows that it will be seized to pay the various judgments against him, Wilfrid Garrick declined to answer and stated that was not his understanding.
213Wilfrid Garrick acknowledged that he paid the first installment of child support to the mother when Justice Zisman made the temporary child support order. He did not agree with doing this and stopped making the support payments once he realized it was "illegal".
214When asked how much he paid in legal fees for his son's criminal cases, Wilfrid Garrick estimated over $200,000. He also paid approximately $80,000.00 to 90,000.00 to Dr. Valani, one of the victims of his son's fraud, to settle of the civil judgment against him. He acknowledged that that at the time of his testimony, there was an outstanding judgment against his son in the amount of $171,000 however, he described that amount as "peanuts".
215When asked about his son's trouble in the criminal justice system for the past seven years, Wilfrid Garrick made it clear that he believed his son was a completely innocent man who had been wrongly accused and is the victim of a witch-hunt. He testified that they are paying for all of his son's appeals because he believes his son is innocent. Wilfrid Garrick also believes that Ms Saporowski lied in all of the criminal trials regarding his son.
216Wilfrid Garrick also disagreed with the recommendations of the Office of the Children's Lawyer that the mother have sole custody of Wolf. He was very critical of this report. According to the grandfather, Denzil had lied in the report to the clinical investigator. He further testified that the clinical investigator only observed him and Mr. Garrick with Wolf on two Sundays for a total of two hours.
217Wilfrid Garrick believes that the current exchange is very harmful to Wolf and that the parties should freely be able to attend each other's homes for pickup and drop-off of Wolf. He does not understand why Ms Saporowski cannot simply drop Wolf off at their home or have them pick him up, which he believes is the civil thing to do.
218When asked in cross-examination if it was fair to say that most of his testimony is based on things that he was told by his son and not what he had seen or heard himself, Wilfrid Garrick initially had difficulty answering that question, although he acknowledged that much of what he knew he had heard from his son. He testified that he believes what his son has told him. He does not expect his son to lie to him.
5.12 Sarah Ann Nicole Garrick
219Sarah Garrick is Mr. Garrick younger sister. She is a lawyer living in California having been called to the California bar. She graduated from York University in 1999. She started her law degree in January 2007. She has been living in California for the last several years. She comes home to visit approximately one or two times per year on holidays and special occasions. In 2013, Ms. Garrick visited Canada three times.
220Ms. Garrick testified that as the younger sister, she was still in high school when Mr. Garrick met Ms Saporowski. However she recalls Denzil. It is her understanding that that Mr. Garrick spoiled Denzil and loved him very much and that he was very involved in his sports and his activities. She described the two of them as "inseparable". She testified that she understood Denzil to be a part of the family since he was a baby and that she recalled that Mr. Garrick enrolled him in private education, arranged for tutors for him, and helped him with football and other activities.
221According to Ms. Garrick there was never a time that her brother abandoned Denzil and in fact she recalled that he went through the process of legally adopting him.
222She also recalled that Mr. Garrick doted on Wolf. After the separation, she recalls that Mr. Garrick had concerns that he had no contact with Wolf and that he did not know where he was. She recalls that he was concerned that he may have gone to California. he recalled that Mr. Garrick was the one that initiated the meeting with the church pastor to discuss parenting arrangements.
223She testified that currently, every time Wolf visits her family, she makes a point of calling him and speaking to him from California. Wolf is always very happy and excited to talk to her. When she is in Oakville for holidays and family occasions, she has directly observed Wolf and her brother together.
224She testified that Wolf is "everything" to her brother. She described their relationship as comfortable and loving. She described Wolf as very affectionate with her brother and that he loves him and all of the family very much.
225Ms. Garrick also described her brother as an excellent parent. She described him as firm and clear with Wolf, but also loving in his direction and discipline. She described Wolf as being loving and respectful to his father.
226She further described her brother as being absolutely interested in Wolf's education that he always works with him on his homework. She further testified that as she recalls, she is fairly certain that Mr. Garrick has enrolled Wolf in an Ivy League school.
227It is also her understanding that her brother and family buys Wolf clothing, school supplies, sports equipment and pays for his extracurricular activities. She also buys gifts and clothing for Wolf. It is also her understanding that Mr. Garrick has signed Wolf up for swimming, tae kwon do. She described Wolf as being very excited about tae kwon do and about obtaining his yellow belt.
228Ms. Garrick described an incident at Christmas of 2012 or 2013 in which they waited for over one hour for Ms Saporowski to pick up Wolf at the designated public location. They eventually went home and the police were called Ms Saporowski to retrieve Wolf. Despite the fact that they were only three minutes away by car, the mother arranged for the police to retrieve Wolf and drive him home. Ms. Garrick did not understand why her family could not have simply driven Wolf home given the short distance between the two homes.
5.13 Denzil John
229Mr. Garrick called Denzil as a witness. It is unclear why Mr. Garrick called Denzil as a witness. It became quickly apparent that he was not there to support Mr. Garrick's case. He could only be described as a hostile witness for Mr. Garrick. The court then gave Mr. Garrick some leeway in cross-examining him.
230Denzil is now 22 years old. He is the oldest son of Ms Saporowski and Wolf's brother. He lives with his mother, his grandparents, and Wolf in Oakville. He graduated from high school and he currently completed a security licensing course as he has been offered a position at a security company.
231Denzil recalled that he was about nine or ten years old when his mother met Mr. Garrick. He recalled them living in two different homes in Oakville. He testified that Mr. Garrick was very prominent in his life initially. He testified that Mr. Garrick told him that he was his biological father and that they could do a DNA test at any time to prove this.
232At the beginning, Mr. Garrick attended all of his school functions, his parent-teacher nights, his sporting events, and other extracurricular activities. They took vacations together as a family and went on trips regularly to places like Blue Mountain, Jamaica, and the Bahamas. Denzil testified that Mr. Garrick referred to him as his son, not his stepson, and told him repeatedly that he was his biological father.
