COURT FILE NO.: FS-17-89269-00 DATE: 2020 01 17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

M.M. Barbara A. Barnett, for the Applicant Applicant

• and -

E.M. Self-represented Respondent OFFICE OF THE CHILDREN’S LAWYER Marion Gage, for the Office of the Children’s Lawyer Respondent

HEARD: September 11, 12, 13, 16, 17, 18, 19, 20, 23, 24, and 25, 2019

REASONS FOR JUDGMENT

Fowler Byrne J.

[1] The Applicant Father, M.M., and the Respondent Mother, E.M., were married for over fourteen years. They had one child together. An eleven-day trial was held before me to determine all outstanding issues relating to the custody and access, support and property issues.

[2] In the course of the trial it became apparent that it would be harmful for the child to be identified in these proceedings or for the child to become aware of the facts in this case at this time. Accordingly, an Order was made to identify the parties and the child by their initials and to seal the court file in its entirety.

I. Background

[3] To characterize this separation as acrimonious is an understatement. The parties have been unable to co-parent or agree on any financial issues. The Mother has maintained throughout the trial that since separation, she has considered herself at war. Clearly, the most significant casualty of this war has been their child, M.T.J., who just turned 13 years old.

II. Issues

[4] The following issues must be determined:

a) Custody and access b) Child support c) Spousal support d) Equalization e) Post-separation adjustments; and f) Restraining order.

III. Factual Findings – Custody and Access

[5] The parties met while attending university in London, Ontario.

[6] While at university, the Mother earned a three-year Bachelor of Arts in Economics. The Father was a primary reservist with the Canadian Armed Forces, having served for a full year before he started his post-secondary education. While at university, he received degrees in kinesiology and education.

[7] Both the Father and the Mother were ambitious. Following her graduation, the Mother worked full-time at Scotia McLeod in London, Ontario, while the Father completed his education. While there, she completed the Conduct and Practices Handbook Course and the Canadian Securities Course offered by the Canadian Securities Institute. She was hired in an entry-level position, making approximately $24,000 per year.

[8] The Mother was told by her employer that in order to move up in the company, she would have to relocate to Toronto. Accordingly, upon the Father receiving his teaching degree, they moved back to Mississauga. They commenced cohabitating in February 2001 and were married on July 15, 2001.

[9] The Father progressed as a primary reservist. He joined expeditionary deployments in the former Yugoslavia in 1997 and 1998. After graduation, he was deployed to Bosnia in a peacekeeping role. He continued as a reservist and rose up the ranks by earning different leadership qualifications. In addition, he became qualified as a military paratrooper, jumping every 60 to 90 days.

[10] The Father also progressed in his civilian career. Following his graduation from university, he became employed as a teacher. After he was married, he took online courses through Queen’s University and Lakehead University which allowed him to teach both intermediate and junior levels at school.

[11] After the parties moved to Mississauga, the Mother started working at McKenzie Financial. Again, it was an entry-level position where she earned approximately $27,000 per year. She worked her way up to the position of regional sales representative, which was the position she held when she started her maternity leave in 2006. At that time, she was taking courses to be a Certified Financial Planner (‘CFP.’).

[12] The Mother became pregnant and the child M.T.J. was born on December 17, 2006. Unfortunately, the Mother failed to finish her courses to be a CFP while on her maternity leave. She returned from her maternity leave a little early in 2007 and she continued to work full time. She claims that she then had plans to become a Certified Financial Analyst.

[13] In that same year, when the child was not yet one year old, the Father was asked to do a tour of duty in Afghanistan. He claims he accepted this posting only after the Mother indicated that she was agreeable. She maintains now that she was never in favour of it. Once the Father agreed to go, he started working towards his deployment in December 2007. In January 2008, he moved to the Armed Forces base in Petawawa, Ontario, where he stayed for eight months in preparation. He was able to come home on the weekends. The Mother was working full time.

[14] The Father was deployed in August 2008 and was away for eight months until April 2009. While he was away, the Mother relied heavily on her family to help with the child. She stayed with them a great deal of time. Upon his return in April 2009, the Father launched right back into his teaching career.

[15] Unfortunately, in or about October 2009, the Mother was laid off due to market conditions. At the time she was laid off, she was earning approximately $70,000, which was comprised of a base salary of $55,000 plus bonus, RRSP contributions and a share purchase programme. After that, the family decided that she would stay home and be a full-time mother to the child. The parties disagree on what the plan was with regard to her returning to work. While both agree that it was anticipated she would return to work eventually, the Mother stated that due to the Father’s many jobs and his extra time dedicated to military activities, she would not be able to get a job until he cut down his hours. He maintains that if she returned to the workforce, he would reduce his work hours. The Mother had not returned to work by the time they separated.

[16] The Father progressed in his teaching career. He continued to upgrade his skills, eventually becoming a vice-principal and then a principal.

[17] Also, from 2010 to 2012, the Father became a part-time consultant with SNC-Lavalin, working on average forty hours per month writing risk-assessment reports. He continued to fulfil his duties as a reservist, working one evening per week, plus one weekend per month. He continued to keep up his skills as a paratrooper. He also took various trips where he conducted training exercises, including a regular training exercise in Holland each summer for two weeks. He also attended commemorative ceremonies as part of his reserve duties, as well as associated social events, and funerals for veterans.

[18] The Mother started to experience depression in 2009. She saw a doctor at that time who told her she was depressed and that it was “situational” given that the Father was away for a while and she lost her job. She believes she was prescribed sleeping pills. She later went back to see her family doctor who prescribed anti-depression medication for a short period.

[19] The following December, in 2010, when the extended family was gathered for Christmas, the Mother became very distraught and spoke about self-harm. The Father and the Mother’s father took her to the Queensway Health Centre where she was assessed, released and encouraged to seek counselling. According to the Father, the Mother attended counselling in 2011 and took medication, which he believes was for depression. She didn’t like the side effects, so she stopped taking the medication and claims she got better on her own.

[20] Things didn’t improve. The more the Father worked, the more distraught the Mother would become. Things became worse in 2012 and she started talking about self-harm again. In late 2012 or early 2013, the Mother’s father brought her again to a mental health facility for an assessment, the outcome of which is unknown. She was encouraged to go back to work by the Father, and she applied to teacher’s college. In the end, she decided not to pursue it.

[21] The parties’ relationship started to deteriorate. In 2013, when the Father decided to go out with friends for his birthday, the Mother became enraged. When he returned, she assaulted him several times in front of their six-year-old son, calling the Father a “bum”. He left the home for a few weeks after that, and they tried counselling. He left again around Christmas in 2013 and took the child with him to his parents. Although there was talk of separation, he eventually moved back in, but he knew he had to make arrangements to move out permanently. The years 2014 and 2015 were difficult for the couple. There were constant arguments, and the Father moved in and out of the home. In September 2015, the Father was on his way out of the house to meet with friends and the Mother physically prevented him from leaving by cornering him in a powder room. In his struggle to get out, he punched a hole in the powder room door. She went to the kitchen to get a knife, which she says was to fix the hole, but the Father took it as a threat. He eventually restrained the Mother’s arm that was holding the knife and was able to leave. The Mother reported this event to the police a year and a half later in August 2017, asking the police to press charges and force the Father to take counselling, as she claimed he was suffering PTSD from his tour in Afghanistan.

[22] During this period, the parties communicated little except through electronic means. The Mother would send the Father messages stating that she did not want to be a mother or asking him to take the child. The Father eventually left the marriage for good on or about January 1, 2016, leaving the child with the Mother.

[23] At the time of the separation, the Father was 42 years old, the principal of a senior public school and the Deputy Commanding Officer of Queen’s Own Rifles, making him second in command of a regiment of approximately 300 soldiers. The Mother was 41 years old, a full-time mother and had been out of the work force for nine years.

[24] When he left, the Father took little with him. He came back to see the child as much as he could in the evenings although it was not clear from the evidence how often he did. The Father tried to stay engaged with the child. He took him to gymnastics, martial arts, and Cubs. He claims it was difficult because his relationship with the Mother was acrimonious. She oscillated between wanting to reconcile to lashing out by yelling or writing scathing e-mails. The Mother e-mailed to the Father a photo of the child crying, with the caption “[M.T.J.] is upset…because he doesn’t want to move to Scarborough” where the Father was living with his parents.

[25] From the evidence presented at trial, it is clear that at this time, if not earlier, the Mother was suffering from untreated depression. Her failure to treat this depression unfortunately caused her to increasingly act in a manner that was hostile and belligerent towards the Father. While this made life difficult for the Father, it had a tremendous negative impact on the child, the effects of which he continues to suffer today.

[26] When the Father advised the Mother in April 2016 that he was proceeding with the divorce, her communications become more hostile. In May 2016, she sent him an e-mail with the subject line “It’s the long weekend” and continued in the body of the e-mail, “Just wondering what you’re planning and whether or not I need to smash more toys/sell the house/kill someone.” Despite this hostility, he did move back into the home in July to help with the child when the Mother was attending to her sick mother, who eventually passed away. This unfortunately gave the Mother false hope of a reconciliation.

[27] In September 2016, the Father met with the Mother and child at a fast food restaurant, where he confirmed to her that the relationship was over. An argument ensued in front of the child, which resulted in the Mother leaving in the Father’s car with the child and their dog. The Mother also grabbed the Father’s phone. They ended up back at the fast food restaurant and another argument ensued that was so bad that the Mother tore the watch off the Father’s wrist and left, and a by-stander offered to call the police for him, which he did himself as well. While the police were interviewing him in the parking lot of the restaurant, the Mother showed up again, yelling, causing the police to intervene. They took her home where the Mother threw out the remaining belongings of the Father. No charges were laid.

