Court File and Parties
COURT FILE NO.: FC-19-1510 DATE: 20220321 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Janet Kaye Gertley, Applicant AND: Stuart Charles Gertley, Respondent
BEFORE: The Honourable Mr. Justice J.P.L. McDermot
COUNSEL: Kristen Normandin and Cara Senese, for the Applicant Heather Garfinkel, for the Respondent
HEARD: March 10, 2022
Endorsement
[1] This was a motion brought by the Respondent for the sale of the matrimonial home. The Applicant brings a cross motion for spousal and child support as well as for appointment of the Office of the Children’s Lawyer to conduct an investigation pursuant to s. 112 of the Courts of Justice Act.
[2] These parties had a ten year marriage that ended on January 1, 2019. They have three children, Mason (13), Tynan (10) and Lila (8). After the parties separated, they lived separate and apart under the same roof for more than a year after which the Respondent left the home to live with his new partner in March, 2021.
[3] This has been a high conflict case. Notwithstanding that, the parties decided to share care of the children equally on a 2-2-3 schedule after the Respondent left the home. But it is notable that he left ostensibly because the children’s therapist said that the parties living under the same roof was too stressful for the children because of parental conflict.
[4] Throughout the marriage, the major (if not the only) wage earner in the household was the Respondent. His income between 2016 and 2020 ranged between $132,842 per annum to $86,658 per annum. According to the material, he is a plumber and he belongs to the union. However, in February of 2021, he was terminated from his long-term employment position. He says he could not do the job any longer because of stress. He filed a detailed letter from the family doctor, Dr. Robert Gabor, [1] confirming that he could not work because of stress resulting from the separation.
[5] Since then, the stress has continued to build for the children and both parties outlined their concerns about their children as well as concerning incidents regarding the children in their affidavits. Certainly, the children continue to undergo stress. They are in counselling at New Path (the original therapy was terminated by the Applicant after she perceived that therapist took sides) and there was correspondence filed by the Applicant indicating that the Respondent was neglectful of the children. As with so many of these types of cases, the local C.A.S. has been involved. The family doctor has accused the Applicant of being “hypervigilant” and of providing Mason with inconsistent medical care by attending at a walk-in clinic to adjust or change medication. The doctor acknowledges that the children, especially Mason, are troubled.
[6] That is one of the major reasons that the Applicant seeks to delay the sale of the home until trial. The Respondent wishes the home sold, although the only clear reason he wants this is to take advantage of the “seller’s market” that exists right now as well as the need for $20,000 for a health and income capacity analysis.
[7] The Applicant says she has been left with the expenses of the home after the Respondent abandoned the home in March of 2021. She went out and obtained employment and presently earns, according to her financial statement, $50,220 per annum. She pays all of the expenses of the home and of the children when in her care without assistance from the Applicant. She says that she is in need of support and requests an order for child support and spousal support based on income imputed to the Respondent of at least $86,658 per annum, if not what he made in 2018, $132,842 per year.
[8] The Respondent also asks for the appointment of the OCL to review the parenting issues between the parties, including their ability to co-parent the children and the children’s ability to manage a shared care arrangement in a high conflict situation between these parties.
[9] For the reasons set out below, I have determined the following: a. The Respondent’s motion to sell the home is dismissed. b. The Applicant’s motion for spousal and child support is dismissed. c. The Office of the Children’s Lawyer is requested to become involved.
Analysis
[10] As noted above, there are three issues in this case: a. Should the matrimonial home be listed and sold? b. Should income be imputed to the Respondent for the purposes of assessing child and spousal support? c. Should the Office of the Children’s Lawyer be requested to become involved to conduct an investigation or appoint counsel for the children?
Sale of the Home
[11] The matrimonial home is located in Innisfil, five minutes from the children’s school. The home is jointly owned. No formal appraisal has been conducted on the home even though the parties have been attempting to negotiate a buyout by the Applicant of the Respondent’s one-half interest in the home. Based upon opinions of value from realtors, the home is worth somewhere between $750,000 to $825,000. Ms. Gertley has been approved for a mortgage of about $400,000 but Ms. Garfinkel points out that this would be inadequate to discharge the mortgage on the home (in the amount of about $210,000) and pay the Respondent for his equity in the home (another $306,000 more or less).