233Denzil attended both Oakville Trafalgar and Holy Trinity High schools. Prior to that, he attended Appleby College briefly from September 2005 until January 2006. He also attended Glenburnie School in grade five or six. He testified that it was Mr. Garrick's idea to send him to both Appleby College and to Glenburnie private schools.
234Denzil testified that he attended Holy Trinity high school in grades 11 and 12. Denzil was on the football team at Holy Trinity in high school. It is not disputed that Denzil was a very talented football player. Denzil testified that once Mr. Garrick was charged with defrauding his friends' parents and the school, things became very difficult for him. He testified that a lot of his coaches and the teachers had a problem with Mr. Garrick coming to his games or his practices. He was told that Mr. Garrick had stolen money from the school and that he was banned from attending on school property.
235Denzil testified that he lost many friends as a result of Mr. Garrick's actions and that the events "ruined his reputation" His friends became distant and separated from him. These were good friends that he had known for years. As he put it, "it was not easy going to a school where everyone thought that somebody supposedly in your family took money from the school and from your friends' parents."
236Denzil testified that things became very difficult when everything came out in the news. He transferred high schools. He was not able to complete all of his credits so he attended ALC (Adult Learning Centre) to upgrade a few credits and obtained his high school diploma when he was approximately 20 years old.
237Denzil testified that he would have completed high school at Holy Trinity and continued on the football stream with his friends, but for Mr. Garrick's actions and the impact of those actions on him.
238Denzil was angry and emotional in his testimony. Denzil denied that there was any discussion with him about Mr. Garrick legally adopting him because he told him that he was his biological father. In the beginning, Mr. Garrick treated him like a son and then one day he just "disappeared" from his life and never talked to him again. Denzil described seeing him at a convenience store about two or three years ago. He testified that Mr. Garrick was hostile towards him, gave him the "cold shoulder" and said, "What are you looking at?" He has not seen or spoken to Mr. Garrick since.
239Denzil described what Mr. Garrick did to him as a significant betrayal. He portrayed himself as his father and to be a serious part of his life, which he learned was not true. He testified that he was also very close to Mr. Garrick's parents and he believed they were his grandparents according to Mr. Garrick. Since the separation, they have never talked to him again.
240Denzil described a good standard of living with Mr. Garrick. They had a nice home, nice car, nice clothes, expensive trips and private schools. When asked how things were after the separation, Denzil testified, "It was hard for me because I didn't know how someone could be capable of something like that to somebody, especially an innocent child. I was very young and he took advantage of that. I don't appreciate that."
241Denzil denied his mother ever discussing her difficulties with her relationship with Mr. Garrick with him. He did not understand the nature of their separation . As he put it, "I think it was an adult situation and she kept me out of it like a good mother should."
242He further denied that his mother blocked Mr. Garrick from seeing Wolf after the separation, however, he acknowledged, "I obviously know that my mother wants the best for her child and if she sees his father in the paper or the Toronto Sun for fraud and this and that, I think she's going to be a little standoffish."
243Denzil described Wolf as "a great guy". He described Wolf as a happy boy who talks a lot and is very close to his mother. He is also very smart, active, and plays a lot of sports. He described their relationship as very close and that he is very involved in Wolf's life.
244Denzil is aware that Wolf visits his father every other Sunday. When asked whether he would support a stronger relationship between Wolf and Mr. Garrick, Denzil testified that he could not support a greater relationship because he does not trust Mr. Garrick. He stated in his testimony: "I don't trust him. I don't know what he's capable of. If he is capable of what he did to me, he could be capable of anything." He does not want Wolf to get hurt the way he did. He further testified: "I thought he was a good person, I thought he was a good man, a father figure, but it turns out in the end I was wrong."
5.14 Sonia Saporowski
245Mrs. Sonia Saporowski is the mother of Nancy Saporowski and Wolf's grandmother. She resides with her husband, Nancy, Wolf and Denzil in their home in Oakville. Ms Saporowski is Polish. English is not her first language. She and her husband are both retired. Her husband was a civil engineer with Ontario Hydro for many years. She that she had worked part-time, but was primarily a homemaker during the marriage.
246Contrary to Mr. Garrick's claims, Ms Saporowski's testified that the Saporowski family are all Catholic and that her daughter was baptized and raised Catholic.
247Sonia Saporowski testified that she met Mr. Garrick a long time ago when he and her daughter were just friends. Like everybody else, her initial impression was that he was a very nice guy. She testified that the first time she met him he stated to her that he was studying in New York.
248However, things became difficult between Mr. Garrick and her husband. She testified that her husband gave Mr. Garrick money to invest and that Mr. Garrick kept the money and did not invest it. She testified that Mr. Garrick sued her husband. She did not understand what had happened, only that there was "a problem with the stock market" and that Mr. Garrick sued her husband in court . When asked, she thought that Mr. Garrick had won the suit, however she testified that her husband did not have a lawyer and did not understand the process.
249Mrs. Saporowski acknowledged that because of the problems between Mr. Garrick and her husband, her daughter was asked to make a choice between Mr. Garrick or her parents and she did leave the house with Denzil at one point a number of years ago
250Since the separation, Mrs. Saporowski testified that she and her daughter never tried to hide or keep Wolf from Mr. Garrick. Her daughter and Wolf have lived with she and her husband since the parties separated. She testified that they have helped her and the children out in every way financially.
251When asked what support was provided by Mr. Garrick, she testified that sometimes he would drop off some very expensive clothes for Wolf, and sometimes he paid for Wolf's activities, such as swimming and tae kwon do.
252Ms Saporowski testified that Wolf is a very good boy. He listens to everyone, he likes everybody and everybody likes him. She described him as really smart, and respectful. She stated that he is generally a happy child who is honest and trusting.
