COURT FILE NO.: FS-15-84098-00 DATE: 2019 07 02 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Grzegorz Bembenek Applicant
AND:
Renee Bembenek Respondent
BEFORE: Ricchetti, J.
COUNSEL: S. Benmor for the Applicant/Father M. Rose for the Respondent/Mother
HEARD: May 20, 21, 22, 23, and 28, 2019
JUDGMENT
THE PROCEEDING
[1] This is a family law proceeding under the Divorce Act.
[2] The primary issues to be decided are:
a) Decision making for the children of the marriage;
b) Parenting time;
c) Child Support; and
d) Equalization/Post Separation Claims.
BACKGROUND FACTS
[3] The parties were married on September 6, 2008. The Father is approximately 41 years old. The Mother is approximately 38 years old.
[4] There are two children of the marriage, S .B. born February 2 5 , 2010 , and M.B. , born June 1 4 , 2 0 1 3 ( " the Chi l dre n " ) .
[5] The matrimonial home was at 2455 Edenhurst Drive, Mississauga. It was purchased by the parties in October 2012.
[6] The parties also jointly owned, at the time of the separation, an income property on Fern Avenue ("Fern Property"). The Fern Property had been purchased by the Father prior to marriage, then used as a matrimonial home after the marriage until October 2012 and, subsequently, an income property. During the course of the trial, the parties agreed to the value of the Fern Property at $669,000 for NFP calculations. The Fern Property was sold on May 16, 2016.
[7] The parties separated on March 23, 2015 but continued to reside in the matrimonial home.
[8] On July 8, 2015, the police were called to deal with a dispute between the parties. No one was charged. Clearly, there was considerable conflict between the parties at the time residing in the same home.
[9] The parties retained counsel.
[10] On July 13, 2015, the Mother moved out of the matrimonial home. She took the Children with her.
[11] The Mother was resistant to the Father seeing and having parenting time with the Children.
[12] The Father commenced this Application in August 2015.
[13] The Father brought a motion seeking interim sole custody order with supervised access to the Mother. The Mother sought sole custody.
[14] The motions were settled before being heard. On consent, on September 28, 2015 the Court made an interim, without prejudice parenting order which provided the Father with alternating weekends and two “after school times” per week of parenting time. No interim custody order was made.
[15] In August 2016, the Father brought another motion seeking equal parenting time.
[16] On September 16, 2016, Coats J. made an order for the appointment of the Office of the Children’s Lawyer (OCL) to investigate and prepare a s. 112 report and granted a without prejudice consent interim order expanding the Father's parenting time. Again, there was no order for interim custody of the Children. Schedule A of the consent Order states that the Mother agreed to joint custody of the Children.
[17] The OCL accepted the file and commenced its investigation. The Mother advised the OCL that she agreed to joint custody of the Children. This was also the Father’s position on custody.
[18] On March 13, 2017, the OCL issued its report. The OCL made the following recommendations:
Custody: Joint custody
Access: The children will share their access time between their parents as follows:
• Mother will have access every Monday and Wednesday overnight and alternate weekends Friday after school to Monday morning.
• Father will have access every Tuesday and Thursday overnight and alternate weekends, Friday after school to Monday morning.
• Drop offs and picks up should occur at the school whenever possible (when the school is open) if the pick up or drop off falls on a holiday the parent who will have access shall pick up the children from the other parent’s home at the same time that the pick up or drop off would have occurred if they were in school.
[19] The Mother filed a dispute to the OCL Report. The Mother's did not, in her dispute, disagree with the OCL’s recommendation of joint custody.
[20] The OCL reviewed the dispute and concluded:
We have determined that the Report contained no factual errors, nor has there been any additional information put forward that would cause the OCL to change the contents of the Report or the recommendations made by Ms. Grant.
[21] As a result of the recommendations in the OCL Report, on July 10, 2018, the Father brought a motion for equal parenting time. On August 1, 2018, Andre J. dismissed the Father's motion as it was a variation of an existing interim order.
[22] On June 13, 2018, the divorce was severed from the corollary issues. The parties were divorced on August 14, 2018.
[23] The current shool (i.e. non holiday/summer) parenting time for the Father is as follows:
a) Week I: Monday 3:30 p.m. to 7:00 p.m., Wednesday 3:30 p.m. to 7:00 p.m., Friday from 3:30 p.m. to Monday return to school; and
b) Week 2: Tuesday 3:30 p.m. to 7:00 p.m., and Thursday 3:30 p.m. to 7:00 p.m.
[24] Holidays and summers are divided equally by the parties.
[25] Both parties seek to vary the current “school” parenting schedule.
[26] Currently, the Mother lives in an apartment in Mississauga with her new partner, Pawel Jagielski. The Mother has recently had a child with her new partner.
[27] Currently, the Father lives in Etobicoke (High Park area) with his parents.
[28] The Children go to school in Mississauga.
[29] Both parties work full-time. The Father is employed in the information technology department of the St. Stanislaus Polish Parish Credit Union Limtied and earned $62,096 in 2017. The Mother is employed as a Senior Manger of Compensation for Compass Group Canada and earned $105,594 in 2017.
[30] There remains approximately $175,000 in trust from the net proceeds of the sale of the property.
THE EVIDENCE CALLED AT TRIAL
[31] The Father, the OCL investigator (Karlene Grant), the Mother, and the Mother’s sister, (Monica Wilczewski), testified at trial.
THE POSITION OF THE PARTIES
[32] The significant areas of dispute between the parties are:
The Father
[33] The Father seeks a final order that:
a) The parties jointly make decisions for the Children;
b) During the school year, the Children reside with the Father every Monday after school until Wednesday drop off at school and on alternate weekends from Friday after school until Monday drop off at school;
c) During holidays and Summer parenting time is to be divided equally;
d) Commencing June 1, 2019, the Mother pay the Father set-off Table child support in the sum of $594 per month; and
e) The Mother to pay the Father an equalization payment in the sum of $220,790.54.