[12] The Respondent says that the sale of the home is a matter of urgency. He says that the parties have a good market right now: it is a seller’s market with, on occasion, bidding wars driving the price of homes up. He is worried that we are in for a drop in housing prices, and perhaps a recession. Interest rates are rising. He says that now is the time to sell the home but that may not last.
[13] It is common ground that the court does not have jurisdiction to force parties into a buyout of the home as the Applicant has been attempting to achieve over the past year: see Mudronja v. Mudronja, 2014 ONSC 6217 and Laurignano v. Laurignano, 2009 ONCA 241, 65 R.F.L.(6th) 15.
[14] The right to partition and sale of a jointly owned home can be found in the somewhat archaic wording of ss. 2 and 3 of the Partition Act. Those sections read as follows:
- All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.
3.(1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.
[15] Moreover, under s. 10(1)(c) of the Family Law Act, the court may make an “order that the property be partitioned or sold for the purpose of realizing the interests in it…”
[16] In Arlow v. Arlow (1991), 33 R.F.L. (3d) 44 (Ont. C.A.) aff’g , 27 R.F.L. (3d) 348 (Ont. Dist. Ct.), the court of appeal confirmed the motion judge’s determination that a “joint tenant has a prima facie right to partition or sale and that right is not to be lightly interfered with.” In Marchese v. Marchese, 2019 ONCA 116, the court of appeal appears to limit the grounds under which the court can reject a request for partition and sale, stating [at para. 5] that, “the trial judge was required to order the sale unless the appellant demonstrated that such an order should not be made and showed there was malicious, vexatious or oppressive conduct on the part of the respondent in relation to the sale itself.”
[17] The issue is, however, not that simple. In Marchese, for example, the court added that the responding party did not prove malicious, vexatious or oppressive conduct concerning the sale of the home, “nor did she put forward any other legal basis to preclude the sale of the matrimonial home.” What would constitute “any other legal basis” to prevent the sale?
[18] One such legal basis would be where there are claims under the FLA which may be prejudiced by an immediate sale of the home: see for example the leading case of Silva v. Silva (1990), 1 O.R. (3d) 436 (C.A.) where Finlayson J.A. stated that:
… where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the F.L.A. Putting it more broadly, an application under s. 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A.
[19] In Martin v. Martin (1992), 8 O.R. (3d) 41 (C.A.), Osborne J.A. tempered the right to an order for the sale of a jointly owned home under the Partition Act when he stated:
In my view, an order directing the sale of a matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate. Orders for the sale of a matrimonial home made before the resolution of Family Law Act issues (particularly the determination of the equalization payment), should not be made as a matter of course. See Binkley v. Binkley (1988), 14 R.F.L. (3d) 336 (Ont. C.A.). In addition, spousal rights of possession (s. 19) and any order for interim exclusive possession should be taken into account.
[20] These cases, therefore, confirm that there is some judicial discretion to make an order for the sale of a jointly owned matrimonial home and to limit the cases where an order should be made based upon the circumstances of the case. This discretion arises where the sale may prejudice a parties’ substantive rights concerning equalization or support at trial.
[21] Alternatively, there is authority to exercise discretion where the sale may work a hardship on vulnerable children who are at issue in the litigation.
[22] Both grounds were outlined by Pinto J. in Fernando v. Fernando, 2021 ONSC 5851 at para. 11 and 12 of the decision. He firstly cites Pazaratz J. in Dhaliwal v. Dhaliwal, 2020 ONSC 3971, which suggests that the “court must consider the impact of a proposed sale on children or a vulnerable spouse -- including the emotional impact, and the fundamental need to ensure that they have appropriate housing.” Pazaratz J. suggested that support obligations and alternative housing availability must be canvassed. Pinto J. notes that Pazaratz J. suggests a wholistic approach, ensuring that the court make orders for sale of the home at the interim stage bearing in mind the need to “need to achieve a final resolution for the family as fairly and expeditiously as possible”.
[23] Justice Pinto also acknowledges, as a distinct separate ground, the principle that any order made at a motion under the Partition Act should not prejudice the responding parties claims under the FLA at trial. These claims would include equalization of property, claims for exclusive possession or lump sum support claims. At para. 12, he cites Faieta J. in Hutchison-Perry v. Perry, 2019 ONSC 4381, at para. 37, that “an application under the Partition Act should not proceed when the opposing spouse shows that the sale would prejudice the rights of a spouse under the FLA or a court order… or, at the very least, that the opposing spouse's arguable claims under the FLA would be prejudiced.”