253Mrs. Saporowski also described her daughter as a very good mother who is actively involved in her children's care. She does homework with Wolf, she attends all parent-teacher meetings, and she takes him to all of his activities.
254In cross-examination, Mrs. Saporowski denied receiving any money from her daughter after the separation nor was she aware or had any knowledge that her daughter received large weekly deposits from Mr. Garrick during their relationship.
255She further did not recall seeing a nanny or a housemaid at their home. She testified that she was in their home almost every day helping out her daughter. She recalled that there was a cleaning lady for a very short period of time, but it was Nancy who was taking care of the children, with her help.
256In cross-examination, Sonia Saporowski was asked by Mr. Garrick whether he had been attentive to Denzil during the parties' relationship. She testified that early on, before any of the problems, Mr. Garrick was attentive to Denzil and had paid for his private school. However she then became very emotional and upset when Mr. Garrick tried to suggest to her that he was a good and attentive father to Denzil. She responded by saying, "Don't talk to me about Denzil, you destroyed Denzil."
257Mrs. Saporowski did not agree that Mr. Garrick loves or ever loved Denzil. As she put to him when asked during cross-examination, "If you love Denzil you would not have done what you did to him."
258When asked whether he is a is a good father to Wolf, Sonia Saporowski testified that she did not know if Mr. Garrick would be a good father to Wolf because of what he did to Denzil. She described Denzil as being betrayed and destroyed by Mr. Garrick. As she put to Mr. Garrick, "How can I believe that you are a good father to Wolf after you destroyed Denzil?"
259Sonia Saporowski denied turning Denzil against him. She testified that at the time the criminal charges came to light, Denzil's friends at school had told him what had happened and he also read about it in the papers.
260Mrs. Saporowski does not believe Mr. Garrick is an innocent man. She could not comment on whether Wolf enjoyed his visits with his father as she testified that Wolf has never talked about this with her.
5.15 Edouard Ranelique
261Mr. Ranelique is Wolf's French tutor. He has been teaching Wolf French lessons on and off since about 2009. He testified that Ms Saporowski hired him and he charges approximately $20-$25 per hour. Mr. Ranelique was teaching Wolf approximately one day a week although there have been a number gaps when Ms Saporowski is unable to afford the cost and did not bring Wolf to lessons.
262Contrary to the father's evidence, Mr. Ranelique testified that the mother pays for the lessons when she can afford it. On a few occasions over the years the father has offered to pay for the lessons and has given him some money for Wolf's tutoring. He has been contacted by the father, but not often since 2009.
263Mr. Ranelique testified that the last time Mr. Garrick gave him money for Wolf's tutoring was approximately three weeks before the trial. Mr. Garrick contacted him and told him that he wanted to contribute to Wolf's lessons and sent him some money. However Ms Saporowski had not been taking Wolf to lessons at that time, so the father asked for the money back.
264Mr. Ranelique contacted the mother and advised her that he had received some money from the father for French lessons. When the mother knew that the money was available, she immediately agreed to continue with the lessons. Mr. Ranelique then contacted Mr. Garrick and advised him that the mother is agreeable to starting the lessons again now that funds are available. The father agreed that he could keep the money for Wolf's lessons.
265He described Wolf as a great child and that there is always space for him in his classes. Wolf is a good student and he has been improving through the years.
6. Credibility Findings
266The evidence of the parties was opposed on most of the material facts. This made it necessary to assess their credibility to make findings of fact.
267The court preferred the mother's evidence where it conflicted with the father's evidence.
268The mother was a far more credible witness than the father. She answered most of the questions in a clear and straightforward manner. She readily conceded some of the mistakes that she has made as a parent. She was able to provide significant detail about many of the incidents she described. Her evidence was consistent and compelling, and she generally recounted the lengthy history between these parties in a very detailed and logically consistent manner. She was not shaken in cross-examination. She was often emotional recounting the specific events of the marriage.
269Although very personable and charming at times, and always respectful, the father, unfortunately, was not a credible witness. It was very difficult to believe most of what Mr. Garrick said. The father presented in a grandiose manner and spent a great deal of time during his testimony trying to impress his audience with stories of affluence, his own importance, and important people. He repeatedly changed his evidence. He could not answer a question directly. His evidence was often inconsistent and contradictory. It was often confusing at times to follow the many changes in his story. He was frequently very evasive. When pressed, Mr. Garrick would revert to vague answers which made no sense. He could never recall dates or periods of time. It sometimes appeared that Mr. Garrick was making things up as he went along.
270The father's evidence was also largely focused on attacking the mother and attempting to re-litigate the criminal proceedings in which he believes he was wrongfully convicted.
271Despite repeatedly advising the court and Ms Saporowski during his cross-examination that he would tender documentary proof, transcripts, numerous recordings or witnesses (such as the 'nanny') that would contradict Ms Saporowski's testimony and corroborate his own, none of this evidence ever materialized. The one recording that the father played at the conclusion of trial was taken when Wolf appeared to be approximately 18 months old and was not very helpful to the father's case.
272It also appeared that at times, Mr. Garrick sincerely believes his own untruths or has convinced himself that what he is saying is true. He takes absolutely no responsibility for his actions and seems to genuinely believe that he is an innocent man who has been wrongfully convicted.
273Mr. Garrick further did not take any responsibility for the impact of his criminal conduct on his ability to see his son. For example, when it was put to him that he was in jail for approximately five months in 2010, when Wolf was six years old, he did not acknowledge that this absence would have had an impact on his relationship with Wolf. When asked during this trial, he did not agree that if he were to be incarcerated again for a lengthy period of time following his sentencing hearing, that this should have any impact on his claim for expanded access to Wolf. Mr. Garrick did not understand nor did he agree that it may be difficult or detrimental to Wolf to start overnight access or equal parenting time with him when he may again be incarcerated again for a further 12 to 18 month period.