The Mother
[34] The Mother seeks an order that:
a) She have sole final decision making for the Children;
b) School week parenting time as follows, rota t i ng Week 1 and We e k 2 s c h e dule :
| Week | Monday | Tues | Wed | Thurs | Friday | Saturday | Sunday |
|---|---|---|---|---|---|---|---|
| Week 1 | Mother overnight | Mother overnight | Father overnight | Father drop off at school Mother overnight | Father overnight | Father overnight | Father overnight |
| Week 2 | Father drop off at school Mother overnight | Mother overnight | Father overnight | Father drop off at school Mother overnight | Mother overnight | Mother overnight | Mother overnight |
c) Parenting time during holidays and summer parenting time to be divided equally;
d) The Father to pay child support in the amount of $900 per month;
e) The Mother to pay the Father an equalization payment of $107,355.68; and
f) post separation adjustments of $12,410.27 is to be paid to the Mother by the Father.
[35] The Mother no longer claims occupation rent from the Fern Property.
THE LAW
Decision Making and Parenting Time generally
[36] Section 16 of the Divorce Act provides:
(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[37] The court may, in deciding custody and access, consider s. 24 of the Children's Law Reform Act (“CLRA”) , which also provides that custody and access is to be determined on the basis of the best interests of the child. The factors set out in s. 24 of the CLRA are:
(2) The court shall consider all the child's needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the child's care and upbringing;
(b) the child's views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
[38] In Rajan v. Rajan, 2014 ONSC 5383, Douglas J. said:
[256] The best interests of the child test is the only test under the Act, and paternal preferences and "rights" play no role in issues of custody and access. It is a legal test, albeit a flexible one, and is to be applied according to the evidence of the case, viewed objectively. There is no room for the judge's personal predilections and prejudices. Despite the maximum contact principle, contact is to be restricted if it conflicts with the child's best interests. [References removed.]
[39] Section 16(10) of the Divorce Act, provides :
In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[40] The goal of “maximum contact” will only be overtaken to the extent that contact with a parent conflicts with the child’s best interests. See B.V. v. P.V., 2012 ONCA 262, at para. 15.
Impact of Parental Conflict on the Children
[41] In Jackson v. Jackson, Murray J. dealt with the issue of parental conflict and its effect on children:
Too many parents in high conflict matrimonial disputes are or appear to be totally oblivious to the potential adverse impact on children of high conflict. Too many parents in high conflict matrimonial disputes are so self-absorbed and so absorbed in conflict that the best interests of their children are effectively ignored. Of course, they do not always perceive that this is the case. Sometimes, they simply may not care.
Often the war between the parents is waged in the name of the children and - according to the parents - war is waged for the best interests of their children. Winning is said to be equated with the children's best interest. But since "winning" is about the parents winning against each other, usually winning is not the same as the children's best interests. Winning is the objective of war. It is the war that is the most hurtful to children.
Research around the world underscores again and again that parental conflict can have multiple adverse impacts on children - both in the short and long term.
I can do no better than repeat Mr. Gilmour's conclusion that:"parental conflict is a major source of harm to children, whether the children are in intact families or their parents have separated or divorced."
[42] I include this reference because it appears that, to some extent, the conflict between the parties has, in this case in one area – non-school activities, overshadowed the needs and best interests of the Children.
OCL Report
[43] The authorities have consistently established the following:
a. OCL Reports form only part of the evidence at trial;
b. OCL Reports are expected to be tested and analyzed at trial via cross-examination;
c. There is no presumption that the OCL’s recommendations will or should prevail at trial; and
d. The ultimate decision is for the trial judge based on what is in the Children’s best interests.
Decision Making
[44] In Khairzad v. McFarlane, 2015 ONSC 7148, Chappel J. discussed the considerations in deciding sole custody and joint custody:
[27] . . . . The Act does not set out any specific criteria to assist in determining whether an order for sole or joint custody is appropriate, apart from the general "best interests" test. However, the case-law provides guidance regarding the factors to consider in deciding between the two options.
[28] The Ontario Court of Appeal's approach to joint custody has evolved over the years. In Kruger , and Baker v. Baker , the court held that joint custody is an exceptional remedy that should only be granted in circumstances where the parties demonstrate co-operation and appropriate communication, and are willing to try a joint custodial arrangement. Since that time, the court has dropped the requirement of consent to a joint custody order, but has maintained that in order to grant joint custody, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively with each other. The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint custody regime.
[29] While some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents' ability to work together. As Quinn, J. remarked in Brook v. Brook, "the cooperation needed is workable, not blissful; adequate, not perfect." A mere statement by one party that there is an inability to communicate will not be sufficient to preclude a joint custody order. The court must carefully consider the parties' past and current parenting relationship and reach its own conclusions respecting the parties' ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties. Furthermore, the existence of conflict and strife between the parties from time to time, and at the time of trial, will not necessarily preclude the court from making an order for joint custody. The question to be determined is whether the nature, extent and frequency of the conflict between the parties are such that the conflict is impacting or likely to impact on the well-being of the child. If the evidence indicates that the parties have been able to shelter the child from the conflict reasonably well and put the child's interests ahead of their own when necessary, an order for joint custody may be appropriate. The question for the court to determine is "whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis".
[30] Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of the child before their own, joint custody is not an appropriate order. In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making an order of joint custody.
[31] In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then claim sole custody on the basis of lack of cooperation and communication.
[32] There has been an increasing willingness in recent years to order joint custody rather than sole custody where necessary in order to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties.
[33] Although the foregoing comments outline the various factors and considerations which the courts have taken into consideration in deciding between sole and joint custody, the analysis must at all times remain firmly grounded in the best interests of the child before the court. While both parents may be attentive and loving, a joint custody order may not coincide with the child's best interests. As Pazaratz, J. stated in Izyuk v. Bilousov, "[I]n the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully."[References removed].