[24] This latter ground has been described as being analogous to an order for summary judgment under r. 16 of the Family Law Rules which “requires full disclosure of the evidence in support or opposition.”: see Scodros v. Scodros, [2005] O.J. No. 1711 (S.C.J.). However, in that case, the best interests of the children were found to warrant a sale because the mother was living in the home with two of the children, and the father only had an apartment for the remaining two children: the father needed his equity from the home to place the children in his care on an equal footing with those children with the mother.
[25] In Dulko v. Dulko, 2016 ONSC 6409, Price J. suggested that, where children are involved, their “best interests are a factor that the court must consider in determining whether a sale of the home should be ordered, having regard to the impact such a sale would have on the children.” His view was that the court should review the sale of the home on the same basis as it would for an order for exclusive possession of the home under s. 24 of the FLA. Price J. also noted that the parties’ pleadings are important to this analysis: did either of the parties plead the Partition Act? Is there an outstanding claim for exclusive possession?
[26] Other cases where the best interests of the children have been mentioned as a factor to take into account are Fernandez v. Durrigo, 2018 ONSC 1039 (Div. Ct.) (where the child’s autism spectrum disorder diagnosis and other vulnerabilities were taken into account in allowing an appeal of an interim order for the sale of the home) and Bailey-Lewis v. Bailey, 2020 ONSC 7525 (where there was no evidence that the parties’ child was “a vulnerable child or that the sale of the matrimonial home would have significant disruptive effects on him” and the motion for sale of the home was allowed).
[27] In firstly reviewing the issue of whether the Applicant’s claims at trial will be defeated by the sale of the home, I would firstly review the state of the pleadings in this matter. Although the Applicant did claim exclusive possession of the home in her pleadings, she only requested this on an interim basis and did not make a claim for a final order for exclusive possession in her application.
[28] However, the Respondent’s Answer is also deficient. He firstly did not ask for a sale of the matrimonial home in his Answer or make a claim under the Partition Act. He refers to a schedule as explaining his basis for his claims in that document, but that schedule was not filed on the continuing record.
[29] The Respondent notes that there is over $600,000 in equity in the matrimonial home and that he is entitled to have the home sold to realize that. He says that there is no countervailing claim which would be threatened by releasing that equity to him. In any event, he was not requesting the release of that equity to him other than $20,000 which he wishes to use to prove that he is unable to work because he suffers from stress.
[30] I agree with the Respondent that the Applicant has not demonstrated that her claims at trial would be threatened or impaired by the sale of the home. There are few other assets to be equalized other than the Respondent’s pension, which can be divided at source by virtue of the provisions of the FLA and the Pension Benefits Act. The Applicant did not request a final order for exclusive possession in her application. The only possible claim that could be foreseen is a claim that lump sum support be paid from the Respondent’s share of the matrimonial home, but this was not mentioned or raised in argument, and no evidence was provided to show that this claim would succeed.
[31] If this is to be treated as a motion for partial summary judgment, the Applicant has offered little “evidence of specific facts showing a genuine issue for trial” as required by r. 16(4.1) of the Family Law Rules. I have little or no evidence of the Applicant’s claims at trial being impaired by a sale of the home.
[32] However, regarding the children’s best interests, the Respondent’s position regarding the equity in the home is telling. He does not have any urgent need for the equity in the home as he is not planning on purchasing a home right now. He lives in his partner’s home and does not plan on moving. His only need is funds for the purpose of having a health-related income analysis completed for trial and all he wants out of his $300,000 in equity is $20,000 for that report. His original position on this motion was that neither party receive anything from trust until trial, and if this is the case, the purpose of forcing a sale of the home must be canvassed considering the fact that the Applicant and the children will be forced to find alternative housing and move to a new residence. At this point in time, without specific evidence, the Applicant says that she will have to move to Orillia to find affordable housing at this point in time.
