L.F.D. v. X.
Ontario Court of Justice
Parties
Applicant: L.F.D.
Respondent: X.
Before: Justice N. Gregson
Counsel:
- Ms. Johanna McNulty, for the Applicant
- Ms. Lauren Bale, for the Respondent
Heard: In Writing (February 1-3; April 19-22, 25-26, 29; June 27-29, 2016)
Reasons for Judgment released: October 17, 2016
Overview
1The Applicant L.F.D. seeks relief under s. 32 of the Family Law Act. She seeks support from the Respondent X., her adult daughter.
2The Applicant mother raised her daughter from the time of her birth, on […], 1975, until her daughter chose to live with her father at the age of 16. The Applicant is currently 66 years of age and the Respondent is presently 41 years of age. The Respondent is the only child of the Applicant.
Issues
3The issues to be determined are:
- Has the Applicant demonstrated a need for support?
- Has the Applicant provided support or care to the Respondent?
- Does the Respondent have the ability to provide support to her mother?
- Is the Applicant entitled to parental support from her daughter?
- Should a restraining order be granted against the mother?
Position of the Parties
4The Applicant commenced her court application on February 4, 2014, seeking monthly parental support from her adult daughter in the amount of $3,000.00 per month. The Applicant claims she has financial need and her daughter has the ability to pay monthly parental support considering she is a professional and the Applicant subsists on minimal pension income.
5The Applicant claimed her daughter was raised in an affluent lifestyle in the lap of luxury. When the Respondent was 13 years old, she was provided with a Bat Mitzvah celebration that cost in excess of $50,000.00.
6The Applicant noted she was now supporting herself on a disability pension and had incurred debts due to her financial need. Since she suffers from health issues, this impairs her ability to financially support herself.
7The Applicant stated that although she graduated from Law School in 2001 and has been qualified to work as a lawyer since 2003, she has been unable to find work as a lawyer since 2012 and is currently not a member in good standing with the Law Society of Upper Canada as she has not been able to maintain her membership dues.
8As the Applicant was raised in the Toronto, Ontario area and has spent the majority of her life there, she wishes to return to that area to rent a modest apartment. Presently, she is forced to reside in a small isolated apartment in the Regional Municipality of Niagara.
9The Respondent filed her Answer on March 10, 2014 to dispute her mother's claim for parental support. She also made a separate claim against her mother for a restraining order as per s. 46 of the Family Law Act.
10The Respondent claimed she has been estranged from her mother for approximately 20 years. Moreover, the Respondent has been subjected to extraordinary abuse during the course of her relationship with her mother. The Respondent claims the care and support provided by her mother was so substandard that they fall far below the generally accepted parenting norms. The Respondent noted that during their relationship, her mother put her own needs and priorities ahead of hers and did not act with the care of an ordinarily prudent mother.
11Moreover, the Respondent claimed the course of conduct of her mother towards her has been so unconscionable as to constitute an obvious and gross repudiation of the relationship and, therefore, she should not be ordered to provide parental support.
12The Respondent further claimed the situation of financial need claimed by her mother resulted solely from her own extravagant lifestyle and her failure to manage her finances prudently considering the mother is a highly educated woman and capable of generating an income.
13The trial in this matter took place over 14 days. At the request of the Respondent, I granted a Sealing Order pursuant to s. 135 of the Courts of Justice Act to ensure the identity of the Respondent is not revealed. I have therefore attempted to use some discretion in referring to the parties and witnesses throughout this decision.
14The Applicant's only witness other than herself was her psychiatrist, Dr. A. The Applicant had her friend, Ms. H., provide reply evidence.
15The Respondent's witnesses were comprised of her first husband, Mr. K.; her second husband, Mr. M.; her biological father, Dr. R.; and Ms. V. who is the mother of a close friend of the Respondent's.
16I have referred to the Applicant's parents as P.W. and L.W. and to her brother as S.W. I have also referred to the Applicant's second husband as Dr. D. and her third husband as Mr. B. The Respondent's nanny was referred to as M.S.
Summary of Evidence
17It became apparent during this 14 day trial that the Applicant's version of events during the course of her life contradicted the evidence of the Respondent and other third party witnesses.
18There was no dispute the Applicant was the Respondent's parent as per s. 1 of the Family Law Act and that the Respondent daughter lived with her mother from birth until the age of 16. The Respondent was raised in an affluent lifestyle when she lived with her mother and her basic needs such as housing, clothing, food, educational and medical needs were all met.
Applicant Mother L.F.D.
Early Childhood
19The Applicant was born on […], 1950, and is currently 66 years old. Her parents are P.W. and L.W. She has one brother, namely, S.W.
20The Applicant was born in the Toronto area and the family moved to a small town in Ontario when she was about a year old. Her maternal grandparents also lived with them. The Applicant's family is Jewish. Her family owned a hotel until they returned to the Toronto area in 1960 when the Applicant was about 10 years of age.
21While residing in a small town in Ontario, the family lived in the hotel. The Applicant, her parents and her brother shared one bedroom. She and her brother shared one bed. There was no living room and meals were eaten in the kitchen area of the hotel. It was her family's intention to save money as the hotel was a lucrative business due to its location. She believed her family did well but she was told to keep a low profile as they were the only Jewish people in town. The Applicant stated she was very close to her grandmother.
22In retrospect, the Applicant believed her young childhood experience of living at the hotel was not beneficial or healthy. There were often fights in the beverage room on Friday and Saturday nights and she could hear the yelling and fighting from her bedroom which frightened her. The Applicant also recollected there was no yard for her to play in and she was limited to the hotel lobby or front sidewalk. She testified that next to their hotel was a home for the elderly and she recalled seeing a painter painting that home fall off his ladder and be electrocuted. She also recalled seeing the body of a young boy who drowned in the river that was across the street from the hotel.
23The Applicant also recollected memories of being beaten up on the way to school and being called a "dirty Jew" and having stones thrown at her. She believes there was only one other family in the community that was Jewish.
24The Applicant testified that not only was it hard being Jewish at that time in her life, but she began to recognize that her mother was much closer to her brother than herself and it was her grandmother and father who were her caregivers. The Applicant surmised her mother did not like her very much. When the Applicant recalled good memories from her early childhood she spoke fondly of her grandmother and her father and of the things she did with her father.
25The family made enough money to return to the Toronto area in 1960. Such a relocation afforded them a more positive environment including living in a Jewish community. The Applicant provided the court with a photograph of her childhood home dated June 15, 1964, and described their home as large, beautiful and filled with art and nice furnishings. They lived in a very affluent neighbourhood with mainly Jewish people living in the area. The family had a full-time housekeeper. Her family purchased property in Toronto and the Applicant recalled her family received income from both commercial property and a rental home.
26The Applicant recalled her time in the new home was not always happy. She had to share a bedroom with her grandmother. A few months after they moved into their new home, her father had a massive heart attack and her grandparents had to look after the business while her mother tended to her father at the hospital for months. She believed she spent a lot of time on her own. Eventually, her father recuperated and her family purchased a restaurant; however, it meant that her parents and her grandparents were gone each day for lengthy hours as they worked at the restaurant, leaving her home alone at the age of 11 until the age of 14 to care for herself before and after school as her brother attended a private school.
27The Applicant also testified her parents attended the Jockey Club regularly to gamble on the horses. The Applicant provided a news article from the 1960's stating that her mother P.W. was among five people who were criminally charged. P.W. was charged with recording and registering bets and keeping a bookmaking house.
28Eventually, the Applicant's family sold the restaurant when the Applicant was about 14 years old and went into the nursing home business. Her father purchased a nursing home when she was about 16 years old. According to the Applicant, she assisted her parents with the nursing home over many years but never received income from them. Eventually, the Applicant's parents lost the nursing home in the 80's and it went into receivership. There was evidence of some litigation involving the nursing home and specifically P.W. and L.W. and the Applicant were named as defendants despite the fact the Applicant stated she was unaware of such litigation and had no recollection of the nursing home going into receivership.
29The Applicant indicated her duties at the nursing home included filing records, meeting with inspectors, renovations, décor, gardening, consultation with dieticians, and general management when her parents were in Florida from October to May. She testified she had cheque signing authority and in lieu of remuneration, a bank account was set up for the Respondent for several years. During cross-examination the Applicant conceded that she used the funds set aside from the nursing home as both she and her father had access to the funds. She claimed her mother P.W. misappropriated the balance just prior to the sale of the nursing home.
30In a reported Court decision, it was noted the nursing home did not even have what would be considered standard accounting books and records and that there were four individuals on the payroll who could not be identified.
31It appeared the Applicant's parents lost their fortune over the years and the Applicant testified she provided her parents with money to assist them even when she herself was destitute.
32The Applicant lived with her parents until she married Dr. R. in 1970. She was 20 years old.
Marriage to Dr. R., Family Physician from 1970 to 1977
33The Applicant recalled meeting her husband when they both worked at a summer camp when she was 16 years old and Dr. R. was 18 years old. They dated and were married in 1970. They lived in an apartment in Southern Ontario which was rented and paid for by the Applicant's parents and grandparents. She was attending college and taking educational resource courses for which she received a certificate after two years of studies. She believed she also attended at a university and did one year of a General Arts Program. Thereafter, she attended Teacher's College for two years. She graduated and received her teaching degree in 1973. During this same time frame, Dr. R. was attending medical school.
34Once the Applicant graduated she immediately commenced teaching at a private school. The Applicant testified she loved teaching but she had always had an early interest in art and design. She also developed a strong interest in politics and current events and wished she could have pursued a degree in political science; however, her grandmother was ill with cancer when she was 18 years old and she was pressured by her family to get married and not embarrass the family. Her mother told her she would not go to university because she was not smart enough; she was not very pretty; and that she was really lucky that somebody wanted to marry her. According to the Applicant, her parents did not pay for her education, however they paid for her brother's.
35During Dr. R.'s evidence he stated he could not recall any events which suggested the Applicant's parents preferred their son S.W. over their daughter. He did not recall the Applicant's mother making derogatory comments to the Applicant such as "not being good enough or pretty enough".
36The Applicant testified she and her husband moved in 1973 to a new apartment. Her husband paid the rent as he opened his medical practice nearby as a general practitioner. She quit her teaching employment as he asked her to work for him. They purchased and moved into a home in 1975, a few months prior to their daughter's birth. The neighbourhood was considered upwardly mobile and was predominantly Jewish. According to the Applicant, she was working for her husband in his medical office until their daughter was born.
37The Applicant testified she wanted to have children however her husband was not interested in having them. She noted that when she was teaching she loved her children so much that she began talking about having children and her husband simply would not talk about it. Eventually their daughter was born on […], 1975.
38The Applicant indicated she was a dutiful wife who worked and cooked; however, she still felt inadequate about her education and felt inadequate about herself. She wanted to teach her daughter about beauty, art, travel and music and she still had dreams of things she wanted to do.
39Prior to her daughter's birth the Applicant went on to state her husband was not home a lot. After work she would go to the YMCA and go to the tennis club and play tennis as she was lonely. When her husband arrived home late he would retreat into the study.
40The Applicant indicated that when Dr. R. opened his medical office she was the untrained receptionist and she booked appointments and learned to do the OHIP cards. She and her father also decorated and designed his office. Eventually her husband had to hire a nurse in the office and the Applicant would attend at his office about two afternoons per week.
41During his evidence, Dr. R. did not recall the Applicant teaching while they were married and denied asking the Applicant to quit teaching. He was also quite adamant the Applicant never worked at his medical practice but stated the Applicant may have assisted with OHIP billings for a month or two prior to opening his practice. He testified he had a full-time administrator and that the Applicant had no access to his office.
42Prior to the birth of their daughter, the Applicant noted there were problems in the marriage. Her husband would not come home a lot of nights. The Applicant recalled that when she worked at her husband's office she would do the filing when lab reports would come in and she would open up the correspondence and leave it on his desk. One day she was doing the lab reports and found a report stating her husband had Syphilis. The Applicant was pregnant at the time. They never talked about it. A few weeks later, the Applicant found romantic notes in her husband's office desk drawer from a patient. Thereafter, the Applicant recalled that a neighbour disclosed to her that her husband was having an affair with their neighbour's nanny who was 18 years old.
43The Applicant testified that eventually the nanny called her as apparently Dr. R. had promised the nanny that he would be getting a divorce, they would have an apartment, and she would no longer have to work as a nanny. The Applicant recalled that well into her separation from Dr. R., the nanny contacted her and told her she felt badly about her actions and would testify for her in any matrimonial proceedings. The Applicant told her husband about the fact the nanny would testify and as a result, her husband settled their matrimonial litigation rather than proceed to trial.
44During his evidence, Dr. R. categorically denied that he ever had Syphilis and if this was in fact true, he would have had to report this condition to the Health Department. Dr. R. stated this was an outrageous statement intending to defame his character when he has had an excellent professional reputation for over 40 years with not one complaint made against him. When Dr. R. was asked whether he had an affair with an 18 year old nanny he stated it was completely untrue. He stated he had never heard that allegation before and he denied being told by the Applicant that the nanny would testify at their trial.
45The Applicant recalled that when she went into labour, her husband drove her to the hospital and showed her where the admitting office was and then went home. He returned about 45 minutes before the birth. Upon returning home after the birth, her husband had arranged for a baby nurse. The Applicant believed the nurse only stayed a few weeks to assist. In contrast, during his evidence, Dr. R. categorically denied that he left his wife to fend for herself.
46About eight weeks after delivery, the Applicant recalled her husband was upset about her weight and he arranged for her to attend a spa to lose the weight. She was upset but attended for five days. During his evidence Dr. R. categorically denied this allegation.
47The Applicant indicated her husband was upset they were not going out as often after their daughter's birth. He paid for them to be members at both a tennis club and a country club stating he had to be more visible because of his practice. Unlike her husband, the Applicant indicated she would sleep on the floor of their daughter's nursery so she could watch her sleep and smell her. Everything she previously wanted to do before her daughter's birth changed after the birth. She did not want to play tennis anymore and she did not want to go out without her.
48During his evidence, Dr. R. indicated they had a membership at a tennis club. They both enjoyed the Club but he felt the Applicant was obsessed with tennis. The Applicant spent quite a bit of her time at the Club and with the tennis pros.
49The Applicant testified her husband rarely cared for their daughter as he was rarely home. Dr. R. sought out a nanny through an agency and he hired M.S. The Applicant was not happy about having a nanny as she felt she had not had a mother herself and wanted to be a mother to their daughter. However, M.S. came and she was a lovely person who became her friend. They did things together and M.S. was more like a grandmother to her. The Applicant was about 25 years old and M.S. was about 55 years old. Although M.S. did some household chores, the Applicant did the grocery shopping and cooking. Both of them attended medical appointments for the Respondent. M.S. was devoted to their daughter and the Applicant viewed M.S. as part of the family.
50Dr. R. testified that after the baby nurse they agreed to hire a nanny and had an agency help find one. They fired the first two and eventually welcomed M.S., who was from India, into their home. He indicated M.S. was very dedicated. Her duties were to care for their daughter and to assist with the cleaning and preparation of meals. He acknowledged that he was not home a lot to care for their daughter as he was establishing his medical practice.
51After their daughter's birth, the Applicant recalled doing some work for her husband at home with the billings for OHIP. She then worked a few afternoons a week for another physician doing the same thing she had done for her husband. She never returned to work teaching until their daughter was about five years old.
52The Applicant testified she had a sense their daughter was ill at the age of three months. In fact, their daughter was ill and hospitalized a number of times over the next year and eventually became septic at about age two. The Applicant recalled while their daughter was hospitalized she was told the Respondent might be suffering from "failure to thrive". She called her husband to attend at the hospital and asked him what "failure to thrive" meant and he told her "some babies are not meant to live".
53A couple of days later their daughter was diagnosed with a ruptured appendix. The Applicant stated her husband was disinterested in their daughter's health and disputed that it was her husband who helped diagnose the ruptured appendix. Their daughter's appendix was removed and she bounced back to being a healthy and happy child.
54According to Dr. R., their daughter was healthy until about 18 months of age when she developed a fever. She was admitted to the hospital as she had been ill for two weeks and had an infection. He eventually arranged for an ultrasound at the hospital on the Respondent's abdomen. The Respondent had a ruptured appendix and had surgery to repair it. She recovered and has remained healthy. Dr. R. categorically denied he was not interested in his daughter's medical care noting that he was both immersed and involved in figuring out what was wrong with their daughter. When Dr. R. was asked whether he told the Applicant "some babies are not meant to live", he called it complete fiction.
55At that time, the Applicant stated she knew the marriage was over. She would have left after the operation however Dr. R.'s mother had cancer and died. They had the Shiva at their home after the funeral and after that, she left the matrimonial home with their daughter, who was two and a half years old, and went to live with her parents.
56The Applicant suggested not receiving any support from Dr. R. for quite some time. She eventually received both child and spousal support through a court order. A final court order dated May 29, 1987 noted the Applicant had brought a motion to vary the Decree Nisi granted on February 1, 1979 and varied a court order dated January 18, 1980 as it related to child support.
57The Applicant believed that she originally received about $750.00 per month in child support, which was later increased to $1,250.00 per month. The court order dated May 29, 1987, ordered Dr. R. to pay child support in the amount of $1,500.00 per month commencing June 1, 1987.
58The Applicant acknowledged she also received spousal support but could not recall the amount. She believed in total she received $25,000.00 per year for both spousal and child support. She could not recall when her spousal support ceased but then believed it to be when she married her second husband, Dr. D. She however continued to receive child support until her daughter left her care.
59After her separation from Dr. R. in 1978, the Applicant and the Respondent lived with the Applicant's parents for close to one year. Thereafter, they moved into their own townhouse where they lived for about two years. The Applicant did not work during this period of time stating she was looking after her daughter and did what mothers did. Her parents were assisting her financially as well. The Applicant indicated M.S. would sometimes come to visit and stay with them on occasion but she was not paying her. The Respondent began attending day camp at the age of four and Montessori Junior School when she was five years old. The Applicant paid for all of these expenses including household bills. The Applicant noted she was her daughter's sole caregiver as Dr. R. had access but was inconsistent.
60The Applicant recounted Dr. R. kidnapped their daughter when she was three or four years of age. The Applicant had dropped off their daughter for a play date. Dr. R. picked up their daughter and never brought her back. She contacted police and her lawyer. Their daughter was located at a farmhouse in the care of her father and paternal grandfather. The Respondent was gone for five to six weeks.
Marriage to Dr. D., Dentist, from 1980 until 1991
61The Applicant met Dr. D. while she was living in the townhouse with her daughter in early 1979. They dated for about one year. Dr. D. wanted to purchase a home and did so in Southern Ontario. They lived there for about one and a half years. M.S. also came on occasion and the Applicant would pay her when she stayed with them. The Respondent would have been in grade one and the Applicant was supply teaching.
62The Applicant stated she liked the fact Dr. D. was interested in her daughter and stated he adored the Respondent. He had two grown children and wanted another chance to parent. The Applicant married her second husband on September 7, 1980.
63Dr. D. was a dentist and owned a dental practice with a partner in Southern Ontario. The family, including M.S., eventually moved to a new home in 1982. The Applicant described the neighbourhood as affluent. It was a mixed community. The Respondent continued attending a private school until grade two. The Applicant paid for M.S. and the Respondent's school expenses as Dr. D. was paying alimony and she felt these expenses were her responsibility. She conceded Dr. D. paid all other expenses including trips to Italy, Palm Springs, Boston, Chicago, New York, Florida, Spain and England.
64After spending two years at their home, they moved to another home. The Respondent who was about eight or nine years of age began school at a public school. The neighbourhood was both affluent and predominantly Jewish. M.S. continued to live with them although she could continue to come and go. The Applicant indicated she also taught at the public school while the Respondent attended the same school and taught her in grade seven. They lived in this home for about three years.