274The father's witnesses were not of great assistance to the court. Although both Ms. Yamoah and Dr. Krauss were credible and good people, it is clear that their knowledge of the events is largely limited to what Mr. Garrick had told them. Dr. Krauss was a measured and careful witness and was careful about how he responded to Mr. Garrick's questions. With respect to Mr. Garrick's history, he candidly conceded he only met Mr. Garrick one or two times during the history of the parties' relationship and really only started to know Mr. Garrick in 2007 after he was criminally charged and he started visiting him in prison.
275Wilfrid Garrick also appeared to be an honest and credible witness, but it was very clear that much of his evidence regarding the history and the parents' conduct was based on what his son had told him, with the exception of his direct observation of the mother's lateness for access exchanges. He acknowledged in his cross-examination that much of what he had heard was from his son, however he believes what his son tells him. He does not expect his son to lie to him.
276Wilfrid Garrick genuinely believes that his son is an innocent man who has been wronged. He is completely aligned with his son and refuses to accept that his son is capable of any wrongdoing. His lack of insight into his son's conduct, or his refusal to acknowledge his son's conduct by being willfully blind, is concerning but perhaps understandable as a parent who wishes to protect his son and the family name.
277Sarah Garrick, Mr. Garrick sister, testified in a clear and straightforward manner, but by her own admission she only visits Canada and her family approximately one or two times a year from California where she lives and works as an attorney. Much of her evidence is based on what her older brother has told her, based on his perspective. Her only direct observations were regarding the pickup and drop-off of Wolf at Christmas of 2013, which she later corrected his Christmas of 2012, and seeing Wolf with his father when she comes to visit. All other information about the history between the parties and the events that have occurred were clearly reported to her by her brother, whom she wants to believe and support. It is clear that the Garrick family, are very close and protective of their son and brother.
278The mother's witnesses were also credible. In particular the evidence of Denzil John and her mother was very helpful to the court in determining what access order is in Wolf's best interests, as will be discussed in more detail later in this judgment.
7. The Law and Analysis
7.1 Custody and Access
279The test for determining access is what order is in the best interests of the child. In making this determination, In deciding what access arrangements are in Wolf's best interests, I must consider the "best interest" factors that are set out in subsections 24 (2) , (3) , and (4) of Ontario's Children's Law Reform Act, as follows:
(2) Best interests of child. -- The court shall consider all the child's needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the care and upbringing of the child;
(b) the views and preferences of the child, where such views and preferences can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) any plans proposed for the care and upbringing of the child;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
(3) Past conduct. -- A person's past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.
(4) Violence and abuse. -- In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person's household; or
(d) any child.
280Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents. See: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C).
281It is normally in the interests of children to continue and to encourage their relationships with both parents following the separation of their parents. The ultimate goal is to establish, maintain and promote relationships which are of significance and support for a child. See: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 (S.C.C). Children generally benefit from contact with both parents. The child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.
282The best interests of the child have been held to be met by the child having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being. See Pastway v. Pastway (1999) 49 RFL (4th) 375 (SCJ).
283There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar 1992 CanLII 8642 (ON CA), [1996] 42 R.F.L. (3d) 349 (Ont.CA).
284The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D. 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946 (OCJ). A court may limit or cancel access to minimize risk to a child from a parent's conduct or lifestyle: W.(B.H.) v. W.(S.M.). [2001] S.J. No. 161 (QB). Long term harassment and harmful behaviours towards the custodial parent causing the parent and child stress has qualified. Stewart v. Bachman [2003] O.J. No. 433 (SCJ); Dixon v. Hinsley 2001 CanLII 38986 (ON CJ), [2001] O.J. No. 3707 (OCJ).
285In considering what access is in Wolf's best interests, I will address of the relevant factors that I must consider below:
1. The love and affection and emotional ties between the child and the person claiming access and other members of the child's family or persons involved in the care and upbringing of the child
286It is not disputed that Wolf loves his father and enjoy spending time with him. In particular, the evidence is clear that Wolf has a very close relationship with his father's extended family, particularly his grandparents.
2. The views and preferences of the child's were such views and preferences can reasonably be ascertained
287Wolf's current views and preferences are unclear. He will be 11 years old on November 30th of this year. At the time of the second Children's Lawyer's Report, there was some evidence that Wolf indicated to the clinical investigator that he was happy with the way things were in relation to the parenting arrangements and did not wish to change them. However, the court puts little weight on those views and preferences as Wolf was only six years old at the time and Ms. Griffith, the clinical investigator was not available for cross-examination in this trial.
3. The length of time the child has lived in a stable home environment
288The evidence is undisputed that Ms Saporowski has been Wolf's primary caregiver since the parties' separation. I find that the parties separated in August 2006, not August 2007, as Mr. Garrick asserts. However, regardless of whether the parties separated in 2006 or 2007, it is undisputed that Wolf's lives with Ms Saporowski, his brother Denzil and his grandparents in a stable home environment at the same address for the past at least eight years, but more likely nine years.
289I also find that Mr Garrick's access to Wolf after the separation was sporadic and infrequent until the court ordered access started. Even after a specified access schedule was established, Mr. Garrick was absent for significant periods of time while in custody.
290It is not disputed and by all accounts, Wolf is thriving in his mother's home. He is described as a happy, energetic, well-adjusted, and confident child who is doing well academically and socially. He is well liked by everyone. The report cards filed as exhibits in these proceedings show the child that was doing well. It would not be in Wolf's best interests to disrupt the stability of his home environment by implementing the shared access regime that Mr. Garrick is proposing.
4. The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child
291Although this factor may be more relevant to the issue of custody then access, it is not disputed that Mr. Garrick can provide for Wolf at his parents' home. He is also very concerned about Wolf's education and there is evidence that he is interested in ensuring that Wolf has a good education. However, as addressed below, the court is concerned about Mr. Garrick's ability to provide guidance to Wolf, based on the evidence heard and it is unclear if he would be able to provide for Wolf without his parent's assistance.