[28] During this period, the parties continued to communicate by e-mail. While the purpose of the emails was purportedly child related, the Mother used e-mail communication as a way to harass the Father, his professional colleagues and even his counsel. She also uses it in an attempt to reconcile. Examples of the many harassing e-mails include the following:

a) On January 21, 2017, the Mother e-mails the Father and states: “As you’ll be in Meaford and I suspect handling firearms, perhaps you’d like to put that weapons training to good use and do yourself a favour by avoiding the red tape of this divorce. Otherwise expect a slow death by a thousand cuts.”; b) On February 28, 2017, the Mother emails the Father and states: “I’m about to flip this e-mail out to everyone on your contact list (or maybe I already did) and I’m just wondering if there is anything you’d like to add: Hello, my name is [M.M.]. I am an entitled 43-year old prick who lives with my mother. I’m an asshole and a loser who thinks it is appropriate to beg for a baby and then dump the entire responsibility on my Mother while I leave the country pursue my own desires. I think it is cool to go out drinking with my friends while my Mother sits at home with our 2-year-old because I can’t stay home ever and I think it’s fair to have my parents suffocate my Mother by showing up whenever they want, trying to tell her what she’s going to do and what she will eat and what she’ll name our fucking kid. I’m an asshole of the worst kind but I can’t help; it because my mother is the biggest bitch on the planet so I learned from the best. I feel entitled to things I didn’t work for and now I hope to gain my ripping off my Mother’s money since my parents didn’t give me anything and I can only thing about buying beer. I am an asshole of the worse kind, so next time you see me coming be sure to tell me to FUCK OFF and kid me in the ass as you pass me by. c) Later in the same email chain the Mother states: “Are you scared yet? Because I haven’t even gotten started.” d) On March 1, 2017, the Mother emailed the Father saying: “As I’ll be having sole custody and there’s nothing keeping me here. I’m thinking of moving to Europe for a while and I’d take [M.T.J.] with me of course. Do you know how this might affect his school year? Say I pull him out in April? I have already called the school about moving him…now it’s just a matter of timing.” e) On March 2, 2017, the Mother e-mailed the Father and stated: “Anticipation of death is worse than death itself. You be the judge of that. And so begins death by a thousand cuts. You might as well block me now.” f) When the Father would not respond, the Mother wrote on March 6, 2017: “…IGNORING ME ALL THE TIME doesn’t do anything either except confirm for me that I AM MAKING THE RIGHT DECISION. Tomorrow I will photocopy all your text and post them all over your school yard so the WHOLE WORLD can know how you feel about YOUR BROWN GIRLS.”

[29] The e-mails would be sent constantly, many in a day. In order to limit any further communication, the Father blocked the Mother’s e-mail address. In order to continue her harassing behaviour, the Mother started using the child’s Gmail e-mail account to contact the Father, which resulted in the content of this communication being viewable by the child. Some examples of the e-mails sent through the child’s e-mail account are as follows:

a) On March 3, 2017, the Mother wrote: “You really expect me to get along with your mother?? ….IF I WANTED HER STUPID OPINION I WOULD ASK FOR IT. I will teach [M.T.J.] to hate her and we will desecrate her grave once she is gone. You can let her know that so she can take that with her to hell because that is where she is going. ….. Have you block me yet? Have you gotten a restraining order yet? b) On March 6, 2017, the Mother wrote: “Daddy I asked you a simple question about.…how it will effect [M.T.J.’s] school year if I pull him out after April and we move to Europe. …I haven’t been to that spot and it’s as good a time as any to go. Besides, I hear it’s a good place to meet guys. And while I’m there I’m looking for a place for [M.T.J.] and I to live for as long as I see fit.”; c) On March 9, 2017, she wrote: “Come on [M.M.], make up your mind. I’m calling your bluff. Call the cops. Tell them I won’t stop harassing you. Come on Luigi…it’s your move. Have them pick me up at the house with all the neighbours watching and then make my Dad pay bail and then let [M.T.J.] tell the story to all of his friends. … If your future is with your mother then choose your mother. If you future is with a brown girl than you can have peanut-allergy kids who carry an epi-pen and get nose bleeds from smelling hot sauce. Make up your mind. SPEAK BOY SPEAK!! Let’s set an appointment for the cops to pick me up so I can be here and ready for them with freshly baked cookies when they get here this time.” d) On March 9, 2017, she wrote: “YOU DIDN’T GIVE UP ANYTHING and it is f-ing rude to say things to me like…where are your friends?? When I gave up a lot for this child. YOU DIDN’T LOOK AFTER THIS KID AT ALL and then you complain when you take him skiing once on your own about how much work it all is…give me a break. …I was convenient for you was I?? YOU make me FEEL BAD. I can do better and I will. It’s just a bloody mess to get out of and I want a clean break…no contact, sole custody, I’m moving FAR FAR AWAY and I don’t want to approve anything through you….” e) On March 10, 2017, she wrote: “provide a 3 rd party mediator then like I asked and I will e-mail them every 7 minutes instead of you.” f) On March 24, 2017, she wrote: “Understand this. YOU WILL NEVER SEE MATTHEW AGAIN. NEVER. AND I’M NOT SORRY FOR WHAT I DID. YOU DESERVED IT. YOU ASKED FOR IT.”

[30] The child confessed that the Mother asked him to send some of the messages. It was very upsetting for the child to tell his father this. The child was concerned he could go to jail for letting the Mother use his account.

[31] Harassing e-mails were also sent to the Father’s counsel. Under the guise of discussing child custody and access, the Mother appeared unable to send an e-mail which was not rife with vulgar insults towards the Father and racial slurs about his friends and his lawyer. When confronted with these e-mails at trial, the Mother’s only response was that people did not understand her sense of humor.

[32] In addition, the Mother would attend at the Father’s place of work, which is a senior elementary school, and put stickers on his car that were designed to embarrass him and leave threatening notes under his windshield. When the Application was served on the Mother in May 2017, she attended at his place of work and egged his car in the parking lot.

[33] As a result of this behaviour, and other behaviour the details of which are laid out in the exhibits filed at trial, on May 11, 2017, the Mother was charged with criminal harassment for her activities between September 18, 2016 and May 11, 2017. She was released on bail on May 13, 2017, with a number of conditions, which included to not contact or communicate in any manner with the Father and to not attend any place where she knew the Father lived, worked, frequented or any place she knew he would be.

[34] Unfortunately, the harassment did not stop. The Mother sent harassing e-mails to the Father’s colleagues and friends. Between June and August 2017, she sent e-mails to Jonathan Vance, Chief of the Defence Staff of the Canadian Forces, to Charles Lamarre, the Chief of Military Personnel, as well as to General Vance’s assistant, making allegations that the Father was violent and a perpetrator of domestic violence. She threatened to contact the Globe and Mail, or the Queen directly. This was extremely embarrassing for the Father, and he had to meet with the Chief of Staff of the Forces. Many of his superiors or managers were concerned for his safety.

[35] The Mother also attended at the facility where the child took gymnastics, knowing the Father would be there, in violation of her recognizance of bail.

[36] In light of the Mother’s conduct, her brother, who acted as her surety when she was released on bail, revoked his surety. With the assistance of her lawyer, the Mother surrendered herself to police where she was charged again on September 1, 2017 for egging the car and for twice failing to comply with her recognizance of bail. The Mother was again released on a recognizance of bail, and again her brother agreed to be her surety. The conditions of her release were the same, except that she could use her brother to communicate to the Father in order to arrange access to the child.

[37] The Father obtained leave to bring a motion for interim custody and access prior to a case conference as he was unable to obtain consistent access to the child. The parties were able to resolve the issues on a temporary and “without prejudice” basis. As set forth in the order dated September 21, 2017, the child would reside primarily with the Mother, but the Father would have access on alternate weekends, every Monday after school, and alternate Thursdays after school. Also, the child’s e-mail account that was utilized by the Mother was to be shut down, and the Office of the Children’s Lawyer was asked to assist. A case conference followed shortly thereafter, where Christmas access was set out. Access was adjusted again after a disclosure meeting with the Office of the Children’s Lawyer in December 2017.

[38] Things fell apart in January 2018. The Mother had a breakdown. She was brought to the hospital by an unknown party but was discharged. She spoke about ending her life. As a result of a phone call received through a crisis line, the police apprehended the Mother under s. 17 of the Mental Health Act, R.S.O. 1990, c. M.7, and brought her to the Credit Valley Hospital on January 10, 2018. She was at the hospital less than 3 hours when they discharged her.

[39] On January 15, 2018, the Father contacted the police indicating that the Mother would not allow the child to leave the home for the Father’s access time. She blocked the child’s exit from the house and pleaded with the child not to leave. The Mother tried to speak to the Father, contrary to her restrictions, and the Father felt it necessary to call the police. The police were also advised of a large number of voicemail messages left by the Mother for the Father, contrary to her restrictions. The Mother was arrested again for failure to abide by the terms of her recognizance. She resisted arrest saying she was not leaving with the police. The police had to threaten that they would use their tazer on her. She had to be thrown to the ground. She was detained and released again the next day, on January 16, 2018. The child witnessed it all and later told Stephen Cross, the individual retained to provide a section 30 assessment, that he felt very bad, being caught in the middle of his two parents. The child had just turned 11 years old at that time.

[40] As a result of this, the Father brought an urgent motion to change the child’s residence. The matter was heard on January 17, 2018, and an Order was made that the child would henceforth be residing with the Father. The Mother’s access was to be supervised for a minimum of 2 hours at least twice per week. The child was to obtain a cell phone which he and his mother could use for communication. The Mother was also to have telephone access to her son each morning and each evening. The Mother was also ordered to obtain the earliest appointment available for a psychiatric assessment to determine if she suffered from a mental illness that would pose a risk of harm to the child. The Mother was also ordered to not attend at the child’s school or anywhere else the child was going to be, and that all communication between the Mother and Father was to be through OurFamilyWizard.com. This order was later amended on March 2, 2018 to add an order that Stephen Cross conduct a custody and access assessment pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. The telephone access was varied so that it was up to the child to decide if he wished to initiate calls in the morning through the school week. Restrictions were placed on the calls, such that they were not to speak about the Father, the Mother’s desire to reconcile with the Father, the current residential arrangement or her desire for greater access, or any issue in dispute between the parties.

[41] Things got worse for everyone. The supervised access centre could not provide services for the amount of time ordered and at times the child refused to go. Eventually, the parties also utilized the services of a private supervision centre. Notes from the first supervised access centre and the private facility show that on occasions the Mother would have to be directed to stop quizzing the child on the living arrangements or asking about the Father. At times she had to be redirected from forcing the child to do the activities that he clearly did not want to do.

[42] In an effort to comply with the Order of January 18, 2018, the Mother attended at the Trillium Health Centre in order to see a psychiatrist. At trial, she provided a copy of a progress note dated February 7, 2018. The note indicates she had a prescription for Wellbutrin, which treats depression, and Zopiclone to treat insomnia. Of note in the progress report are the following statements made by Dr. Elena Miula, who saw the Mother on that day:

a) “She reflected on the past a lot. That made me encourage her to use her psychotherapy sessions that she has available here. In the past she felt that the psychotherapy was “a waste”.” b) “I asked her what can I do to help her given that she is quite ambivalent about therapy. She stated that “I do not want medication just need something for the court to show them I am not going to kill myself.” I talked with her about the purpose of therapy. It would be good to sit down and try to set up some goals for herself, things that she can do in the daytime, how to work organize herself.”

[43] The Mother did attend some short-term counselling through Trillium Health Centre. Once it ended, her counsellor, Ms. Sandra Cunningham, recommended that she join a support group, which did not appeal to the Mother. Unfortunately, the Mother did not provide anything that would address the question posed in the order of January 17, 2018, namely, whether she had a mental illness that posed a risk of harm to the child.