[33] The Respondent’s only reason for selling the home can be found at paragraph 32 of the Respondent’s affidavit sworn March 1, 2022, where he says:
The market remains at this juncture a "seller's market" and there are still bidding wars on properties, however, we are in an unstable market and I worry if the home is not immediately listed for sale that I will be prejudiced as the market could decline or crash.
[34] This is a statement made without any specific evidence in support of it. The Respondent is not an expert in real estate market trends. I assume the Respondent wishes me to take judicial notice of these facts. In this age of COVID vaccination controversy, there are numerous cases on judicial notice and what facts the bench can take notice of, but the most recent leading case is the court of appeal case of R. v. J.M., 2021 ONCA 150 where the court found that there are two types of facts that the court may take judicial notice of:
(a) those that are so notorious or "accepted", either generally or within a particular community, as not to be the subject of dispute among reasonable persons; and (b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy... The sources may include both large bodies of scientific literature and jurisprudence.
[35] The fact that we are in an active real estate market is non-controversial; everyone knows that prices are as high as they have ever been and there is plenty of anecdotal evidence that there are active bidding wars on some properties. However, the statement that there may be a “decline or crash” is controversial and there are numerous experts lined up on either side of that argument. I was not made aware of any “readily accessible sources of indisputable accuracy” to support the Respondent’s position regarding the housing market. The suggestion that the home should be sold now without any immediate need for funds is not supported by the evidence.
[36] And as I am being asked by the Respondent to take judicial notice of the state of the housing market, then he cannot criticize the Applicant for suggesting that the rental market is extremely tight and that alternative accommodations are not readily available for herself and the children. It is as easy to assert that the real estate market is fetching the highest prices ever for housing in Simcoe County as it is to find that the rental market is both expensive and tight at the moment; indeed, one goes along with the other. I can as easily make a finding of the difficulty of the Applicant in finding alternative housing as I can to find that there is a “hot” housing market right now. And in fact the Applicant did file some current rental listings in the immediate area which showed that the cost of a three bedroom home would be in the range of $2,700 to $2,800 per month plus utilities, well in excess of the present costs of the matrimonial home which are being paid by the Applicant. [6]
[37] The issue of the housing market has to be balanced off against the best interests of the children who are, based on all of the evidence, troubled by the enmity between the parents and have special needs at their school. Both parties have led evidence as to the children’s struggles with the high conflict nature of the parents’ separation. Ms. Gertley has led evidence that the children are sent to school hungry when in the Respondent’s care. [7] She disclosed an incident where the parties’ eldest son arrived at school from his father’s home in urine soaked clothing because he had wet the bed and had to call his mother to come to take him home to change; Mr. Gertley dismissed this assertion as being a “smoke show” directed to the appointment of the OCL.
[38] However, even the evidence led by the Respondent show the children to be troubled and in need of stability. Deborah Alton, the therapist initially involved with this family, noted that the children needed therapy to deal with the parental conflict. She said that Lila in particular had been involved in this conflict, keeping “secrets” on behalf of the mother, and with the father telling her not to call the mother during his parenting time. [8] The family doctor, Dr. Gabor, noted that Mason is diagnosed with anxiety with underlying ADHD and he says that “Mason has not been coping well” and that Mason was referred to a pediatric psychiatrist because of “some expressions of suicidality.” Dr. Gabor said that the mother thought that Lila had been sexually abused by Mr. Gertley and that she was “hypervigilant” about this. The doctor’s conclusion was that this was an issue of personal hygiene and that there was no evidence or concern regarding Lila having been inappropriately touched by the father. [9]
[39] However, the educational issues are more concerning. The matrimonial home is the only residence of the parents within the children’s school catchment area and it is five minutes away from the school. The father lives outside of the catchment area and in fact Tynan complained to Deborah Alton about the longer drive from the father’s home to the school. All three children have Individual Education Plans which indicates, for each child, special and identified educational needs. As noted by the doctor, Mason suffers from anxiety and ADHD. There are allegations that the children arrive at school hungry and on one occasion, the Applicant says that she had to rush to the school because Mason was in a state because he needed a change of clothing. All of these appear to indicate that school is an issue for these children and that the proximity of the home to the school is important.