5. Any plans proposed for the care and upbringing of the child and the permanence and stability of the family unit
292Mr. Garrick's parents are integral to Mr. Garrick's plan for access or equal parenting time for Wolf. Without them, his plan of care that cannot be implemented. His evidence seemed to suggest he would be living with his parents indefinitely. Mr. Garrick's parents are retired and in their senior years. Mr. Garrick Senior refused to give his age when asked by mother's counsel during this trial.
293Further should Mr. Garrick be return to prison for failure to pay the fines imposed by under his current sentence, Mr. Garrick's equal parenting time could not work. Justice McCombs sentenced Mr. Garrick to two consecutive years in custody if Mr. Garrick did not pay the fines ordered within three years after the completion of his probation. At that time, Wolf would be approximately 15 years old. This would clearly be disruptive and detrimental to Wolf's best interests should the court expand access as proposed by Mr. Garrick.
6. The ability of each person applying for custody of or access to the child to act as a parent
294This is a very relevant factor in the circumstances of this case. In considering this factor, I am also mindful of section 24 (3) of the Children's Law Reform Act which permits me to consider Mr. Garrick's past conduct only if I am satisfied that the conduct is otherwise relevant to his ability to act as a parent.
295This factor causes me the greatest concern when determining what access order is in Wolf's best interests. Giving Mr. Garrick's lengthy history of being in conflict with the criminal justice system, as far back as the early 1990s, and his frequent periods of incarceration, there is a real risk that he may be incarcerated again in the future.
296It will not be in Wolf's best interest to considerably expand his access with his father if there is a risk that he will be incarcerated again at some point in the future for a significant period of time. A significantly expanded access schedule could cause trauma and/or emotional harm to Wolf if he is separated from his father for a lengthy period of time as a result of his father's further incarceration. This was also noted by Ms. Griffith in her second Children's Lawyer's Report.
297Another very important consideration is the potential impact on Wolf's development and emotional health if access is expanded significantly at this time.
298By far the most compelling evidence in this trial was the testimony of Denzil John. The detrimental impact of Mr. Garrick's conduct on Denzil as a child and as a young man has clearly been profound. I find that Mr. Garrick used Denzil to cultivate relationships with the parents of his friends, his football coaches, and his school, in order to further his fraudulent activities. I further find that he convinced Denzil that he was his biological father and then disappeared from his life once his criminal activity came to light.
299The sense of betrayal and anger and hurt came through very powerfully in Denzil's testimony. He was not able to finish high school at Holy Trinity after Mr. Garrick's criminal activity came to light. He was forced to leave his high school, his football team, and he lost many friends. He has lost the ability to trust.
300Mr. Garrick's failure to see the damage that he caused to Denzil was apparent throughout this trial. His lack of remorse was obvious. His cross-examination of Denzil was cruel and mean-spirited. This is a young man whom he has repeatedly described as his "son" and then casually abandoned after the separation.
301When cross-examining Denzil, Mr. Garrick spent a great deal of time attempting to establish that Denzil had not graduated from high school, that his marks at high school were poor, that he was on criminal probation for assault and that he had lied to the OCL clinical investigator.
302After this line of questioning went on for several minutes, when asked by the court about the relevance to the issues before me, Mr. Garrick explained [in Denzil's absence] that it was his belief that Denzil is on probation for assault, that he failed to graduate from high school and that he did poorly after the separation because Mr. Garrick was no longer there to help him. Mr. Garrick went on to say that he was there for the first 13 years of Denzil's life and he provided him with clothing, food, shelter and private education prior to Wolf's arrival. He stated that he was very aware of Denzil's "specific challenges" and that despite all of his efforts, Denzil did not do well academically. He also wanted to demonstrate that the mother had made Denzil lie to the clinical investigator.
303Despite being cautioned by the court, Mr. Garrick continued to aggressively and coldly cross-examine Denzil without any compassion or remorse whatsoever. It was somewhat chilling to observe.
304Mr. Garrick also demonstrated no compassion or any remorse for the impact of his actions on Denzil. Despite Mr. Garrick's repeated statements that he was an exceptional parent to Denzil, he did not act as a good parent towards Denzil and in fact, caused him emotional harm.
305Whether Mr. Garrick is capable of acting towards Wolf in the same manner at some point is unclear. The fact that Wolf actually is his biological son may make a difference. When Mr. Garrick is not incarcerated, he exercises access to Wolf consistently and faithfully. The evidence indicated that during the access visits, he appears to be a good parent exercising discipline and direction with Wolf and he appears to love Wolf.
306However Mr. Garrick's access to Wolf is very limited. There is a real concern that it is access was significantly expanded, Mr. Garrick's limitations as a parent would more easily surface and have a detrimental impact on Wolf.
307There is also the issue of Mr. Garrick's fraudulent and criminal lifestyle. There is evidence in this trial that he has started to discuss this with Wolf and has indicated to Wolf that he is an innocent man who has been wrongfully convicted. Wolf's mother, his primary caregiver, the parenting is most closely bonded and he was provided him with the most stability over the past eight years clearly disagrees. However to her credit, she has never discussed Mr. Garrick's criminal convictions for imprisonment with Wolf and has protected him from this information.
308As Wolf gets older, it is very likely that he will learn the truth about his father's lengthy history in the criminal justice system. This is not necessarily because of anything his parents will say to him but simply as a result of his access to social media and his father's notoriety in the community, although that has subsided somewhat. Given the diametrically opposed views by the parents regarding the father's criminal history and conduct, a shared parenting schedule or a significantly increased access schedule may cause confusion and distress for Wolf.
7. The relationship by blood or through an adoption order between the child and each person who is a party to the application
309Wolf is Mr. Garrick's biological child. Wolf has developed a close relationship with his extended family on his father's side. During Mr. Garrick's periods of incarceration, they continued to see Wolf on a regular basis so that he would not lose contact with their family. Mr. Garrick's family, his parents and his sister, clearly love Wolf. It is undisputed that Wolf loves his grandparents and his aunt.