65When the Respondent was about eleven and a half years of age, they moved to a home located one block away. The Applicant indicated she had renovated the previous home and the market was good. It was a large six bedroom home. When Dr. D. had taken ill they were able to sell the house quickly and moved to a four bedroom home but in the same area. Dr. D. had attempted suicide. Thereafter, the Applicant indicated she tried to make everything calm and reassured the Respondent that everything was going to be fine and Dr. D. was getting help. Dr. D. was hospitalized for three to four weeks.
66When Dr. D. came home from hospital he appeared fine. He was seeing a psychiatrist, Dr. F. for therapy. The Applicant stated she was not aware her husband had a history of problems with his family and had previously seen this psychiatrist and had prior admissions to the Clarke Institute for depression. Eventually things returned to normal where she went to work, did the shopping and made meals.
67In recalling her marriage to Dr. D., the Applicant indicated they were happy and never fought. They never had fights in front of the Respondent. Dr. D. paid for all household expenses and she had her own account from the child support she received. As she was working and was receiving support and Dr. D. had his own financial obligations she felt compelled to pay for her daughter's expenses. However, when Dr. D. took the Respondent on holidays by himself or together as a family to New York he would pay for the expenses.
68The Applicant described her husband and daughter as inseparable. Dr. D. treated the Respondent like his own child. She described their family as very loving and bonded. Dr. D. and the Respondent each had a special nickname for one another. They would tease each other and they would all play games. They all loved each other. Dr. D.'s children were much older, however they were welcome to attend their home.
69The Applicant noted the Respondent had travelled with her and Dr. D. over the years including New York, Miami and Europe. At the age of 14 the Respondent went on her first trip to Europe on her own. The Applicant sent her on a guided tour with children her age and counsellors all through Europe. She paid for that expense. She thought perhaps this had occurred twice. The Applicant also noted a number of other trips to destinations in North America, the Caribbean and Mexico. The Applicant further stated that for many years the Applicant travelled to Florida as her parents had a place there. The Respondent attended regularly until the age of 12 when the Applicant's parents sold their condominium. The Applicant noted her daughter was exposed to some of the finer things in life such as theatre, fine restaurants and various cultures.
70During the summers, when the Respondent was about eight years old, she began to attend at an overnight camp. The owners of the camp were patients of Dr. D. so the Applicant and Dr. D. would spend part of their summer holiday right next to the camp at an inn and they were able to go see the Respondent at the camp or the Respondent would come to the inn to have dinner with them. The Applicant believed with a discount, camp would have cost $5,000.00. The Respondent attended for a number of summers and at the age of 14 when she no longer wanted to attend, she travelled to Europe. The Applicant recounted outings with her daughter which included going to lunch, plays, movies and shopping. They also did crafts together and did a lot of writing together. The Applicant indicated she was always available for her daughter and her daughter had everything she could ask for. The Applicant indicated they kissed and hugged each other all the time and said they loved each other all the time. The Applicant provided a collection of photographs to depict a happy family.
71The Applicant also paid for piano lessons and a membership at the "Y". She also paid for computer lessons and private tutoring at home for Hebrew lessons and Jewish History. The Respondent also took tennis and ski lessons.
72According to the Applicant, the Respondent wanted for nothing. The only time her daughter did not receive something she asked for was at the age of fifteen and a half when she asked for a Tracker. The Applicant declined the request telling her daughter she could drive her vehicle but the Respondent refused.
73The Applicant indicated Dr. D. was also a university professor and taught every Wednesday afternoon. He had a successful dental practice because of the type of dentistry he did. He also wrote for a dental magazine. Dr. D. also lectured and travelled a lot to Europe. She believed they were living an upper class lifestyle as a result.
74The Applicant recalled the Respondent had a lot of friends and spent more time with her friends as she got older. The Respondent would go over to her friends' homes and they often came to their home.
75Unfortunately, Dr. D. committed suicide on June 10, 1991 in his office after 11 years of marriage. The Applicant found his body. She noted that his suicide devastated her and the Respondent and it destroyed their family. As a result of these circumstances, the Applicant sold their home and she and the Respondent relocated to a three bedroom apartment in the same building as the Applicant's parents. The Applicant indicated her daughter was not happy with the move and was embarrassed by their home and did not bring friends over.
76When Dr. D. died, he had a Will which was made when he was married to his first wife. According to the Will, the Applicant would inherit the entirety of the Estate save and except for two legacies of $25,000.00 each to his children by his former marriage. A holograph Will was also located at the time of Dr. D.'s death wherein he left everything to the Applicant and Respondent. It was not clear what funds the Applicant received from the Estate as the Applicant did not have a clear recollection of same. The matrimonial home was sold and a number of debts were paid off. Litigation was also commenced between the Applicant and Dr. D.'s children. A letter from legal counsel dated September 17, 1991 informed the Applicant her estimated after tax distribution from the Estate would be $160,000.00 and he counselled her not to pursue litigation and contest the Will. The Applicant testified she was not sure of the actual amount she received. Regardless, she stated those funds were all gone. She kept the household contents and her jewellery and personal belongings. The Applicant indicated she went back to work in September 1991 but the evidence suggested she had taken a trip to Paris for five days that same month.
77Under cross-examination and by reference to an Affidavit sworn by the Applicant on November 19, 1991, the Applicant reluctantly acknowledged that she challenged her husband's Will on the basis that a handwritten holographic Will left her everything. The Applicant was the sole beneficiary of her husband's National Trust RRSP portfolio of $460,000.00. The net worth statement of her husband's Estate (October 1991) after payment of the Estate's liabilities, the Applicant would have an RRSP portfolio of $312,200.00 and cash owing to the Applicant from the dental corporation of $64,000.00. The Applicant brought a motion for interim disbursement of $100,000.00 from the Estate due to "desperate financial circumstances".
78The Applicant testified that once Dr. D. died, Dr. R. had ceased child support payments. She contacted her lawyer and went back to court and obtained an order to reinstate child support and also obtained an order that Dr. R. was to pay for the Respondent's university tuition for four years although their daughter was only 16 at the time. This order was made prior to the Respondent leaving her mother's care.
79The Applicant acknowledged that when Dr. D. died in 1991 she was 40 years of age, the same age as the Respondent is presently.
80The Applicant conceded during cross-examination she had plastic surgery on her nose when she was with Dr. R. and plastic surgery on her eyes after Dr. D. died. However, the Applicant explained the surgery on her eyes was as a result of wanting to look more youthful to compete in the workforce and was performed years after Dr. D.'s death.
81In contrast, during her evidence, the Respondent testified she met Dr. D. when she was attending Senior Kindergarten. She described him as a nice, kind and passive person. He worked hard at his dental practice. She eventually realized Dr. D. had been previously married for 35 years and had already raised two children. He wanted his children to visit him at the house; however, the Applicant did not support him in maintaining his relationship with his children or his mother and his sister.
82The Respondent indicated Dr. D. was nice to her but was not overly interested in her. She felt Dr. D. and her mother had no time for her as they were working on their marriage and his mental illness. Dr. D. would have group therapy sessions and marital counselling at the house and the Respondent on occasion heard some of the conversations. She believes her mother loved Dr. D. but they had an unhealthy relationship marred by extreme violence by her mother towards Dr. D. There was turmoil, tension, fighting and profound mental health issues. She only realized the magnitude of their dysfunction once she relocated to live with her father and his partner who had a respectful and loving relationship.
83According to the Respondent, her mother isolated Dr. D. from his family and would criticize him as a man and dentist making him dependent on her and making him believe he was the one with the issues in their marriage and she could fix him. During cross-examination, the Respondent testified she recalled that prior to Dr. D.'s suicide she heard Dr. D. tell her mother during a fight he wanted out of the marriage. Her mother proceeded to punch herself and inflict injury to herself. Her mother told Dr. D. that if he left her she would kill herself.
84The Respondent testified she was not physically abused, however Dr. D. was subject to physical abuse at the hands of her mother. She herself lived with the fear she would be next. Both she and Dr. D. were subjected to extreme emotional abuse. Her mother never told her that she loved her or gave her positive messages. Rather, she eroded her spirit by her negative comments and criticisms.
85The Respondent recalled Dr. D. had extreme emotional problems. He attempted suicide when she was in grade four. She recalled her mother was hysterical, banging her head on a wall after it happened. Dr. D. was admitted to the psychiatric ward. Unfortunately, the fights and drama between the Applicant and Dr. D. continued.
86The Respondent clearly recalled that she was home alone at the age of 16 sometime prior to Dr. D.'s suicide on June 10, 1991. Dr. D. came home and he was covered in blood. The Respondent brought him inside their home and tried to talk to him and assisted in cleaning him up. Dr. D. was agitated and told her not to worry because if anything happened to him he had one million in RRSP's and she and her mother would be all right. The Respondent called Dr. D.'s friend who lived nearby as he was a psychiatrist and they proceeded to take Dr. D. to the hospital.
Bat Mitzvah on June 4, 1988
87According to the Applicant the Respondent decided she wanted a Bat Mitzvah when she was just over 11 years of age. The Applicant stated she had a tutor come to the home for about one and a half years to tutor her daughter on Hebrew and the Jewish culture and she paid for this expense.
88A DVD recording of the Bat Mitzvah was played in court as the Applicant organized the entire event and had hired a professional photographer and videographer as well as a caricature artist.
89The Applicant noted she paid for the evening portion and Dr. D. paid for the luncheon on Saturday after the service. Dr. R. was invited only to the afternoon portion and did not contribute to the costs. Her portion alone would have been in excess of $50,000.00 as the event was held at a hotel in Southern Ontario with over 200 guests. She had purchased a $1,200.00 dress for the Respondent while she was travelling with Dr. D. in California. She also purchased her daughter a sapphire ring worth over $1,000.00.
90In contrast, the Respondent recalled when she was 12 years of age her mother decided to hold a Bat Mitzvah for her. Her mother stated that her brother had one and she never did so this was an opportunity for her to have a party. Her mother planned the entire celebration including choosing the venue, the guest list, the attire and wrote the speeches. The Respondent believes she received close to $4,000.00 in monetary gifts but her mother requested she turn over the funds to her as she had an investment opportunity. It was the Respondent's recollection that her mother lost the funds because of a pyramid scheme.
The Respondent's departure from her mother's home
91The Applicant stated in October 1991 when the Respondent was 16 years of age she left her home and went to live with her father. Within a few months the Applicant had lost her husband, her daughter and her home. Her father had also been diagnosed with lung cancer. She felt alienated from the Jewish community and was under great grief. She worked during the day and came home and went to bed. She lost weight and believes she was depressed and suicidal. She connected with psychiatrist Dr. A. at a hospital who had previously dealt with Dr. D.
92The Applicant indicated she came home one day in October 1991 and the Respondent was present with two suitcases and stated, "I am leaving you". She was in shock, having nothing to live for. She eventually rented a two bedroom apartment in the same apartment building hoping the Respondent would return. She worked teaching until February 1992 and then ceased the profession.
93The Respondent continued to reside with her father while attending university. The Respondent completed her undergraduate studies, her Master's Degree and attended Law School. The Respondent resided with her father until she attended Law School. At no time did the Applicant pay child support or provide financial assistance for post-secondary education costs. The relationship between mother and daughter was extremely limited throughout this time. There were times when they would have communication and socialize and then have long stretches of time with no communication whatsoever.
94Upon the Respondent attending university for her undergraduate studies, the Applicant went and sat in on one class. She then herself applied to the same university for a Fine Arts Degree and was accepted. She recalled taking a sociology class with the Respondent. She also became interested in criminology and she and her daughter did their LSAT together. She was accepted to Law School in about 1998. She noted she wanted to reinvent herself as she had terminated her relationship with Mr. B. Unfortunately her daughter did not get accepted to Law School as she needed to do more volunteer work. The Respondent was accepted the following year to the University of Ottawa.
95In contrast, it was the Respondent's recollection that shortly after Dr. D.'s suicide, the Applicant yelled at her and told her she was a monster for not crying in front of their friends over Dr. D.'s death. At some point thereafter, the Applicant was hospitalized herself for a psychiatric admission. The Respondent recalled the summer of 1991 after Dr. D.'s death was not good. Her mother would not eat and was thin and frail. Her mental health was also poor. The Respondent was not aware of the litigation between her mother and the Estate until she heard about it at this trial. The Respondent recalled her mother speaking to her grandmother about suing Dr. A. but her grandmother told her it was not a good time to start litigation. The Respondent acknowledged arrangements were made by her mother and Dr. A. for her to see Dr. R. as she was experiencing nightmares about Dr. D.
96By the end of August 1991 the Applicant was going out more regularly at night and planned a trip to Paris for herself. By fall of 1991 they moved into a three bedroom apartment near the maternal grandparents. M.S. did not come with them to this residence. The Respondent walked about three to four kilometres to attend school. The Respondent stated her mother's behaviour worsened as she became more erratic and volatile. The Applicant was very angry and blamed the Respondent for Dr. D.'s suicide as she told the Respondent Dr. D. did not want a kid around and because of an altercation she and the Applicant had the day prior it led to Dr. D.'s suicide. The Applicant persistently repeated the Respondent was the cause of her husband's suicide and would scream and blame her. The Applicant was sleeping during the day and going out at night to socialize. There was not much food in the house and the Respondent had no money. The Respondent denied she could order groceries for herself.
97The Respondent recalled being at her grandparents' apartment with her mother in the fall of 1991 when she was in grade 11. The Applicant had made it clear she despised her own mother. They began speaking about their financial loss with the nursing home. The Applicant directed mean-spirited comments to her mother and encouraged her father to inflict a beating on his wife stating, "hit her, hit her". He proceeded to kick his wife in the shins and ribs and hit her in the face. While the grandmother was screaming, the Applicant laughed. The Respondent indicated this was the most horrific incident for her. Her maternal grandmother limped away to the bedroom and locked her door. The Respondent ran back to their apartment. The Respondent suspects that her mother enjoys human suffering. She became worried her mother would have her maternal grandfather inflict a beating on her. As a result, she decided she had no choice and had to leave. The following day the Respondent called her father and put her clothing in a garbage bag. He came to pick her up. She gave no notice to her mother and her mother was not present. The Respondent categorically denied her mother's version of events surrounding her departure from her mother's care.
98Thereafter, for the next eight years, the Respondent lived with her father, his partner and her two half-siblings. The environment was calm and she was able to focus on her academics. The Respondent had no contact with her mother until the summer of 1992 as her maternal grandmother had arranged a lunch at a hotel restaurant. Her mother insulted her during the lunch, again blaming her for Dr. D.'s death, so she left. That same summer, the Respondent attended summer camp as a camp counsellor. Her mother attended without warning and stayed for two weeks attempting to insert herself with the Respondent's friends. The Applicant, who played tennis with the pros, began a romantic relationship with a 20 year old which completely embarrassed the Respondent. As a result, the Respondent had limited contact with her mother thereafter. Her mother would attempt to contact her but would simply insult her. Her mother sent her letters which were laced with hurtful comments. They would go years with no contact.
99In September 1993 to May 1997, the Respondent completed her undergraduate degree. Her costs were paid through scholarships and the assistance of her father. During this time she began dating Mr. K. and socializing with a new peer group. She was doing well in school. Her mother was dating lawyer Mr. B. who was close in age to Mr. K. As a result they socialized together. The Respondent indicated her mother's mood had improved early on into her relationship with Mr. B. The Respondent recalled observing a violent altercation between her mother and Mr. B. in about 1994. Her mother was physically beating Mr. B. and the Respondent yelled for her to stop. Her mother blamed Mr. B. The Respondent felt this was a repetition of the behaviour she had witnessed with Dr. D.
Marriage to Mr. B., Lawyer, from 1992 until 1995
100The Applicant indicated she met Mr. B. at a bar in 1991 or 1992. He was a practising criminal lawyer. They began dating as she wanted a break from the pain and from being alone. However, the Applicant indicated that Mr. B. was physically abusive and was violent throughout their marriage. She indicated she was beaten by him and he would smash furniture. They married in 1992 in Greece and purchased a home in July 1993 in a lovely area of Southern Ontario. The Respondent was in her first year at university and she was having limited contact with her mother. The Applicant and Mr. B. separated on June 4, 1995 after Mr. B. was criminally charged with domestic assault.
101The Applicant stated she was still teaching at the time of their relationship but then decided to go to Law School after their separation.
102The domestic assault trial was held in 1996 and Mr. B. was acquitted. The Applicant's brother, with whom she is estranged from, testified on behalf of Mr. B. The Applicant's mother would not testify on behalf of the Applicant as apparently she was concerned Mr. B. would lose his law degree. The Applicant's father at the time was too ill to testify. After the trial, the Applicant conceded she had limited contact with her mother.
103It was alleged by the Respondent that the Applicant had invited the Toronto Star to attend the trial as there had been a number of news articles about the trial, however during cross-examination the Applicant denied same.
104The Applicant conceded she had registered complaints against the police officers in the proceeding with Mr. B. prior to the end of the trial. She could not recall if she complained about the Crown Attorney. She recalled making a complaint against the Judge to the Judicial Council. It was pointed out to the Applicant during cross-examination that in her court pleadings she claimed the Crown Attorney was fired for misconduct and the Judge had been removed from the Bench after Mr. B.'s acquittal.
105The Applicant also acknowledged frustration that the Crown would not pursue a further allegation of domestic violence against Mr. B which had occurred. She spoke to a defence counsel who referred her to another criminal defence counsel. She was told she should go and meet with the Crown in that area. She also had Dr. A. write a letter to the Crown Attorney to assist her fight in having further criminal charges laid against Mr. B. The Crown ultimately chose not to pursue further criminal charges.
106The Applicant confirmed she had complained to Dr. A. as of March 1997 having spent $40,000.00 in legal bills in her litigation with Mr. B. and had not yet obtained a divorce. Thereafter, she conceded she hired a lawyer to commence a civil action against Mr. B. to get proof the assault had occurred to restore her credibility. The Applicant stated she wanted Mr. B. to be held accountable for his actions. No evidence was provided regarding the outcome of the civil action.
107Counsel for the Respondent showed the Applicant a note from Dr. A. dated February 7, 1994, which stated the Applicant reported she had an altercation with Mr. B. at his office. She had removed paintings and he locked her out. She became enraged and kicked and banged the door. Dr. A. felt this demonstrated a lack of insight as her behaviour provoked further conflict. The Applicant had also told Dr. A. she and Mr. B. had attended for marriage counselling and she was upset with the therapist as she was being blamed for everything including "her rage". The Applicant categorically denied abusing Mr. B., stating she was the victim.
108A further notation from March 1995 by Dr. A. stated the Applicant had attended her office and was admitted to the hospital as the Applicant was lying on the floor in front of the office elevator crying and yelling, having been previously retching and falling to the ground. Dr. A. diagnosed the Applicant at that time with histrionic and Borderline Personality Disorder Traits. The Applicant did not recall this episode.
109It was put to the Applicant that in June 1995, while at a courthouse, the Applicant met with the Crown Attorney to review the criminal case against Mr. B. During the interview, the Applicant fell faint and was caught by officers who called the ambulance and she was transported to hospital for a psychiatric assessment. The Applicant did not recall this incident stating she only recalled fainting after the trial.
110During the summer of 1995 both the criminal proceedings and family law proceedings were ongoing with Mr. B. Although the Applicant reported to Dr. A. she was worried about her finances and could not work as a result of her marital situation, she went to Italy for seven to ten days. The Applicant indicated she "needed some TLC" and her friend was able to provide same to her including a place to stay in Sicily.
111According to the Applicant, she was involved in lengthy litigation with Mr. B. for many years and the costs for same are unknown. Under cross-examination the Applicant's recollection after one and a half years of marriage was that she retained the proceeds of sale for their home, which sold for $420,000.00 on May 22, 1996. The Applicant could not recall the net proceeds received. Mr. B. made a gratuitous payment of $36,000.00. She bought herself a home with those funds which also provided her with some rental income. She eventually sold that property three years later for $305,000.00. She could not recall the total equity of the property and stated she provided the little profit she received from the sale to her parents as her father was ill. During this time frame, the Applicant travelled frequently. Mr. B. also made her car payments until August 1998. A notation from Dr. A. suggested the Applicant wanted to commence a lawsuit against Mr. B. in Small Claims Court as his obligation to pay her car payments had run out. The Applicant also received spousal support of an unknown amount until May 2003.