[40] Mr. Gertley is somewhat cavalier about this as he is about the needs of Ms. Gertley and the children. Ms. Garfinkel said in argument that the parties could easily ask that the children remain in their present school even if Ms. Gertley moved out of the catchment area but she offered no evidence that this request would be successful or whether the children’s school is at full capacity; nor apparently did Mr. Gertley research this issue. Mr. Gertley says that the IEPs could easily be transferred to another school. He does not appear to consider the instability to these children that a change in school would engender.
[41] This is in the background of the affordability of housing in the area of the matrimonial home as noted above. And again, Mr. Gertley does not care about this. He has landed on his feet because he is living with his new partner. But it must be recalled that Mr. Gertley lost his job in February, 2021 after having been, throughout the marriage, the primary wage earner (the Applicant says that he was the only wage earner for most of the marriage and she was home with the children). After losing his job, he abandoned the home and the expenses of the home to the Applicant, sending her an email on April 9, 2021 telling her that she was now responsible for all of the expenses of the home; he told her that, “I am currently not working, therefore unable to continue to pay any and all expenses for the house, until we settle our matter in court.” To her credit, Ms. Gertley has obtained employment and is meeting the expenses of the home without assistance from Mr. Gertley.
[42] Now Mr. Gertley wants to sell the home. He is not offering any assistance whatsoever to Ms. Gertley to meet the increased expenses of rental accommodation; he is not working and is going on ODSP because of his ongoing stress and panic attacks. He has not cooperated in this litigation as evidenced by the endorsement of Douglas J. from the settlement conference when the Respondent’s deficient disclosure prevented a full settlement conference from taking place. All this achieved was to delay a trial or resolution of the issues between the parties.
[43] Moreover, until I pressed the matter, Mr. Gertley was also not offering any distribution of funds to Ms. Gertley from the home. It was only when I questioned his counsel during argument that he offered to release most of the funds from trust equally to both parties, holding back $100,000 from each party’s share of the equity to cover FLA and other claims at trial. But considering that rents are $2,700 per month in the Innisfil area plus utilities, and the mortgage on the matrimonial home is only $1,400 per month, it would appear that Mr. Gertley is suggesting that Ms. Gertley live on her capital or alternatively move further north which would make the shared care arrangement that the children appear to enjoy more problematic.
[44] I therefore do not find that there is alternative adequate housing for Ms. Gertley if she leaves the home. I also do not find that the sale of the home is in the best interests of the children who have, as far as I can see, gone to their present school throughout their lives and who also require stability now. That consideration may only last until trial, but the soonest that trial will take place is in November, 2022 as there is a trial scheduling conference in September, 2022. There has still not been a full settlement conference at this point in time, because disclosure was still being provided by Mr. Gertley weeks prior to this motion; the parties continue to disagree as to whether disclosure is now complete. It is unlikely that this matter will proceed to trial until May, 2023 and it is in the best interests of the children that Ms. Gertley continue to have possession of the matrimonial home until then so that they can remain in their present school and have the stability that this home offers them.
[45] The motion for the sale of the matrimonial home is therefore dismissed.
Spousal and Child Support
[46] The Applicant seeks an order for ongoing and retroactive temporary child and spousal support.
[47] The Respondent is presently receiving Employment Insurance benefits. He does not have a job and he has filed a medical letter indicating that he cannot work and says he is applying for ODSP because of the anxiety that he has suffered as a result of the breakdown of the marriage. The Respondent has filed, pursuant to the disclosure order of Douglas J., a Record of Employment (ROE) concerning his job loss; it indicates that he was terminated from his employment. The Respondent says that he was terminated because he could not properly perform his job functions because of his anxiety. The fact that he is receiving Employment Insurance notwithstanding that termination corroborates the extenuating circumstances surrounding that termination (which would normally have resulted in EI benefits being withheld).
[48] The Applicant seeks to impute income to the Respondent. She notes that he was always the primary, if not the only, wage earner within the marriage. He supported the family through his income which at times was substantial. His earnings throughout the last years of the marriage and into the separation were as follows:
| Year | Income |
|---|---|
| 2016 | $123,615 |
| 2017 | $126,889 |
| 2018 | $132,842 |
| 2019 | $96,537 |
| 2020 | $86,658 |
[49] The Applicant seeks to impute income based upon the Respondent’s highest income for the past five years, in the range of $132,000 per annum. She asks that income be imputed at least at $86,658, which was the Respondent’s income in the year prior to losing his employment in February, 2021. It is unknown what the Respondent’s present income is, but he says in his last financial statement that he earns Employment Insurance income in the amount of $25,152 per annum. As the children are shared, this income would result in differential child support being paid by the Applicant to the Respondent (the Respondent is not seeking child support in this motion). Without more, the Applicant’s income is at least double that of the Respondent. In other words, there are no grounds for the Applicant’s motion for temporary support without imputation of income to the Respondent.