THE ANALYSIS
Preliminary Comments
[45] The parties worked full time through most of their marriage, even taking second jobs – the Father doing odd-jobs and the Mother singing. Except during maternity leaves, the parties had nannies and help from family members raising the Children. The Children were well cared for. Both parties gave considerable evidence to demonstrate that they had primary care raising the Children prior to separation.
[46] I find that both parties were involved in care giving for the Children until separation. This is not a situation where one parent had no interest or chose not to take a parenting role in the Children during the marriage. The roles of these parties in child care varied depending on the choices the parties jointly made such as the Mother remaining home on maternity leave, the Mother took on a second career, the Father worked full time and took on odd jobs, and their agreed upon and accepted responsibilities for their children, family and home life. While the parties have pointed to instances where they were the "front line" of child care, this court must consider the entire family relationship, their chosen and agreed upon assigned roles in their family life, their actions and other circumstances which, in this case, demonstrates that they had a significant and were a capable caring parent involved in the raising of their Children. I am satisfied that applies to both the parties.
[47] Both parents testified that they have, post separation, made all their decisions in the best interests of the Children. Yet, their actions with respect to non-school activities belie such self-serving testimony. The Children are enrolled in various extracurricular programs such as Polish Language School, Guitar, skating lessons, Stagecoach (music), soccer, religious, and craft camps. Unfortunately, during each party’s parenting time, the Children go to these extracurricular or non-school activities in which that parent enrolled them in but do not take them to the extracurricular activities the other parent enrolled them in. The Children lose the benefit of the respective non-school activities since they only attend half the time. The same is partially true for the religious upbringing of the Children. The Father takes the Children to one Catholic Church. The Mother takes the Children to another Catholic Church. Both proffer reasons why they do so. The difficulty arises when the Children have to attend an important religious functions like a first communion. What a very sad situation for the Children. Neither parent was prepared to or has budged on these issues. The standoff has continued for several years. Both have explanations as to why they have chosen to do what they do. Both say, and perhaps believe, they carry on in this manner because it is in the Children's best interests. Neither party appears to appreciate that this attitude and behaviour is not in the best interests of the Children. It perpetuates conflict between the parents and impacts on the value and benefit the Children receive out of the non-school activities.
The Credibility of the Parties
[48] For the reasons set out above, I have issues with the credibility of both parties.
[49] The Father has, during this proceeding, made serious unsubstantiated and disparaging allegations about the Mother. For example, in his Application, the Father alleged that the Mother had an alcohol problem which impacted her ability to care for the Children, requesting that the Mother only have supervised access. There is no evidence to support this allegation. During the trial the Father's concerns over the Mother’s alcohol problem became minimized and he testified the excess drinking only occurred in a "couple of situations". The Father also made unbelievable statements as to why the Mother ended the relationship, demonstrating a continuing animus towards the Mother for ending the relationship. The Father’s animus towards the Mother was evident from the Father's testimony when he spoke about the Mother and his reactions/interactions with the Mother's new partner (such as recording parenting exchanges), calling the police and other inexplicable conduct.
[50] The Mother, like the Father, embellished allegations against the Father in an attempt to obtain an advantage in the litigation. The Mother stated in her court filings that, on July 13, 2015, she "left the matrimonial home out of concern for the safety and well-being of herself and the children” as the "Father had been acting aggressively towards" her. The Mother did not disclose to the OCL such threatening behaviour towards her or the Children, which disclosure, if true, would have been significant. I find no such concern from the evidence at trial. The Mother also continues to harbour resentment towards the Father which was evident from her actions limiting the Father’s parenting time immediately after she left the matrimonial home and her trial evidence disparaging the Father's contribution to the home life and child caring activities prior to separation by saying such things as the Father was only "occasionally" home on Saturdays or when the Father was home, he was "quite often" downstairs or he "rarely took plates to the sink".
[51] The Mother’s animus towards the Father was also evident during the Mother’s counsel’s opening statement that the Father was "not capable" of caring for the Children. The OCL Report found no such concerns. There is simply no trial evidence to support such a strong, disparaging statement about the Father. The Mother does not explain how she reconciles this statement with the fact she agreed, and continues to agree, the Father should have substantial parenting time with the Children (including 50% of the time at holidays and summers). In other words, why propose the Father have almost one half of the parenting time, throughout the entire year, if the Father is not "capable" of caring for the Children? As a result of this animus, at least in part, the Mother makes decisions for the Children and expects the Father to comply with those decisions because she believes she is right and the Father is wrong.
DECISION MAKING AND PARENTING TIME
The OCL Report
[52] The Mother submits that the OCL Report be given little weight. I disagree. The OCL investigation was extensive. It took place over approximately 5 months, with numerous interviews of the parties, the Children, family members, and a review of school information. Ms. Grant, the OCL worker, who investigated and prepared the OCL Report, was experienced. Ms. Grant has a Master in Social Work. She testified at trial. She was a credible witness. I am satisfied Ms. Grant conducted a thorough and proper investigation resulting in appropriate and reasonable recommendations based on the facts, her assessment of the family circumstances at the time and what she considered to be in the best interests of the Children.
[53] The Mother submits the OCL Report is outdated and, therefore, should be disregarded. During her evidence, Ms. Grant admitted that her recommendations were based on the results of her investigation in late 2016/early 2017 and could not say whether the same recommendations would be made today. Of course. Ms. Grant doesn't know what has happened since she released the OCL Report. The circumstances may have changed significantly resulting in different recommendations. However, the Mother, aside from the passage of time and the “stand off” regarding the non-school activities, has not pointed to any other reasonable or compelling reason as to what circumstances have significantly changed since early 2017 or other reasons why the OCL Report should be disregarded or given little weight. The evidence over four and ½ days did not shed any troubling or significant change in the facts set out in the OCL Report except with respect to the ongoing dispute over non-school activities.