112The Applicant eventually moved to Western Ontario to attend Law School in September 1998 and rented a townhouse. Once she was in Law School and the Respondent was living in Eastern Ontario attending Law School herself, they did visit one another on occasion.
Mental Health
113During cross-examination it was put to the Applicant that her psychiatric records reveal that she is histrionic and suffers from poor emotional dysregulation and can be hysterical. The Applicant denied these diagnoses. She also denied having an explosive temper, or yelling and retching. It was suggested to her that during the first week of trial she was observed in the hall of the courthouse during a recess crying and yelling. The Applicant responded she had a stomach flu and was nervous.
114The Applicant acknowledged she had been seeing her psychiatrist, Dr. A., for 25 years. She conceded that she reports to Dr. A. what she believes to be the truth during their sessions. She did not always agree with Dr. A.'s recommendations.
The Respondent's first wedding - Assault
115The Applicant indicated her daughter called her to state she got engaged to Mr. K. She was involved in some of the planning and they became more interactive. She paid for the wedding dress, some china and the invitations. The Applicant testified the Respondent came to visit her and became enraged because she had found a guest list with seven or eight names and as a result pushed and punched her while in the vestibule of her apartment. She went to her bedroom and the Respondent followed her there where she pushed, punched and choked her. She had to push and kick the Respondent to protect herself. She was tired of being punished by her daughter and told her to leave. The Respondent called Mr. K. and told him that her mother was crazy and had attacked her and abused her. The Applicant told her to get out of her house. A neighbour took her to the hospital. An emergency record and psych consult dated May 2, 2001 from the hospital was provided in evidence as her purported proof of this assault. Under cross-examination the Applicant could not explain how it was that she could have been attending a class in May after Law School final exams were complete, or why the report indicates the alleged assault occurred "yesterday", or how this could have occurred on a Friday morning when May 1 was a Wednesday, or why there were no documented injuries to her.
116The record from the hospital stated the patient had not eaten in three to four days, was tearful and depressed, stating a long conflict with her daughter and that she had been assaulted by her daughter the day prior. The Applicant was diagnosed with Adjustment Disorder.
117As a result of this alleged assault, the Applicant testified she no longer wanted contact with the Respondent and Mr. K. She did not send the wedding dress. P.W. told the Respondent she would not attend the wedding unless the Applicant attended. As a result, the Applicant was persuaded by a family friend to attend the wedding. There was no discussion between her and the Respondent at the wedding.
118Eventually things improved between her and the Respondent. The Respondent called her to see if she wanted to see her new home with Mr. K. and she was invited for dinner. The Applicant noted Mr. K. never liked her.
119The Respondent testified she became engaged to Mr. K. in early 2000 after seven years of dating. He would have observed firsthand the Applicant's treatment of the Respondent. The Respondent recalled prior to their wedding seeing a paper on the Applicant's table showing a balance of $250,000.00 with Scotiabank.
120The Applicant was aware of the Respondent's engagement and wedding. The Applicant offered to pay for the wedding dress and wedding invitations. The Respondent was skeptical but she wanted to show Mr. K. and her father that her mother could be normal. Her mother picked out a lovely dress for her and the invitations. She noted her mother had excellent taste. The Respondent recalled visiting her mother after she had completed her second year of Law School to see the wedding dress. Once at her mother's home, she was asked to get something on her side table. She located a list with over 100 names and it appeared her mother had created other similar invitations to have people attend her wedding but at a later time. This was a huge issue as the wedding had a capacity of 120 people and Mr. K. was paying for the wedding. The Respondent called her mother upstairs and her mother grabbed the list from her and pushed her onto the bed. The Applicant straddled her on the bed as she was frothing at the mouth. She was in an intense rage. The Respondent had last seen this behaviour during her childhood. Her mother put her hands around her throat and told her she hated her and punched her in the face. She pushed her mother off of her and ran out of the bedroom and home with her purse, leaving her clothes and makeup behind. She ran until she was able to get a taxi to return to the train station. She was upset and made no calls and went directly to Mr. K.'s apartment. She became concerned about the wedding and even questioned whether Mr. K. would still want to get married if he knew what happened and so she never told him about the full extent of the assault. Shortly thereafter, they began hearing from people who they had not invited to the wedding.
121The Respondent indicated she no longer wanted her mother at the wedding and feared for her personal safety. It was her friend's mother who told her she should still have her mother attend the wedding. She agreed to have her mother attend. She was married on June 24, 2001. The Respondent recalled no interaction with her mother at the wedding save and except for one picture.
Criminal charges and civil suit against the Respondent and her husband
122The Applicant testified that while she articled from 2001 to 2002 she rented a home and had two dogs, Clancy and Chloe. However after her father passed, she went to live with her mother and commuted to work. The Respondent suggested the dogs stay with her during the week as she was paying dog sitters. One Friday she went to their home but Clancy was not there and no one answered. She could not reach her daughter or Mr. K. by telephone and so she contacted a lawyer. She eventually received Clancy however she commenced a civil suit against her daughter and Mr. K. to have Chloe returned. Chloe had been placed in a dog rescue shelter in Oshawa. She settled the lawsuit for $2,000.00, which she donated to the Humane Society. Thereafter she wanted no contact with her daughter as she had taken her dogs.
123During her evidence, the Respondent testified she graduated in 2002. Thereafter, she and Mr. K. purchased a home. She was told by P.W. that her mother had moved in with her into her one bedroom apartment and brought two dogs. The Respondent completed her Bar Admission Course in May 2002. The Applicant attended and sat next to her to complete the Bar Admission Course. The Respondent was surprised to see her as her mother had been one year ahead of her in Law School. While they were attending the Bar Admission Course, the Applicant asked the Respondent if she and Mr. K. could take her dogs for two to four weeks as she was moving in with friends and they would not agree to having the dogs. Mr. K. was not keen about the idea as it meant they would have to give the Applicant a house key, but reluctantly agreed. An email dated October 18, 2002 indicated the agreement was for the Applicant to walk the dogs. However, the Applicant was not living up to the bargain. The Respondent was articling in Southern Ontario. She and Mr. K. hired a dog walker due to their long work hours. The Applicant did not assist consistently with food or veterinarian bills yet the Applicant did attend Las Vegas while living with her friends and possibly Italy in January 2003.
124A letter from the Applicant to her daughter was tendered as Exhibit 36. It indicated she had come to visit and walk her dogs. She noted her daughter had removed some of her paintings in her home and asked when she could pick them up as well as other items. She noted "you don't want any reminders of me so let's keep it that way". The Applicant indicated she needed $350.00 per month or she would lose her car and she was feeling depressed. The Applicant went on to state:
I hope you are happy! I had dinner with Jane last week. She thinks your really something. You should be very proud of yourself. Making up the whole story in … You are a coward! I don't care what you think of me – you are too judgmental! I've long ago given up on you – I only care about the dogs! You are a liar like P.W. and Dr. R. Live with it! Let me know how to get my things! L.
125The Respondent separated from Mr. K. in March 2003. She had provided her mother with a timeline to remove the dogs. Her mother never followed through so the Respondent arranged for a placement of the small dog with a dog rescue shelter in May or June 2003. The Applicant began making calls to her work and threatened to show up at her workplace.
126A series of emails between the parties was filed as Exhibit 35 during the trial. It was clear the Respondent told her mother to pick up her dogs several times. An email in March 2003 was sent by the Respondent to her mother stating she had been caring for her dogs for 11 months and they had cost her a fortune. She also noted her mother had not fulfilled her end of the agreement. She told her mother she had until April 14 to find other arrangements or the dogs would be transported to her residence or to the Humane Society. In response, the Applicant wrote to her daughter on March 20, 2003 and stated that she had no money and was broke and it was her daughter who had offered to take the dogs. She went on to state:
If I wanted to shirk responsibility I would have given you to Dr. R. 27 years ago. How dare you change your stories to suit your guilt. I am really hating you. Anty J. is ready to kill you. Everyone is disgusted by you. I think you are so petrified of Mr. K. you say whatever you need to keep yourself a victim. Poor you. How do you stand yourself. I wish Papere was here to deal with you I cannot I am too warn out. Leave me alone. I have to leave here and I have nowhere to go no work still 2 exams to write. You are cruel and ill.
127The Respondent wrote in response:
Give up on your exams already. You are a liar. Don't you think I tell Shira what you tell me about Ms. V. and then lo and behold Ms. V. has never said such things about me. I never offered to take your dogs. You begged me to take them. I wish you would leave Southern Ontario.
128On May 22, 2003, the Applicant wrote the following to the Respondent:
I want to see the dogs – they do not deserve to be punished-nor do I- you have created your situation not because of a bag of dog food every month – you are where you are because of you and your Mr. K. – I will come to your office if do not get to see them – you always accuse me of embarrassing you so I will – you are forcing me to do this – I have had to go in bankruptcy so I hope you are happy – your wedding of which I was so royally treated finished me off – but I am the bad one – X. you have got to get help you are not going to have a life with anyone until you do – happy birthday.
129On May 25, 2003, the Applicant wrote the following to the Respondent:
I have asked you nicely where Chloe is. You had no right to give them away – since you would not tell me I went to the police. You are inhuman to do what you did. Do you think this will save your marriage. I want both of my dogs. They are not yours. How dare you. You can lie all you want X. but everyone knows who and what you are and I will make sure I visit you at work to tell you in person – you threatened me about the wedding now I am returning the jpy – Call P. and tell her when I can get the dogs both of them. You have until tomorrow morning then I lay a theft charge and I will not drop it. I am also laying one against P.W. I would prefer to be dead then let you two Hitlers rule me – You got what you deserve. This should bring you 2 nut cases closer together – X. I am going to get the medical reports from the [hospital]... They will prove who lied. I want nothing good for you because you are evil and refuse to get help. I have called Dr. R. as well.
130The last communication the Respondent had with her mother was just prior to receiving the email stating she preferred her "to be dead then let you two Hitlers rule me". The Respondent stated it was after this comment she decided she no longer wanted contact with her mother and no longer wanted her to be part of her life and has had no contact with her since 2003.
131The Respondent was served with a summons to attend court on July 24, 2003, after her mother laid a private information against her and Mr. K. for theft of her poodle dog. It is her understanding her mother actively canvassed police to charge them with theft and when they refused she went to see a Justice of the Peace to pursue the criminal charge. The criminal charge was just prior to being called to the Ontario Bar. The Respondent believed she would not be called as a result and was distraught. She felt her mother was taking all efforts to destroy her. Both she and Mr. K had to retain separate legal counsel. She learned her mother had a meeting with the Chief Crown Attorney to have the prosecution go forward. Despite same, the criminal charge was withdrawn at the first court appearance.
132Shortly thereafter, the Respondent and Mr. K. received a Statement of Claim as they were being civilly sued by her mother for $30,000.00 as she claimed emotional distress. The Respondent noted that she had hoped to reconcile with Mr. K. but they were served with the civil suit causing more stress. Although they had to retain legal counsel Mr. K. paid the Applicant $2,000.00 to resolve the lawsuit. The Respondent believes she and Mr. K. spent $60 to $80,000.00 in legal fees for the criminal and civil matters. The Respondent noted the experience was devastating.
133The Respondent indicated she last saw Mr. K. in September 2010. She was not aware that he felt her mother was the demise of their marriage until he provided evidence at this trial. The Respondent indicated she does not find it to be therapeutic to speak about her childhood; she has attempted to look to the future. The Respondent indicated she fears her mother and believes her mother has the capacity to harm her both emotionally and physically. She has had no contact with her mother since an email message in 2003. Her only wish in life is to be left alone by her mother for the rest of her life.
Employment and finances
134During cross-examination it was noted the Applicant had told Dr. A. that her father asked her why she was going to Law School and leaving teaching, questioning how this might affect her pension. The Applicant indicated she did not recall this conversation as her father was excited she got into Law School. The Applicant indicated she stopped teaching as she no longer had the passion or energy to teach children. She was 48 years of age at that time.
135During her evidence, the Applicant suggested that she wanted to attend Law School as she always had an interest in law and was dissatisfied with the outcome of the criminal proceedings against Mr. B. Dr. A. later testified that the Applicant's motivation to attend Law School late in life was likely connected to low self-esteem.
136The Applicant completed Law School in 2001 and articled at two locations. She completed her articles in 2003. She filed for bankruptcy on May 16, 2003, citing liabilities of $90,000.00 and received a Certificate of Discharge on March 18, 2004. She incurred loans as a result of intermittent work and had to rely on friends and was often depressed. She secured work in 2004 doing some criminal work and eventually took a contract with the Children's Aid Society. She was let go from that employment with short notice but secured work with another Family and Children's Services location from 2004 to 2006. She was commuting a great distance to work every day. Her health was not good at that time, having developed shingles. From 2008 to 2010 she worked as a legal assistance community worker in Southern Ontario. In 2010 she moved in with her colleague and friend L.L. in Southern Ontario and remained residing there for two and a half years.
137The Applicant eventually began to work as legal counsel for a Community Legal Assistance office from 2010 to 2011 and commuted a great distance from her apartment. She left this position and began working for another Community Legal Assistance office in another jurisdiction from 2011 to 2012. The Applicant also explained that while she was employed she also did pro bono work for migrant workers and musicians. She was terminated from her employment for allegedly using their facsimile machine for non-business purposes. The Applicant began litigation for damages against her employer for wrongful dismissal. The matter was settled and the Applicant received the sum of $11,000.00 in 2015.
138An email the Applicant forwarded to Dr. A. on March 8, 2012 stated the Applicant had sent a fax to Canada Immigration to ask a question for a friend but it was not outside legal work. She indicated the Director barged into her office swearing his head off at her and it scared her so badly she wet herself and was shaking. She indicated she "was sick to death of this crap as everyone in the office sent faxes about personal issues." She asked Dr. A. to consider writing a letter on her behalf explaining her level of stress and noted she had apologized to the Director and noted "but I think I should get a lawyer and sue the shit out of them – how dare anyone swear at me – I am so sick of it all – I will apply [elsewhere] … I am at home as he told me to take the day off and we will meet tomorrow."
139The Applicant indicated she has not worked since 2013. Her income has been the following:
2010: $77,596.00 (RRSP income of $3,727.00) 2011: $53,507.00 (RRSP income of $5,261.00) 2012: $34,603.00 2013: $20,392.00 (RRSP income of $2,000.00) 2014: $14,551.00 2015: $20,371.13 (not including $11,000.00 received from a civil suit)
140According to the Applicant's Financial Statement sworn January 29, 2016, her anticipated income for 2016 will be $19,393.32 as a result of her OAS and CPP benefits and her Ontario teaching pension income.
141The Applicant has no investments or savings and her Visa is overdrawn by $6,000.00. She owes large sums of money to third parties and owes money for her student loan, provincial offences, Royal Bank of Canada and Legal Aid. She also pays her car loan for her Chrysler 200.
142The Applicant indicated she was living in a one bedroom apartment. She noted her apartment was very damp and she had an infestation of bugs, both bed bugs and ants. As a result she sleeps on her couch. She only has a two burner stove. Drug addicts live on the third floor and her building had two break-ins. She feels unsafe, confined and disorganized. She is not close in proximity to her psychiatrist, dentist and cousins, all of whom live in Southern Ontario. She feels trapped and depressed. She is also getting forgetful, having had two floods in her apartment and burning her pots. She is no longer painting or reading books. She often feels suicidal and obtains support from others. She conceded sometimes she goes shopping and she makes purchases although she cannot afford them to forget about her circumstances. It was noted during cross-examination that despite her financial circumstances, the Applicant has managed to travel throughout the years. The Applicant stated her friends assisted in either paying for the airfare or the accommodations.
143The Applicant described needing first and last months' rent to move to a new apartment. She is currently paying $650.00 per month for her apartment and feels a better apartment would be $850.00 to $950.00 per month not including parking and utilities. She also requires funds for dental work, new glasses and the deductible for medication. Since she has gained weight she also requires new clothing.
144The Applicant indicated she was still looking for employment and had sent out 200 resumes and placed tutoring ads. She indicated she was prepared to work for minimum wage. During cross-examination it became evident the Applicant had not applied for employment at venues such as at Tim Hortons.
145The Applicant testified her health is failing and she has not been able to secure work for three and a half years despite her many efforts including working with someone at an employment agency and sending out applications to job postings. Her friends have helped her financially but no longer wish to do so. She cannot support herself on her income and pay all of her bills. She is in need and only her daughter can assist her.
Witnesses
Mr. M.
146Mr. M. is 59 years of age and is the Respondent's second husband. He is also a professional.
147Mr. M. testified he played university and CFL football. He graduated from Law School in 1991. He has been working as a professional for about 23 years. Mr. M. described a heavy workload and long work hours. His intention is to retire soon due to health issues. As a result of playing football for many years he is also concerned about CTE. As a result, he wanted to ensure good healthy years to be with his wife.
148Mr. M. testified he initially met his wife in 2001 but it was not until June 2005 that they went out on a date. They were eventually married in 2008. Mr. M. described their marital relationship as very strong, respectful and committed. He also spoke about his wife's work ethic and professional reputation. Mr. M. was very proud of his wife's accomplishments. He felt his wife had a great outlook on life, had great values, a great sense of humour and was of course hard working.
149Mr. M. testified his wife was not materialistic and neither is he. They do not live extravagantly and reside in a modest split level home. Mr. M. did note his wife indulged in purchasing nice work clothes and enjoyed manicures but felt she deserved these items as she worked very hard. Mr. M. stated they may go on a holiday once per year.
150Mr. M. acknowledged he and his wife have no children. They looked into the adoption process and in vitro fertilization. They are at present not pursuing any course of action because of the stress of these legal proceedings. They are also concerned about the financial cost of these proceedings and the potential financial outcome, especially considering that he will soon be retiring.
151Mr. M. testified that one of the reasons they were not pursuing having children was as a result of his wife's fears about her mother and the safety aspect for their child. His wife has been fearful of her mother for a number of years as a result of her mother's volatility and unpredictability. His wife is concerned her mother could simply show up at their doorstep and of the potential of physical harm. The looming concern causes fear in his wife. His wife has told him she fears for her safety and he believes her fear to be genuine. He believes his wife. The contact received by third parties on the Applicant's behalf and the Applicant's threats have simply reinforced his wife's opinion of her mother.
152Mr. M. was aware of his wife's history with her mother and confirmed they were not having any contact. He recalled letters being sent by third parties on behalf of the Applicant seeking communication from 2010 to 2012 and his wife clearly advising them she wanted no contact with her mother. Eventually the Applicant began to leave messages and letters at his wife's workplace threatening she would contact her employer which caused his wife much stress. In fact, they went and met with her employer to advise of the situation. It has always been his wife's position she wants no contact with her mother and wants to be left alone.
153Mr. M. stated he had met P.W. over the years. Both he and his wife loved her. He noted his wife visited her grandmother anytime she came to Southern Ontario. It was clear to him both P.W. and his wife loved each other and P.W. accepted him and was happy for them. Mr. M. described P.W. as a kind and generous person. He and his wife were aware P.W. did not have a lot of money and they assisted her with food or taking her out to restaurants when they visited her.
154Mr. M. indicated P.W. passed away in the spring of 2013. His wife was devastated. His wife had to take care of the funeral arrangements and cleaned out P.W.'s apartment. He and his wife paid for the funeral. The first time he saw the Applicant in person was at the funeral. He and his wife paid for two police officers to ensure peace would be maintained. He recalled the Applicant asking to see P.W. They allowed for same and gave her privacy. They had no contact with the Applicant during the service. He recalled the Applicant wailing loudly and nearly falling to the ground and people having to assist her. They kept their distance from the Applicant. Mr. M. stated they were there for P.W. and stated they never gave the Applicant "dirty looks" as she has claimed. He also confirmed neither he nor his wife behaved in a "disgusting" manner as claimed by the Applicant.