[50] The fact that the party asserting that income is to be imputed bears some evidentiary burden of proof is confirmed by our Court of Appeal in Homsi v. Zaya, 2009 ONCA 322, 2009 CarswellOnt 2068 where Epstein J.A. stated at para. 28 that, “The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding.” Moreover, the case law makes it clear that, as most recently noted in Vermeire v. Bates, 2022 ONSC 1278, “an interim motion is not the place to impute income”. This is because a motion record contains conflicting affidavits incapable of easy resolution. I expect that this statement refers as much to the payor as well as the recipient.
[51] However, the Applicant asks that I impute income based upon the Respondent’s failure to provide disclosure. She cites Justice Douglas’ statement at the Settlement Conference held on September 22, 2021 that “I am satisfied that RF bears responsibility for the major flaws in disclosure.” She says that this failure to disclose continues and that an adverse inference should be drawn against the Respondent as a result.
[52] The parties could not agree on whether disclosure was complete at the time of the hearing of the motion. The Respondent said that he had provided all of the disclosure set out in Justice Douglas’ order from the settlement conference. The Applicant says he has not and counsel advised in argument that disclosure was still outstanding as follows:
a. Ms. Normandin had asked for a “written explanation from UA Local explaining what it means for your client to be “registered” as “unemployed” with the union and whether this designation was made by your client and can be altered/removed by your client.” b. Evidence of any attempts the Respondent has made to secure employment outside of his union; c. all documentation that was enclosed with the letter dated October 5, 2021 sent from Joe Di Maso at Local 46. d. Evidence of all amounts received from the Respondent’s parents from January 1, 2020 to current;
[53] Counsel acknowledged that the other issues raised in her February 28, 2022 affidavit had been addressed in the Respondent’s affidavit of March 4, 2022. My own review of that affidavit also indicates that the Respondent has also addressed, more or less, the other remaining issues outlined in argument above.
[54] The difficulty is that, even if the disclosure is outstanding, most of it does not go to the issue of the Respondent’s disability and his present inability to work. For example, regarding (b) above, the Respondent acknowledges that he is not looking for work because he says he is disabled. He says he is applying for disability assistance from the Province of Ontario. Although the Respondent has obviously been tardy in providing disclosure to the Applicant, he did pay for that privilege in costs awarded by Justice Douglas at the conference and appears to now be in substantial compliance with his disclosure requirements.
[55] The Applicant takes issue with the doctor’s letter which was provided by the Respondent pursuant to his disclosure obligation and in order to explain his inability to work. She cites Bhagwandin v. Paul, 2020 ONSC 1243 in support of the proposition that the Respondent should provide more.
[56] Bhagwandin is completely distinguishable as the putative support payor in that case provided a one paragraph doctor’s letter stating that the husband was unable to work because of “his headache”. That evidence was found to be insufficient to prove inability to work. In the present case, a detailed letter was provided by the family doctor which provided details of the Respondent’s anxiety, the increasing inability to work ending up with the job loss which is in issue in this motion. The doctor’s letter in the present case was three full pages long and provided the means by which the doctor arrived at his diagnosis and a detailed history of when the Respondent first began having panic attacks, well prior to separation, and as to the progression of the panic attacks resulting in his inability to work. It was certainly much more detailed that the evidence offered up in Bhagwandin.
[57] I therefore do not find that the Applicant has laid an evidentiary foundation which would result in imputation of income to the Respondent for the purposes of this motion. That issue is left for the trial judge.
[58] The motion for imputation of income to the Respondent and for temporary spousal and child support is therefore dismissed.
Office of the Children’s Lawyer
[59] The parties in this case are making competing parenting claims concerning the parenting of their three children. In their respective pleadings, each party claims “custody and primary residence” of the children. [10]
[60] The Applicant seeks the involvement of the Office of the Children’s Lawyer to assist the parties in their parenting plan dispute. The Respondent objects, stating that it would not be in the children’s best interests to be interviewed again and again regarding their parents’ dispute. He says that the children have gone through enough.