[54] The OCL reviewed the Mother’s dispute and concluded that no change to the recommendations were appropriate. I have reviewed the Mother's dispute, and considered her trial evidence, and am not persuaded that it raises any substantive basis to question the facts, the assessment or the recommendations arrived at by the OCL as it applies at this time.
[55] The OCL Report concluded that both parties were caring parents who interacted very well with the Children; both parties were concerned, capable, resourceful parents with the ability to meet the needs of the Children; and both Children relate positively to both parents. These conclusions are consistent with this court’s assessment of the parents at this trial.
[56] The Mother points to an area of concern raised in the OCL Report, the Father’ difficulty with the separation (i.e. moving on). The OCL Report recommended that Father attend counselling to deal with his residual feeling regarding the breakdown of the marriage. The Father attended counselling at Catholic Family Services six times. He stated this improved his perspective and focus on the Children. It is apparent from the trial evidence that the Father continues to have issues regarding the breakdown of the marriage and the Mother’s new partner. However, as I find, the Mother also continues to have issues regarding the Father.
Status Quo
[57] Both parties focused much of their evidence on establishing the extent of their child care responsibilities prior to separation. Prior to separation, the parties structured their home, family and child care responsibilities in a manner that the Mother had a greater role in the care of the Children and the Father had a greater role in other household activities. That is not to say the Father had no role, he too was involved in child care. I accept that the Mother’s child care role was greater prior to separation. This is evident from the fact the Mother took maternity leaves to remain at home to care for the Children while the Father continued working. Given the current ages of the Children and their needs, I am not persuaded the past agreed upon division of home, family and child care responsibilities demonstrates that the Father is less capable of fully or properly carrying out his parenting responsibilities for the Children; or that he should be deprived of the a significant role in the Children’s lives going forward; or that it is evidence that it is in the Children's best interests going forward that the Mother to have a greater role in decision making for or a greater parenting time with the Children.
[58] The Mother also makes much of the fact she had primary care of the Children since she left the matrimonial home on July 13, 2015. I am not prepared to give this factor much weight. The Mother left the matrimonial home, denied the Father parenting time for a period of time thereafter, opposed the Father having equal parenting time on several occasions in court. In each case there was a without prejudice , interim consent orders on parenting time leaving the matter to be decided at trial. To penalize the Father by pointing to the “status quo” obtained through “without prejudice” interim orders would make the “without prejudice” meaningless. That is not to say that, in some exceptional circumstances, disruption of the Children’s lives from a parenting arrangement over a long period of time, court ordered or otherwise, is not relevant in determining the Children’s best interests going forward. It might be. In this case, it is that the ages of the Children, the parenting time over the past three years and the proposed parenting time by both parties, the continuity of their education and health care, and continued residence in Mississauga would not, in my view, result in a significant disruption to the Children to make this a factor to maintain the parenting time routine.
The Historical Positions of the Parties On Decision Making
[59] The Father, in his Application, sought sole custody with the Mother having supervised access because of her alcohol consumption. He wanted to move the Children from the Mississauga school to a Toronto school. By September 2016, the Father changed his position. He sought joint custody and was agreeable to the Children remaining in the Mississauga schools.
[60] The Mother in her Answer did not specifically make a custody claim but, in the body of the Answer, sought sole custody of the Children due to the alleged inability of the parties to make joint decisions for the Children. By 2016, during the OCL investigation, the Mother agreed that the parties have joint custody of the Children. So did the Father. Hence, the OCL recommendation of joint custody in 2017.
[61] At trial, the Father seeks joint custody and the Mother seeks sole custody.
[62] The Mother explains that she has now changed her position since "her decisions were in the children's best interests" and she has found that when making decisions with the Father it is difficult because she believes he "doesn't take the children's best interests" into account but rather makes decisions based on being "against her". I can only take from the Mother's changing position on decision making that, she believed the Father, at least until 2017, was capable of making decisions with the best interests of the Children in mind or why else would the Mother have agreed to joint decision making at that time? Given the Mother’s attitude towards the Father, it is not surprising that the Mother disagrees with his views and decisions regarding the Children and finds that her decisions are best for the Children and his decisions are not.
The Factors to be Considered
Generally
[63] As stated above, the OCL concluded that the Children enjoyed time with both parents. There is no evidence this has changed in the last two years since the OCL Report.
[64] The Children are doing well in school despite the separation and apparent continuing conflict between the parties over non-school activities.
Love, affection and emotional ties.
[65] There are significant emotional ties between the Children and both parents. Both parents care deeply about the Children. Both are concerned about the Children’s best interests.
Current Children’s Environment.
[66] Both parties are concerned that the Children “bounce” around too much. Both provide a self-interested solution to this concern.
[67] The Mother rents a 1300 square foot apartment. She lives there with her new partner, a baby, and the Children during her parenting time. The new partner’s current immigration status creates uncertainty regarding the continuation of this home environment.
[68] The Father continues to live with his parents. He says he will move to Mississauga. Where to, when and what accommodations is unknown.
[69] The most, if not only significant dispute between the parties regarding the Children, is the continuing dispute over the Children’s non-school activities. This includes summer camps, religious and language studies, sports, music and other activities. None of these non-school activities are bad – each have benefits to the Children but the Children are registered in a great number of such activities but only attend ½ the time.
[70] I am not persuaded that the trial evidence disclosed any other significant areas of dispute regarding the Children. In my view, the very few other areas of dispute were not significant, were isolated and did not demonstrate an inability to parent or impact on what is in the Children’s best interests.