155Mr. M. indicated as they were leaving the funeral a friend of the Applicant's, L.L., provided them with a letter to permit the Applicant into P.W.'s apartment to retrieve some of her belongings. Arrangements were made to have him and his wife's stepmother attend the apartment to permit the Applicant to take any and all possessions she wished to have.
156Mr. M. testified that he met his wife's father and his partner in the summer or fall of 2005. They visit each other regularly and they have a wonderful relationship. Mr. M. also commented that his wife and her father have a warm and loving relationship. They speak to each other weekly. He believes his wife's father is very proud of his daughter's accomplishments.
157Mr. M. testified he met M.S. many times. He believes she is about 93 years old now. He was aware M.S. was his wife's caregiver since her birth. He described M.S. as very religious, kind and generous. He indicated M.S. and his wife are incredibly close and his wife considers M.S. to be her mother and the person who cared for and raised her. His wife visits M.S. often. When M.S. had a stroke in the spring of 2015 and was hospitalized, his wife took a leave of absence and stayed to be near M.S. for two weeks. His wife travelled for a number of weekends thereafter until M.S. recovered.
158Mr. M. confirmed his wife's 2015 gross annual income was $166,683.61. He earned $210,351.00 for that year. He anticipated earning about $196,000.00 for the 2016 taxation year and about half once he retires.
Ms. V.
159Ms. V. is 75 years of age. Her daughter is S.G. who is a childhood friend of the Respondent's. Ms. V. testified she knew both of the parties. The Respondent and her daughter have been friends since grade nine.
160Ms. V. recalled the Respondent coming over to their home prior to Dr. D.'s death on a weekly basis as the girls were friends. She described the Respondent as a quiet teen who appeared tense. She only recalled one occasion when S.G. went to the Respondent's home for a weekend. Her daughter returned home to state she did not want to go back as she felt tension in the home.
161Ms. V. recalled meeting the Applicant after Dr. D.'s death. She had called the Applicant and suggested they have lunch. The Applicant arranged a lunch at a hotel in Southern Ontario. She recalled the Applicant was upset and cried during the lunch. The Applicant told her she had not been included on the life insurance and her husband had left the proceeds of same to his children. Ms. V. noted the Applicant never spoke about the Respondent during their lunch. Ms. V. drove the Applicant to her lawyer's office as the Applicant stated she was contesting her husband's Estate. Ms. V. believed it was shortly after their luncheon the Applicant travelled to Paris.
162Thereafter, Ms. V. began to spend time with the Applicant. She found the Applicant to be very bright and good company. She did note that many of their conversations centred around the Applicant being worried about her finances. Thereafter, the Applicant relocated from her beautiful home she shared with Dr. D. to a new renovated home. Ms. V. attended this home on one occasion for lunch and on one occasion for a party. She believed the home to be upscale and situated in a trendy area. Ms. V. recalled receiving a card to attend a tea party to raise money for the Applicant's legal fees. She did not attend the tea party nor did she donate. She felt the Applicant did not require the money as she was living in a beautiful home. Ms. V. also recalled when the Applicant was articling and receiving a card from the Applicant's colleagues to raise money for her legal fees. Ms. V. did not provide a donation.
163Ms. V. recalled the parties were not getting along when the Respondent was about to get married. The Applicant called her crying as the Respondent was not intending on inviting her to the wedding. As a result, Ms. V. spoke to the Respondent to encourage her to invite her mother. Ms. V. believed in time the Applicant would "grow up" and reconcile with her daughter. She felt the Respondent might regret in the future not having invited her mother. The Respondent was concerned her mother would create a scene at her wedding. Ms. V. promised the Respondent the Applicant would not make a fuss as she would have her mother sit with her at the wedding. Ms. V. noted the Applicant liked being the centre of attention and felt "it was always about her".
164Ms. V. testified the Respondent was fine at the wedding. She observed the Respondent to be unemotional throughout and never saw her cry. Ms. V. stated the mother neither complimented nor commented about the wedding to her. She acknowledged the mother may have made positive comments when she was interacting with relatives during the evening. Ms. V. did not observe any contact between the parties during the wedding.
165After the Respondent's wedding, Ms. V. did not have much contact with the Applicant.
Mr. K.
166Mr. K. is 45 years of age. He obtained his MBA and has been employed as a financial banker for a number of years.
167He and the Respondent met when he was about 21 years of age. They both attended York University and began to date. They dated for about seven to eight years prior to getting married on June 24, 2001.
168Mr. K. noted he and the Respondent interacted with the Applicant a number of times prior to the wedding. When the Applicant lived in Southern Ontario they would see her about twice per month over a number of years. Once the Applicant left for Law School, they saw her less frequently.
169He recalled when he first met the Applicant it appeared she lived an extravagant lifestyle. They often met at expensive restaurants. The Applicant went on trips and wore expensive clothing and jewellery. She presented herself as a wealthy, established person.
170Mr. K. noted that when the Applicant was single she wanted to be part of the youthful scene. He and the Respondent would attend clubs and the Applicant would be there. He found that odd and believed she was attempting to cling to her youth. It was embarrassing for him and the Respondent as their peers would make comments about it. He also felt it was odd the Applicant began a relationship and married Mr. B. as the Applicant was 20 years older than Mr. B.
171Mr. K. felt the Applicant had an obsession with the law and in short order she quickly married a lawyer, Mr. B. He and Mr. B. got along well as they were only a few years apart. Mr. K. was aware the Applicant and Mr. B. were attending for expensive dinners, shows, the casino and trips. Mr. K. felt Mr. B. looked stressed when he saw him and the Applicant. He assumed it may be as a result of financial issues. He recalled going to visit Mr. B. who was in bed. Mr. B. indicated he had been in bed for days and told him of a fight he had with the Applicant while at a casino. This memory sticks in his mind as Mr. B. was a young criminal lawyer who was lying in bed looking defeated and distraught. This incident was prior to the Applicant pressing domestic assault charges against Mr. B.
172Mr. K. testified that the Applicant was the most mean-spirited and destructive person he had ever met in his entire life. He felt the Applicant attempted to defeat people and was domineering. He stated the Applicant was destructive to his relationship with the Respondent.
173Mr. K. testified he met the Respondent's father and was always welcomed to his home. Dr. R. had a good relationship with his daughter and showed sympathy when his daughter was distressed by her mother. Mr. K. felt Dr. R. kept his distance from the Applicant as he was scared of her.
174Mr. K. recalled when the Respondent told him that her father "saved her life". The Respondent told him that her relationship with her mother was so bad that she eventually contacted her father and stated she knew that he had a new family but wondered if she could come live with him. Mr. K. believed the Respondent saw her father as her "saviour". The Respondent told him that her mother was not emotionally available to her while she lived with her mother. The Respondent told him there had been some happiness but also a lot of stress and emotional duress. The Respondent did not feel she had a happy childhood and that a circus came with her family. The Respondent spoke to him about issues involving her grandparents and tax evasion, visiting her uncle in jail, the various men in her mother's life, the attempt at suicide and eventual suicide of her stepfather.
Controversy regarding their wedding
175Mr. K. recalled the Applicant was at Law School. He and the Respondent had planned a small wedding of about 100 people. They only wanted close friends and family to attend. He was 30 years of age at the time. The Applicant stated she would pay for the invitations. She in fact chose the invitations and never showed them the invitations prior to mailing them out. Some of their friends called about the invitation as it enclosed a silly poem. Regardless, they began receiving emails and calls from people they did not know. It became apparent the Applicant had invited at least 30 people they did not know which included a number of the Applicant's Law School friends. He felt this was inappropriate and embarrassing. They had to call these individuals to cancel their invitations. Mr. K. stated he saw this type of irrational behaviour by the Applicant for seven to eight years.
176He was aware the Respondent had gone to visit her mother before the wedding and it was a bad result. The Respondent returned and told him her mother would not be coming to their wedding. Eventually it was agreed the Applicant could attend. However, he and the Respondent were concerned about the Applicant's irrational behaviour as they had previously observed "weird crying" and violence and they were worried the Applicant would take hold of the microphone to say bad things about the Respondent. As a result, they hired security to be at the wedding.
177Mr. K. testified he had over the years heard the Applicant make disparaging remarks about the Respondent. He would often hear put-downs such as "you're not good enough to do that, you don't dress well, you're worthless" etc. He noted the Applicant was not motherly often being mean-spirited and in fact had a "cocky arrogance" of being better than her daughter. He questioned whether the Applicant was jealous of her daughter.
178Mr. K. testified the Respondent had a good relationship with P.W. and they would visit her and her husband when he was alive.
179After the wedding, the Applicant graduated from Law School and had nowhere to live. As a result, the Applicant moved in with her mother who lived in a one bedroom apartment. The Applicant had two dogs, Clancy and Chloe. The neighbours complained about the dogs. He and the Respondent had purchased a home as newlyweds and began their new careers. The Applicant asked them if they could keep the dogs for a short period of time until she could get on her feet. They agreed. He believed they had the dogs for about one year. The dogs were still in their home when he and the Respondent separated. He provided evidence about the Applicant's lack of involvement with the dogs and their costs of maintaining the dogs.
180While the Applicant had a house key he and the Respondent noted strange long distance calls. The Applicant also left some of her artwork in their home and also hung up some of her artwork in their home without discussing it with them. Her behaviour caused him and the Respondent stress. He felt the Applicant was overbearing and taking advantage of them. The Applicant also became emotionally abusive to her daughter and referred to her as "Hitler".
181He cannot recall the final straw which led to his separation from the Respondent but they separated in an amicable manner. He believed the Applicant was a significant portion of the demise of their marriage.
Criminal charges/civil suit
182After he and the Respondent separated, the Respondent again asked her mother to pick up the dogs. A decision was made by the Respondent, in consultation with her father, that the dogs should be given up for adoption.
183Mr. K. recalled getting a call from police stating they had received complaints by the Applicant that he had stolen her dogs. He received a call from the Respondent who advised him her mother was pressing criminal charges against them for the theft of her dogs. As a result, he attended at the police station to be formally charged with theft (of the poodle) on June 20, 2003.
184Mr. K. noted that on May 25, 2003, one of the dogs was to be returned to the Applicant. As the Respondent was scared of her mother, he brought the dog to the Applicant when they met in the back parking lot of the police station. The Applicant showed up with eight to nine friends and some of her friends stated to him they were terrible people. At one point, the Applicant began rolling around on the grass, crying and was in complete hysterics.
185Mr. K. recalled also receiving calls from police about the Applicant's art. He was concerned she would charge them with the theft of her art. He believed the Applicant was out to destroy them.
186Mr. K. recalled an email by the Applicant sent to the Respondent which stated, "I am going to show up at your work and let everyone know who you really are."
187Mr. K. noted the Applicant was aware that if either he or the Respondent had a criminal record his licence as a broker would be taken away and the Respondent could not work. Mr. K. believed the Applicant was out to ruin their professional careers and on a campaign as they also received calls from some of the Applicant's friends telling them what horrible people they were.
188He and the Respondent required separate criminal counsel and had to provide as a result a retainer of $25,000.00 to each lawyer. They fortunately attended court and the criminal charges were dropped against them.
189Unfortunately, about one to two months after the criminal charges were withdrawn in 2003, they were served with a civil suit by the Applicant for about $30,000.00. He and the Respondent had to retain another lawyer to defend the action. This action was resolved in 2005 when he and the Respondent paid the Applicant $2,000.00 in cash with no admission of liability.
190The last time Mr. K. saw the Applicant was in 2003 at his criminal court appearance on the theft charge.
191He and the Respondent are divorced. They have maintained a friendship although they have not had contact with each other in the past two to three years. They are both remarried and live in separate cities. He noted he and the Respondent have a bond and shared a "traumatic" experience which impacted them negatively.
Dr. R.
192Dr. R. is 68 years old. He has been a doctor for 43 years. He has been married for 35 years to his current wife. They have two children together who are 30 and 31 years of age.
193Dr. R. met the Applicant at a summer camp in Muskoka, Ontario. They dated for about four to five years and were married on June 14, 1970. At the time he was living in residence at university and the Applicant moved in with him after they were married. Thereafter, they rented a one bedroom apartment and the Applicant's parents helped them with the rent as he was a student.
194Dr. R. noted he had a good relationship with his parents and sister however after he and the Applicant married he became estranged from them as the Applicant did not like them. He eventually re-established his relationship with them.
195After he and the Applicant were married he suggested to the Applicant she go to work or attend university. He obtained a university application for her but she declined it. He was busy working at four hospitals while his wife played tennis and shopped. He recalled during their marriage receiving a call from their banker stating that 90 cheques had gone through their account. Dr. R. described the expenditures as "pathologic". He noted the Applicant felt entitled to shop at a high-end store to decorate their home. Dr. R. testified that he worked hard at establishing his medical practice however it was difficult to save money because of their expenditures as the Applicant felt entitled to a particular lifestyle. He noted that he came from modest means while the Applicant came from a more affluent family which included attending the Jockey Club and gambling on horses. The expenditures became unbearable which led to a lot of conflict. The relationship was broken.
196Dr. R. stated his marriage to the Applicant was tumultuous at times. The Applicant would become irrational and could scream and act out including becoming threatening, degrading, cruel and critical. He felt the marriage was in fact traumatic for him. He could not provide compassion and support to the Applicant during their relationship. He eventually convinced the Applicant to go to CAMH to explore a possible psychiatric issue; however, the Applicant convinced them he was the issue and refused to continue to go and get help. Dr. R. stated that after he and the Applicant divorced he had to spend several years in treatment to be able to heal.
197Dr. R. recalled telling the Applicant he wanted a divorce. She became even more irrational. At some point thereafter, the Applicant's father attended at their home and punched him. He had to attend the hospital for treatment. Upon his return, the Applicant had left with her father. Dr. R. noted the Applicant's brother had also threatened to kill him. As he was not feeling safe he went to stay with his father in Aurora for five to six days and took their daughter and M.S. He recalled thereafter the Applicant and her family had their Rabbi write a letter to the court stating that he was an unfit father and he was told to surrender their daughter. The court order was made in his absence. He surrendered their daughter and court litigation ensued for the next 14 years.
198Access to his daughter was challenging. Although he had court ordered access when he would call the Applicant she would say their daughter was sick or they had other plans. He felt the Applicant alienated him from his daughter for over a decade as a way to punish him. He and the Applicant had no communication and he was not apprised of important decisions or events. Moreover, he was not aware of what was happening between the Applicant and their daughter. Dr. R. noted M.S. lived with him for a few years after his separation from the Applicant and then went to move in with the Applicant. He believed M.S. was very dedicated to their daughter. He felt M.S. provided the Respondent with consistency and positivity.
199Dr. R. noted he paid both spousal and child support to the Applicant after separation. He paid spousal support until the Applicant married Dr. D. and child support until his daughter came to live with him.
200Dr. R. testified that he believed the Applicant enjoyed the court process as they were in court about seven times from 1978 until 1991. He spent an inordinate amount on legal fees as a result. He recalled getting a letter from the Applicant at some point as she wanted to sue her parents stating she had loaned them $30,000.00 and they never paid her back. He felt this to be strange.
201Upon their separation, they sold the home and he believed there to be $70,000.00 in equity and $35,000.00 in cash, which they divided equally.
202He was aware the Applicant had married Dr. D. and they lived in a nice home. He had a sense things between them were difficult as he had lived himself through trauma with the Applicant. There were however no disclosures from their daughter. He continued to pay child support until 1991 when their daughter went to live with him.
203He recalled taking the children including the Respondent on a family vacation in 1991. A few months later he received a call from the Respondent to pick her up. He did so and she had her possessions in green garbage bags. There was no advance warning as they had not discussed her moving in. Their daughter looked sickly, skinny and her mood was depressed. He believed their daughter had experienced a tumultuous home, the suicide of her stepfather and now a change of address. Despite same, the Respondent fit in well with their family. She lived with them while she completed high school, four years at university and two years to complete her Master's degree. Thereafter, the Respondent attended a further university. Dr. R. helped pay for the Respondent's post-secondary education and never received child support from the Applicant.
204Dr. R. noted that the Applicant can lose control of her emotions. When he was asked to describe his observations he indicated that she would scream, curse, act out, slam doors and be in an uncontrollable rage. Dr. R. noted when the Applicant becomes angry she is cruel and cutting. After their separation he also received hate mail from the Applicant which was spiteful and angry.
205Dr. R. recalled when his daughter went to pick up her wedding dress and visit her mother. The Respondent returned home and had a black eye. He sensed something had happened with the Applicant. As a family they became concerned the Applicant was coming to the wedding and they hired off-duty police officers to prevent a "catastrophic event" with the Applicant. Fortunately, nothing occurred.
206Dr. R. recalled attending the Applicant's mother's funeral. He noted the Applicant to be despondent during the funeral and did not feel his daughter's behaviour was "disgusting" as claimed by the Applicant.
207Dr. R. described his daughter as highly intelligent, creative with a great sense of humour. He noted his daughter had long-term friends and gets along well with her siblings. He stated it was a privilege to be her father. He noted his daughter and her husband Mr. M. are careful with their expenditures and are not extravagant people.
Dr. S.A. M.D., FRCP(C)
208Dr. A. is a clinical psychiatrist and met the Applicant when she was the attending psychiatrist who dealt with Dr. D. when he was in the in-patient unit at a hospital. Approximately one week after Dr. D.'s release from hospital he committed suicide. Shortly thereafter, she met with the Applicant, the Respondent and P.W. at a family meeting. She recalled the Applicant and her daughter being devastated by the loss.
209Dr. A. indicated she had seen the Applicant continuously on a professional basis since 1991. Her case notes, which were extensive, were filed as an exhibit during the trial. Some periods of contact with the Applicant have been more frequent than others. When things were going well for the Applicant or when the Applicant was attending Law School Dr. A. noted she saw less of the Applicant.
210Dr. A. recalled the Applicant reached out to her during the summer after Dr. D.'s suicide as she was distressed and in the throes of severe grief. The Applicant was not eating, was very thin and inconsolable. The Applicant was overwhelmed by her financial state questioning how she would support herself and her daughter. Dr. A. recalled the Applicant was hospitalized for one week as she was not eating and fainting. The Applicant was also experiencing complicated migraines.
211Dr. A. referred the Respondent to a psychiatrist Dr. R. with whom she met for about one year. Dr. A. recalled meeting P.W. on a second occasion when her husband was hospitalized. She observed P.W. to be difficult and a nasty lady realizing what the Applicant had to deal with. P.W. had also called her office and left a message for her threatening to contact the College of Physicians and Surgeons. From what the Applicant had described about her mother and from what she observed she believed P.W. to suffer from a personality disorder. During cross-examination Dr. A. conceded she should not be providing a diagnosis considering her limited contact with P.W.
212Dr. A. was aware from the Applicant that she and her brother S.W. were raised by her parents and grandparents. They lived in a hotel. The Applicant described not being well cared for and her brother was the "golden haired boy". At the age of nine or ten, the Applicant was cared for by her elderly grandmother. The family moved to Toronto and P.W. had a shady bookmaking business. The Applicant recalled an incident when police attended and broke down the door of their home noting this had been a traumatic incident for the Applicant. The Applicant advised Dr. A. she was accomplished in school although her mother was demeaning and critical of her and dressed her like a boy. Although the Applicant wished to go to university, her parents paid for her brother's education only. Dr. A. had the sense P.W. was not a loving caretaker which affected the Applicant's self-esteem. The Applicant felt her father had been protective of her and he was proud of her accomplishments. Dr. A. also had the sense the Applicant had provided her parents significant amounts of money over the years even when the Applicant did not have much to give.
213The Applicant also spoke with her about the challenges she had in her marriage with Dr. R. The Applicant described her husband as unhelpful, unsupportive, who had affairs. As a result of his behaviour the Applicant questioned why she was treated so poorly by him. The Applicant also described to Dr. A. having to spend money to retain lawyers to obtain support for herself and the Respondent.