[44] The Mother provided evidence of counselling sessions she attended in 2017 and 2018 through the Toronto Military Family Resource Centre. The Mother indicated she first attended for marriage counselling and because she wanted information on PTSD, which she suspected the Father suffered from. She attended three sessions to deal with goal setting and moving on. She also utilized their services to improve her CV to re-enter the work force.

[45] On or about March 20, 2018, the Father was bringing the child to the dentist for a prearranged appointment. When he arrived, he noticed that the Mother was there, so they turned around and waited five minutes to see if she would leave. When he went back, she was in front of the dental office and yelled at him about bringing the child to the dentist. She also kicked his car and pulled off his license plates. He called the police. The Mother got in her car and left but then reappeared and drove towards the Father in her car. The child believed his mother was trying to hit his father with the car. When the police arrived, the mom was arrested, and again, all was witnessed by the child. The child had to make a statement for the police. The Mother was charged on March 21, 2018 with a breach of an undertaking, two counts of breach of her recognizance and mischief over $5,000. She was released the next day on the same restrictions. The Father also had to call the police several days later when the Mother attended at the child’s gymnastics class when the Father was there, knowing he was likely to be there. Around this time the child again started to refuse to go to supervised access visits, despite the Father pleading with him to do so.

[46] On March 30, 2018, the Mother pleaded guilty to two counts of mischief over $5,000 and two counts of failing to comply with her recognizance. She was not incarcerated but was subject to a probation order that she not communicate in any way with the Father except through a family court order or to attend a mediation. As part of her sentence, she took a 12-week anger management course. Also, with the assistance of her probation officer, she got a referral to a cognitive behavioural therapist. She saw this therapist between either July 2018 or the fall of 2018 until she was incarcerated in April 2019, as detailed below. The Mother stated that she found it helpful and that she did not get any worse.

[47] Things got worse for the child. He didn’t want to visit his mother. He knew her car and her license plate number and he would see her driving where she was not supposed to be. They tried to move to a new address, but the Mother found out where they lived and showed up, forcing the police to be called. The Mother would appear near her brother’s house (which was near the child’s school) holding a sign for anyone to see saying “[M.T.J.] I love you, come back to your mother.”

[48] The child stayed with a friend after school. The Mother was witnessed walking up and down the street where he stayed. In May 2018, there was an incident where the child and his friend ran unexpectedly into his mother on the street and he ran back to the school knowing she should not be there. The child was very shook up (as was his friend) and the police were called.

[49] The child never knew when his mother would appear, and he believed she was breaking the law when she did so. He became hyper-vigilant, watching for her car, checking windows while at home and latching the second lock on the door even if his father left for a few minutes. He unfortunately had to learn how to write a police statement and make a police statement on video.

[50] In August 2018, the Father checked his voicemail and found a series of approximately 30 voicemail messages, all from the Mother, which relived the past, sought reconciliation, and oscillated to anger and disparagement. Some were a few days old. He phoned the police once again and the Mother was charged again with criminal harassment and failure to comply with her probation order. When she was released, her recognizance again indicated that she was not to communicate in any way with the Father, but also included a provision that she was not to communicate in any manner with the child except through any orders in the family law proceeding.

[51] More charges followed. On November 2, 2018, the Mother was charged with criminal harassment with respect to the Father. On November 13, 2018, the Mother was charged with failing to comply with her recognizance and criminal harassment. She was subject to the same conditions of release with respect to no communication or contact with the Father. Any access to her child had to be pursuant to a family court order.

[52] The Mother would also not follow the rules of the Peel Access Centre. She refused to wait the required 15 minutes after the child left, as was the protocol. Accordingly, the Access Centre refused to accommodate her again after November 2018.

[53] The Mother brought a motion in December 2018 wherein she sought additional access. Her motion was denied. The child was to attend a supervised access visit shortly thereafter. After much convincing by his father, the child did attend, but the Mother was not there. She indicated she was too upset by the motion she lost. This was extremely discouraging for the child.

[54] Indirect contact by the Mother to the Father continued in early 2019, either through a friend of the Mother or the Mother’s brother. More emails were sent to the Father’s Armed Forces email account. The Mother continued to drive by the home of the Father’s parents. She also showed up at the child’s gymnastics class. The continual breaches resulted in the Mother being arrested again. Although the Mother’s brother offered to post bail, the presiding judge denied her request for bail and she was incarcerated on April 2, 2019. To his credit, the Father offered to bring the child to see the Mother while incarcerated, but the child declined the offer.

[55] Rather than plead guilty, the Mother requested a trial on her new outstanding charges. The trial took place between July 8 and 10, 2019. The Father and the child had to be witnesses at that trial. On July 10, 2019, the Mother was sentenced on three counts of failing to comply with her recognizance and one count of failing to comply with her probation order. She was acquitted of criminal harassment charges. She was given credit for her time served.

[56] While in custody though, she again breached her recognizance by writing indirectly to the Father through a third party. She was charged again. She pleaded guilty to this charge. As a result, she remained in custody until August 15, 2019, when she was released and permitted to serve the remainder of her sentence on weekends. This sentence has now been served. The terms of her probation order from July 10, 2019 include:

a) to not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with the Father except in the presence of counsel; b) to not be within 500 m of any place where she knew the Father lived, worked, went to school, frequented or any place she knew the Father to be except through the presence of or through legal counsel in her family law proceedings; c) to not be within 500 m of the child’s school, or any place that she knew the child to be, except pursuant to an order of the Superior Court made after that date, for the purpose of conducting or defending a Superior Court proceeding, or for the purposes of attending family mediation with a accredited family mediator or professional mediator or service provider; d) attend and actively participate in all assessment, counselling or rehabilitative programs as directed by her probation officer and complete them to her probation officer’s satisfaction

[57] Unfortunately, on the first day that this trial was scheduled to commence, the Mother was arrested in the court for again, failing to abide by the terms of her probation. In particular, it is alleged that she followed the Father and child on their way to gymnastics, drove up beside them and said “Hi [M.T.J.].” A short recess was permitted so that she could be processed, and again the next day for her to attend her bail hearing. She was released on bail and the trial continued.

IV. Custody and Access – the Law

[58] When determining the issue of custody, the court shall take into consideration the best interests of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(8). The court is not to take into consideration the past conduct of a party unless it is relevant to the ability of that person to act as a parent of the child: s. 16(9).

[59] Also, the court must give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with their best interests, and for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact: s. 16(10).

[60] The Court of Appeal for Ontario has recently affirmed the importance of considering the principle of maximum conduct as set forth in s. 16(10) of the Divorce Act: Rigillo v. Rigillo, 2019 ONCA 548, at paras. 3-4; Kagan v. Brown, 2019 ONCA 495, at para. 6.

[61] As emphasized in Rigillo, the goal of maximum contact will only be overtaken to the extent that contact with a parent conflicts with the child’s best interests: para. 4. In Kagan, the Court of Appeal accepted the trial judge’s finding that the toxic relationship between the parties made communications and co-operation between the parties difficult, and accordingly it was reasonable to reject the suggested 50/50 parenting model recommended.

[62] Joint custody is not appropriate when the parties are unable to communicate. It is for the trial judge to assess whether the parties' ability to cooperate and communicate effectively in making parenting decisions warrants a finding that joint custody is in the best interests of the child: Berman v. Berman, 2017 ONCA 905, at para. 5. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis: Kaplanis v. Kaplanis (2005), 249 D.L.R. (4th) 620 (Ont. C.A.), at para. 11.

[63] While the child's best interests are not necessarily synonymous with the child's wishes, the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child's wishes: Kaplanis, at para. 13.

V. Custody and Access – Analysis

[64] Each party seeks an order for sole custody of the child. Both parties recognize that they are unable to co-parent the child. The issue then becomes who should have sole custody of the child, and what access should the non-custodial parent have.

[65] As ordered, Stephen Cross was hired to prepare a section 30 custody and access assessment to assist the court. In addition, he was then also retained by the Office of the Children’s Lawyer to give evidence on behalf of the child at trial.

[66] In order to assist with his section 30 assessment, Mr. Cross engaged the services of Dr. Robin Holloway to conduct psychological testing on the parents. Dr. Holloway asked the parties to produce any medical or psychological reports they felt would be helpful, and he had all the notes from the supervised access meetings.

[67] Dr. Holloway had no real concerns regarding the Father, except that he currently exhibited signs of emotional numbing. He believes though, that he will be fine in the long term.

[68] With respect to the Mother, he had more concerns. He was concerned by the “unprecedented” degree of self-reported depression. He also noted she self-identified attention problems, aggressive behaviour, rule-breaking behaviour, anxiety, ADHD, anti-social behaviour and obsessive-compulsive problems. He is concerned that if the stress of litigation increases, or things don’t work out as she wishes, her thoughts of self-harm may resurface. He thought this degree of self-reporting could be a cry for help. He believes she definitely suffers from depression. He wanted to ensure that any therapist she retained was aware of her history and received a copy of his report. He recommended ongoing therapeutic support.

[69] Mr. Cross indicated that when preparing a section 30 assessment, it is his practice to meet with the child with each of his parents in a comfortable environment. Mr. Cross indicated a desire to meet with the child and the Mother in home of the maternal grandfather. It was the child who resisted this and insisted instead that he meet with Mr. Cross and his mother at a supervised access centre. Mr. Cross also noted that twice during his observational visit, the Mother had to be removed from the room and told to respect the child’s wishes to not do any more math activities, and then again, to stop pressuring him to have access visits outside of the supervised access centre. At one point, the Mother said to the child, “It is as if you hate me”. The Mother seemed oblivious to her self-destructive behaviour, even in front of the assessor.

[70] What was apparent from the evidence of Mr. Cross is that the child is still very attached to the Mother, but he is also keenly aware that she is not well. He recalls her throwing things down the stairs and, when she wiped a desk clean, crashing their computer to the floor. He also recalls that his mother called his father the devil and said that he was a devil child. There was a picture on the fridge that symbolized this. He also recalls the police coming when his mother ripped off his father’s license plates and seeing his mom arrested. He recalls her standing outside of his school holding large signs, which was very embarrassing to him. He sees her driving around where she is not supposed to be. He states that his mom “is crazy” but that he only wants her to get well.

[71] In July 2018, a disclosure meeting was held with Mr. Cross, wherein he recommended that the child reside primarily with the Father and that the Father make all major decisions. He also recommended that a parenting coordinator be engaged for minimum of 18 to 24 months in order to ensure that contact between the child and his mother be in a gradual and safe manner and to facilitate communication between the parents. The Mother was also to retain a therapist immediately so that she would be monitored on an ongoing basis. He believed she needed therapy to understand how her behaviour impacts relationships and to help her manage her relationships. He recommended that once it is determined that the Mother is actively seeing a therapist and the report of the psychologist is shared with the therapist, access could be graduated to be alternating between the private access supervisor and the home of the maternal grandfather. He recommended that all communication between the parents be through the online tool OurFamilyWizard.ca.