[71] If one parent had sole decision making authority it would no doubt change the Children’s lives relating to these non-school activities. One parent could and, in this case, would unilaterally dictate a significant portion of the Children’s non-school activities and thereby, to some extent shape the Children’s upbringing and minimize the other parent’s role in the Children’s lives. This is a very significant concern to this court.
The ability and willingness of each parent to put the Children’s best interests first
[72] Both parties have the ability to provide the Children with proper, Children focused, parenting. Both parties are capable of making decisions in the Children’s best interests.
[73] Actually putting the Children first in all decision making is another matter. The parties have failed to do so as it relates to the Children’s non-school activities. Each appears to want to enforce their views and will on what they consider to be in the Children’s best interests regardless of the other parent’s views or impact on the Children. The result has been unfortunate for the Children. As described in the OCL report, because of the parent’s failure to agree, until 2017 the Children had no non-school activities. Since 2017 the Children have a multitude of non-school activities but only engage in them part-time because of the parents. A solution needs to be found to prevent this from continuing.
[74] I find that the dispute over the non-school activities arises from, at least in part, the continuing ill feelings each parent has towards the other. Both parties, if left to their own devices, without the benefit of a court order, will impose their will on the other parent regarding these activities for the Children.
Willingness of each parent to promote a healthy and loving relationship with the other parent
[75] The attitude of the Mother towards minimizing the Father’s role in the Children’s lives is long standing. Shortly after leaving the matrimonial home, the Mother explained that initially letting the Father see the Children was a problem since she felt the Children were under her primary care, she couldn't leave them unattended and she couldn't be sure the Father could provide day to day care for the Children. The Mother was “hesitant” to allow access because she was concerned the Father would not return the Children to her, but there was no evidence this was a real concern. The Mother said that she refused to allow the Father to see the Children unless it was "organized through her lawyer". Because of her views regarding the Father, the Mother hindered the Father’s parenting time until a court order was issued. The Mother’s attitude that she knows what’s best for the Children and should decide what the Children should do (coupled with her unilateral decision making over the past 3 years), raises serious concerns that the Mother will not promote a healthy relationship between the Father and the Children.
[76] As for the Father, his initial position regarding the Mother (her alcohol problem and seeking supervised access) raises concerns regarding the Father's attitude towards the Mother. The Father’s actions regarding his intransigence to “make up” parenting time and animosity to the Mother’s current partner raises concerns on how the Father would promote the Children’s relationship with the Mother unless there is a structured, court ordered, decision making and parenting time. The Father remains convinced that he is right when it comes to decision making for the Children because the Mother has “changed her attitudes and beliefs”. The court has concerns that the Father too, will not necessarily promote a healthy relationship between the Mother and the Children.
The permanence and stability of the family unit with which it is proposed the Children will live.
[77] There is a concern regarding the Mother’s family unit. The Mother has a new family unit with her new partner and their child. The new partner has two children in Poland. The new partner has no immigration status in Canada despite having been here for years and been employed in Canada. This creates uncertainty regarding the Mother's family unit.
[78] The Father is going to move to Mississauga but when and where are unknown.
The ability of each person applying for custody of or access to the child to act as a parent.
[79] Both parties are good loving parents and have the ability to be good custodial parents of the Children.
Ability to Communicate and Agree on Child Care Decisions
[80] This is the most challenging issue facing these parents.
[81] The Mother has simply made unilateral decisions regarding the Children despite the fact that she did not have custody of the Children. This is one of the most troubling aspects of Mother's "attitude" referred to above. As stated above, the Mother did so because she believes she is the only one who can make the best decisions for the Children – without realizing that this attitude is indicative of excluding or minimizing the Father’s role in the Children’s life. This is yet another reason why the "status quo" has little significance in this case.
[82] The Mother’s counsel’s submitted that the Mother had the right to make "custodial" decision arises as granted under s. 20(4) of the Children’s Law Reform Act is very troubling. The Mother’s counsel alleges that the Father acquiesced, or there was implied or actual consent to the Mother’s custody. None can be further from the truth. It was known and clear to all that the Father wanted either sole custody or joint custody and equal parenting time:
a) The Mother knew from August 2015 that the Father was seeking a substantial role in decisions regarding the Children, in fact, initially seeking sole custody and later joint custody;
b) The Father brought two motions seeking sole or joint custody;
c) The consent orders relate to parenting time. Custody was not dealt with at all. It was not the subject of the parties consents or the orders; and
d) The Mother’s motion in September 2016 sought sole custody but the consent did not include any custodial or decision making order to the Mother or the Father. Clearly, the Mother knew that she had not received the relief sought from the court that she needed.
[83] Given all the circumstances, the Mother could not possibly reasonably believe the Mother had the ability to unilaterally make decisions regarding the Children. Nevertheless, the Mother proceeded to make decisions for the Children and simply told the Father that this is "what they are doing", without consultation or agreement and then expected the Father to go along with her unilateral decisions and pay his share of the expenses she incurred for such activities.
[84] To now submit that the Mother had the Father’s consent, implied consent or acquiescence, has no merit whatsoever. In fact, I am satisfied that, based on the Mother’s testimony at this trial, the Mother’s attitude that she will make decisions to the exclusion of the Father is consistent with an unhealthy attitude for raising the Children by the deliberately disregarding the Father’s views and input.
[85] Notwithstanding this reciprocal attitudinal concern, the parents have agreed on a great deal of issues:
a) The parents are in agreement that the Children reside in Mississauga;
b) The parties are in agreement on health issues (continuation of the medical and dental providers);
c) The parties are in agreement on education issues (continuation of the same schools); and
d) The parties are in agreement on religious issues – at least that the Children should be raised as Catholics. What they cannot agree on is what church, religious and Polish heritage classes.
[86] There remains the concern that these parents might not be able to or choose not to agree on child care decisions going forward or agree on any necessary changes to what is currently the subject of agreement. To date, no one has required the parents to jointly make decisions regarding the Children.