214The Applicant discussed that she had tried to be a good mother to her daughter and focused her life around her daughter's. She felt Dr. D. was good to the Respondent and they had a close relationship. The Applicant spoke of her daughter's Bat Mitzvah and recalled what a happy occasion it was. She and Dr. D. were proud of the Respondent as she did well in school and was well liked. The Applicant noted no difficulties with her daughter until Dr. D.'s suicide. This was a tumultuous time as the Applicant was under extreme financial stress because of Dr. D.'s affairs. The Applicant wanted stability for her daughter and so the Applicant secured a loan from a family friend to rent an apartment which would be close to her parents. The Applicant felt her daughter yelled and attacked her. It was at that time Dr. A. made a referral for the Respondent to see the psychiatrist, Dr. R.
215Dr. A. continued to have contact with the Applicant after the Respondent left her care. Dr. A. recalled the parties to have on and off contact for a number of years which included some ongoing conflict when they were communicating. It was Dr. A.'s recollection the Applicant was happy when her daughter got accepted to university and became engaged. The Applicant never expressed jealousy of her daughter and it was her sense the Applicant was a proud mother who was happy about her daughter's successes as reported to her by the Applicant.
216Dr. A. had noted on May 1, 2001 the Applicant called her indicating she had been choked and verbally abused by the Respondent. The Applicant stated she wanted to kill herself. As a result of the Applicant's reports about her daughter, Dr. A. believed the Respondent might be "interpersonally dramatic", histrionic and demanding. Dr. A. believed the Applicant was experiencing a high level of stress during Law School as she lacked support.
217The Applicant reported difficulties she had with the Respondent at the time of the Respondent's first marriage and with emails she was receiving from the Respondent regarding her dogs in early 2003. The Applicant was distressed about her dogs being given away and felt her feelings would only be taken seriously if she began legal action. Dr. A. noted she had forwarded a letter on the Applicant's behalf to the Law Society of Upper Canada as the Applicant had not done well on her exams due to the emotional distress she was subjected to.
218Dr. A. testified that because the Applicant has been devalued and did not have a loving family, when the Applicant is stressed her emotions are like a tsunami and she cannot call on her emotional faculty. Over the years they have worked on the Applicant soothing and settling herself. Dr. A. indicated it took many years for the Applicant to find stability after Dr. D.'s suicide. There are times when the Applicant is highly emotional and they talk and strategize. Dr. A. feels the Applicant is better than she was but still needs help at times.
219Dr. A. noted family themes as of 2007 for the Applicant was the sadness of not having a relationship with her daughter, her challenges with Dr. R., the trauma experienced from Dr. D.'s death and her ongoing financial troubles.
220Dr. A. noted the death of the Applicant's mother was emotionally challenging for the Applicant. The Applicant had hoped the funeral would be a reconciliation with her daughter. The Applicant was upset about the graveside service believing it should have been a larger service. The Applicant was upset her mother had died alone. The Applicant was upset her daughter had hired police for the service. She noted having difficulties getting into her mother's apartment to retrieve some of her things. As a result of the above, the Applicant felt "tortured" by her daughter believing her to be mean-spirited. Dr. A. testified the Applicant presented a sense of sorrow and distress at the lack of relationship with the Respondent.
221Dr. A. was aware the Applicant had a cousin L. who was a lawyer. He had been kind to both the Applicant and her mother. He provided mentorship to the Applicant regarding the law. He also helped the Applicant financially after Dr. D.'s death. When the Applicant felt suicidal she turned to L. for support. Eventually L. took ill and his partner did not want the Applicant to have further contact with him. He has since passed away.
222Dr. A. testified the Applicant's relationship with Mr. B. was challenging. According to the Applicant it was Mr. B. who approached her and tracked her down. The Applicant was ambivalent to begin a relationship one year after Dr. D.'s death but he was loving and supportive at the beginning of their relationship. Dr. A. recalled Mr. B. to be a volatile and difficult person. The Applicant had reported being verbally and physically abused by him.
223Dr. A. indicated she was aware the Applicant was involved in a number of litigations including against her daughter, her third husband and against an employer. Despite same, she did not feel the Applicant was a vexatious litigant but rather wanted to pursue litigation as a result of her strong belief for fairness and justice.
224Dr. A. recalled the Applicant looking for work after Law School and never being able to secure permanent positions. The Applicant took contract positions to secure income for herself and was often borrowing from friends to make ends meet. The Applicant also had a strong interest in music and did network and promotional work to help young musicians which was a respite for her.
225By 2011, the Applicant was reporting she was experiencing dental pain but could not pay for the dental work. Her friends were giving her money for gas and she was sleeping on her friend's couch. She had unpaid parking tickets and she was having car insurance issues. Her mother was also calling people stating negative things about her. It became clear to Dr. A. a major stress for the Applicant for a number of years was the Applicant's inability to find stable employment and financial worries.
226In 2013, Dr. A. assisted the Applicant to apply for CPP Disability Benefits. She diagnosed the Applicant with Major Recurrent Depression, PTSD in Partial Remission (for finding Dr. D.'s body), Personality Disorder - NOS (dysregulated in affect/ overwhelmed by emotion), Hypertension, and Multiple Social Stressors as per the DSM-IV. Dr. A. feels the Applicant continues to have the same diagnosis at present.
227Dr. A. indicated the Applicant suffers from a personality disorder, not otherwise specified, as she has personality issues which do not fit neatly in the symptoms of the DSM category. The Applicant's personality traits are activated in times of stress and are not enduring in all aspects of her life. Suffering from a personality disorder can include symptoms of one or some of the following:
- Anti-Social Personality Behaviour (manipulation, lying, stealing, using people for their own benefit);
- Borderline Personality Disorder (self-image, impulsivity, self-harm behaviours);
- Histrionic Personality (attention seeking, dramatic, seductive dress, need to be centre of attention, intense emotional behaviour, dramatic, blaming others for failures); and
- Narcissistic Personality (grandiosity, need for admiration, lack of empathy, focus on their own needs and wants).
228Dr. A. agreed during cross-examination the Applicant has had episodes since 1991 which has reflected some of the symptoms for the various personality disorders. She agreed the Applicant acts out when she feels attacked or devalued. Dr. A. observed the Applicant in 1995 when she attended her office and the Applicant began crying, screaming and banging her head against the wall, retching and falling to the ground. This behaviour would have histrionic and borderline traits.
229Dr. A. testified that since 1991 she has seen the Applicant for approximately 210 sessions and 25 emergency room visits. She has also written about 50 advocacy letters on behalf of the Applicant to Revenue Canada, a credit agency, university, lawyers, Crown Attorney, Law Society of Upper Canada, Bar Admission Course, police, professors, Provincial Offences, Member of Parliament, employers, municipalities, Rental Housing Tribunal, YMCA, Judge, to name a few. Dr. A. acknowledged that all information she received by the Applicant was self-reported. She has never received independent supportive evidence to the representations made to her by the Applicant. Accordingly, if there were comments she made in her advocacy letters which were not accurate she would not have been made aware of it.
230The current theme of their work together is:
- Social isolation as the Applicant's friends are in Toronto;
- Money;
- Stress of the litigation;
- Challenges of legal representation.
231Dr. A. indicated the Applicant has restrictions for maintaining employment which includes stress and her trouble in regulating her affect. As a result of feeling emotionally distressed the Applicant has difficulties with focus and memory. During cross-examination Dr. A. noted the Applicant could not work competitively in a sustained manner in the law profession. Although she saw no reason why the Applicant could not work part-time in a less stressful environment, Dr. A. surmised it would wound the Applicant psychologically and would be problematic. Dr. A. conceded the Applicant on occasion overspends as retail therapy showing a lack of financial judgment but she could not deem the Applicant to be financially incapable.
232Dr. A. described the Applicant as a warm, kind and engaging person who focused on helping others, to her detriment as she overloads herself. When the Applicant is calm and not under stress she is quite put together. When the Applicant is stressed she can become emotionally enraged where she can be incoherent, sobbing and hyperventilating. When the Applicant has been at her wit's end and distressed she has spent money she should not have. She is aware the Applicant has a number of friends who want to help as the Applicant is endearing. Friends have assisted with money and places to live.
233Physically, the Applicant is suffering from hypertension and angina-coronary heart disease. The Applicant has experienced episodes of physical chest pain.
234Dr. A. was distressed about the Applicant's current living situation. The Applicant reported to her she was living in a basement apartment where there were ants, drug dealers and domestic abuse. She had also received an eviction notice for this apartment. Dr. A. felt the Applicant had no support in the Niagara Region. If the Applicant could relocate to the Toronto area she would have a network of friends, Dr. A. could see her more frequently and the Applicant could have access to other services. It was Dr. A.'s impression the Applicant did not have the finances to relocate.
235During cross-examination, Dr. A. conceded all contacts and communication she has had with the Applicant over the years has been as per the Applicant's perspective, through the Applicant's lens. She acknowledged it was possible the Applicant has either omitted or exaggerated the facts. She acknowledged it was possible the Applicant had lied to her.
236Dr. A. for example testified the Applicant had brought in an email she had received out of the blue from her daughter to get her dogs or her daughter would be giving them away. Dr. A. noted the email was hostile. However, counsel for the Respondent presented further emails provided by the Applicant to the Respondent in an attempt to demonstrate to Dr. A. the larger picture. Dr. A. conceded the Applicant could be intense and after reading the email messages stated she was shocked by the language used by the Applicant in the email.
237Dr. A. also testified she was surprised to learn the Applicant in recent years had been relentless in sending written communication to her daughter which were malicious in nature as well as the hate communication which was sent by the Applicant to her mother P.W.
238Dr. A. noted her impressions of a warm, kind and generous person she has seen over the years was not the same as what was being presented to her during cross-examination. She noted that her assessment and treatment of the Applicant is only as valuable as the information she received from the Applicant.
239Dr. A. conceded during cross-examination she had never attended the Applicant's current residence and had no sense of the services or transit system available in the Niagara Region for the Applicant. Dr. A. acknowledged the Applicant had similar issues since 1991 (housing, finances, stability) in Southern Ontario as compared to the Niagara area.
240Dr. A. also acknowledged that her clinical notes indicated the Applicant had travelled to New York (a number of times), Greece, Sicily, California (four times), Hawaii, Italy, Atlantic City and Las Vegas (three times) despite the fact there were times the Applicant claimed she had no funds. However, the Applicant told her the trips were paid for by her friends. In regards to the Applicant's plastic surgery around her eyes she assumed it was either pro bono or at a reduced rate.
241It was suggested to Dr. A. that over the years there had been a pervasive pattern by the Applicant to show a lack of empathy. Dr. A. acknowledged that it was possible the Applicant has manipulated her for the past 25 years. She also acknowledged that if a parent suffered from an anti-social personality as suggested by counsel for the Respondent, the impact on a child would be devastating.
242In re-examination Dr. A. agreed she had no independent knowledge of the accuracy of the statements purported to have been made by the Applicant to the Respondent as suggested by counsel for the Respondent during her cross-examination.
Respondent Daughter X
243The Respondent was born on […], 1975. She testified she had never heard the Applicant describe the details of her own childhood until trial and was quite surprised by the Applicant's recollection of same. She had never heard her maternal grandmother make negative comments about her mother. She believed her maternal grandmother to be a very warm and positive person who displayed an understanding of her daughter. She did however agree that her mother's brother was provided with more opportunities than her mother by their parents.
244The Respondent testified when she was in grades one through four she recalled that her maternal grandparents lived a luxurious lifestyle. They had a home in Southern Ontario, a condo in South Beach Miami and often attended the racetrack. It was her impression that her mother had enjoyed a good lifestyle as a youth and had also been cared for by a nanny for some time.
245When the Respondent was in grade five her grandparents owned and operated a nursing home. She recalled seeing her mother banging her head on the kitchen floor and was in a fit as her parents had lost the nursing home. The Respondent was not aware her mother was assisting with the operations of the nursing home as her mother had claimed during her evidence.
Early youth
246The Respondent did not recall being ill as a child. She was aware she had been hospitalized as a toddler for acute appendicitis. The Respondent noted she had been told by her mother over the years that her father had wanted her dead when she was hospitalized.
247The Respondent had no memory of her parents living together. Her mother told her that her father had been unfaithful. She never heard of the name "D." until this trial. Her mother told her that her father was a bad person who could not be trusted. According to the Respondent, her mother repeated negative messages over the years about her father and as a result alienated her from her father. The Respondent had no recollection of being "kidnapped by her father" but recalls her mother speaking about the fact her father had "kidnapped" her. In contrast, the Respondent noted her father has never made negative comments over the years about her mother. She was not aware of her father's version of events until he testified at this trial.
248When it was time to visit with her father, the Respondent indicated her mother told her not to attend for the visits and to make up excuses such as being ill or having to do homework. The Respondent noted it was difficult for her to keep track of all of the lies.
249During the first 16 years of her life, the Respondent had a non-existent relationship with her father save and except for a few visits with him and his partner. The Respondent was not close to her father and he was more like a stranger to her.
250According to the Respondent, her mother lacked the ability to be a parent although she does not feel this was intentional. She believes her mother does not have a maternal instinct. She recalled in her early teen years watching the movie "Mommy Dearest" which depicted an unhealthy mother/daughter relationship. The Respondent came to realize that her own mother was unkind towards her and was very cold and unaffectionate towards her.
251The Respondent does not recall her mother participating much in her life when she was young. The Respondent would go to her nanny M.S. for support. As an example, when the Respondent wanted to learn to ride a bike, her mother arranged for the neighbour to do it. She does not recall her mother or Dr. D. coming to the park or doing activities with her. When she would ask her mother to play she would respond "don't bug me".
252Although her mother was on the supply list for a public school, she recalled that her mother often declined to teach. Her mother had a routine of having her coffee and breakfast in bed while watching a morning news program. The Respondent acknowledged her mother worked more frequently and received a teaching contract when she was about 12. The Respondent noted she asked her mother as she became older why she was no longer teaching and her mother told her it was a miserable profession and she hated it.
253The Respondent acknowledged she attended private school until grade three when she began to attend public school. The Respondent has always loved school and M.S. was the one to encourage her with her studies. The Respondent indicated she was a quiet and conservative child and adolescent and did not have a lot of friends.
254In grade seven, her mother was supply teaching at her school. They were both home for lunch during the school day and they fought. Her mother had an explosive temper and very unpredictable behaviour. Her mother would not allow her to return to class and made her sit in her classroom. Her mother told her this is what happens when you are a horrible child and told her "wait until we get home". The Respondent eventually returned to her class and told her teacher she was scared to go home. She recalled later that evening her mother telling her that the Children's Aid Society had called and stated "look what you have done – if you think this is bad you will end up dead in a foster home or worse, with your dad". Her mother proceeded to threaten to beat her if she did not say everything was fine when she was interviewed. The Respondent acknowledged during her evidence she could not locate such a record with the Children's Aid Society and her teacher was deceased. The Applicant denied this event took place.
255According to the Respondent she had observed her mother direct her explosive rage towards Dr. D. and she was now directing threats towards her. The Respondent explained her mother and Dr. D. did not have a good marriage and fought regularly especially about finances and her mother's spending. She recalled one argument after her mother had gone to Paris and a blow up occurred as her mother had spent $20,000.00 on clothing. Her mother was violent towards Dr. D. She observed her mother jump on him, straddle him and punch him. She also observed her mother punching the wall, kicking, screaming, throwing objects and banging her head against the wall when she would explode. The Respondent stated despite the luxurious homes they lived in, she was looking for peace and tranquility.
256She could not tell her father about the abuse she was subjected to because her mother had told her he and his partner could not be trusted. She could not tell her maternal grandmother as her mother told her that her grandmother was a terrible person. She felt trapped but at least she had M.S. to protect her.
257As a result of her mother's behaviours, the Respondent stated she became very independent and spent much of her time in her own bedroom or with M.S. during her adolescence.
258The Respondent denied a number of claims made by the Applicant during her evidence such as demanding her own vehicle once she obtained her driver's licence, opening her mother's banking information and opening the Estate documents for Dr. D.
M.S. the Nanny
259The Respondent spoke fondly of her nanny M.S. M.S. lived with them full-time (except weekends) for as long as she can remember until Dr. D.'s death when the Respondent was 16 years of age. The Respondent described M.S. as positive, warm, loving and kind. The Respondent indicated she spent a lot of time with M.S. and would often go to her maternal grandparents' home on Fridays overnight when she was young.
260The Respondent noted M.S. was the person who got up with her in the morning and provided her with breakfast. She was the person in the evening who read her bedtime stories and put her to bed. She did a lot around the house. Her mother would do the groceries and gardening.
261The entire time M.S. lived with them she called her mother "Ma'am" and Bill "Dr. D." and this was expected by her mother.
262According to the Respondent, M.S. recognized there was something wrong with the Applicant and observed how she treated the Respondent.
263The Respondent recalled M.S. telling her that as soon as she was an adult she could be happy so she had to do well in school and have a good education. As a result, the Respondent put all of her energy into her academics.
264The Respondent indicated she felt her mother may have misappropriated the child support she received considering her mother had so much clothes, furs, jewellery and purses. She recalled that her mother had a number of closets in their homes to warehouse all of her things.
265The Respondent did indicate her mother was an excellent artist and had many talents which also included writing and poetry, decorating and design.
266After Dr. D.'s suicide, she and her mother moved into an apartment. She was fine about their accommodations however her mother's rage, usually reserved for Dr. D., was now focused on her. Her mother began to display erratic behaviour which included going out at night to clubs and being angry during the day.
267The Respondent testified she has always kept in touch with M.S. M.S. had a stroke in early to mid-April 2015. The Respondent stated she was devastated. She stayed with M.S. daily at the hospital for two weeks. M.S. survived but could not walk or speak. M.S. is 94. The Respondent continued to see her regularly and speaks with M.S.'s daughter as well. The Respondent noted she considered M.S. to be her mother and credits M.S. with getting her through her childhood.
268Some evidence was tendered showing the Applicant had left M.S.'s daughter notes which were not kind. The Applicant was angry they were taking her daughter's side and not assisting with communication. One of the letters suggested the Applicant had enclosed Affidavit material from the litigation.
Maternal Uncle S.W.
269The Respondent noted her Uncle S.W. was a career criminal. She recalled him living in a halfway house between his penitentiary sentences and that he had a girlfriend. Her mother would drop her off with them despite the fact S.W. lived in an unclean and unsafe environment. She also recalled an occasion when her Uncle S.W. and his girlfriend had sex in front of her as they were all sleeping in the same room. Although she told her mother about it, her mother blamed her.
Law School
270In May 1997 the Respondent graduated from university and completed a Master's Degree from 1997 to 1998. She decided she would do her LSAT to apply to Law School. She then learned her mother also planned to write her LSAT. Her mother asked for help and they studied for the exam together. Both she and her mother did well however she delayed her application to Law School as she was contemplating doing a Ph.D. Her mother applied and was accepted to Law School and she was happy for her.
271In September 1999, the Respondent began Law School. There were pockets of time when the parties communicated and socialized with one another and other long stretches of time when they had no contact. The Respondent went down to visit her mother and it became clear to her that her mother often attended the casino as the staff knew her mother by name and did a lot of cross border shopping for clothes. The Respondent was aware her mother was also going on trips, including to Hawaii, and was certainly not living on a student budget. The Respondent assumed her mother was living on funds she had received from Dr. D.
Lack of contact by the Respondent with the Applicant – 2003 going forward
272The Respondent indicated after separating from Mr. K. in 2003 and selling their home she lived in an apartment. She was hired in 2004 as a policy analyst. In 2006 she was hired in a legal position. In 2008 she was hired in the public sector and later became a permanent employee in 2011. She earns approximately $166,000.00 per year. She noted that her career was important to her and is quite concerned about losing her reputation as a result of her mother's actions.
273The Respondent married Mr. M. in 2008. She received a Facebook message from her mother saying "I know your [sic] married now and I hear he is nicer than the other". She deleted the message and blocked her mother. She did not tell or invite P.W. as she did not want her mother to find out about her wedding.