[72] The Mother became very agitated and distraught at the disclosure meeting, wanting to reconcile. The participants in the meeting became concerned that she may hurt herself or that she may hurt the Father or the child. As described by the Father, he and the child went “into hiding” for the next few days until she could calm herself down.

[73] Unfortunately, the Mother did not follow Mr. Cross’ recommendation to actively see a therapist and provide a copy of Dr. Holloway’s report to that therapist. She also failed to follow the recommendation to interact with the Father in a civil manner and not expose the child to the adult conflict or speak negatively of the Father in his presence.

[74] In his capacity as a representative of the child, Mr. Cross indicated that the child wanted to live with the Father and let the Father make all the important decisions in his life. He clearly loves his mother, but he is not interested in seeing his mother in person until which time she “gets better”. Even then, he wants to keep with supervised access, as it provides him some security in the event his mother acts inappropriately. He is happy to have telephone access but only if the Mother follows a number of restrictions: she is not to talk about the Father, any person the Father is dating, the litigation, the child’s living arrangements, access taking place outside of the supervised access centre or the Mother’s desire for him to live with her.

[75] At trial, the Mother had an opportunity to cross-examine Mr. Cross. Through this cross-examination it was apparent that the Mother was still not aware of the effect of her conduct on the child. She challenged Mr. Cross that he was not accurately relaying the child’s views and maintained that the child was influenced by the Father. She spent time trying to justify the behaviour that caused her arrests but was oblivious to the impact the arrest had on the child. For example, she cross-examined on whether the sign she was holding outside of the child’s school actually breached any proximity restriction, but lost sight that the sign itself, no matter where it was, was extremely embarrassing to the child.

[76] At trial, Mr. Cross indicated a few changes to his recommendations in light of the Mother’s conduct over the past year. He no longer recommends the use of OurFamilyWizard.ca. He believes the Mother will use this as a vehicle to harass the Father. He still believes that the relationship between the child and the Mother has to be professionally managed by a Parenting Coordinator or other professional. If though, the child refuses to see his mother, he does not recommend forcing the child into access. Instead he recommends reintroducing access through a reunification counsellor. To be clear, this is not a situation where the child has been alienated against the Mother. This is a situation where the child wants a relationship with his mother, but he doesn’t trust the Mother to conduct herself in a manner that is safe for him. Given her conduct with respect to the Father, any work on the child’s relationship with the Mother must be done entirely separate from the Father.

[77] The child is close to his maternal grandfather, and the Father, to his credit, tried to facilitate visits with him and the child. The mother used these occasions to exercise her telephone access to the child, but the child felt he was pressured to speak to her by his maternal grandfather. Unfortunately, the Mother’s brother ruined these visits by pressuring the child about the litigation. The Mother’s brother, in his evidence at trial, admitted that he challenged the child and recorded his conversation with the child. He told the child that the Father was brainwashing him. Following that event, the child has refused to return to his grandfather’s home, and the Father has facilitated access between the child and his maternal grandfather at a shopping mall from time to time.

[78] Mr. Cross recommended that arrangements continue to be made for the child to visit with his maternal grandfather, as long as it is not at the grandfather’s house.

[79] Mr. Cross still recommends telephone communication once per week, but again, to not force the child. The child has indicated that he doesn’t even want telephone access until the Mother has shown signs that she is making efforts to get better. If telephone access does take place, Mr. Cross recommends that the Mother be required to abide by the restrictions that the child has requested. He does not recommend that in-person access be forced upon the child. He says the child needs a break and a little peace. He also recommends that the child and the Father be able to travel without having to seek the Mother’s consent.

[80] The recommendations made in a custody and access assessment are not definitive. These recommendations are only one factor to consider in determining the issue before me. In this case though, I put a great deal of weight behind the recommendations given by Mr. Cross. His opinion was based on observations he made regarding the child and the conduct of his parents, all of which was confirmed by the evidence given by the parties themselves and the documentation provided at trial. The picture is consistent.

[81] I am also satisfied that Mr. Cross provided an accurate expression of the child’s views and preferences. The child’s memories of the Mother’s conduct are consistent with other evidence presented at trial.

[82] The Mother claims that she has addressed her mental health challenges. In addition to the attendances at the Trillium Health Centre, and her attendances at the military support centre, the Mother started taking Effexor XR in March 2019 to treat her depression, which she feels is working.

[83] She also attended many one-hour courses while incarcerated at the Vanier Institute for Women. These include a course of “Basic Tools – Understanding Feelings”, and various courses under the umbrella of “Skills for Better Living”, which include “Recognizing Abusive Relationships”, “Coping with the Impact of Trauma”, “Health Body Image”, and “Anger Management”.

[84] The Mother indicates that she is now open to counselling but has taken no steps to secure any counselling as of the date of the trial. She has focused her energies on this trial and has read a number of self-help style books.

[85] At this point though, the Mother has not shown that she is ready for regular access with her son. At trial, she showed that she continues to act in complete disregard for the various restrictions placed on her. Not only did she violate her restrictions while incarcerated and then allegedly after her release, in the course of the trial, she forwarded to the Father’s counsel a copy of a picture she took of the child at gymnastics in direct contravention of her restrictions, with the caption: “Time I breached when I wasn’t caught…October 1, 2018.” She continued to send bizarre and derogatory e-mails to counsel for the Father and the OCL wherein she asked what she needed to do to have her child back in her life. Finally, at trial, the Mother adduced evidence that a mother who lived in her neighbourhood, who was suffering from mental health issues, accidently overdosed and was found dead by her child. I am not sure of the relevance of this evidence except that it was either a cry for help or a veiled threat. Either way, it shows a complete lack of appreciation of the impact of her actions on the child.

[86] On the other hand, I am satisfied that the Father’s conduct throughout has been child-focused, encouraging the child to see the Mother and his grandfather. He confessed that sometimes he even begged the child to see the Mother, if for no other reason than he was afraid of the backlash if he did not. He also offered to bring the child to see the Mother while incarcerated. It is a credit to the Father that despite what has occurred, the child appears to have very good insight into his mother’s mental health issues, still loves his mother and desperately wants her to “get better.” The relationship between the Mother and the child has not been irreversibly destroyed. To state it colloquially, the ball is in the Mother’s court. If she concentrates on her health and behaviour first, her relationship with her child has a good chance to improve and grow.

[87] On the facts before me, and keeping in mind the principle that there should be maximum contact with both parents to the extent that it is in the best interests of the child, it is appropriate that the father, M.M., be given sole custody of the child. The child should live primarily with the Father. The child should have access to be determined by a parenting coordinator, and only after the Mother has taken the necessary steps to show she is treating her mental health issues so that her interactions with her son can be child-focused. When telephone access is initiated, the topics should be restricted to accord with the child’s issues.

[88] For clarity, this decision regarding custody and access is not a result of the Mother’s mental health issues. Many parents who battle depression are able to effectively parent their children. The difficulty in granting the Mother generous and liberal access to the child at this time is based on her inability to appreciate that her anger towards the Father has a tremendous and negative impact on the child. She has and continues to use the child has a conduit to facilitate ongoing toxic communication and as a weapon in her ongoing war against the Father. The child’s best interests must come first, so it is warranted that access be severely curtailed at this time to ensure that any increased access by the child to the Mother be in an environment that maintains the child’s mental and emotional safety.

VI. Support Issues – Factual Findings

[89] As of the start of the trial, the Mother was 45 years old and the Father was 46 years old.

[90] The Father’s income is a combination of employment income from the school board and from the Armed Forces. While his salary from the school board is constant, his salary from the Armed Forces fluctuates depending on how much time he invests. There is a minimum time commitment required which would guarantee some level of income each year from this source.

[91] According to his income tax returns, the Father’s income is as follows:

Year	Income
2015	$148,950
2016	$157,131
2017	$162,884
2018	$170,394

[92] The Father indicates that his expected income for 2019 will be approximately $155,000. He indicates this is because he has reduced his workload with the Armed Forces so that he can take care of the child.

[93] The Mother maintains she has been trying to find work since the separation. She has applied for positions through the Indeed website and has gone to a few interviews. She claims she thought about returning to work when the child attended school full-time but wasn’t able to find suitable before and after school care.

[94] In 2016, she assisted with some administrative tasks with her father’s company, Jenskovec Mechanical Services Inc. Mr. Jenskovec authored a letter dated June 14, 2017, which indicated that the Mother worked for Jenskovec Mechanical Services Inc. and earned $35,000 per year. The Mother maintains the payments after 2017 were not employment income because she didn’t receive a T4. Instead, she maintains her father was simply helping her out.

[95] In 2017 to 2018 she received the following amounts from her father’s business:

Date of Cheque	Amount	Payor
April 20, 2017	$8,000	Jenskovec Mechanical Services Inc.
May 25, 2017	$8,000	Jenskovec Mechanical Services Inc.
August 21, 2017	$10,000	Jenskovec Mechanical Services Inc.
November 29, 2017	$10,000	Jenskovec Mechanical Services Inc.
February 6, 2018	$15,000	Jenskovec Mechanical Services Inc.

[96] It appears that she received $36,000 in 2017 and had already received $15,000 in the early part of 2018. It was also established at trial that she had a minority ownership position in her father’s company, but she was unable to state whether payments from her father’s company were dividend payments. She did admit though, that her father would write cheques to all the children from time to time for minimal work. Unfortunately, the Mother provided no valuation of her interest in the company, nor more up to date information on any further income or dividend payments from her father’s company. Her father was not called as a witness.

[97] After separation, the Mother withdrew approximately $152,000 from the parties’ joint line of credit which she only partially repaid. She maintains that she did some trading on the market with the money she took and was able to earn some income. The parties did admit that during the marriage the Mother was able to earn approximately $20,000 per year through trading.

[98] With respect to ongoing efforts to become employed, the Mother indicated that she was offered a retail position over the holiday period last year, but she did not take it because there was no guarantee it would last longer. She had interviews with Bell and Canada Post, but each time, her criminal record became a barrier. Canada Post indicated that they may be receptive to her when all outstanding charges were dealt with. She also inquired about purchasing a Subway franchise and pursued it to the point of completing some initial testing. In the end, she decided it was not something she wanted to pursue.

[99] The Mother’s income as disclosed in her income tax returns is as follows:

Year	Income	Notes
2015	$17,940	$10,387 RRSP income; $6,182 dividend income
2016	$53,773	$35,000 employment income; $15,488 capital gains
2017	$10,024	$7,930 RRSP income; $2,094 dividend income
2018 & 2019	Not disclosed

VII. Support Issues – Law & Analysis

i. Imputing Income

[100] The Mother claims that the Father’s earning capacity is greater than what he is earning now. She is suspicious of the reduction in his Armed Forces income this year and the reduction in his consulting services.