[87] In my view, given the parties love their Children, when confronted with a court order that requires them to agree on decisions regarding the Children, they will do so. I come to this conclusion because it appears to me that on significant decisions, such as schooling, location of residence, health and dental issues, some religious issues, the parties have been able to come to an agreement. The only real area of disagreement has been the non-school activities. The failure to agree on these are, in my view, in part related to the ongoing litigation and each party wanting to demonstrate that they have taken an active role in the Children’s lives. Both were fearful of being perceived as relinquishing rights to the other parent or becoming subject to an order keeping the status quo. Four years have now passed since the separation. The financial issues, which may have driven some of this in the past, will now be resolved by this judgment. As a result, I am confident the parties can make such decisions with the best interests of the Children in mind.
The plan proposed by each person applying for custody of or access to the child for the child's care and upbringing.
[88] I reject the Mother's counsel submission that the Father didn't ask for more parenting time because he agreed to the consent orders. The Father's actions speak loudly. He continually sought equal parenting time but settled on a without prejudice basis for something less. A “without prejudice” basis! He kept trying for more parenting time. The Father should not be penalized as the Mother's counsel suggests.
[89] I have reviewed the Child Care Plans provided by the parties during this proceeding. Both have advantages.
Conclusion on Decision Making
[90] Both parents have used their non-school activities to exclude the other party’s chosen non-school activities. Both have ignored that neither had decision making authority for the Children. Each proceeded as they saw fit. Each ignored the other parent’s decisions. This tit-for-tat is not becoming to either party.
[91] I recognize that there is evidence the parties cannot agree on certain limited aspects of child care. In many circumstances where there is significant conflict between the parents, a joint custody order is not appropriate. On the other hand, the circumstances of this case are such that, many significant Children decisions are made, will continue and are not in dispute. Granting sole custody to either parent will, consciously or unconsciously, minimize the role of the opposite parent by excluding non-school activities they think important for the Children or in future decision in other areas as may be necessary. Granting a sole custody order will add to the strife for the family including the Children. I am satisfied that a sole custody order, to either parent, would not be in the Children's best interests going forward.
[92] I have considered whether a parallel parenting decision making order would be appropriate. I am not persuaded that it is. The parties agree on many of the significant child care issues. If necessary, I see no reason why they couldn't agree on changes to these existing child care issues.
[93] In cases where granting one parent sole decision making would minimize the other parent, the court have considered granting joint custody if the court is satisfied that joint custody could nevertheless work in the best interests of the Children. In Hsiung v. Tsioutsioulas, 2011 ONCJ 517, Brownstowne J. said:
[17] I am acutely aware that an order for joint custody should not be made in cases where the parents have been unable or unwilling to demonstrate the capacity and willingness to communicate and to co-operate with each other and make decisions together in a civilized, child-focused way. However, courts are increasingly prepared to order joint custody, even in high conflict cases, where satisfied that the parents have insulated the children from the conflict and sufficient protective factors are in place to ensure that the joint parental authority will be workable. Moreover, in recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship. [References removed]
(emphasis added)
[94] Given that the parties have agreed on many decisions involving the Children and there is only one area of disagreement (the non-school activities), for the reasons set out above, I am satisfied that the parties should have joint decision making for the Children as it is in the Children's best interests going forward. This will result in a balanced and equal involvement of both parents in the Children’s lives going forward.
[95] To ensure that the parents do not default into non-agreement on the non-school activities, if the parents cannot agree on up to two school year “non-school” activities and summer time activities, I order that each parent may pick one school year non-school activity and one summer activity (that involves both parenting times), which both parents will ensure the Children attend regardless of whose parenting time is impacted. Hopefully, it will not come to this and the parties can agree upon non-school activities.
Conclusion on Parenting Schedule
[96] I agree that there is no presumption of equal parenting time. The overriding principle is that parenting time should be determined based on what is in the best interests of the Children. As set out above, maximum contact with both parents is a significant principle guiding this court unless it conflicts with the best interests of the Children.
[97] Both parties agree that the current parenting schedule is not ideal for the Children.
[98] The Mother’s proposed parenting schedule would have the Children be with the Father on alternating weekends and on Wednesdays overnight. The Father’s proposed parenting schedule would have the Children with the Father on alternating weekends and on Monday and Tuesday overnights each week.
[99] In the circumstances of this case, I agree that the equal parenting time suggested by the Father is in the Children's best interests. Both parents will have equal parenting time.
[100] This is subject to a concern. The Father "foresees" himself moving to Mississauga this summer. He has stated to this court at trial and on several occasions previously that he was going to move to Mississauga. As a result, he should have no difficulty with the parenting time he requests commencing at the beginning of the 2019/20120 school year on the condition that he move and reside full time in Mississauga in the same school district that the Children attend by September 30, 2019. The summer is here and the parties have agreed upon equal parenting time during summers and holidays. In the event that the Father does not move and reside full time in Mississauga in the same school district that the Children attend by September 30, 2019, this will constitute a material change in circumstances permitting the Mother to seek to vary the parenting time ordered by me (and for a reconsideration of child support).
Conclusion on Child Support
[101] There were few submissions on this issue. Both parties acknowledge that the child support will follow the Child Support Guidelines depending on the parenting time ordered by this court.
[102] During the trial, the Father agreed that he owes $696 (2017 Child support arrears), $2,172 (2018 Child support arrears) and $543 (2019 Child support arrears to trial). The Father shall pay $3,411 forthwith for Child Support arrears.
[103] As for going forward child support, the Mother shall pay set-off child support in accordance with s. 9(a) of the Federal Child Support Guidelines commencing July 1, 2019 until further order of this court.
Conclusion on Section 7 Expenses
[104] There are a number of issues regarding past s. 7 expenses. Both parties signed the Children up for various non-school activities without the consent of the other (although there may have been some agreement on certain activities).
