COURT FILE NOS: 05-FL-1041, 05-FL-1041-A and 05-1041-2

DATE: 2012-01-06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHANTAL DE LA SABLONNIERE

Applicant

– and –

PIERRE CASTAGNER

Respondent

Lisa Sharp, for the Applicant

Self-Represented

HEARD: May 30, 31, June 2, 5, 6, August 24, 25, September 7, 8, and 9, 2011 (Ottawa)

REASONS FOR DECISION

KANE J.

[1] The parties began living together in 1986. They moved from Montreal to Ottawa in 1991 to allow the respondent to accept new employment. They married in 1996. The applicant presently is 52 years old. The respondent is 58.

[2] The parties have three children:

(a) A., born on […], 1990,

(b) C., born on […], 1994, and

(c) J., born on […], 1996.

[3] The parties married one another in 1996 and separated when the wife moved herself and the three children from the matrimonial home on April 26, 2005.

[4] The three children lived with their mother following the 2005 separation but have each since moved. C. and J. moved to their father’s home in May 2007 and September, 2009 respectively. A. moved out of her mother’s home to her own residence in July 2011.

[5] This is high conflict matrimonial litigation. The parties have attended court on approximately 40 occasions prior to this trial. This trial was scheduled for four days. It lasted 10 days, ending with a detailed argument from the respondent. The applicant provided written argument two weeks later. The respondent replied thereto two weeks later.

[6] There have been many interim and final orders granted during the course of this litigation. Most of those orders were issued on consent and settled custody, access, child support and division of property. There are interim orders as to spousal support in final orders dealing with other matters.

[7] The respondent, although legally blind and unrepresented during most of this litigation, has proven to be a formidable opponent with superior intelligence. His knowledge of the relevant legislation, family law rules, rules of evidence and jurisprudence is quite remarkable independent of any visual impairment. His use of electronic devices for the visibly impaired during this trial and his memory and recollection of details of specific documents has enabled him to present a coherent, complete and articulate position on the issues. He conducted thorough examination-in‑chief and cross‑examination of witnesses with continuing reference to documents. He has aggressively litigated this action since its commencement.

[8] The respondent brought this action on for trial:

(a) To terminate his obligation to pay child support to the mother for his daughter A. who now lives with her partner and no longer resides with the applicant, effective July 1, 2011;

(b) To obtain an order that the applicant pay one-third of A.’s university tuition directly to A.;

(c) To terminate his obligation to pay spousal support effective March 1, 2011, and in relation to that, to impute income to the applicant bringing her annual income to $50,000;

(d) To obtain an order of counselling requiring that the mother and children participate therein with the goal of re-establishing a relationship between the two youngest children and their mother. An order was signed to this effect during the trial after some debate;

(e) To obtain a restraining order against Mr. Germain, the partner of the mother. The respondent withdrew this claim after cross-examination of Mr. Germain during the trial; and

(f) To obtain reimbursement of child support paid by the father to the mother for C. from the date of her moving to live with her father to the date of the order terminating such payment obligation and totalling $4,646. The respondent withdrew this claim during the trial as did the applicant who was claiming arrears of child support from the respondent.

[9] The applicant acknowledges that she is no longer entitled to receive child support for A. and that she is legally required to pay child support for the two youngest children to the father. As to A.’s university tuition, she submits that she has no legal obligation to pay any child support for A..

[10] The applicant mother seeks the following relief:

(a) Retroactive spousal support of $800/month from October 1, 2009 until June 1, 2011. Contrary to the respondent’s submission, the applicant did not withdraw this claim during the trial. She withdrew her claim for retroactive child support;

(b) Ongoing spousal support in the amount of $688/month commencing July 1, 2011 until she attains 65 years of age. In relation thereto, the applicant asks this Court to impute $15,000 additional income to the respondent. This is a reduction from the mother’s opening position at the start of the trial when she requested monthly spousal support in the amount of $1,026 based on an imputed salary to the respondent of $81,700, or alternatively, an imputed salary of $56,000 and monthly spousal support of $448/month. The applicant submits that the Court should consider the combined adult household income of each party when considering the respective parties’ standard of living and the allegation that the father voluntarily reduced his income in 2010;

(c) A finding that the respondent is guilty of alienating the children from her and harassing her and that such alienation should be considered in increasing the amount of monthly spousal support payable to the applicant;

(d) An order varying and decreasing the applicant mother’s obligation in relation to s. 7 extraordinary expenses due to a disparity of income between the parties;

(e) An order that the respondent be restrained from contacting her or third parties she is associated with, restrained from making unfounded complaints about her or such third parties to others, failing which he shall be subject to a fine;

(f) An order restraining the respondent from commencing any further litigation involving the applicant without prior court approval; and

(g) An order that each party is required to annually provide the other with a copy of their income tax return, including enclosures and the Notice of Assessment received in response thereto.