[101] The Father also maintains the Mother is deliberately underemployed. He claims she should have resumed her career before their marriage ended and that she has the ability to support herself.

[102] Section 19(1) of the Federal Child Support Guidelines, SOR/97-175 (‘Guidelines’), states:

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

[103] The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding: Homsi v. Zaya, 2009 ONCA 322, 248 O.A.C. 168, at para. 28.

[104] The Father has more than one job, so the only possible basis for finding that income should be imputed to him is that he is underemployed. In Lawson v. Lawson (2006), 81 O.R. (3d) 321 (C.A.), at para. 36, the Court of Appeal for Ontario stated that:

When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity.

[105] In Corcios v. Burgos, 2011 ONSC 3326, at para. 40, and Thompson v. Thompson, 2013 ONSC 5500, at para. 99, the court considered various factors when determining whether to impute income to a party, and how much. These factors include:

a) There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children; b) The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments; c) If a party chooses to pursue self-employment or an alternative income earning path, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent’s child support obligations; d) A party may be imputed income if their unemployment or under-employment are self-induced. Examples include where the payor quits their employment for selfish or bad faith reasons or engages in reckless behaviour which affects their income earning capacity; e) When a parent experiences a sudden change in their income, they may be given a “grace period” to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities in order to satisfy their obligation to contribute to the support of their children; f) Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them; g) The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute; i) A parent who decides to stay at home to care for subsequent children, or to work in the home at a reduced rate so that they can continue to care for the children, may be imputed a reasonable income in the absence of evidence to support a finding that the parent’s underemployment is required by the needs of the subsequent children within the meaning of section 19(1)(a) of the Guidelines. [Citations omitted.]

[106] After considering these factors, I find that the Mother has failed to show that the Father is intentionally underemployed. He is already working to capacity with one full-time job and one part-time job. At times he may have had more than one part-time job, but he is not required to continue to do so as long as he is adequately supporting his child, which he is. I accept that his Armed Forces income and consulting income can fluctuate and that he could earn more if he worked more, but it is unreasonable in these circumstances to insist that the Father work every hour that is available. In addition, given that he has been the primary parent for the child since 2018, it is reasonable to expect that his hours would be reduced. He has not failed to provide financial disclosure, he has not quit any job, nor has he pursued any unrealistic or unproduced career aspirations. He is adequately able to support his family on the income he earns.

[107] With respect to the Mother, it is not necessary to impute any income to her up to 2019. While insufficient disclosure has been provided, we are able to ascertain what she received through her income tax returns and cheques from her father’s company until 2018. I have no difficulty inferring that she will continue to receive from her father what she has historically received, as either income or dividend payments.

[108] The situation is a little different in 2019, given that the Mother was incarcerated for most of the year. This would not affect her ability though, to continue to receive dividend payments. Given that the Mother provided no disclosure to prove otherwise, I am willing to impute an income of $36,000 for that year. Throughout all these years, I have not considered withdrawals from the Mother’s R.R.S.P. as income, but rather considered it a depletion of her capital.

[109] I see no reason to impute anything more for this period. From the date of separation until January 2018, the child continued to live predominantly with the Mother. The Father appeared to work as much as he did during the marriage. Their respective roles did not change. This was also a period of uncertainty where the residency schedule of the child was not yet set, it was not determined if the matrimonial home would be sold, the Mother’s mother died, and it was not yet determined what support the Mother should be receiving. It was difficult for her to make any long-term plans. There is also ample evidence of her mental health difficulties to this time. This has been confirmed by Dr. Holloway and the progress note of Dr. Miula.

[110] Moving forward, the Father has been able to show that the Mother is deliberately unemployed or underemployed. In coming to this conclusion, I have considered the following:

a) The Mother has not provided full financial disclosure. In particular, she has failed to provide evidence of what dividend income she will continue to earn from her father’s business, or what she has earned from her investments; she has provided no tax information for 2018 and no income information for 2018 or 2019; b) Given the previous cheques written by Jenskovec Mechanical Services Inc., I infer that she will continue to receive some dividend income from that company, and upon her father’s death, may receive a payout; c) She has helped cater for a friend and was offered a retail position at Christmas but turned it down because it was not long term; d) She looked into buying a franchise but did not pursue it; and e) Any underemployment is the result of her own reckless behaviour; if she is unable to return to the financial services world, it is because of her criminal record, for which she must bear the responsibility.

[111] I believe the Mother is able to earn more than minimum wage but not in the next few years. She needs to look after her mental health, fix her relationship with her child and finalize her criminal charges. The financial services industry, in which she has experience, will probably not be open to her any more as a result of her criminal charges. The Mother is an intelligent woman though, and once she has her affairs in order she should be able to make more than minimum wage several years down the road. In the meantime, she has her employment or dividend income from her father’s company and can invest the money she receives from these proceedings. Accordingly, moving forward, I am comfortable inferring an ongoing income of $36,000.

ii. Entitlement to Spousal Support

[112] Based on the factual findings, the Mother has a strong compensatory claim for spousal support. It is not disputed that the parties jointly decided that she would stay home and take care of the child after she was laid off in 2009. While they dispute whether it was intended that she stay off work this long, there is no doubt that her role taken on in the course of the marriage had a negative impact on her career trajectory.

[113] Both parties have also indicated their preference that one lump sum payment be made to the Mother in full satisfaction of the Father’s spousal support obligations. The Divorce Act provides the court with the authority to make such an order pursuant to s. 15.2(1) as long as the objectives set out in s. 15.2(6) are taken in to consideration.

[114] In the case before me, such a lump sum will address the economic disadvantage suffered by the Mother as a result of the marriage, apportion the financial consequences arising from her care of the child after she was laid off, relieve the Mother of economic hardship and more readily promote her self-sufficiency.

[115] In setting the lump sum amount, it is still appropriate to consider the range within the Spousal Support Advisory Guidelines (‘SSAG’). The Mother has a strong compensatory claim given the roles taken on in the marriage. Even if the Mother did go back to work, the working hours kept by the Father would have required the Mother’s career to take a second seat. I also note that the relationship lasted approximately 15 years.

[116] The Mother also has an immediate need for support. Her outstanding criminal charges will be an impediment to finding a full-time position and will no doubt limit the fields in which she can apply. While it is conceded that this is the result of the Mother’s actions, her immediate need cannot be overlooked. While self-sufficiency is the goal, it may be a few years yet until she can achieve this. She is still in her prime working years, and hopefully she can soon put this period of her life behind her and move forward with a new career.

[117] The Mother’s mental health struggles also cannot be ignored and may have an impact on her ability to obtain and secure employment. As recommended by Dr. Holloway and Mr. Cross, the Mother needs to concentrate immediately on her mental health. Getting back to work may be a part of that treatment, but her mental health should be her focus.

[118] Considering all these factors, it is appropriate that the Mother’s spousal support be in the mid to high range.

[119] When calculating the lump sum payable, I have averaged both parties’ income from 2016 to 2019. I have also assumed that the child was residing with the Father. This results in a lump sum payment between a mid-range of $159,456 and a high range of $182,171. I find that the sum of $171,000 is an appropriate amount to be paid in full satisfaction of any spousal support claim the Mother may have now or in the future. The SSAG calculation is attached as Schedule “A”.

iii. Child Support

i. Monthly Payments

[120] The child lived primarily with the Mother until January 2018 and thereafter with the Father. Monthly child support will be calculated using the parties’ income as indicated herein.

[121] Based on these incomes, the following child support arrears are owing up to and including December 31, 2019:

Dates	Father’s Income	Father to Pay	Mother’s Income	Mother to Pay	Total Owing to Mother
2016	$157,131	$1,316/month	$72,137 (grossed up)	Nil	$15,792
2017	$162,884	$1,392/month	$38,529	Nil	$16,704
2018	$170,394	Nil	$36,000	$315/month	-$3,780
2019	$155,000	Nil	$36,000	$315/month	-$3,780

[122] Accordingly, the total retroactive child support owed by the Father to the Mother up to the end of 2019 is $24,936. Ongoing, as of January 1, 2020, the Mother’s child support obligation is $315 per month, based on imputed income of $36,000 per annum, with adjustments to be made every year after the exchange of income tax information.

ii. Section 7 Expenses

[123] The Father has claimed section 7 expenses for costs he incurred for the child’s day care and summer camps, his gymnastics and trampoline expenses, and miscellaneous school expenses.

[124] I have no difficulty ordering that the Mother pay her proportionate share of the child’s day care expenses. I include in these costs any summer camps which I find were used as a method of day care.

[125] The Father can only seek reimbursement for extracurricular activities if they are considered extraordinary expenses as defined by s. 7(1.1) of the Guidelines. The total amount the Father has claimed for gymnastics and trampoline for 2017 through to the first half of 2019 is approximately $2,500, or approximately $85 per month. Considering his income, and that of the Mother, this is not an extraordinary expense for him. Accordingly, the Father will bear the cost of the child’s recreational gymnastics and trampoline.

[126] The Father has also claimed various school expenses, such as lunches and various trips. These are not extraordinary expenses with the exception of the child’s class overnight trip to Muskoka for a total cost of $325 in February 2019.

[127] Accordingly, the Father is entitled to be paid the Mother’s proportionate share of the allowable section 7 expenses incurred by him, detailed as follows:

Total Cost	Mother’s percentage share	Amount Owed by Mother
2017 Child care	$470.00	19.1%
2018 child care	$3,109.27	17.4%
2019 child care	$2,239.36	18.8%
2019 school expense	$325.00	18.8%
Total:

[128] Moving forward, the Mother shall continue to pay her proportionate share of all proper section 7 expenses. Attached as Schedule “B” are the DivorceMate calculations setting out the monthly child support amount payable and the apportionment of the section 7 expenses.

VIII. Equalization

[129] The finalization of this issue was hampered by the Mother’s failure to make adequate financial disclosure. At a case management meeting on May 24, 2018, both parties indicated that they needed to complete documentary disclosure. Due to the Mother’s failure to provide the necessary financial disclosure, on October 1, 2018, the Father was granted leave to bring a motion to obtain third party records relating to the Mother. In accordance with the Trial Scheduling Endorsement Form dated August 7, 2019, signed by all parties, the Father was to serve a Request to Admit by August 15, 2019 and the Mother was to serve a Request to Admit by August 20, 2019. The Father did so, seeking the Mother’s admission or response to a multitude of factual statements, including factual statements that would assist in determining the equalization payment. The Mother has never responded to the Father’s Request to Admit, and never served one herself. The Father relies on r. 22(4) of the Family Law Rules, O. Reg. 114/99, thereby taking the position that all the statements of fact in his Request to Admit have been deemed to be admitted. The Mother took exception to that, indicating that she did not have adequate time to respond, given that she had only been released from the Vanier Institute. She also indicated that most of her documents were packed up by her family when the matrimonial home was sold while she was incarcerated, so she did not have adequate time to search through what her family had packed up.