[105] In light of the past history of the parties, I decline to award any arrears to the date of this judgment for s. 7 extracurricular activities.
[106] Going forward, the parties shall share all s. 7 expenses, to which they both agree on , in proportion to their respective incomes for that year. As set out below, if the parties are not able to agree on non-school activities, either parent may sign the Children up for one activity during the school year and one activity for the summer which coincides with their joint parenting time, and, provided the costs for such activities are reasonably commensurate with the income of the parties, the cost of such activities shall constitute s. 7 expenses which the parties must share in accordance with their respective incomes.
Equalization
[107] The Parties prepared a Joint Comparison of NFP. Let me deal with the remaining issues in dispute.
The Household Contents
[108] The Mother claims that the Father should be attributed the sum of $50,000 on the basis that he kept the household contents. The Father submits that the Mother took the household contents she wanted. In any event, there is no valuation of what the value of the remaining household contents.
[109] I accept the evidence of the Father that the household contents were divided as the parties wished. I am satisfied that the Mother had an opportunity to take what she wanted and left what she didn’t want. It is unfair to now let the Mother come forward and demand payment for the household contents.
[110] Another major shortcoming is the failure of the Mother to provide a valuation of the household contents as at March or July 2015. The Mother’s claim is based on what the household contents cost (although no receipts or other evidence of cost was provided) when purchased rather than their value on separation – which, in most cases, the value of used household contents is significantly less than purchase price, if there is any value in them at all.
[111] The onus is on the Mother to prove this claim. She has failed to do so.
[112] The $50,000 entry on the Joint Comparison of the NFP (page 2) for household contents shall be deleted.
The Mother’s Loans to Her Sister and Brother
[113] The Mother includes in the NFP loans made to the Mother in the amount of $80,000 from the Mother’s sister (Monica Wilczewski) and brother Christopher Wilczewski). There is no issue that the monies at issue came from a bank account jointly held by the Mother and her siblings which money originated from the Mother’s father’s estate and which borrowed funds were used to purchase the matrimonial home.
[114] The Mother says that these loans were documented in a written Loan agreement, executed by all the parties, including the Father as guarantor of the Mother’s loan from her siblings. The monies have since been repaid by the Mother to her siblings.
[115] The Father’s evidence in chief was that he was not aware of the loans, never signed a document to acknowledge the loan or told about the loan until after separation. The Father suggests that the monies were a gift. With this denial, the Mother's sister produced one of the original loan agreements, albeit late and during the trial.
[116] The original Loan Agreement between the Mother and her siblings, with the Father as the signatory as guarantor was produced at trial. The Father’s testified it looked like his signature but didn’t recall signing it. The Father’s equivocation on this issue was troubling. The existence, rationale for and validity of these loans was entirely consistent the Mother’s evidence. In addition, the Mother’s sister’s evidence was credible. I accept her evidence.
[117] The Father did not even put forward a credible reason why the Mother’s siblings would have “gifted” the money to the Mother from their own father’s estate to allow the parties to purchase their matrimonial home. I reject the Father’s evidence on this issue.
[118] I am satisfied, on the balance of probabilities, that the two $40,000 loans were bona fide loans to the Mother and that the Father knew of and approved these loans from the Mother’s siblings.
[119] The two $40,000 entries on page 5 of the Joint Comparison of the NFP shall remain.
The Fern Avenue Property and Appliances
[120] At trial the parties agreed that the value of the Fern Property was $669,000.
[121] There was no evidence as to the value of the furniture and appliances left in the Fern property at the date of separation when the parties moved out and started to rent the property. Clearly, the items were old. I am not persuaded that any value should be attributed to the furniture and appliances in the Fern property. The amount should be shown as $0 for both parties.
[122] Page 6 of the Joint Comparison of the NFP shall be amended accordingly.
The Father’s Loans to Relatives
[123] The Father’s evidence on this issue was vague.
[124] The first loan claimed was for $31,000 to Stathatou Elizbieta-Zofia on March 10, 2008, several months before the marriage. There were some alleged payments in 2009 and 2010. What happened to the repayment is not clear.
[125] In addition, the Father’s evidence on what his aunt repaid him, was also vague but he was certain it was repaid. The Father states he refinanced property to loan this money. Yet there is no corroborating documents in this regard.
[126] The second loan claimed is for $4,500 to Piour Sielonska on September 10, 2006. The loan was repaid in 2008 and 2010. What happened to the repayment is not clear. The evidence was also vague and unsubstantiated. The Father couldn’t recall where he obtained the money for the loan. There was no bank statement showing the loan.
[127] The Father’s documentary evidence of these "loans” was “thin”: a photocopied document and lack of particulars as to why the loans were made and the source of his funds. What is particularly troubling is that the Father did not include these loans in his Financial Statements (July 23, 2015 and August 12, 2016) until he was required to include the value of his pension. When he included the value of his pension, the value of the pension was essentially offset by these “new” loans included in his Financial Statement.
[128] Add to this shortcoming on the Father’s evidence that the Mother didn’t know about these “loans”, which evidence I accept. Weighing all this evidence, I am not persuaded that the Father has established these loans on the balance of probabilities.
[129] These amounts shall be removed from the Joint Comparison of the NFP on page 6.
The Vehicles
[130] The Father’s evidence on these vehicles were gifts:
a) The Father suggests that he renovated the Mother’s parent’s basement and as compensation, they made him a gift – a Mercedes, which was put in the Mother’s name, the Mother drove it and then sold it. Yet, the Father shows it as a gift on his NFP to be excluded from the division of property under the FLA.
b) As for the Dodge Caravan, the Mother’s parents provided $9,000.
[131] The Father’s evidence is rejected. There is no documentary support for his position. His position makes no sense that the Mother’s parents would pay him for renovation work by way of a gift to him, to the exclusion of their daughter. The first time these “gifts” appear is on the Father’s July 20, 2018 Financial Statement (despite numerous prior sworn Financial Statements provided by the Father). No credible, reasonable explanation was offered why these items would show up 2 years later only to reduce his NFP to $0.