274Thereafter, the Respondent indicated receiving messages from third parties at her work telling her she should contact her mother. She also received a letter from a lawyer stating they required her SIN to allow her mother to apply for Canada Pension. She also received a letter from the Rabbi asking her to contact her mother. She responded by email on November 26, 2012 and stated to him that in 2003 her mother had made a series of decisions which caused her to reach the inevitable conclusion that she would never be welcome in her life in any capacity. Since 2003 she has had no contact with her mother. Recently her mother had left her a voicemail message wherein she threatened to destroy her career and had a lawyer write to her demanding that she pay her a monthly allowance or she would be sued. As a result, she made it quite clear to the Rabbi she wanted no contact of any kind with her mother.
275A letter written by the Applicant to the Respondent which was sent by facsimile transmission to her employer's office dated December 11, 2012 was filed as Exhibit 48 and stated the following:
X.
I have tried now for three years to reach you. Recently the Rabbi tried and he is being kind enough not to show me your response. X. I cannot change what Dr. D. did – I suffered forever – YOU ran- I don't blame you but it does go to character. You blame me for your failed marriage to Mr. K. – both Papa and I did not like him – but you made your choice – YOUR conduct re the dogs goes beyond comprehension – YOU cannot blame Mr. K. – you could have called me – Instead you went along with it – and lied – you had Dr. R. do your dirty work – he got great pleasure – most importantly you told the dog people Chloe was abandoned - you signed a statement to that effect – I have a copy – from ...
You have been rude – lied and stolen from me. I also have the ER report from … re your assault – again you lied to Mr. K. and made up a story as to bullshit invitation as to whom I had invited – when I had invited no one – and in fact was not going to attend.
My question to you is – can you not agree to come clean – and meet for help with me – and whomever – YOU cannot live this lie out – Mr. M. will catch on eventually – buying a Mercedes or another home will not make you whole – I am not looking to make it hard for you – I am trying to help you find your core. You do make me ill – because I gave my life for you – you have no idea. YOU now befriended a man who when you were sick never came to the hospital – you go where the money is – He did not come to the hospital when his mom died – this is your hero. I hated P.W. the most anyone can – but I paid their rent – bought their food and gave Pappa money to start a fruit business – I made car payments – and told no one.
I am about to be evicted and cannot work. I am asking that you help me now – I will repay you when I can. I need $750 a month to find an apartment. I will lose my car if I don't pay $450 by the 15th – I can't find work – I am old and sick now.
I am asking to meet with you – and for help – Remember it cost me $10,000.00 to get your money for college from Dr. R. and for Law School – he would not pay – ask Nana – You may check with the Rabbi – he knows my situation – I will be homeless if you do not help-
Everyone is telling me to take you to court – they know how hard I worked to provide for you – I have not gone ahead with this – but X. I am not living on the street. I would like some peace in my life – I am a broken person – I was helping a poor person at the clinic I worked at – I sent a fax and got fired – he fired me because he never come to the office and was afraid I would tell –
Please X. – make peace – I would like to meet Mr. M. – I hear he is nice – more understanding than the other – you can only reach me via the Rabbi – I have no use for D. – I do miss Nana – I speak to jojo and dommy. Your mother L.
276Her mother also sent a letter in 2013 to her employer written in red pen on a foolscap of paper. Fortunately the receptionist intercepted the letter and provided it to the Respondent. The letter indicated "X is a disgusting person who should not be employed here." As a result, she and Mr. M. met with her employer to discuss the difficulties she was having with her mother. Her mother had also left her two voicemail messages at her work.
277A voice recording of the Applicant's telephone message which was confirmed by the Applicant was transcribed and stated the following:
Number one you should change your voice mail if you're such a hot shot lawyer.
X. I'm sick of your bullshit and your lies.
Your conduct at P.W.'s funeral was disgusting.
Everyone was disgusted and saw who you were.
You won't provide me with your social insurance number which I need to get a pension because I'm living on $700.00 a month. I've applied for disability which I've gotten because I can no longer work.
So don't, don't provide it to me X. I'm going to see [P.E.] … tomorrow and I'll take you to court.
Also your bullshit about me being violent because your relying on something from Mr. B's case no doubt – that judge was removed and was not allowed on the bench again and there was an official inquiry into his conduct so that doesn't hold up.
So what I'm going to do X., is I'm going to play your fucking filthy game and your lies. I'm going to forward a copy of the medical report from you assaulting me, your violence in … with a letter to your so-called husband who can't differentiate fact apparently because he's so brainwashed by you.
But I'm sick of your lies X. I'm going to sue you for slander and I'm suing you for support now.
So if you don't want this letter to go to Mr. M. which I have, and the report, I suggest you provide your Social Insurance Number and I suggest you provide me with some income.
This is your responsibility not mine. I took care of my mother and father and they treated me like shit.
You have nothing to complain about. I suffered because of Dr. D's death – not you. You took off like the coward you are and the liar you are.
Go ahead X., sue me. Let Mr. M. call. Do whatever you want. I'm forwarding a letter to your boss and to Mr. M. You've pushed all my buttons. I'm sick of you. You're disgusting.
278A further lengthy two-page letter dated January 6, 2014 was sent by facsimile transmission to her employer. The Applicant noted that it was with great sadness that she was pursuing legal action against her but she asked for assistance and the Respondent refused to respond. She noted the Respondent was cold-hearted and continues to spread false allegations about her. The Applicant went on to state she believed the Respondent to be ill and required help. She also noted that her friends were horrified at P.W.'s funeral as the Applicant accused the Respondent of not having the kindness to properly attire P.W. or provide her with a dignified ceremony. She noted she was mourning her mother's passing. The Applicant made some of the following statements about her daughter:
If not for me you would be dead. Ask Nana. I have given my life for you – I endured all of your father's meanness to hope that you would have a home.
What a coward you are.
X. this is going to cost you your reputation and standing.
You are someone I do not know.
I fear Mr. M. will find out who he has married.
The truth will come out in court. In fact most likely this will make the news. This is your choice. I have no funds. If not for L.L. I would be homeless.
You can't face the truth.
The Rabbi was appalled by your conduct (at P.W.'s funeral).
Let a judge look at you. I have nothing. I am asking for costs as well.
I wish you no harm but I know you cannot continue to live a lie. All the so‑called family ties to Dr. R. are for his own need to punish me. He only uses you for that – sure you know that by now.
X. you have always needed to be saved and rescued. That is your role.
Mr. M. did not have the manners to offer condolences. That speaks volumes.
I have completed court forms and will serve you. YOUR grandfather and my grandmother would be ill to know this. But you live in another world. Praised by someone who is detested in the larger community for his conduct. A man who played tennis while his mother lay dying. Bravo X. – shame on you. Your mother.
279The Respondent testified she became concerned that her mother knew the type of car she was driving and details of her home despite the fact she lived in another city and they had not had contact since 2003. This caused the Respondent an extreme level of stress for her personal safety. She indicated she felt ashamed as she was powerless to stop it.
280On March 31, 2013 P.W. died. P.W. had named her as Executor. As a result of P.W.'s funeral which was arranged and paid for by the Respondent, she saw her mother. The Respondent felt her mother's appearance had changed dramatically and denied mistreating her mother at the funeral. She recalled her mother was crying inconsolably at the funeral and was in high hysterics to the point others had to prop her up. She denied giving her mother dirty looks stating she was wearing sunglasses. At the end of the funeral her mother's friend L.L. provided the Respondent with a demand letter to get her mother's personal belongings.
281The Respondent hired someone to clean out P.W.'s apartment and made arrangements for her mother to attend the apartment to remove anything she wanted while Mr. M. was present. She also asked her father's partner to attend with Mr. M. as she was concerned her mother would make an allegation against him. She also allowed her mother a second occasion to attend with a rental truck. Her mother requested to be reimbursed for $450.00 for the rental truck/moving costs however the Respondent declined.
282The Respondent kept P.W.'s letters and financial records. It was clear her grandmother was destitute having maxed out her credit cards. She located a letter dated June 10, 2012 from the rental property management stating they had received complaints of barking dogs, yelling and screaming coming from her apartment. This was the period of time the Applicant was living with her mother. The Respondent recalled this was also the period of time P.W. had called her stating the Applicant had physically assaulted her.
283A note from the Applicant to P.W. dated June 6, 2005 indicated she felt P.W. had turned the Respondent against her and wanted no contact whatsoever with her mother. She stated" You turned X. against me but I don't care – she is a tremendous coward like you – way to go". A further undated note from the Applicant to P.W. stated:
I don't see X. – I don't care you don't see S.W. – that gives me joy!" She went on to state, "Really you don't know what's mine – easy, I paid for everything in that apartment. I want my items. I have no interest in your conversation or your pretend voice – it has no effect or consequence. Tell Bruce when I can get my things. If not I'll come with police next Saturday. Let the people know what you are. A sociopath!! You did this to yourself. You've killed everyone else. But not me. Too little too late.
284On January 5, 2008, it appears the Applicant wrote to her mother after having no contact with her for quite some time asking for her help as she had applied for a Justice of the Peace position. It was the Respondent's belief her mother and grandmother were estranged for a number of years until P.W.'s death in 2013.
285The Respondent noted her grandmother was warm and kind. She did however recall being upset by her grandmother's rudeness towards another in 2012 and as a result she did not speak with her grandmother for one month. The Respondent noted that after observing her grandfather's beating on her grandmother in 1991 she had mixed feelings about her grandfather. When he was diagnosed with lung cancer in 1997 she was supportive.
286The Respondent testified she and P.W. spoke of her mother's mental health issues. They felt although the Applicant was seeing a psychiatrist her behaviour and illness over the years worsened and the level of violence was escalating. P.W. told her she had to sever her relationship with the Applicant to preserve her own safety. The Respondent encouraged P.W. to get police involved as she felt only a police intervention would help her mother.
287The Respondent indicated she was not being cheap or selfish in not assisting her mother. Had she and her mother had a positive relationship she would have invited her mother to live with her and Mr. M.
Stressors/concerns for the Respondent
288The Respondent indicated she has spoken openly to Mr. M. about her safety concerns regarding her mother. She wanted to speak to the police however Mr. M. felt the Applicant wanted to be involved in litigation.
289The Respondent indicated the stress from her mother is undoubtedly having effects on her marriage. She not only worries about her reputation but Mr. M's as well. She and Mr. M. had also begun the adoption process when she was served with her mother's court application for support. They decided to put having children on hold not knowing their future financial situation. The Respondent also stated she felt her mother was capable of anything and as a result she was worried about bringing a child into the situation. The Respondent noted she was concerned if her mother received monthly support it would be a way for her mother to control her for the rest of her life as she suspected her mother would take her to court for ongoing increases.
290The Respondent noted she was 41 years of age. She and Mr. M. live a good life but it is not excessive. They do not live beyond their means. Comparatively, her mother at the age of 41 was living in a six-bedroom home in an affluent neighbourhood, travelled and bought clothing and jewellery, and was spending beyond her means.
291During cross-examination the Respondent noted she had some good memories of her mother including shopping, playing, attending the art gallery and travelling. She conceded not every day was bad but her childhood was difficult and there were more bad than good days. She felt her mother had a number of special talents and noted her mother was an exceptional artist. She conceded her mother taught her poise, grace, manner, culture and about their Jewish religion although the Respondent is not a very religious person. She conceded she was not denied basic needs or material items although the Respondent indicated she did not ask for much other than attention and emotional support. The Respondent indicated she felt her mother never liked the rigours of working and told her teaching was a crummy profession. She believes her mother decided to study law as she has always enjoyed having a higher social status.
292The Respondent indicated she lived in an atmosphere of terror by her mother against herself and Dr. D. She noted the messages reviewed in court paled in comparison to how she treated Dr. D. and herself. She believes her mother has viewed her as competition and as a result has attempted to destroy important moments in her life and her career citing the fact her mother showed up at camp, university and her entrance tests. Her mother never provided praise and did not have the skills to parent effectively. The Respondent indicated she and her mother did not have a normal mother/daughter relationship. Although she tried to maintain a relationship with her daughter, it was simply impossible.
293According to the Respondent her mother was always concerned with outward appearances. Her mother wanted bigger homes, lots of clothes, etc. However, no one knew what was going on behind closed doors. The Respondent noted her mother did not act in the best interest of her child especially considering her mother's behaviour and the belittling she endured.
Ms. H.
294Ms. H. met the Applicant in 1989 when both she and the Applicant taught together. The Applicant left the school in 1991 but they continued a friendship and to socialize. Ms. H. stated the Applicant spoke to her about her relationship with Dr. D. and it was clear the Applicant loved and supported him. She was not aware of any marital issues between them.
295Ms. H. drove the Applicant to the police station to retrieve the Applicant's dog. No one else was present other than Mr. K. She observed the Applicant to be happy and hug the dog. She never observed the Applicant to be rolling on the ground or speak to Mr. K. She acknowledged she stayed in the car while the exchange took place and it lasted about 10 minutes.
Law and Analysis
296There is no common law obligation of parental support. Any obligation on the part of a child to support his or her parent is statute-based.
297In Ontario, the statutory provisions pertaining to parental support are found in Part III of the Family Law Act as follows:
Obligation of Child to Support Parent
s. 32 Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so.
Order for Support
s. 33 (1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.
Determination of Amount
(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including;
(a) The dependant's and respondent's current assets and means;
(b) The assets and means that the dependant and respondent are likely to have in the future;
(c) The dependant's capacity to contribute to his or her own support;
(d) The respondent's capacity to provide support;
(e) The dependant's and respondent's age and physical and mental health;
(f) The dependant's needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) The measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) Any legal obligation of the respondent or dependant to provide support for another person;
(i) The desirability of the dependant or respondent remaining at home to care for a child;
(j) A contribution by the dependant to the realization of the respondent's career potential;
(m) Any other legal right of the dependant to support, other than out of public money.
Conduct
(10) The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious gross repudiation of the relationship.
Powers of Court
s. 34 (1) In an application under section 33, the court may make an interim or final order,
(a) Requiring that an amount be paid periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event;
(b) Requiring that a lump sum be paid or held in trust;
(c) Requiring that property be transferred to or in trust for or vested in the dependant, whether absolutely, for life or for a term of years;
(e) Requiring that some or all of the money payable under the order be paid into court or to another appropriate person or agency for the dependant's benefit;
(f) Requiring that support be paid in respect of any period before the date of the order;
(g) Requiring payment to an agency referred to in subsection 33(3) of an amount in reimbursement for a benefit or assistance referred to in that subsection, including a benefit or assistance provided before the date of the order; and
(k) Requiring the securing of payment under the order, by a charge on the property or otherwise.
Limitation on Jurisdiction of Ontario Court (Provincial Division)
(2) The Ontario Court of Justice shall not make an order under clause 1 (b), (c), (i), (j), or (k) except for the provision of necessities or to prevent the dependant from becoming or continuing to be a public charge, and shall not make an order under clause 9(d).
Powers of Court: Spouse and Parent Support
s. 37 (2) In the case of an order for support of a spouse or parent, if the court is satisfied that there has been a material change in the dependant's or respondent's circumstances or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order under section 34 that the court considers appropriate in the circumstances referred to in section 33.
298Unlike child and spousal support, the defined purpose of an order for parental support is conspicuously absent from s. 33 of the Family Law Act.
299Moreover, s. 32 of the Family Law Act is the successor to the Parents' Maintenance Act, R.S.O. 1970, c. 336 (repealed by s. 84 of the Family Law Reform Act, 1979, S.O. 1978, c. 2), which, in turn, traces its pedigree to the Parents' Maintenance Act, 1921, S.O. 1921, c. 52 at a time of the economic recession that befell the world in the wake of the Great War of 1914-1918, a time when public and private pension plans were unheard of.
300Accordingly, cases under s. 32 are relatively few because the economic conditions that prevailed in 1921 no longer exist. There are social safety nets that tend to discourage the invocation of s. 32. And where s. 32 is invoked, there are usually very special circumstances that have triggered the application.
301Section 32 differs from its predecessors because the support obligation is conditional. The condition being that the parent who seeks support must, in the past, have provided for the child from whom support is now sought.
302In Godwin v. Bolsco, Bolsco, Bolsco and Horton, 1993 CanLII 9312, 45 R.F.L. (3d) 310, [1993] O.J. No. 297, 1993 CarswellOnt 305 (Ont. Prov. Div., 22 January 1993), per Provincial Judge Patrick W. Dunn affirmed (1996), 1996 CanLII 10255 (ON CA), 20 R.F.L. (4th) 66 (Ont. C.A.), a mother in her mid-fifties claimed support under s. 32 of the Family Law Act from her adult children. The children alleged their mother gave them substandard care and failed to provide support.
303When the children were young the family had limited finances and at times were in receipt of social assistance. The children noted they had an unhappy childhood and the mother was not particularly warm and loving. All the children had obtained a university degree with government assistance. After they were adults they had infrequent contact with their mother. The mother obtained a university degree and later began a college program but withdrew due to lack of funds. At the time of the trial she was working as a companion to an elderly woman and earned $150.00 per week plus room and board and a widow's pension for a total of $848.00 per month. The mother was awarded interim parental support of $1,000.00 per month.
304It was established the mother had need for support. The mother had limited skills and experience as a result of her parenting responsibilities. The mother provided what financial support she could when the children were young. She also provided moral support and encouraged the children to work and to be emotionally and financially independent. Although the quality of the mother's care fell short of 1993 parenting standards, she helped with school, gave the children values and interested them in activities to assist them in their development. Therefore the court concluded she had provided both care and support to her children.
305Justice Dunn did note at paras. 63 to 66 of his decision the following:
[63] … the Family Law Act, is a purely economic remedy and is therefore virtually fault-free. There are but two exceptions. One is in subsection 31(2) of the Family Law Act, dealing with child support. This is a true defence, for it strikes at the very issue of entitlement. It states:
The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.
[64] The other provision deals with spousal support and is in subsection 33(10) of the Act. Unlike subsection 31(2), it is more of a mitigating factor than a defence. It is not directed at entitlement but only at the issue of quantum. Subsection 33(10) states:
The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.
[65] For the support of a destitute parent, however, there is no fault-oriented "defence" prescribed in the Act, unless a parent's failure to have "cared for or provided support for the child" can be construed as a fault-based defence. On the facts above, however, I have found that the applicant did indeed "care for" and "support" the respondents as children.
[66] Nor does the Act prescribe any fault-oriented factor to mitigate the issue of quantum for a destitute parent. My initial reaction is that the legislature's failure to make such provision was deliberate but, in an appropriate case, I would be prepared to hear counsels' submissions whether subsection 33(10) might be said to apply by analogy to a parent's claim for support under section 32 where the quality of the provided care and support is found to be questionable. This however, is not such a case.
306In my view the facts of Godwin can be distinguished from the case at bar as the parenting behaviour of the mother in Godwin was more suitable than the Applicant's parenting. The mother in Godwin may not have been particularly warm and loving but she certainly was not abusive in the way the Applicant has been to her daughter. In fact, in Godwin there was "no evidence of her [the mother] being selfish or lazy or putting her own priorities ahead of the children" as noted by Justice Dunn at para. 56 of his decision. Furthermore, the Applicant's actions in regard to the planning of her daughter's wedding, the criminal charge and civil suit commenced for the alleged theft of her dogs, threats made to her daughter at her place of employment and various other incidents, most certainly puts the mother's priorities ahead of her daughter's unlike the mother in Godwin. Additionally, the Respondent children in Godwin were not estranged from their mother until after she filed a claim for support whereas the Respondent in this matter has been estranged from her mother for 18 years. Justice Dunn also found the mother to be more credible than the Respondent children in Godwin, whereas I have found the Respondent daughter to be more credible than the Applicant mother. As well, the mother in Godwin searched diligently for employment and did not spend above her means, although she made an unwise business investment. Justice Dunn found that he could not penalize the mother for this investment. This rationale appears to suggest that the consideration of her investment demonstrates that the manner of spending can be taken into account. Justice Dunn did not suggest that the manner of spending was irrelevant. More importantly, an unwise investment can be distinguished from frivolous overspending. Accordingly, Godwin can be distinguished from the case at bar on a number of grounds.