[130] The Mother did not have an adequate excuse for failing to respond. She agreed to the deadline in the Trial Scheduling Endorsement Form. She was released in mid-August of this year, serving an intermittent sentence on weekends until the trial. Accordingly, the Request to Admit of the Father was entered into evidence, but the Mother was advised that she was at liberty to present evidence at trial which proved an alternate fact. Accordingly, the figures included in the net family property are those amounts that have either been admitted by the Mother through the Request to Admit, or were otherwise proven by the Mother at trial.

[131] Most of the items in the net family property statement were easily proven with documentation. There are a few clarifications which should be made.

[132] Firstly, the matrimonial home is registered in the name of the Mother alone. Nonetheless, the Father has sought a declaration that he is the beneficial owner of 50% of this home by way of “constructive and/or resulting trust.” Based on the evidence presented at trial, I am satisfied that it would result in an unjust enrichment to the Mother if she alone was to enjoy the benefit of the matrimonial home and that the appropriate remedy is to grant the Father a fifty percent beneficial interest by way of a constructive trust. Both parties resided in the home from February 1991 until they separated in January 2016, a period of 25 years. While the Mother alone contributed the down payment for the home, both parties contributed financially to the upkeep of the home. Both the Mother and the Father repaid the loan granted by the Mother’s father. Following the Mother’s layoff in 2009, it was primarily the Father who paid for all ongoing expenses and upkeep. Both parties contributed to the improvements and ongoing maintenance of the property for approximately 15 years.

[133] Secondly, while the Mother had no statements to show her R.R.S.P. balance as of the date of marriage, she did provide evidence that she had R.R.S.P.’s on that date. In support of her claim, the Mother provided a Canada Revenue Agency summary of her R.R.S.P. contributions from 1994 to 2009, showing that her culminative R.R.S.P. contributions as of the beginning of 2001 totalled $6,637.

[134] Thirdly, the Mother admitted that she owned shares in Jenskovec Mechanical Services Inc. but did not value them. Accordingly, a value has been ascribed in accordance with the Request to Admit that was served on her and to which she failed to respond.

[135] Fourthly, the cost of disposition associated with the Father’s pension and R.R.S.P.’s, specified to be 21.5%, was opined by the valuator who provided a valuation of the Father’s Armed Forces pension. I have accepted this cost for the Father. The Mother has failed to provide any opinion on the rate of taxation she could expect to pay upon withdrawing her R.R.S.P. funds, but based on the evidence presented at trial (her income and prospects of reemployment), I accept that this is a reasonable cost of disposition for the Mother as well.

[136] Fifthly, the Mother has claimed an exclusion for an inheritance she received following a family member’s death. This exclusion is not allowed as it was paid to her after the agreed upon date of separation and thus is not part of the equalization calculation. Also, there is no evidence of the will under which this bequest was granted, which would specifically state that it was to be excluded from her net family property value calculation.

[137] Sixthly, the Mother claimed she had more assets on the date of marriage, but was unable to provide any proof;

[138] Finally, the Mother has sought an unequal division of the parties’ net family property values. In particular, prior to marriage, she alone purchased the home that was to become the matrimonial home. She was able to do this by using the proceeds of the sale of a prior property (a smaller home that her parents purchased while she was at university and in which she lived) and almost the totality of her savings to that date. The Father had just finished school and had little to contribute.

[139] The disparity of the contribution to the matrimonial home was recognized on the eve of the marriage. On July 9, 2001, the Mother’s father typed up a document which had two parts: “Promissory Note” and “Pre-nuptial Agreement”. In the first part, the Mother signed a promissory note that acknowledged that her parents loaned her $147,000.00 in order to purchase the matrimonial home and that she promised to repay it in five years.

[140] The second part – the “Pre-nuptial Agreement” – was signed by both the Father and the Mother. This document simply acknowledged that the Mother contributed $220,000 and the Father contributed $13,000, presumably to the purchase of the matrimonial home. Between the investments of the Mother and the Father and the loan by the Mother’s parents, the parties were able to purchase the home mortgage free.

[141] Given that this property became the matrimonial home, she has lost that marriage date deduction (see s. 4(1) of the Family Law Act, R.S.O. 1990, c. F.3, “net family property” definition). Nonetheless, the Mother wishes her proportionately larger contribution to the purchase of the matrimonial home to be recognized by a larger than one-half share in the equalized net family property values of the parties.

[142] Subsections 5(6) and 5(7) of the Family Law Act, state:

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to, (a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage; (b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith; (c) the part of a spouse’s net family property that consists of gifts made by the other spouse; (d) a spouse’s intentional or reckless depletion of his or her net family property; (e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years; (f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family; (g) a written agreement between the spouses that is not a domestic contract; or (h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6). (7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).

[143] Only subsections 5(6)(g) and (h) could possibly apply to this scenario and only if I consider an equalization of net family property to be unconscionable.

[144] The written agreement, entitled “pre-nuptial agreement”, does not actually agree to vary an equalization payment. It is simply an acknowledgement of each parties’ contribution. It does not seek to vary the party’s statutory entitlement under the Family Law Act.

[145] Evidence was presented by the Father at trial that after they were married, he made regular payments against the loan given by the Mother’s father, first directly to the Mother’s father and then to the Mother, who he believed paid her father. He stated that the payments started at $1,000 per month and increased to $1,500 to $2,000 per month as the marriage progressed, though he does admit that his father-in-law was lenient in not demanding the payments on a particular day each month. He also recalled using the home line of credit to pay this debt. He indicated that the Mother’s father considered the loan paid upon the birth of the child of the marriage, eight years later. The Mother disputes it was paid but has no proof otherwise. No evidence has been presented that the Mother’s father ever demanded repayment of that loan, even after the parties separated.

[146] Some years later, the parties decided to encumber the home by taking out several secured lines of credit. One line of credit was to be used by the Mother to invest after she was laid off from her employment. It is not contested that some of her investments turned out poorly, and by 2015, she owed approximately $150,000 on the line of credit. This amount was eventually repaid by her father. The Mother acknowledges that this sum was a gift.

[147] The Court of Appeal for Ontario has stated in Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47. that

…the threshold of "unconscionability" under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are "unfair", "harsh" or "unjust" alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must "shock the conscience of the court": (citations omitted).

[148] Considering the facts as described herein, the fact that both parties lived in the home and contributed to its upkeep until they separated in 2016, and the fact that from the end of 2009, only the Father contributed financially to the upkeep of the matrimonial home, the equalization payment to be made is not unconscionable. Therefore, an unequal division is not warranted.

[149] Accordingly, the Father shall pay to the Mother an equalization payment of $7,728.99. The Net Family Property Statement which forms the basis of this amount is found at Schedule “C” to this Judgment.

IX. Post-Separation Adjustments

[150] There are a number of post-separation transactions that must be accounted for.

i. Property Taxes

[151] Following separation, property taxes were paid from both the Father’s account and the parties’ joint account. Since the parties are to share equally in the equity of the matrimonial home, they should share equally in the property taxes. The total amount paid by the Father alone was $5,456.78. He indicates that the Mother improperly withdrew an additional $2,000 from his account to pay towards the property taxes, but insufficient evidence was provided to confirm this. Given that the Mother should be equally responsible for the property tax payments, she should reimburse the Father one-half of this sum, or $2,728.39.

[152] A further $3,762.01 was paid from the parties’ joint account, so no adjustment between the parties is necessary. Also, the remaining outstanding property taxes of $8,380.72 were equally paid from the proceeds of the sale.

ii. Line of Credit

[153] The Mother has admitted to removing funds from the joint line of credit following separation and is agreeable that this be adjusted. She admits that she took that money and invested it through E-Trade and then through Scotia iTrade. She earned some income on these monies and some was paid back towards the lines of credit.

[154] At the time of separation, the parties’ three secured lines of credit totalled $84,093.59. On the day the matrimonial home sold, the total debt to be paid was $279,032.56, an increase of $194,938.97, all taken by the Mother. The Father should be reimbursed one-half of this amount, being $97,469.49.

iii. Supervised Access Visits

[155] The order of McSweeney J. of September 17, 2017 stated that Mr. Moody was to pay for all supervised access visits, subject to a later order. The Father has provided evidence that he paid the sum of $3,289.80 to Brayden Supervision Services Inc. It is reasonable that the Mother be responsible for one-half of these costs, for a total of $1,644.90.

iv. Costs of Reports

[156] The Father has provided evidence of the following expenses fully paid by him, for which he seeks an equal contribution from the Mother:

a) The sum of $11,475 for the section 30 assessment completed by Stephen Cross; and b) The sum of $13,695 for both the psychological testing reports completed by Dr. Holloway.

[157] It is reasonable to expect that the Mother would pay for at least one-half of these costs, given that they were with respect to the child. The Mother should pay one-half of these expenses, for a total of $12,585.

v. Outstanding Costs Orders

[158] On March 2, 2018, Petersen J. ordered that the Mother pay the costs of a motion, fixed in the sum of $1,200.00. It has not been paid. Also, on December 4, 2018, Daley J. ordered that the Mother pay $1,000 within 30 days for the costs of her motion for more access. It has not been paid.

[159] Both these costs orders must be paid from the proceeds of sale of the matrimonial home.

vi. Repairs to the Matrimonial Home

[160] At trial, the Mother provided evidence of capital expenditures she made towards the matrimonial home while she lived there. The Father took no issue with these expenses, namely, the fence repair which cost $500 net of insurance, and the plumbing invoice of $506.24. Accordingly, the Father should pay to the Mother one half of these expenses, for a total of $503.12.

vii. Payments made by Father

[161] I find that since the date of separation, the Father made the following payments:

a) The sum of $1,000 every two weeks, from January 2016 to the end of 2017. After that, the evidence does not support regular payments and the Mother appeared to live off her investments; accordingly, the Father should be credited for 2 years of payments, for a total of $48,000; b) The Father also paid all Rogers bills, which were for the home internet, cable and security. These are expenses that the Mother should have paid as they are her personal expenses. The Father should be credited for these sums, which total $6,300.48;

viii. RESP

[162] The Father seeks an adjustment as a result of the withdrawal of $20,107 by the Mother from the R.E.S.P. being held for the benefit of the child. The Mother provided evidence that the child’s RESP had a market value of $12,007 on the date of separation. The subsequent statement provided by the Father shows the market value as of August 13, 2009 to be $3,510.82. The reason for this decrease in value is not clear from the statements. It may have been a withdrawal or a drop in market conditions. The Father, as a joint owner of this account, could have sought additional evidence on this point, but none was provided. Accordingly, I am not satisfied on the balance of probabilities that this decrease in value is attributable to the Mother, and no adjustment will be made.