[11] This alienation and harassment allegations have necessitated that the parties testify as to their painful and acrimonious separation and the subsequent years of highly conflict litigation.

General Impressions of the Parties

[12] My impression from the testimony and the events testified to, is that the respondent is intelligent, logical, intense and extremely persistent. Order, logic, direction and loyalty are very important to him. He does not have a laissez faire attitude and can at times be rigid and controlling. He admitted that in the past, he has had difficulties with some of his fellow employees. He is very knowledgeable about computers and has built a successful career using that knowledge. His children are a central preoccupation in his life.

[13] The applicant is intelligent, articulate, energetic and outspoken. She has a freer spirit than the respondent. She was described by the respondent as being “the best mother in the world”. She has demonstrated her love and care of her children over the years. She interrupted her career as administrative assistant to stay at home with the children for a number of years. She has since resumed that career and enjoys her present employment as administrative assistant with a community agency working with young mothers.

[14] Each parent has a new partner who they live with. Mr. Germain is 51 years old and began his relationship with the applicant in the summer of 2005 following the separation of the parties at the end of April, 2005. Mr. Germain has lived with the applicant and her children since December 2006 and has witnessed the departure of the three Castagner children from their mother’s home. He left a successful career in France and immigrated to Canada to join the applicant. His children remain in France. Requalification requirements and the predominance of the English language in the Ottawa area have required Mr. Germain to obtain employment at a reduced income level. He currently earns some $12,000/year driving a school bus.

[15] Ms. Cochrane is 47 years old and began dating the respondent in 2008, after living apart from and then separating from her husband in December, 2007. She and her two children began living with the respondent, C. and J. in September, 2009 when she and the respondent bought a house together. She has long term employment with Ottawa Police Services and earns some $70,000/year.

[16] The applicant and the respondent love their three children who are very important to them. Each felt or feels the loss and hurt in not having the children live with them. Notwithstanding their love of the children and the very understandable mixed feelings of loss, hurt, betrayal and anger, Ms. de la Sablonniere and Mr. Castagner have not, on occasion, risen above their animosity towards one another to protect their children emotionally from the damage of this parental warfare. This is particularly true in the case of Mr. Castagner.

[17] These three children have been manipulated and used as pawns and banners to declare each as the better person. The children have witnessed verbal violence, ridicule and the contempt by one parent towards the other parent. The children have been submitted to an array of counsellors by their parents prior to and since the separation for issues including anger, hypersensitivity, nightmares and loss for which the other parent is blamed. The children have been informed by the parents as to the pending status and outcomes during this litigation, as well as what each parent is paying the other in child support. Vindication is pursued in this trial.

[18] Ms. Cochrane described living through this litigation since 2008, as a “nightmare”. Mr. Germain stated that the pressure of this warfare has stressed his relationship with the applicant to the limit. The children neither testified nor were represented during this trial.

A.

[19] I begin with the respondents’ claim that I order the applicant to pay a third of A.’s university tuition and his inclusion of money he pays monthly to A. as a monthly cost reducing his income and ability to pay spousal support.

[20] A. is now 21 years old and in her third year of a four year university degree. She was in the custody of and lived with her mother since the 2005 separation until July of 2011 when she moved out on her own. A. has a boyfriend who is 33 years old and has lived with A. at her mother’s home during the last 18 to 24 months. He and A. now live together in an apartment while she attends university.

[21] Mr. Germain appeared reasonable in his testimony. He admitted that he and A. had a few arguments but felt that is not abnormal between two adults living under the same roof. He likes A.. He intervened in late April, 2011 as to A. being driven early one morning by her mother. He asked A. in May, 2011 to do more of the housework. He raised his voice in this discussion and apologized to her for doing so the following day.