310Given the very strained and acrimonious relationship between Ms Saporowski's and the paternal grandparents, it is unlikely that regular and consistent contact with Wolf's extended paternal family would continue should Mr. Garrick be re-incarcerated without an access order. These are important relationships for Wolf.
311In conclusion, although Wolf has a right to visit with his father and to know and maintain or form an attachment to him and to his extended family on his father's side, that right must be in accordance with his best interests and must be crafted in a way that will protect Wolf from any future risk of harm, either through his father's lengthy periods of incarceration or through his father's conduct and ability to act as a parent. It is clear that a court may limit or restrict access to minimize the risk to a child from a parent's conduct or lifestyle.
312The current access order has been in place since 2009, when Wolf was significantly younger. For the most part, it has gone well and there was no evidence in this trial it has been detrimental to Wolf. Wolf is now almost 11 years old, significantly older, and has developed a closer relationship with his father and extended family.
313In my view, after carefully considering all of the best interest factors, I conclude that there be some expansion to the father's access to the child however, it will still be limited to minimize the risks addressed above to Wolf. I am therefore prepared to expand the access to include Saturday overnights on the alternating weekends to permit Wolf to spend some further time with his father and his extended family at the paternal grandparents' home, but I am not prepared to expand access further for the reasons set out above.
314The court has also heard a great deal of evidence about the access exchanges and in particular both parties' accusations about the other being continuously and repeatedly late which only causes further stress on Wolf. There is evidence in this trial that the mother has been late for access visits, although perhaps not as frequently as the father and grandparents suggest. I agree with the recommendations of Ms Griffith that the access exchanges should be at a supervised access center to monitor compliance with my court order, given the obvious acrimony, mistrust and tension between all parties and to ensure that both parties attend in a timely and consistent fashion.
315The father's alternating Sunday access will therefore be expanded to include the Saturday overnight on alternating weekends, commencing at 4 p.m., so long as Mr. Garrick continues to reside with his parents and the grandparents remain involved. This will allow the access exchanges to take place at the supervised access facility, given the hours of operation at the Halton visitation center. This expanded access schedule is also premised on the father continuing to reside in the paternal grandparents' home.
7.2 The Determination of Child Support and Arrears
316Subsections 19(1) and (2) of the Child Support Guidelines, O. Reg. 391/97, as amended, assist the court in determining the income of a person for child support purposes. Subsection 19(1) includes nine specific sections in which income may be added back or imputed to the payor. The entire section reads as follows:
19. Imputing income.—(1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,
(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;
(b) the parent or spouse is exempt from paying federal or provincial income tax;
(c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;
(e) the parent's or spouse's property is not reasonably utilized to generate income;
(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;
(g) the parent or spouse unreasonably deducts expenses from income;
(h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
(i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
317Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. See Drygala v. Pauli 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731(Ont. CA).
318The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See Smith v. Pellegrini, 2008 CanLII 46927 (ON SC), [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, 2009 CanLII 25981 (ON SC), [2009] O.J. No. 2140, (Ont. S.C.).
319The evidence is undisputed in this trial that Mr. Garrick is a beneficiary of the trust fund established by his grandfather. Both Mr. Garrick and his father, Mr. Wilfrid Garrick, testified to this fact. Mr. Wilfrid Garrick testified that that Mr. Garrick and Ms. Saporowski and the children benefited from this trust fund while they were together. Mr. Garrick gave evidence that he was able to access as much as $3.5 million from this trust fund, which he later returned. He further gave evidence that he purchased a penthouse apartment in New York for $1.8 million with the trust fund. The trust fund clearly was used to pay for Mr. Garrick's education at Columbia. The parties and the children had a comfortable lifestyle while together, including access to private education for Denzil.
320When asked directly by the court, Wilfrid Garrick testified that the trust fund set up by his father is only in Walter Garrick's name.
321When pressed again as to why his son has not provided any support to Wolf, even though he has access to a trust fund, Wilfrid Garrick testified that his son cannot deposit any funds into his bank account because the accounts are frozen and "the banks will seize any money deposited there". When asked to clarify, it was clear that the bank account was subject to enforcement proceedings by the Family Responsibility Office.
322Throughout these proceedings Mr. Garrick has never provided any financial disclosure with respect to this trust fund. It has not been disclosed any of his financial statements sworn in these proceedings. Mr. Garrick has given considerable evidence of an affluent lifestyle, no doubt partially funded by his parents, but it appears also as a beneficiary of this trust fund. It also appears that Mr. Garrick has significant access to funds. He testified that he has spent between 500,000 and 600,000 in legal fees in his criminal matters, although his father testified that he has only provided $200,000.00 towards Mr. Garrick's legal fees.
323I find, pursuant to section 19 (1) (i) of the Child Support Guidelines, Mr. Garrick is a beneficiary under his grandfather's trust and is in receipt of income or other benefits from that trust, the particulars of which he has not disclosed to the court. It is therefore appropriate that income can be imputed to Mr. Garrick for child support purposes.
324It was clear from the testimony of both Mr. Garrick and Wilfrid Garrick that Mr. Garrick would be prepared to pay for Wolf's private school education but for the mother's position with respect to access and their view of her unreasonableness. It was further clear that Mr. Garrick sister was under the mistaken impression that her brother was already paying for a private school education for Wolf.
325It was also very clear that although Mr. Garrick and his parents stated repeatedly that they would do anything for Wolf and pay for his clothing, his extracurricular activities, and his private school education, Mr. Garrick clearly drew the line at paying Guideline child support to Wolf's mother despite evidence of an ability to do so through his trust fund or other sources. His extracurricular and private school education.
326I must also consider whether Mr. Garrick is intentionally under-employed. Section 19. (1) (a) of the Guidelines provides that the court may impute such amount of income to a spouse as it considers appropriate in the circumstances if "the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the spouse."