X. Restraining Order

[163] Due to the various restrictions in place in the Mother’s criminal proceedings, the requirement of a restraining order is diminished. The Mother is agreeable to a restraining order prohibiting the Father from communicating with her. Given the facts as laid out here, I am not satisfied that an order is required to restrain the Father from communicating with the Mother. The current bail conditions and recognizances of bail restrict communication in any event.

[164] In the interests of protecting M.T.J., and to shield him as much as possible from the conflict between his parents, an order should be made restricting negative comments about the other in any forum to which the child may be exposed.

Conclusion

[165] For the reasons set forth herein, I make the following orders:

a) The Father, M.M., shall have sole custody of the child, M.T.J.; b) The Father has sole authority to make decisions regarding M.T.J.’s education, medical and dental care, and to decide what extra-curricular activities M.T.J. will be enrolled in, the latter to be in accordance with the child’s wishes; c) The Mother, E.M., shall have access as follows:

1. The child shall contact the Mother at a minimum once per week by telephone for access. The child may contact the Mother more, at his sole discretion. The Father shall ensure, at his sole cost, that the child has his own cell phone, which will be used to facilitate this telephone access. Telephone access shall be initiated by M.T.J. only, unless otherwise agreed to by M.T.J. through the parenting coordinator. The time and length of this telephone access shall be in the sole discretion of M.T.J., but efforts should be made to make the contact consistent each week.
2. During this telephone access, the Mother is not permitted to discuss the following: 1 the Father; 2 any person the Father is dating; 3 the litigation; 4 the child’s living arrangements; 5 access taking place outside the supervised access centre; or 6 the Mother’s desire for him to live with her.
3. If at any time the Mother discusses these topics, the child may terminate telephone access and it shall not be reinstated until which time the child agrees through the parenting coordinator;
4. All “in-person” access by the child to the mother is suspended until which time a parenting coordinator is retained by the parties. This parenting coordinator shall be retained for a minimum of 18 months, or earlier if both parties agree in writing.
5. In order to ensure that a parenting coordinator is retained in a timely manner, the Father, through counsel, shall provide to the Mother the names of three parenting coordinators within 21 days;
6. Within 21 days of receipt of these names, the Mother shall pick which parenting coordinator she wishes to use; in the event that the Mother is incarcerated during this time, her 21-day deadline shall not run until which time she is released; if she does not pick one of the coordinators proposed by the end of the 21-day deadline, no in-person access shall take place;
7. $10,000 from the proceeds of the matrimonial home shall be set aside, and held by counsel for the Father, as the initial retainer for the Parenting Coordinator. The parties shall forthwith sign whatever documentation is required in order to retain the services of this parenting coordinator;
8. The ongoing costs of the parenting coordinator shall be borne equally; if at any time the Mother ceases to pay the parenting coordinator, all access shall be suspended; if at any time the Father ceases to pay the parenting coordinator, this shall be considered a material change in circumstances and the issue of custody and access may be returned to the court;
9. The parties will provide whatever documentation is requested by the parenting coordinator, or provide the necessary consents to the parenting coordinator to obtain this information directly; if the Mother refuses to do so, any in-person access shall be suspended; if the Father refuses to do so, it shall be considered a material change in circumstances and the matter may be returned to the court;
10. The parenting coordinator will be provided with the section 30 assessment of Stephen Cross and both psychological reports of Dr. Robin Holloway;
11. The parenting coordinator shall work with the parties and the child to gradually reintroduce regular access by the child to the Mother, to be implemented at the sole discretion of the parenting coordinator, except that prior to any in-person access taking place: 1 The Mother must provide evidence that she is actively under the care of a medical professional to treat her depression or other mental health diagnosis made by a qualified medical practionner; the Mother must provide authorization for the parenting coordinator and the medical practionner to share information with each other and discuss her ongoing treatment with each other; 2 The mother must provide evidence that she is engaged in therapeutic counselling to assist in her treatment of her mental health issues, unless her treating medical practionner provides an opinion that it is not necessary; the Mother must provide authorization for the parenting coordinator and the therapist to share information with each other and discuss her ongoing treatment with each other; and 3 The mother must provide proof satisfactory to the parenting coordinator that she has provided a copy of Dr. Holloway’s report regarding the Mother to both her medical practionner and her therapeutic counsellor; d) The cost of any access that takes place in a supervised centre shall be borne equally by the parties; e) Ongoing parenting coordination shall respect the current restrictions in place that prohibit any direct communication between the parties; indirect communication through the parenting coordinator alone is permitted; if a variation in the Mother’s bail restrictions or recognizance of bail is required to allow indirect communication through a parenting coordinator, the parties shall cooperate to make this variation; f) The parties will also arrange through the parenting coordinator such issues as the parties’ attendance at the child’s extra-curricular activities and attendance at parent-teacher interviews, bearing in the mind the current criminal restrictions in place; g) The parties shall provide the parenting coordinator with their current address, telephone number and e-mail address; h) If for any reason the Mother is incarcerated, any type of access shall be at the complete discretion of the child M.T.J.; i) There shall be no make up for any access missed because the Mother is incarcerated; j) There shall be no direct or indirect communication of any manner between the parties except through the parenting coordinator, or in accordance with any civil or criminal order; k) If, despite the best efforts of the parenting coordinator, the child does not want to exercise any type of in-person access with the Mother, the parenting coordinator shall recommend the services of a reintegration therapist, the expense of which is to be evenly borne by both parties; l) The Father shall make best efforts to facilitate access by M.T.J. to his maternal grandfather without the Mother present. The maternal grandfather and the child may contact each other by telephone at their sole discretion, as long as the topics of conversation do not include any of the topics listed in subparagraph 165(c)(2) herein. Access with the maternal grandfather and the Mother together will be arranged through the parenting coordinator, if it is deemed appropriate; m) The Father shall keep the original passport, birth certificate and health card for M.T.J.; n) If M.T.J. requires a passport, the Father will apply for a Canadian passport, and the consent, authorization or signature of the Mother is not required; o) If the Father plans a vacation with M.T.J., the Father will notify the Mother through the parenting coordinator, at least 21 days prior to leaving, of the dates they will be away; the parenting coordinator will be given details as to how to contact the Father or M.T.J. during the trip in the event of an emergency; the Father is not required to provide the details of the travel to the Mother; p) Any telephone access or in-person access with the Mother during M.T.J.’s vacation time with the Father shall be suspended; no make-up access shall be provided as a result of a vacation; q) If either the Father or the Mother travel without the child, they will leave with the parenting coordinator a telephone number where he or she can be reached in case of an emergency or if M.T.J. wishes to contact that parent. r) The Father and the Mother will not change M.T.J.'s name without the other's written consent. s) For each year the child has lived and will live primarily with the Father, the Father will provide the Mother with a copy of the child’s class pictures, at his sole expense; t) In coordination with the parenting coordinator, the Father shall enroll M.T.J. in counselling to assist him to understand and adjust to the separation and assist him in understanding the effects of depression or poor mental health on his mother; this shall be considered a section 7 expense to be paid by the parties accordingly; u) The Father will not move M.T.J.'s permanent residence outside of the Region of Peel, Halton or the Municipality of Metropolitan Toronto, without the Mother’s written consent or a court order. v) The above-noted restriction on moving M.T.J.'s permanent residence is not intended to limit the Father's ability to take M.T.J. out of the jurisdiction of the court for the purposes of travel with M.T.J.; w) The Father shall pay to the Mother the sum of $116,699.52, being lump sum spousal support of $171,000 reduced by the $48,000 he already paid and the sum of $6,300.48 paid by the Father for the Mother’s Rogers Bills, in full satisfaction of any retroactive, ongoing or future spousal support claims by the Mother; this payment shall be paid to the Mother on a tax-free basis; x) The Father shall pay to the Mother retroactive child support up to and including December 31, 2019, fixed in the sum of $24,936; y) The Father shall pay to the Mother retroactive section 7 expenses up to and including December 31, 2019, fixed in the sum of $1,112.88; z) The Mother shall pay child support to the Father for the child M.T.J., born on December 17, 2006, in the amount of $315 per month, in accordance with the Tables under the Guidelines based on the Mother’s imputed annual income of $36,000, commencing January 1, 2020, and continuing on the 1st day of each month that follows. aa) A support deduction order shall issue accordingly; bb) The Mother shall pay her proportionate share of all proper section 7 expenses, within 30 days of being provided proof of that expense and proof of payment; the Mother’s consent shall be necessary for any single expense that exceeds $500.00, which consent shall not be unreasonably withheld; cc) Both parties shall, by May 15th of each year in which child support is payable, commencing May 15, 2021, deliver to the other a copy of his or her notice of assessment, notice of reassessment (if any) and income tax return for the previous year. dd) Any changes in child support payable by the Mother, or changes in proportionate share of the section 7 expenses shall be effective on the 1st of June immediately following the exchange of income tax information; ee) Unless the order is withdrawn from the office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. ff) The parties shall each retain the sum of $150,000 previously released to them from the proceeds of sale of the matrimonial home, free from any claim by the other; gg) The Father is the beneficial owner of 50% of the matrimonial home; hh) The Father shall pay the Mother an equalization payment of $7,728.99; ii) The Father shall be removed from the joint Scotiabank account no. 172 80 or the Mother shall close it forthwith; the Mother is entitled to retain the entire proceeds; jj) The Father shall retain the entirety of his Ontario Teacher’s Pension Plan and his Canadian Armed Forces Pension, free of any claim by the Mother, as they were equalized as part of the equalization of net family property; kk) If any funds remain in the R.E.S.P. identified as Account 590-66672-16 with iTrade, it shall not be depleted and shall be used to finance M.T.J.’s post-secondary education prior to the parties contributing proportionate share; no further funds shall be contributed to this account, and either party is free to set up their own R.E.S.P. for the child’s post-secondary education to be utilized by them when seeking to pay their proportionate share of these section 7 expenses; ll) The following post-separation adjustments are to be made:
12. The Mother shall pay to the Father the sum of $2,728.39 for property taxes paid post separation;
13. The Mother shall pay to the Father the sum of $97,469.49 for his share of the joint lines of credit that she retained;
14. The Mother shall pay to the Father the sum of $1,644.90 for her share of supervised access visits;
15. The Mother shall pay to the Father the sum of $12,585 for her share of the reports of Mr. Cross and Dr. Holloway;
16. The Mother shall pay to the Father the sum of $2,200 in satisfaction of outstanding costs orders;
17. The Father shall pay to the Mother the sum of $503.12, being his share of capital expenditures on the matrimonial home after separation but before it was sold; mm) The amounts owing by the Mother and the Father to each other, as set forth in paragraphs 165(c)(7), 165(w), 165(x), 165(y), 165(hh) and 165(ll) herein, shall be paid in full satisfaction as follows: 1 From the proceeds of the sale of the matrimonial home, the sum of $178,875.47 shall be paid to the Father, or as he directs; 2 From the proceeds of the sale of the matrimonial home, the sum of $247,580.93 shall be paid to the Mother, or as she directs; 3 From the proceeds of the sale of the matrimonial home, the sum of $10,000 shall be directed to counsel for the Father; 4 If there are any remaining proceeds, they shall be divided equally between the parties and paid accordingly; (Calculations detailed in Schedule “D” herein) nn) This order bears interest at the post-judgment interest rate of 3.0 percent per year effective from the date of this order. A payment in default bears interest only from the date of default. oo) Neither party shall speak ill or disparage the other party in the presence of the child M.T.J., or allow any other party to do so in the presence of M.T.J., or where the child may overhear these comments; pp) Neither party may post anything about the other party on any social media forum, including but not limited to Facebook, Instagram, Twitter, or Snapchat; qq) The Mother shall not communicate in any manner with the Father’s employers, including the Peel District School Board and the Canadian Armed Forces, nor shall she communicate in any manner with the Father’s family, except of course with the child M.T.J. as specified herein; rr) The parties are encouraged to settle the issue of costs between themselves. If they are unable to do so, both parties are to serve and file their costs submissions, limited to two pages, double spaced and single sided, exclusive of Costs Outline and case law on or before January 31, 2020; any reply submissions, with the same size restrictions, are to be served and filed on or before February 21, 2020; ss) Either party may obtain a divorce in writing, without costs; and tt) All other claims by the Applicant and the Respondent are dismissed.