307In Dragulin v. Dragulin, 1998 CanLII 19365, 43 R.F.L. (4th) 55, [1998] O.J. No 6707, 1998 CarswellOnt 5271 (Ont. Gen. Div., 26 October 1998), per Justice Katherine E. Swinton, the 73 year old plaintiff brought an application against his 45 year old daughter as per s. 32 of the Family Law Act.
308Justice Swinton noted at para. 3 of her decision that factors to be considered in the award of parental support are set out in s. 33(9) of the Act, and include the assets and means of both parties, present and future, and the dependant's age and health. In determining the level of support, paragraph (f) states that "the court shall have regard to the accustomed standard of living while the parties resided together".
309The plaintiff had divorced his daughter's mother with whom he had four children. He remarried in Romania, his country of birth. His new wife emigrated to Canada and was not entitled to any pensions and had essentially no income. The plaintiff was a political refugee and had worked at a variety of jobs such as mechanic, cost analyst, real estate broker and night-time security guard. He was in receipt of government pensions totalling $12,000.00 per year.
310The defendant was unmarried and earned $35,000.00 per year. Most significantly she won a lottery worth just over $1 million. Despite same she continued to live a modest lifestyle.
311There was no issue in the case about the defendant's capacity to support her father as she still had substantial amounts of her lottery winnings and had a monthly surplus each month.
312The issue was the level of care or support provided by the plaintiff to his daughter when she was a child. The defendant argued strenuously that she was not cared for by her father and her childhood was unhappy as her father was verbally abusive and was emotionally unsupportive calling her insulting names when she grew up. The defendant described the plaintiff's beatings of his son. The defendant's evidence suggested that she did a number of chores around the home when she was an adolescent and had to work part-time to have funds for personal expenses. The defendant conceded her father had provided financial support for the family as he was the primary source of income. There had been minimal contact between the parties since 1984 and contact ceased in 1994 when the plaintiff wrote a letter demanding reconciliation or an explanation of the family's past treatment of him within 30 days. It ended with a "curse" if they did not respond.
313Justice Swinton noted at para. 14, "The language of section 32 of the Family Law Act is clear: a parent must have "cared for or provided support for the child" (emphasis added). … Moreover, the Act includes no defence of fault or misconduct in the award of parental support [as was outlined in Godwin] nor does it take into consideration the nature and quality of the current interaction between parent and child. In contrast, a child is not entitled to parental support if he or she is 16 years of age or older and has withdrawn from parental control (section 31(2))."
314The central issue in Dragulin was the need of the plaintiff. Although the defendant argued the plaintiff could still work, Justice Swinton believed this to be an unrealistic expectation at the age of 73 given the plaintiff's fluency in English and current health problems.
315Justice Swinton noted that in considering the needs of the person seeking support as per s. 33(9) of the Family Law Act the court must consider the dependant's needs, having regard to the previous standard of living when the parties lived together. That was a modest standard of living throughout this family's period together. Justice Swinton noted the plaintiff's claim had to be based on need and not on wants and the plaintiff could not seek an increase in his standard of living just because of his daughter's good fortune. As a result, the sum of $400.00 per month was awarded in favour of the plaintiff.
316Clearly in Dragulin, Justice Swinton did not take into consideration the nature and quality of the interaction between parent and child and concluded that the Act includes no defence of fault or misconduct in the award of parental support.
317It appears in Dragulin the daughter claimed that she was not cared for by her father as a child and that she had an unhappy childhood because her father was verbally abusive. She also claimed she received no emotional support from her father as he called her insulting names while growing up and that a son Michael was beaten by their father. It seems that the parent in Dragulin was more abusive than the parent in Godwin. However, there is very little description regarding the extent of the father's behaviour in Dragulin other than what I have noted. I believe the facts in Dragulin can be distinguished with the case at bar with the breadth of evidence provided in court regarding the Applicant's abusive conduct towards not only her daughter, but others, and the extreme and long lasting negative impact on the Respondent daughter. Essentially, the evidence in the case at bar goes far beyond verbal abuse and an unhappy childhood. As well, the child that was ordered to pay support in Dragulin was never threatened in any way, although she may have witnessed physical abuse of the son Michael. The Applicant in the case at bar on the other hand has made numerous and various threats against her daughter with regard to both her physical safety and job security. Justice Swinton also emphasized the fact that the father was the primary source of financial support for the family until the daughter was 10 years old and that the family lived a modest standard of living and both parties continued to live modestly. In the case at bar, the Applicant was never the primary source of financial support rather her husbands provided financial support and in fact she overspent and depleted their assets. In addition, the Applicant never lived modestly except when forced to later in life as a result of her overspending and extravagant spending habits. The Applicant also has a greater yearly income as compared to the income of $12,000.00 in Dragulin.
318Moreover, although the previous cases state there is no fault-based defence it appears they did not take into consideration s. 33(10) of the Family Law Act in their analysis which emphasizes that the law does not reward those who have demonstrated unconscionable conduct and victimized another, especially one to whom support and care was owed.
319I acknowledge that s. 33(10) of the Family Law Act is only relevant in determining quantum of spousal support. However counsel for the Respondent did provide a useful case in this regard, namely, Bruni v. Bruni, 2010 ONSC 6568 (CanLII), 104 O.R. (3d) 254 (Ont. Sup. Ct.). In Bruni, the Court found at paragraph 210 of his decision that the conduct of the wife, which is to say her alienation of the father and child, was "evil" and thus awarded her a nominal amount of one dollar a month in support. This emphasizes in my view the fact that unconscionable conduct, especially with regard to the care of children, is not to be rewarded even if the Applicant is entitled to support.
320Accordingly, an argument can be made that if parenting behaviours are relevant with regard to spousal support it seems only logical that parental conduct must be relevant when the child is being asked to provide support to his or her parent.
321In Newson v. Newson, [1998] B.C.J. No. 751 (S.C.), the 74 year old plaintiff sought an order for interim maintenance. The defendants were the father's six children who were estranged from him and had been for years. The plaintiff had a pension income of $761.00 per month. He claimed that during his first marriage, he provided an affluent lifestyle for several years until his business failed. The defendants denied this contention and alleged they received little emotional support and described incidents of the plaintiff's drunkenness, anger and physical violence. The eldest son had a monthly income of $1,740.00 and expenses of $2,890.00. The older daughter suffered from multiple sclerosis and earned a monthly income of $2,400.00 and had expenses of $2,600.00. The younger daughter's monthly income was $2,160.00 and her expenses were over $3,000.00. The older child from the second marriage earned a monthly income of $4,200.00 and had expenses of $5,600.00. She also had significant income from investments. The younger child from the second marriage had a monthly income of $5,370.00 and had expenses in excess of $6,500.00. She also had significant investment income available to her.
322The Application was dismissed. The court held that taking into account the responsibilities, liabilities and reasonable needs of the defendants, no order was made against the children from the first marriage as none of them had sufficient funds to provide support to the plaintiff. The children from the second marriage did have sufficient funds but no order was made against them as well. It was held that any order would have been subject to the plaintiff's debts and the plaintiff's income met acceptable minimum standards. The plaintiff was seeking an improvement in his standard of living, which was already adequate under his pension income.
323Justice Burnyeat provided an excellent overview of the case law on parental support as of 1998 including decisions in other provinces and the United States. He spoke at length about the origins and growth of filial responsibility which is an ongoing debate in the United States and Canada. At paragraph 134 he quoted excerpts from Terrance A. Kline's article in the Family Law Quarterly, Vol. 26., No. 3, Fall 1992, pp. 195-210 on the issue of filial responsibility law and noted the following:
Courts undoubtedly will face several difficult issues in determining whether to enforce filial responsibility laws. For example, should a duty of support fall upon a stepchild if he or she was nurtured by the stepparent in a normal parent-child relationship? Should a prosperous adult child be required to support an indigent parent who abandoned the child during his or her minority? Should a duty of support be forced upon a child who was abused by a parent? Should the support obligation last longer than the eighteen years which the parent supported the child? Although these complex issues can be answered by the court on a case-by-case basis, in some instances a legislative response may be necessary to clarify state law.
324Justice Burnyeat went on to state at paras. 135 and 136:
That spousal support is aimed at achieving an equitable sharing of the economic consequences of marriage or marriage breakdown: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813. In pursuing the objective of equitable sharing of the economic consequences of marriage or marriage breakdown, specific objectives are set out in section 15(7) of the Divorce Act and section 89(1) of the Family Relations Act. No such objectives are set out relating to the obligations arising under section 90 of the Family Relations Act.
The goals for child support are found in section 15(8) of the Divorce Act and section 88(1) of the Family Relations Act. There is a requirement on a parent to support a child until that child reaches the age of 18 or is no longer otherwise dependent. That obligation arises because the parent made the decision to bring the child into the world and is therefore by law required to support that decision. No similar obligation is imposed upon a child to support a parent.
325Justice Burnyeat noted that only the decision of Dunn P.C.J. in Godwin, supra had dealt with whether the period of and the reasons for the estrangement are factors that should be taken into account in the "objective" evaluation of the Applicant and the ranking of the needs of the adult child.
326At paragraph 140 of his decision Justice Burnyeat summarized the factors which must be considered in British Columbia when reviewing an application made by a parent and one such factor was the evidence of abandonment, abuse and estrangement which he concluded could be taken into account as one of the factors in the objective evaluation of the application.
327In coming to his conclusion Justice Burnyeat stated at paras. 163 to 165 as follows:
The background information provided by the parties leads me to conclude that it is inappropriate for the court to in any way reward the applicant for his actions. It is clear that very little support was provided to Marina Newson, Torie Newson and their mother in the years leading up to and subsequent to the separation between their mother and the applicant. Of the six children, Marina Newson and Torie Newson enjoyed very little of the generous lifestyle which might have been available for the other four children. They also experienced considerably more abuse and their estrangement is both more permanent and more longstanding. There is nothing to suggest that the legislature intended to allow a benefit to be available to the applicant so as to in any way reward his abuse and abandonment of Marina Newson and Torie Newson.
In 1984, Madam Justice Proudfoot made an order distributing the capital assets of the marriage between the applicant and Susan Newson and, at the same time, made an order against her for support payments of $750.00 per month in his favour. It is clear that the applicant has not used his portion of the capital from the marriage wisely. …
The applicant is the author of his current standard of living. He can blame no one other than himself for the fact that his previous income and his previous capital base are no longer present. The state support which is available to him allows him to live in what the state has decided is a minimum acceptable standard of living. He should not be allowed to look to those he abused and to whom he provided virtually no economic or emotional support so that he can live in a manner more in keeping with a lifestyle he enjoyed almost 30 years ago. While he finds his current lifestyle "quite embarrassing" and while he says it causes him "substantial inconvenience", the applicant will have to continue to buy "the least expensive cuts of meat, and shop in discount stores" like many other Canadians. The usual desire of a child to repay the love, support and sacrifice of a parent cannot be legislated. In these circumstances, it is little wonder that all of his children including Marina Newson and Torie Newson wish to have nothing to do with the plaintiff and do not wish to provide him with support. Taking into account all of the circumstances, no order for support of the applicant will be made against Marina Newson or Torie Newson either. As the applicant has what society has decided is a minimum acceptable standard of living, the applicant is not in a position to look to those he has abused.
Credibility of the parties and witnesses
Applicant
328After a thorough review of the evidence I have some concerns about the Applicant's credibility. On several important issues the Applicant appeared to have no recollection (such as the amount of funds she received from her three husbands and how those funds were spent) but yet was able to go into great detail about her childhood and the alleged assault perpetrated against her by her daughter. It appeared to me the Applicant had an inability to recall details when it was harmful to her position. It was also highly concerning the Applicant would advise others she was in dire financial need yet she was able to continue to travel extensively.
329On a number of occasions the Applicant's testimony would contain glaring omissions which became apparent in cross-examination. For example, the Applicant testified her daughter had unfairly given away her dogs but neglected to mention the lengthy period of time during which her daughter and her partner were begging her to retrieve the dogs, the abusive emails sent to her daughter and having her daughter and partner criminally charged with theft.
330On occasion her evidence appeared contrary to the evidence she provided under oath at her Examination for Discovery in October 2015. Using this same example of the dogs, at trial the Applicant testified in-chief that she had to sue the Respondent civilly to effect the return of her dog, Chloe. During cross-examination it was apparent the Applicant had no recollection of suing her daughter when she provided evidence during her Discovery.
331The Applicant made denials of the suggestion that she had difficulties with emotional regulation. This denial was completely contradictory to the evidence provided by Dr. A., the Respondent, Mr. K. and Dr. R. which described some concerning histrionic behaviour. The Respondent, Mr. K. and Dr. R. were also subject to receiving hate mail from the Applicant.
332It was clear the Applicant believed the medical record she tendered at trial from the alleged assault by her daughter would be proof of the assault. Yet the record noted the Applicant had attended at the hospital the following day and no physical injuries were noted.
Dr. A.
333Dr. A. appeared to be a sympathetic witness considering she has supported the Applicant over 25 years in therapy. Despite the fact Dr. A. was credible in furnishing the court with information about the Applicant it became abundantly clear that Dr. A. simply accepted as truth positive everything told to her by her patient. As a result, over the years Dr. A. has never questioned the Applicant's actions as all of the information she received by the Applicant would have been through the lens of the Applicant only. Unfortunately, this may have only fuelled the Applicant's belief that she had little or no part in the conflict with others.
334Dr. A. also provided strong advocacy letters for the Applicant many times and as was pointed out during cross-examination provided varying degrees of exaggerated or inaccurate information to third parties.
Respondent
335In regards to the Respondent, I felt she testified in a straightforward manner and was not prone to exaggeration. Despite her negative feelings about her mother, she openly conceded there were some happy times during her childhood but unfortunately the bad times outweighed the good. She was also frank in indicating her mother had taught her about poise and fashion. On a number of occasions, she testified her mother was highly intelligent, a good writer/poet, decorator, etc. I did not feel the Respondent's evidence was shaken during cross-examination as compared to the Applicant.
336Moreover, the Respondent's evidence was often corroborated by the evidence of her father, her partner and her first husband. Her evidence was also supported by documentary and audio evidence.
Mr. K. and Mr. M.
337I found the Applicant's husband to be credible as was the Applicant's first husband. Both gentlemen appeared to be very sincere, genuine and a matter of fact during their evidence and remained consistent during their cross-examination.
338In fact the evidence of Mr. K. noting that the Applicant's behaviour was a large part of the demise of his marriage to the Respondent was telling. When this is combined with the evidence of Dr. R. who I also found to be credible, it paints a picture of a ruthless, abusive and manipulative individual much like what the Respondent described she endured during her youth and into adulthood. Moreover, the evidence of Dr. R. regarding his wife's overspending and the domestic violence he endured during the marriage is consistent with the Respondent's evidence of fights over money between her mother and Dr. D. as well as witnessing domestic violence between her mother and Dr. D. with her mother being the aggressor causing her fear.
339History is the best precursor of the future. As such, why would the court believe the Applicant's personality and behaviour towards her daughter prior to her 16th birthday would be any different after her daughter's 16th birthday?
Dr. R.
340I found Dr. R.'s evidence to be credible despite the fact he believes he is still suffering from the after effects of being married to the Applicant some 40 years ago. Despite vigorous cross-examination, he remained consistent in his evidence. Moreover, his description of the Applicant's personality and the abuse he was subjected to during their relationship was corroborated by a number of other witnesses which added to his reliability and credibility.
Mrs. V.
341Her evidence appeared to be quite neutral and unbiased. I found her to be credible during her testimony.
Ms. H.
342Her evidence was quite short as it related to the exchange of a dog between the Applicant and Mr. K. She was called as a rebuttal witness to rebut Mr. K.'s version of events regarding the Applicant falling to the ground when she received her dog. It was unclear whether Ms. H. was able to observe the Respondent at all times during the exchange. There was nothing to suggest Ms. H. was not credible.
343In the end, where the Applicant's evidence differs from the testimony of other witnesses called in these proceedings, the evidence of all other witnesses are preferred. Without specifying each and every occasion, this would include the Respondent's account of her childhood being fraught with domestic conflict in the home and becoming fearful of her mother, the reason for her departure from her mother's care, the alleged theft of the dogs, the alleged assault perpetrated by the Applicant against the Respondent. For example, it makes no sense that the Respondent and Mr. K. received calls from a number of people who were not on their wedding guest list and felt compelled to hire security for their wedding if the Applicant's version of events was accurate.
Did the Applicant establish need?
344The Applicant's counsel argued the starting point for an assessment on the Applicant's need for support is s. 33(9) of the Family Law Act. Section 33(9) provides some guidance to the court as there are a number of enumerated factors the court should consider in determining the amount and duration, if any, of support for a spouse or parent. In relation to need, the court shall also consider all the circumstances of the parties, including the factors outlined in this provision.
345It was the Applicant's position that she is in need of support from her daughter as her gross annual income from all sources is approximately $20,000.00. Moreover as noted in s. 33(9) (f) of the Family Law Act, the court must assess that person's needs having regard to the previous standard of living when the parties lived together. The evidence was clear that when mother and daughter lived together they lived an affluent lifestyle.
346The Applicant's counsel argued there was no "fault-oriented" defence to a parental support claim as was outlined in Godwin as s. 32 is a purely economic remedy and is virtually fault-free. There are but two exceptions. One is in s. 31(2) of the Family Law Act dealing with child support. This is a true defence as it strikes at the very issue of entitlement. It states:
The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.
347The other provision deals with spousal support and is in s. 33(1) of the Act. Unlike s. 31(2), it is more of a mitigating factor than a defence. It is not directed at entitlement but only at the issue of quantum. Section 33(10) states:
The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may, in determining the amount of support, have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.
348Accordingly, counsel for the Applicant submits for the support of a parent, there is no "fault-oriented defence" prescribed in the Act, unless a parent's failure to have "cared for or provided support for the child" can be construed as a fault-based defence.
349Counsel for the Applicant noted Justice Swinton, in Dragulin affirmed this no-fault principle at paragraph 14 of her decision that the Family Law Act does not "take into consideration the nature and quality of the current interaction between parent and child."
350Due to the above, counsel for the Applicant argued that an application for parental support under s. 32 of the Family Law Act is not meant to be a trial of the Applicant's character, ambition, past employment history, spending, historical wealth, marital relationships and the post separation parent and child relationship. Accordingly, the assessment of need as was noted in Dragulin is established by making reference to the factors set out in s. 33(9) of the Family Law Act and is a function of the Applicant's age and health as well as the respective assets and means of the parties, considered in light of the lifestyle enjoyed by the parties when they lived together. It is also a present assessment made at the time of the hearing of the Application.
351Counsel for the Applicant submitted that after the suicide of the Applicant's second husband the Applicant has had the assistance of her family including her mother, who allowed her to stay in her apartment for a time after Law School, and of her friends. However, the Applicant's debts to friends and social organizations have grown over the years and the assistance from others has effectively run out. In various periods of her life which followed her second husband's passing, the Applicant struggled to acquire and maintain stable employment, housing and financial stability and has relied on the assistance of family friends to live. The financial circumstances the Applicant finds herself in at present are connected by the evidence of her personal struggles in life with tragedy, her mental health issues, her age and her physical health issues.
352Counsel for the Applicant argued the Applicant has no assets other than her vehicle with a loan owing which is double the actual value of the vehicle. Her only source of income is from Old Age Security benefits in the sum of $5,659.42 per year, her CPP benefits in the sum of $10,507.55 per year, a Federal Supplement in the sum of $1,547.74 and her Ontario Teacher's Pension Plan benefits in the modest sum of $2,656.42 per year. According to the Applicant's financial statement, the Applicant's yearly expenses total $42,439.92 which comprises a net deficit of $22,068.79 between her income and expenses. Moreover, the Applicant possesses a high debt load on account of her personal loans, student loans, Canada Revenue Agency income tax, Provincial Offences debt, monies owed to Legal Aid and legal fees.
353It was submitted that as a result of the difficulties the Applicant has encountered in finding employment, her present health issues and limited prospect for employment in the future, and the limited means from within she currently lives, the Applicant is living in destitution and currently faces eviction. Accordingly, the Applicant has demonstrated a real and present need for support.