327The Ontario Court of Appeal in Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (Ont. C.A.) set out the following three questions which should be answered by a court in considering a request to impute income:
- Is the party intentionally under-employed or unemployed?
- If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
- If not, what income is appropriately imputed?
328The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322 (CanLII), [2009] O.J. No. 1552. (Ont. C.A.).
329The court stated in Drygala, supra, that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable. "Intentionally" means a voluntary act. It does not apply to situations beyond one's control. See Tillmanns v. Tillmanns, 2014 ONSC 6733 (S.C.J.) at paragraph 18.
330Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, 2003 CanLII 3433 (Ont. C.A.), at paragraph 23. It must be reasoned, thoughtful and highly practical: See: Hagner v. Hawkins 2005 CanLII 43294 (ON SC), (Ont. S.C.) at paragraph 19. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137 (Canlii); DePace v. Michienzi, 2000 CanLII 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.).
331The third question in Drygala v. Pauli, supra, is: "If there is no reasonable excuse for the payor's under-employment, what income should properly be imputed in the circumstances?" The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson 2006 CanLII 26573 (O.C.A.).
332Currently, Mr. Garrick is not incarcerated. There are no restrictions on his ability to obtain employment. According to Mr. Garrick and his sister, who assisted him, he obtained his identification documents for employment purposes. Mr. Garrick is a highly intelligent, articulate, capable, healthy, educated and able-bodied person. Despite his criminal record, he is capable of finding some employment given his legal obligation to pay child support, in addition to the trust income that he received.
333When one considers the access to considerable funds that Mr. Garrick has as a beneficiary of his grandfather's trust, the full particulars of which have never been disclosed to this court, and his ability to obtain some employment, the evidence of the parties' lifestyle prior to separation, which Mr. Garrick's father testified was funded by the trust, I believe that it is reasonable to impute income to Mr. Garrick in the amount of $75,000.00 annually.
334Therefore, in accordance with the Child Support Guidelines for the Province Of Ontario, the Table Amount for one child based on an imputed income of $75,000.00 is $782.00 per month. There is no explanation in the Temporary Order or otherwise for the amount of $1,000.00 set out in that Order, based on an imputed income of $66,900. The Table Amount in the Temporary Order appears simply to be incorrect. There was no evidence led at trial regarding this obvious discrepancy.
7.4 Should there be a Reduction or Rescission of the Outstanding Arrears?
335Based on my determination of the father's income, the father owes child support arrears. In DiFrancesco v. Couto, 2001 CanLII 8613 (ON CA), [2001] O.J. No. 4307 (C.A.) the Ontario Court of Appeal stated that the discretion to reduce arrears must be exercised judicially and set out the following factors to be considered:
- The nature of the obligation to support, whether contractual, statutory or judicial;
- The ongoing financial capacity of the payor;
- The ongoing need of the custodial parent and the dependant child;
- Unreasonable and unexplained delay on part of the custodial parent in seeking to enforce payment of the obligation, tempered, however, in the case of child support with the fact that such support exists for the child's benefit, is charged with a corresponding obligation to be used by the custodial parent for the child's benefit and cannot be bargained away to the prejudice of the child;
- Unreasonable and unexplained delay on the part of the payor in seeking appropriate relief from his obligation; and
- Where the payment of substantial arrears will cause undue hardship, the exercise of the court's discretion on looking at the total picture, weighing the actual needs of the custodial parent and child and the current and financial capacity of the respondent, to grant a measure of relief where deemed appropriate.
336The mere accumulation of arrears without evidence of a past inability to pay is not a change in circumstance or special circumstance. Present inability to pay does not by itself justify a variation order. It should only be granted if the payor can also prove a future inability to pay. Otherwise, the option is to suspend, or order repayment of arrears. See: Haisman v. Haisman (1994) 1994 ABCA 249 (CanLII), 157 A.R. 47 (C.A).
337Some courts have now held that the four main factors to consider when making a retroactive support order set out in the Supreme Court of Canada's decision in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, (the recipient's reason for the delay in enforcement, the conduct of the payor, the circumstances of the children, and any undue hardship caused by the award) apply equally to claims to reduce or rescind support arrears. See: Galloway v. Cassino (Barrett) 2008 ONCJ 577; H.F. v. P. F., 2007 ONCJ 170.
338I have carefully reviewed all of the circumstances of this case and considered the above factors including:
- The nature of the legal obligation to pay support was a court order that was never followed;
- The father has not paid any child support, for at least eight years, since the parties' separation, and only one payment of support since Justice Zisman's Order of December 22, 2009;
- Since Justice Zisman's 2009 Order, the mother attempted from the outset to enforce the child support through the Family Responsibility Office;
- According to Wilfrid Garrick's evidence, the father apparently attempted to avoid enforcement by not depositing funds into his bank account,
- The mother has struggled financially since the separation. She was forced to obtain social assistance immediately after the separation. She has incurred significant debt as a result of the father's theft of her personal identity and Denzil's personal identity, and involving her in his law suits and criminal proceedings. Her income as a Montessori teacher is very modest. She is a single parent of two children. She has no credit as a result of the father's conduct. But for her own parent's assistance, she would not have housing for herself and her children. Her parents' means are modest and they are supported by her father's pension income.
- The father's financial capacity is not limited. Based on all the evidence before me, he has access to significant funds through the trust fund set up by his grandfather, of which he is the beneficiary, notwithstanding his periods of incarceration. He appears to continue to enjoy a comfortable lifestyle, despite having no visible means of employment, when he was not incarcerated. He has no food or shelter costs at his parents' home. He has no other dependants. He has been able to pay, albeit with his parents' assistance, well over $500,000 in legal fees in his criminal proceedings. He is indicated throughout his testimony that he would be willing to pay for Wolf's private school education, and to provide gifts and clothing for Wolf, he is just not willing to pay the table amount for child support. There is no evidence that the payment of the child support arrears would cause significant hardship. Indeed, given his evidence that he has been able to access up to 3.5 million from his grandfather's trust, quite the contrary;
- Wolf is only 10 years old, a young child who needs ongoing child support.