[132] The Mother on the other hand includes two $10,000 cheques as proof of a gift from her parents, some of which was used to buy the Mercedes. Yet, the cheques do not say gift. In any event the Mother used these monies to purchase family property. There is no evidence that, by doing so, the nature of the original amounts (even if gifts) were intended to remain excluded property for equalization purposes.
[133] Section 4(3) of the FLA puts the onus on the party seeking the exclusion under s. 4(2). I am not persuaded that either party has established these amounts as a gift so that it should be excluded from the NFP calculations.
[134] I see no basis to conclude that these were gifts to either the Mother or the Father. These "gifts" will be removed from the exclude property in the NFP.
Post Separation Adjustments
The Fern Property Claim
[135] The Fern Property was registered solely in the Father's name. The Father was the sole mortgagor. The Order of Sept 28, 2015 required the parties to equally contribute to the mortgage, insurance and property taxes. This was subject to “post-separation” adjustments.
[136] The rent collected, for all of 2015 until sold in 2016, was $39, 220. The Father shows expenses of $48,500.70 during the same period.
[137] The Mother claims $11,221 for her one-half share of the net rental income. The Father says there was a loss.
[138] The Father claims that the Mother didn't pay any of the expenses. That is false. The Mother paid 1/2 the mortgage and insurance as ordered by the court. The Father does not account for the Mother’s contribution. Nor does the Father’s calculation show the Father making a similar contribution to the joint bank account used for this property, although such was ordered by the court. The Father simply used the rental income to pay the bills. When confronted with this discrepancy, the Father’s answers were evasive and suggesting that the Mother could (or did) take money out of the account.
[139] The calculations are impossible to reconcile. The Father uses full year 2015 expenses and 2016 expense until sale. It is not clear why he would use full year 2015 numbers. Whereas the mother uses expenses from September 2015 until sale. The Mother does not deduct the "last month deposit" transferred to the new owner. Some of the entries do not reconcile such as the rental income entries claimed by the Father. The Mother used the actual amount of rent deposited and these differ from the amount used by the Father. The Mother fails to include the actual amount of the mortgage paid to arrive at the net profit.
[140] Using the Mother's numbers, when the mortgage, taxes, and other expenses are deducted from the rental income (which the Mother did not do), she submits it shows a profit from the Fern Property of approximately $2,000.
[141] The Mother contributed $10,858 as ordered by the Court. The Father did not.
[142] The parties are to recalculate the net rental profit from September 2015 until the property was sold without the $10,858 contribution from the Mother. Then the parties will determine whether there was a net rental profit or loss was for this period of time using the actual income, actual mortgage and actual other property expenses paid. This should permit counsel to calculate the proper amount to be divided between the parties, either a profit or a loss. If it is a profit, one-half should be added to the Mother's credit of $10,858. If it is a loss, the Mother's one- half share of the loss should be deduced from the $10,858 credit she is entitled to and the Father should contribute to the Mother one-half share of the loss. If there is a disagreement on the correct calculation and adjustment, the parties can deal with this by way of written submissions.
CONCLUSION
[143] During the trial, the Father conceded that there is an outstanding amount owing for child support in the amount of $189.99. So ordered to be paid to the Mother and to be included in the Judgment.
[144] During the trial the Father conceded the amount of $3,411 forthwith for Child Support arrears. So ordered to be paid to the Mother and to be included in the Judgment.
[145] During the trial both parties agreed to use Family Wizard for communications regarding the Children. The Judgment shall include such a provision.
[146] During the trial, both parties agreed that the Judgment shall also include a provision that the Children's residence not be moved from Mississauga without the written consent of both parents or a court order. The Judgment shall include such a provision.
[147] During the trial both parties agreed that the Judgment shall include a provision that the Children's surname not to be changed without the written consent of both parents. The Judgment shall include such a provision.
[148] The parties shall prepare a new NFP utilizing the above rulings. Should there be any disagreement, I will hear written submissions. The Judgment shall include any equalization payment.
[149] The parties shall calculate the post separation adjustments as directed above.
[150] The parties shall agree on a Judgment reflecting decision making, parenting time, Child support, s. 7 expenses utilizing the above rulings.
[151] The Judgment shall provide for the distribution of the net proceeds remaining in trust in accordance with the amount of the arrears, equalization and post separation amounts calculated in accordance with the above.
[152] The Judgment to provide that the parties have joint custody of the Children.
[153] The Judgement shall include that the equal parenting time shall take place during holidays and summer holidays; and that during the school year the Father’s proposed parenting schedule shall apply. If the Father fails to move and reside full time into the Children’s school district in Mississauga by September 30, 2019, this shall constitute a material change and the Mother may bring this matter back before me (provided I am available) for a variation of this Judgment’s parenting time provisions and a reconsideration of child support.
[154] The balance of the terms of the Judgment to include the terms which are common to the parties’ draft Judgments and, subject to this court’s approval, any other terms the parties may agree upon.
[155] Interest on any outstanding amounts shall accrue interest at the rate of 3% per annum.
COSTS
[156] If the parties cannot agree on the issue of costs, the following directions shall apply. Cost Outlines have been received by this court.
[157] Any party seeking costs shall serve and file written submission on entitlement and quantum within three weeks of the release of these reasons. Written submissions shall be limited to 5 pages with attached authorities.
[158] Any responding party shall have three weeks thereafter to serve and file responding submissions. Written submissions shall be limited to 5 pages with any authorities relied on attached.
[159] There shall be no reply submissions without leave.
[160] The parties should be aware that the cost decision in this case will likely be held in reserve by me until the Father has either moved to Mississauga or after the Mother has brought a motion to change before me.