[61] As outlined above, all of the children are suffering to one degree or another as a result of their parents’ separation. Much of this can be verified through evidence filed by the Respondent as outlined above. What is apparent from the evidence is that the conflict between the parents is difficult for the children, that the children enjoy spending time with both parents and that each party has put competing parenting claims before the court. An example of the diverging views as to the children’s best interests involved the Respondent’s claim for the sale of the home: Mr. Gertley did not believe that the children would be adversely affected by the sale of the home but I have found differently. Certainly, he submitted that it didn’t matter whether the children were forced to change schools if the home was sold but it was clearly apparent that the children’s schooling is one of the few stable situations in their lives at the moment. The father’s evidence, including the evidence provided by both Deborah Alton and the family doctor, are critical of the Applicant’s parenting of the children.
[62] The issue for the court is how to place unbiased and extraneous evidence regarding the children’s best interests before the court at trial.
[63] Mr. Gertley says that the best interests of the children can be determined through the children’s therapist. However, the evidence of Deborah Alton is dated and that therapy has been terminated. The children are now going to New Path, and that agency traditionally does not involve itself in court proceedings.
[64] Even if that agency was willing to cooperate in the presentation of evidence at trial, other factors are involved. The therapist may determine that he or she has a duty of confidentiality which would prevent that therapist from giving evidence at trial. Moreover, for a therapist to be involved in providing evidence at court proceedings may result in a conflict with the therapist’s duty to provide assistance to the children: see Child and Family Services for York Region v. L.H., 2013 ONSC 5622 where Boswell J. stated that the blurring of the line between the therapeutic role by giving a therapist an evidentiary role puts that therapy at risk.
[65] Ms. Garfinkel suggested that the OCL appointment would delay the trial, but these parties have not yet had a full settlement conference, and, as noted above, trial will probably not take place until May, 2023 in any event. It is unlikely that the trial will be further delayed by an OCL investigation.
[66] Therefore, even though it will result in the children having more involvement in the proceedings, it appears from the evidence before the court that they are already involved and well aware of the parental conflict. I find that it would be in the best interests of the children that their evidence as to their needs and best interests as well as their views and preferences, be placed before the court through an independent agency, the Office of the Children’s Lawyer. Without that input, the trial judge may find no evidence other than dated evidence from Deborah Alton and the parties and their respective oath helpers. That evidence is notoriously unreliable and can be extremely unhelpful.
[67] There shall therefore be an order requesting the involvement of the Office of the Children’s Lawyer. A draft order is to be prepared by the Applicant’s counsel and provided to me for signature and comments.
Order
[68] There shall therefore be an order as follows:
a. The Respondent’s claim for the sale of the matrimonial home is dismissed. b. The Applicant’s claim for temporary spousal support and child support is dismissed. c. There shall be an order requesting the involvement of the Office of the Children’s Lawyer to assist in determining the best interests of the children in this parenting dispute.
[69] Success in this matter is divided. Normally, there would be no order as to costs. I have not, however, reviewed the offers to settle and I am therefore permitting the parties to make submissions as to costs on a ten-day turnaround, the Applicant first and then the Respondent. Costs submissions to be no more than four pages in length excluding Offers to Settle and Bills of Costs.
McDermot J. Date: March 21, 2022
Footnotes
[1] Ex. E to the affidavit of Stuart Gertley sworn March 1, 2022. [6] See Ex. B to the Applicant’s affidavit sworn February 28, 2022. [7] This evidence consisted of a letter from an educational assistant at the school: see Ex. A to the Applicant’s affidavit sworn February 28, 2022. Surprisingly, the Respondent’s counsel suggested without evidence that this correspondence was a forgery because it was not signed by its author. [8] See the report of Deborah Alton dated August 23, 2021 filed as Ex. B to the affidavit of the Respondent sworn March 1, 2022. [9] See the undated medical report of Dr. Gabor attached as Ex. E to the affidavit of the Respondent sworn March 1, 2022. [10] Although there are no details in the Respondent’s Answer as the schedule to that document is not in the continuing record.