Fowler Byrne J.

Released: January 17, 2020

ONTARIO Superior Court of Justice, Family Court

Court File Number: FS-17-89269 (Name of Court)

at 7755 Hurontario Street, Brampton, Ontario (Court office address)

Form 13B: Net Family Property Statement

Applicant(s) Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any). Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

M.M. Barbara A. Barnett Kania Lawyers 223 Main Street North Brampton, Ontario L6X 1N2 Tel: 905-451-3222 Fax: 905-451-1267 bbarnett@kanialawyers.com

Respondent(s) Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any). Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

E.M.

My name is (full legal name) (1)

The valuation date for the following material is (date) January 1, 2016 (2)

The date of marriage is (date) July 15, 2001

[166] (Complete the tables by filling in the columns for both parties, showing your assets, debts, etc. and those of your spouse)

Table 1: Value Of Assets Owned on Valuation Date (List in the order of the categories in the financial statement)

PART 4(a): LAND

Nature & Type of Ownership (State percentage interest)	Address of Property	FATHER	MOTHER
Matrimonial Home	Mississauga, Ontario – owned by Mother, Father beneficial owner of 50% Sold: June 28, 2019 – amount reflects net proceeds remaining in trust; since the sale, both parties received an advance of $150,000.	$368,228.20	$368,228.20
15. Totals: Value of Land		$368,228.20	$368,228.20

PART 4(b): GENERAL HOUSEHOLD ITEMS AND VEHICLES

Item	Description	FATHER	MOTHER
Household goods & furniture	divided
Cars, boats, vehicles	2008 Audi A4		$5,200.00
Jewellery, art, electronics, tools, sports & hobby, equipment
Other special items
16. Totals: Value of General Household Items and Vehicles		$0.00	$5,200.00

PART 4(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS

Category (Savings, Checking, GIC, RRSP, Pensions, etc.)	Institution	Account Number	FATHER	MOTHER
Bank Account – joint	Scotiabank (entire proceeds retained by Mother)	172 80		$3,355.22
Bank Account – sole	Scotiabank	…089	$27.28
RRSP – sole	Scotiabank	…6218		$2,426.72
RRSP – sole	Scotiabank	…0509		$1,127.68
Pension	OTPP		$432,068.40
Pension	Canadian Armed Forces		$119,174.00
Investments – sole	Scotia iTrade	…696		$99,334.00
RRSP – sole	Scotia iTrade	…23-11		$44,928.00
Investments – sole	Scotia iTrade	…9693		$2.00
RRSP – sole	Scotia iTrade	…24-10		$76,661.00
RESP – joint	Scotia iTrade	…72-16	$6,003.50	$6,003.50
TFSA – sole	Scotia iTrade	…27-14		$700.00
Bank Account – sole	Scotiabank USD $553.13 at 1.32	…724		$730.13
Shares – sole	Barrick Gold			$3,039.67
17. Totals: Value of Accounts And Savings			$560,827.58	$234,753.52

PART 4(d): LIFE AND DISABILITY INSURANCE

Company, Type & Policy No.	Owner	Beneficiary	Face Amount ($)	FATHER	MOTHER
Term Life	Father	$400,000		$0.00
18. Totals: Cash Surrender Value Of Insurance Policies				$0.00	$0.00

PART 4(e): BUSINESS INTERESTS

Name of Firm or Company	Interests	FATHER	MOTHER
Longbranch Consulting	50% owner		Nil
Jenskovec Mechanical Services Inc.	25 Class A Shares		$71,705.00
19. Totals: Value Of Business Interests		$0.00	$71,705.00

PART 4(f): MONEY OWED TO YOU

Details	FATHER	MOTHER
20. Totals: Money Owed To You	$0.00	$0.00

PART 4(g): OTHER PROPERTY

Category	Details	FATHER	MOTHER
21. Totals: Value Of Other Property		$0.00	$0.00

22. VALUE OF PROPERTY OWNED ON THE VALUATION DATE, (TOTAL 1) (Add: items [15] to [21])	$929,055.78	$679,886.72

(3)

Table 2: Value Of Debts and Liabilities on Valuation Date

PART 5: DEBTS AND OTHER LIABILITIES

Category	Details	FATHER	MOTHER
Line of Credit – joint	Scotiabank 4538….1098 – paid from proceeds of sale of matrimonial home
Line of Credit – joint	Scotiabank 4538….4557 – paid from proceeds of sale of matrimonial home
Line of Credit – joint	Scotiabank 4538….1106 – paid from proceeds of sale of matrimonial home
Line of Credit – sole	Bank of Montreal 219…444		$20,553.80
Costs of Disposition – 21.5%	OTPP Pension	$92,894.71
Canadian Armed Forces Pension (disposition costs included in valuation)
RRSP …6218			$521.74
RRSP ….0509			$242.45
RRSP …23-12			$9,659.52
RRSP …24-10			$16,482.12
23. Totals: Debts And Other Liabilities, (TOTAL 2)	$114,212.70	$26,141.64

Table 3: Net value on date of marriage of property (other than a matrimonial home) after deducting debts or other liabilities on date of marriage (other than those relating directly to the purchase or significant improvement of a matrimonial home)

PART 6: PROPERTY, DEBTS AND OTHER LIABILITIES ON DATE OF MARRIAGE

Category and Details	FATHER	MOTHER
Land (exclude matrimonial home owned on the date of marriage, unless sold before date of separation).
General household items and vehicles	1999 Volkswagen	$17,500.00
	2000 Grand Prix
Bank accounts and savings	RRSP Scotiabank …6218	$21,000.00
	RRSP Scotiabank …0509	$1,000.00
	Royal Bank
	Scotia McLeod
	RRSP
Life and disability insurance
Business interests
Money owed to you
Other property
3(a) TOTAL OF PROPERTY ITEMS	$39,500.00	$37,556.93
Debts and other liabilities (Specify)	Loan from Joe Jenskovec
Costs of Disposition on RRSP (21.5%)		$4,730.00
3(b) TOTAL OF DEBTS ITEMS	$4,730.00	$148,426.96
24. NET VALUE OF PROPERTY OWNED ON DATE OF MARRIAGE, (NET TOTAL 3)	$34,770.00	($110,870.03)

Table 4: PART 7: VALUE OF PROPERTY EXCLUDED UNDER SUBS. 4(2) OF “FAMILY LAW ACT”

Item	FATHER	MOTHER
Gift or inheritance from third person
Income from property expressly excluded by donor/testator
Damages and settlements for personal injuries, etc.
Life insurance proceeds
Traced property
Excluded property by spousal agreement
Other Excluded Property
26. TOTALS: VALUE OF EXCLUDED PROPERTY, (TOTAL 4)	$0.00	$0.00

TOTAL 2: Debts and Other Liabilities (item 23)	$114,212.70	$26,141.64
TOTAL 3: Value of Property Owned on the Date of Marriage (item 24)	$34,770.00	($110,870.03)
TOTAL 4: Value of Excluded Property (item 26)	$0.00	$0.00
TOTAL 5: (TOTAL 2 + TOTAL 3 + TOTAL 4)	$148,982.70	($84,728.39)

	FATHER	MOTHER
TOTAL 1: Value of Property Owned on Valuation Date (item 22)	$929,055.78	$679,886.72
TOTAL 5: (from above)	$148,982.70	($84,728.39)
TOTAL 6: NET FAMILY PROPERTY (Subtract: TOTAL 1 minus TOTAL 5)	$780,073.08	$764,615.11

(4)

EQUALIZATION PAYMENTS

Father Pays Mother	Mother Pays Father
$7,728.99	$0.00

[167] Signature

[168] Date of signature

Moody v. Moody - final calculation of payment

Item	Ref in Judgment	Paid to Father	Paid to Mother
Proceeds of Sale of Matrimonial Home to be paid equally ($436,456.40)		$218,228.20	$218,228.20
To be retained by counsel for Father for parenting coordinator	165(c)(7)	-$5,000.00	-$5,000.00
Lump Sum Spousal Support	165(w)	-$116,699.52	$116,699.52
Retroactive Child Support	165(x)	-$24,936.00	$24,936.00
Retroactive section 7 expenses	165(y)	-$1,112.88	$1,112.88
Equalization Payment	165(hh)	-$7,728.99	$7,728.99
Post-separation adjustment	165(ll)(1)	$2,728.39	-$2,728.39
Post-separation adjustment	165(ll)(2)	$97,469.49	-$97,469.49
Post-separation adjustment	165(ll)(3)	$1,644.90	-$1,644.90
Post-separation adjustment	165(ll)(4)	$12,585.00	-$12,585.00
Post-separation adjustment	165(ll)(5)	$2,200.00	-$2,200.00
Post-separation adjustment	165(ll)(6)	-$503.12	$503.12
Final Distribution:		$178,875.47	$247,580.93

COURT FILE NO.: FS-17-89269-00 DATE: 2020 01 17 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: M.M. Applicant

• and - E.M. Respondent REASONS FOR JUDGMENT Fowler Byrne J.

Released: January 17, 2020