354Counsel for the Respondent reminded the court in her submissions that at common law, children are under no obligation to support their parents. Parental support (aka filial support) is entirely a creature of statute. Its origin was intimately bound up with legislative response to the problem of poverty in England in the sixteenth century. Parental support laws made their way to Canada in the 1920's and 1930's during times of economic crisis as a result of the dire conditions of the Great Depression. The Parent's Maintenance Act, S.O. 1921, c. 52 imposed the first statutory obligation upon residents of Ontario to provide parental support. There is no direct statement of legislative intent which explains the objectives or purpose behind the Act, but it is reasonable to conclude that parental support was an attempt to shift the rapidly increasing impact of poverty from a government in crisis to the family level. In 1978 this Act was replaced by s. 17 of the Family Law Report Act, S.O. 1978 c. 2, which in turn was replaced by the present s. 32 of the Family Law Act, R.S.O., 1990 c. F.3, as amended.
355According to the Hansard Debates: -http//hansardindex.ontl.on.ca/hansardissue/31-2/1019.htm a debate occurred in 1978 with respect to the inclusion of parental support in the Family Law Report Act. In voting to include the provision, the two overriding arguments in support of the inclusion were:
(i) Parental support relief was rarely called upon, and there were no documented cases of abuse of the legislation (i.e. there should be no harm in the law's continued presence); and
(ii) The Legislature was concerned about elderly parents left without remedy in circumstances where children took financial advantage of their parents, particularly in situations involving the transfer of assets/wealth to children.
356The preamble of the present Family Law Act which outlines the legislation's purpose appears to be applicable to parental support only to the extent that it is "desirable to encourage and strengthen the role of the family". All other reference within the preamble is specific to the obligations of spouses and parents. Moreover, there are no enumerated purposes or objectives of an order for support of a parent in Part III of the Family Law Act, in contrast to s. 33(7) and s. 33(8) of the Family Law Act which provide direction as to what an Order for child and spousal support should purport to do.
357The wording in s. 32 of the Family Law Act states: "Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who cared for or provided support for the child, to the extent that the child is capable of doing so."
358I agree with counsel for the Respondent that the breadth of the language used in this statement of law gives rise to a wide range of meaning and interpretation. The British Columbia Court of Appeal came to the conclusion that its parental support legislation was broad enough to enable the court to consider nearly all of a child's objections to alleviating the parent's perceived need in Newson v. Newson, [1997] B.C.J. No. 1192 at para. 35. In regards to s. 32 of the Family Law Act there is no guidance of the meaning of this provision and must be clarified through judicial interpretation.
359I agree with the Respondent's counsel that where the legislature sees fit to express its intention in broad terms, the courts should be free to assume that either (1) the lawgiver wished to delegate the development and detailed application of the statute to the judiciary or (2) the legislature wished the statute to evolve along with changes in the society's views or public policy. Whichever reason the lawgiver had for drafting a vague provision, the court is clearly justified in using dynamic interpretation to resolve in interpretative problems. As such, interpretation of provisions must receive such "fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit" as per the Interpretation Act, R.S.O. 1990, c. l. 11, s. 10.
360The Respondent disagreed with the suggestion that the starting point for an analysis of parental support is a consideration of the Applicant's need under the factors listed in s. 33(9) of the Family Law Act as this section enumerates the circumstances to be considered in determining the amount and duration of support, if any, after entitlement has been established.
361There is no judicial authority in Ontario which specifically considers the issue of "entitlement" to parental support. However, as in spousal support cases, it was submitted that the threshold test of entitlement must be met in cases of parental support before any analysis of need and capacity to pay follows. However, the provision of spousal support under the Family Law Act is equally broad stating:
- Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.
362This clause is similar to the provision for parental support in that both provisions create an obligation to provide support in accordance with need and the capacity to pay and neither provision uses the word "entitlement" within the wording of the section. As noted by counsel for the Respondent, the threshold of "entitlement" must be established before any analysis of quantum or duration for spousal support claims can occur.
363The three conceptual bases for entitlement to spousal support claims have been outlined by the Supreme Court of Canada in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.J. No. 14, Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.J. No. 107, Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] S.C.J. No. 21, and Kerr v. Baranow, 2011 SCC 10 (CanLII), [2011] S.C.J. No. 10 and are either compensatory; contractual or non-compensatory.
364The Respondent was 16 years of age at the time she ceased residing with her mother. Although she was still a minor, this was the first voluntary act made by the Respondent with respect to her residence. No economic hardship was caused to the Applicant by reason of the Respondent leaving her care save and except that she no longer received payments of child support. The child support was intended to benefit the Respondent in any event.
365From 1991 to present the Applicant was granted every opportunity to achieve economic self-sufficiency. The Applicant enjoyed the sole benefit of her second husband's Estate and divorce settlement from her third husband. The Applicant received additional schooling by way of undergraduate studies and Law School. Despite a number of years which the Applicant generated income as a lawyer, the Applicant continued to spend recklessly, failed to budget and failed to save for her retirement. This was the choice of the Applicant alone.
366I agree with the Respondent's counsel the Applicant does not meet the threshold of entitlement to parental support based upon any of the three recognized bases for support.
367In my view s. 32 of the Family Law Act cannot have such a strict interpretation and be an absolute liability offence. Otherwise, if you are a parent and overspend/gamble all of your earnings or make poor financial decisions such that you now find yourself to have a reduced income or a lower standard of living than previously enjoyed you are automatically entitled to parental support from your child as long as they have the ability to pay. Such a strict interpretation of the legislation defies common sense and logic.
368A finding of entitlement to parental support from a child cannot be made in a vacuum without a fact-driven analysis of the history of the relationship between parent and child and the reasonableness of an Applicant's purported need, specifically including why that person finds him or herself in a situation of need at all. As counsel for the Respondent argued "without this analysis, the birth of a child is a financial transaction; the guarantee of a pension for life". The issue of "entitlement" was not expressly considered in prior decisions.
369I have come to the conclusion that I am entitled to review the mother's history as to why she might find herself in her current financial situation and based on the evidence, she has not proven she is entitled to parental support from her daughter on the basis of "need".
370Even if "entitlement" for parental support was met, it should be noted the Applicant is 66 years of age and receives a guaranteed pension income of $20,000.00 per year. There was no evidence to suggest the Applicant could not continue to work on a part-time basis to increase her annual income. In fact Dr. A. testified that suggestions had been made to the Applicant about the potential positive impact of part-time employment on her self-worth, and although a part-time position of nominal remuneration "does not jive with her own aspirations for herself" there is no real reason she could not function at a low stress position.
371In contrast to Godwin where the Applicant survived a life of near poverty, the Applicant in the case at bar enjoyed a life of financial privilege. She lived in magnificent homes, travelled extensively and enjoyed shopping. Despite the fact she worked on occasion, for the most part the Applicant was supported by others. Despite the fact the Applicant had financial resources at her disposal she spent recklessly with no regard for her financial future.
372During her evidence, the Applicant had minimal recall as to the sums of money she received from her three husbands or how the money was spent. She could only state the capital was all gone. The Applicant certainly received financial compensation from her three husbands and made personal decisions as to how she would spend her money. Despite the fact she would advise others she was in dire financial need, she continued to travel on a regular basis. The evidence clearly supported the Applicant was living way beyond her means and wishing to present herself to others (and herself no doubt) as a privileged individual. Dr. R. testified as to his wife's lavish spending and how it led to arguments. The Respondent also testified the same types of arguments occurred between her mother and Dr. D. The Respondent, Mr. K. and Ms. V. all described times when the Applicant would eat at expensive restaurants despite the fact it was during times the Applicant testified she had minimal income. The Applicant's own financial records continue to show the Applicant attending at the casino, purchasing clothing or eating out on her $20,000.00 gross annual income.
373Furthermore, the Applicant had a teaching degree and could have continued to support herself teaching and paying into her teacher's pension. However, the Applicant decided regardless of her financial future, she wanted to pursue her dreams and quit what could have been secure and stable employment. The basis upon which the Applicant finds herself today is solely of her own making.
374There are a number of Canadians who live on the sum of $20,000.00 gross per year as it is an amount consistent with what an individual would earn holding down a full-time minimum wage position. In fact, a payor who earns the sum of $20,000.00 who has access to one child would have to pay the sum of $160.00 per month in child support reducing their available net income to support themselves. Although the sum of $20,000.00 to support one's self is not ideal, there are many in this situation who are able to provide for their own needs by budgeting their income and prioritizing their spending. Also, the Applicant did not provide any concrete evidence to the court that she has applied for part-time minimum wage employment which could also raise her income.
375Based on all of the above, the Applicant has not met the threshold of need to obtain parental support.
Did the Applicant provide support or care to her daughter?
376The Applicant noted that in Godwin, Justice Dunn was required to consider the meaning of "has cared for" and "provided support for" in s. 32 of the Family Law Act. Justice Dunn noted that the word "support" was not a defined word in the Family Law Act. He therefore relied on the definition of support in Black's Law Dictionary, 5th ed., which provided:
It is said to include anything requisite to housing, feeding, clothing, health, proper recreation, vacation, travelling expenses, … nursing and medical attention in sickness, and suitable burial at death.
377Justice Dunn also noted at paragraph 4.3 of his decision that care should be taken to avoid measurements like a minimum or a maximum approach. Rather, the test should be "What care and support for children would reasonably have been expected from a parent in the circumstances in which the family found itself?"
378Justice Dunn against the no-fault backdrop also noted at paragraph 4.3 of his decision that despite the complaints of the children having regard to their mother's parenting, she provided them with intangible values and support and was influential in producing four successful adults.
379Justice Dunn also noted at paragraph 4.4 that as with "support" the Act does not define the term "care" and he relied upon the definition of "reasonable care" in Black's Law Dictionary, 5th ed., which states:
Reasonable care is such a degree of care, precaution or diligence as may fairly and properly be expected or required, having regard to the nature of the action or the subject matter, and the circumstances surrounding the transaction. It is such care as an ordinarily prudent person would exercise under the conditions existing at the time he is called upon to act.
Substantially synonymous with "ordinary" or "due care".
380Ultimately, Justice Dunn held at paragraph 4.4 that the conditions existing at the time of parenting of the Respondents must be considered. On that basis, it was decided the mother had provided as much care as might reasonably have been expected of her. Although the quality of her care perhaps fell short of 1993 parenting standards, it was held that the care she had provided had produced four adults who were well educated, sophisticated, worthy and productive members of society.
381As noted by Justice Swinton at paragraph 14 of the Dragulin decision the requirement that the parent has shown care and support is not conjunctive and that a parent need not show both support and care.
382Due to the above, the Applicant's counsel argued there was no dispute the Applicant had provided both care and support for her daughter in her first 16 years of life. The Respondent in photographic evidence looked happy, well-dressed, well fed and cared for. The Applicant hired and retained a nanny which was a benefit to the Respondent (it should be noted it was a benefit for the Applicant as well). Regardless, it was the Applicant who was the primary caregiver throughout the Respondent's youth. The Respondent herself has acknowledged she learned a sense of fashion and an appreciation for style from her mother. The Applicant also provided her daughter with strong cultural and religious influences in the home.
383The Applicant's counsel further argued there was enough stability in the home when the Respondent was growing up with her mother that she was passionate about school, did not get into trouble with the law and her grades were maintained. The Respondent lived in an exclusive area in Toronto in homes which were furnished in high-style and which were run by the Applicant through her own efforts of gardening, cooking meals and kept clean and orderly under the Applicant's management. The Respondent also had the benefit of attending some of the finest schools in Southern Ontario. Moreover, the experience of having a bat mitzvah gave the Respondent confidence and poise such qualities which were likely drawn upon as she began her career as a lawyer. Moreover, given the level of prosperity the family experienced, the Respondent's enjoyment of travel, camp, clothing and all of her basic needs were met. Accordingly, the Applicant's counsel argued the reasonable threshold of care and support were not only met but exceeded.
384The Applicant's counsel argued that as a result of the no-fault scheme under the Family Law Act the estrangement between the parties was irrelevant in considering whether the Applicant had provided either care or support to her daughter from birth to the age of 16. This concept was supported by Justice Swinton at paragraph 15 of the Dragulin decision.
385Regardless, the Applicant was denying the abuse as alleged by her daughter both during her childhood and post-separation.
386Counsel for the Applicant stated she was aware the Respondent would advance the argument that the estrangement between herself and her mother is relevant and would rely on the Newson decision. The British Columbia Court of Appeal in Newson indicated that the period of and the reasons for the estrangement are factors to be taken into account in the "objective" evaluation of an Applicant and the ranking of the needs of the adult child in that jurisdiction. However, counsel for the Applicant argued that estrangement should not be considered as it is not supported by the language of s. 32 of the Family Law Act or its judicial interpretation in the Ontario jurisprudence as the statutory rules were never the same in Ontario and British Columbia and given that the new British Columbia Family Law Act which came into effect on March 18, 2013 does not carry forward the parental support obligations it once did in s. 90 of the Family Relations Act.
387The language under the now repealed s. 90 of the Family Relations Act, R.S.B.C. 1996, C. 128 reads as follows:
90 (1) In this section:
"child" means an adult child of a parent;
"parent" means a father or mother dependent on a parent because of age, illness, infirmity or economic circumstances.
(2) A child is liable to maintain and support a parent having regard to the other responsibilities and liabilities and the reasonable needs of the child.
388Accordingly, the B.C. legislation does not require there to be a finding that the parent has "…cared for, provided for the child…".
389Counsel for the Applicant argued that Ontario's framework for parental support is clear and has been limited by the statutory language and case law to a no-fault regime which considers only whether care or support have been provided by the parent in need of support, where the capacity to pay on the part of the child is present. Effectively there is no room for the expansion of the test for support as claimed by the Respondent.
390Counsel for the Respondent argued that in Godwin, the children were raised in a family at the low end of the middle class and at times were on social assistance. While their home was not a happy, care-free environment, it was not abusive. The trial judge noted that the quality of care that the Applicant gave her children "perhaps fell short of parenting standards of 1993 where there is now a clearer psychological understanding of children's needs for neurocrania and empathy", but this was acceptable during a time of limited understanding of the importance of "imbuing in children a sense of self-worth and self-confidence".
391In the case at bar, the Respondent testified to a childhood of chronic exposure to physical and emotional abuse and neglect. She was the only child of the Applicant and a father from whom she was alienated at an early age. She lived a lonely existence; her best friend was her nanny. Her home environment was an extremely volatile one, governed by two mentally ill adults: an abusive personality disordered mother, and a stepfather so clinically depressed that he took his own life. Physical and emotional violence was commonplace in the home. The Respondent left this abusive environment at the age of 16. In fact, the Respondent's first husband testified the Respondent viewed her father as her saviour. As noted by Dr. A. the effects of a child parented by a parent with anti-social personality tendencies would be devastating upon a child.
392I agree with the Respondent's counsel's argument that any child abuse or neglect, whether physical or emotional in nature, committed against a child by a parent demonstrates care or support so substandard that it falls far below the generally accepted norms. Although basic needs were provided to the Respondent during her childhood by her mother which included a number of luxuries, clearly what went on behind closed doors as noted by the Respondent's evidence was tantamount to emotional and psychological abuse and in my view does not meet the threshold of care or support as intended by s. 32 of the Family Law Act.
393Moreover, s. 32 of the Family Law Act provides no parameters as to the length of time that a parent must provide care or support to a child to trigger an obligation of reciprocal parental support. In the case at bar, the Respondent left at the age of 16 and never returned to her mother's care. The Applicant did not pay child support or contribute towards the Respondent's post-secondary education costs while she was still a dependant.
394In contrast to the facts in Godwin where it was noted the Respondents had a caring attitude toward their mother and any estrangement between the parties occurred subsequent to the commencement of litigation, in the case at bar, the parties had limited contact from 1991 to 2003 and no contact whatsoever since 2003.
395From 1991 to 2003 when the Respondent permitted contact with her mother it was not only disastrous but abusive. The mother's abusive actions and conduct towards her daughter commenced in childhood and continued into adulthood. I agree with counsel for the Respondent that the entirety of the parties' relationship is relevant to these proceedings. Otherwise, to do so "would be tantamount to condoning domestic abuse in families provided that the victim no longer meets the legal definition of child. I agree this view is morally repugnant to the underlying principles of the Family Law Act – "to encourage and strengthen the role of the family"."
396Once again it would defy all common sense and logic to permit a parent to indicate they provided their child with basic needs and even some luxuries only to be compensated with parental support when they have been abusive towards their child over their lifetime. Would this not be rewarding the abuser and penalizing the victim? Does this not simply perpetuate domestic abuse?
397As a result of the above I have come to the conclusion the Applicant has not provided adequate care or support to the Respondent to permit an award of parental support.
Does the Respondent have an ability to pay?
398There does not appear to be any dispute in this case regarding the Respondent's capacity to pay support.
399The Respondent's most recent T-4 statement from 2015 states her gross annual income was $166,683.00 which was eight times as much as her mother's gross annual income. The Respondent also enjoys some benefits from her husband's income.
400According to the Respondent's financial statement, she has approximately $13,867.08 in monthly income and approximately $12,847.97 in monthly expenses providing her with a net disposable monthly income of $1,019.11. I accept the Respondent's evidence that she and her husband live a modest lifestyle and this would account for some of her monthly surplus. I am also mindful that at this point in time the Respondent and her husband have no children and this could change in the future and affect her expenses although the Respondent's income may also increase in the future.
401I have determined that the Respondent does have the ability to pay some parental support if parental support was ordered.
Should parental support be paid to the Applicant?
402I have determined the Applicant has not met the threshold of need. I have also determined the Applicant has not provided "care or support" to her daughter of such a nature to be entitled to parental support.
403Over and above what I have already stated I believe there is a conduct-based defence against parental support by way of analogy to s. 33(10) of the Family Law Act such that unconscionable conduct would constitute an obvious gross repudiation of the relationship. I find no reason why raising conduct as a defence to parental support claims cannot be considered which is also rooted in some of my comments in assessing the Applicant's claim for need and whether she provided care or support to her daughter.
404In this case, the Applicant's conduct is exceptionally bad. She alienated her daughter from her father, exposed her daughter to domestic violence during her childhood, has threatened her daughter, has had histrionic angry outbursts, has belittled her daughter, made false criminal allegations against her daughter and Mr. K., sued her daughter and her partner civilly, caused her daughter and her partners to pay large sums of legal fees, disrupted her daughter's marriage, threatened her career and slandered her character. The Respondent fears her mother. The Applicant's conduct destroyed the mother-daughter relationship. It is difficult to imagine circumstances which would more obviously and grossly repudiate a mother-daughter relationship. Frankly, the mother's abusive conduct towards her daughter over the years disentitles her to any parental support from her daughter. I can think of no clearer case based on this set of facts.
405No parental support shall be granted.
Should a Restraining Order be granted?
406The evidence demonstrated historic physical and emotional abuse and threats, attempts to contact the Respondent's employer and harassing correspondence and voicemails which were a substantial source of fear and anxiety to the Respondent. The Respondent's fear was objectively verified by her father, her husband and her first husband. There is an overwhelming factual basis for a conclusion that this behaviour will continue in the absence of a restraining order.
Order
407The Applicant's claim for parental support is hereby dismissed;
408Pursuant to s. 46 of the Family Law Act, the Applicant shall be restrained from contacting or communicating directly or indirectly with the Respondent;
409The Applicant shall not attend within 100 metres of the Respondent's place of residence or place of employment;
410The Applicant shall not contact the Respondent's place of employment by way of telephone, email, or written communication of any form.
411If the parties are unable to resolve the issue of costs, they may make written submissions to the court. The Respondent's submissions are to be served and filed no later than 30 days from the date of this order and the Applicant's submissions are to be served no later than 30 days after receiving the Respondent's submissions.
412I wish to take the opportunity to thank and commend legal counsel for their utmost professionalism throughout this emotionally charged trial.
Released: October 17, 2016
Signed: Justice N. Gregson