- Further, despite his claims that he has treated Denzil as a son, he has never made any child support payments for Denzil, voluntary or otherwise since the parties' separation.
339When weighing the actual needs of the custodial mother and child and the current and financial capacity of the father, I fixed the child support arrears owed at $53,740.00, not including interest. This amount is calculated based on the adjustment made to the correct Table Amount for an imputed income of $75,000.00 for the entire period of non-payment of child support which is a period of five years and ten months, less a credit of $1,000.00 towards the one payment made.
340The mother did not seek retroactive child support to the date of separation in her Answer/Claim in this proceeding, nor was it sought at trial, notwithstanding that the father did not pay child support for three years prior to the 2009 Temporary Order.
8. FINAL ORDER
341For the reasons above, I make the following final order:
1. The father shall have access to the child, Zachariah Wolf Garrick ("Wolf"), born November 30, 2004, as follows:
a. Commencing Saturday, November 7, 2015, from Saturday at 4 PM to Sunday at 4 PM, subject to the following conditions:
I. all of the overnight visits will occur at the paternal grandparents' home;
II. the access exchanges, or drop off and pick up of the child, will be supervised by Halton Family Services, otherwise known as Access and counseling family services located at Brant St., Burlington, Ontario. The parties shall immediately contact this service to begin the exchanges.
b. Christmas Day from 2:00 PM to Boxing Day at 6:00 PM, the pick-up and drop off to occur at a neutral public location close to both parties' homes, confirmed by email between the parents;
c. one week (a period of seven days from Saturday at 12 noon to Saturday at 12 noon) in the month of July and one week in the month of August, to be exercised non-consecutively, the weeks to be provided to the mother no later than May 1st of each year;
d. telephone access on Wolf's birthday and access for a minimum of four hours on either the Saturday or Sunday of the weekend before the child's birthday;
e. Father's Day from 10 AM to 6 PM;
f. Wolf is permitted to call the father at any time that he wishes; the father is permitted to telephone Wolf at reasonable times.
g. Any other access that the parties may agree upon. The parties shall communicate by email to address any changes to the access schedule.
2. Should the father move from the paternal grandparents' home, he shall provide the mother with 60 days' notice of the intended move and these access provisions shall be subject to immediate review.
3. Should the father be further incarcerated for any period of time after this court order, Wolf will continue to maintain contact with an exercise access to his paternal grandparents and extended family in accordance with determination of access made under the separate application for access commenced by the paternal grandparents, unless the parties agree otherwise.
4. The father shall have full access to all medical, dental, educational information pertaining to the child, and will obtain this information directly himself through school and medical professionals. The mother shall sign any appropriate authorizations to allow the father to do this.
5. In the event of a serious illness or accident involving the child, the parent who is caring for the child at the time shall immediately and promptly notify the other parent.
6. Neither parent shall make any derogatory comment about the other or their partners in the presence of the child, and shall ensure other friends, partners or other family members follow this requirement.
7. This Order does not affect the Order of the Honourable Justice Zisman, dated April 30, 2012, which grants the mother sole custody of the child named above. That Final Order continues in full force and effect.
8. Commencing November 1, 2015, the father shall pay child support to the mother in the amount of $782.00 per month, on the first day of each month thereafter. This is the Table amount for one child pursuant to the Child Support Guidelines for Ontario, based on the father's imputed income, determined to be $75,000.00 per annum.
9. The child support arrears are fixed at $53, 740.00. This amount shall be payable no later than 30 days from the date of this order.
10. The parties shall exchange financial disclosure each year, not later than June 30th of each year, commencing June 30, 2016, in accordance with the disclosure obligations of section 21 of the Child Support Guidelines, O. Reg. 391/97. This includes copies of income tax returns filed, notice of assessment, and t-4 statements of earnings. In particular, the father shall provide a copy of the Garrick family trust settlement agreement, and copies of the trust's three most recent financial statements, in accordance with section 21 (g) of the Child Support Guidelines.
11. The retroactive section 7 expenses owed by the father are fixed at nil. For any future section 7 expenses:
a. the mother shall advise the father in writing of the expense and she shall deliver proof of the expense to the father, either by email and PDF attachment or regular mail;
b. the parents shall share these expenses proportionally, in accordance with their income; the mother's income shall be determined by her income tax returns, t-4 records, and notices of assessment. The father's income shall be determined by providing full particulars of the Garrick family trust, in accordance with section 21 (g) of the Guidelines, and his income tax returns, t-4 records and notices of assessment. The mother's 2014 income is $17,000.00 and the father's income is imputed at $75,000. Therefore, the father's proportional contribution to section 7 expenses for 2015 is eighty percent of the total cost of section 7 expenses.
c. for future post-secondary education expenses under section 7, the mother and father shall each be responsible for paying the child's post-secondary expenses in proportion to their respective incomes, including tuition, books, and transportation costs, after any RESP payments, trust fund benefits, and the reasonable contribution by the child through part-time or summer employment, scholarships or grants, and student loans, the student loans not to exceed $5,000.00.
d. The mother shall provide the father each school term with: proof of the child's enrolment in university or college, transcripts, details of student loans if any, tuition, book and transportation expenses and income. The mother is to immediately notify the father and the Family Responsibility Office if the child stops attending school.
e. A Support Deduction Order shall issue.
342If the either party seeks costs, then they shall serve and file costs submissions, with a bill of costs and offers to settle attached, within 30 days. Any written response to costs submissions shall be served and filed within 20 days.
343Finally, I thank both parties and counsel for their thorough presentation of the issues.
Released: October 27, 2015
Amended: October 29, 2015
Signed: "Justice Sheilagh O'Connell"