[22] In preparation for this trial, the applicant in May, 2011 asked A. for confirmation that she intended to continue to live with her until completion of her Bachelor of Science degree as that would impact whether the respondent should continue to pay child support to the applicant. A. was told by her mother that she and her boyfriend were welcome to continue to reside with her at no cost until the completion of her degree. The respondent at the time told A. that she could live with him or her mother and that regardless of where she lived; he undertook to pay her directly some $650/month towards her living and tuition costs. He told A. that her mother was obliged by a prior court order to pay one-third of her tuition.

[23] A. advised her mother in May, 2011 that she and her boyfriend would be moving to their own apartment in July, 2011. A. and her partner moved out in July and live together in an apartment.

[24] A. is employed during the summer. She in addition has a part time job during the school year. Her annual income is approximately $10,000.

[25] The parties appeared in court on June 30, 2005 and obtained a consent order. The order appoints the Office of the Children’s Lawyer, requires the respondent father to pay child support for the three children in the amount of $1,212 per month based on annual income of $79,000 and provided him with specified periods of access (the “2005 Order”).

[26] These parties consented to and obtained a final order dated April 21, 2006 (the “2006 Order”). The 2006 Order states that the respondent father is to pay $1,212 per month child support to the applicant. Paragraph 3 thereof states that:

3. Child support shall be paid until one of the following occurs:

(a) One or more children no longer reside primarily with one or both parents (this excludes the children living away from home for school, summer employment or vacation).

(b) One or more of the children turn 18 years of age, unless they are unable to become self‑supporting due to illness, disability, education or other cause;

(d) One of more of the children obtains one post‑secondary degree or diploma.

[27] This 2006 Order makes provisions for extraordinary expenses. It states that childcare expenses for the two youngest children shall be shared between the parties, in proportion to their annual incomes.

[28] The parties entered into a further consent final order on February 6, 2007 (the “2007 Order”). The 2007 Order states that the applicant mother shall have custody of all three children who shall have their primary residence with her. The 2007 Order states that the respondent father shall pay child support and childcare expenses as agreed upon in the 2006 Order. It further provides that post‑secondary education is a special expense, that each parent shall be expected to pay one‑third of the expense with each child expected to contribute the final one‑third. (Emphasis added). Interestingly, this wording does not by court order command each parent to pay one-third of this expense.

[29] The applicant advised A. in January, 2011 that she could not afford to pay one-third of the 2011 spring tuition fee as she had been paying in the past. The respondent seeks an order obliging that this be paid to A..

[30] Clause 3(a) of the 2006 Order eliminates either parent’s obligation to pay child support under the Family Law Act, R.S.O. 1990, c. F.3, or extraordinary expenses under the Child Support Guidelines, S.O.R./97-175, as amended, upon the child no longer residing with either parent. A. at 21 is an adult living with her partner and has established her own residence. Despite the invitation of each parent, she has chosen to move out and live on her own. This eventuality is specifically contemplated in the 2006 Order. It is a term negotiated, consented to and incorporated into a final order of this Court. Paragraph 3(a) thereof terminates the obligation to pay child support for A..

[31] The respondent does not have the legal status to seek child support on behalf of A..

[32] The obligation to contribute to s. 7 extraordinary expenses arises on making an order of child support which paragraph 3(a) of the 2006 Order terminates.

[33] The respondent’s claim as to this issue is dismissed. There is no legal obligation for either parent to pay child support to A. on these facts. Mr. Castagner is not therefore entitled to claim his payments to A. as a legal obligation to avoid an obligation to pay spousal support. He agreed in the 2006 Order that child support and university tuition costs are no longer an obligation of either parent.

[34] It is incorrect and divisive for the respondent to tell A. that her mother is breaching her legal obligation to pay one-third of her university tuition after A. moved out.

[35] Correspondingly, the respondent’s obligation to pay child support for A. to the applicant as provided for under the 2006 and 2007 Orders is terminated effective August 31, 2011.

Child Support for C. and J.

[36] C. is currently 16 years of age. She ceased residing with her mother and began living with her father on Mother’s Day in May of 2007. The 2006 and 2007 Orders provide for an adjustment and reduction in the amount of child support payable by the respondent to the applicant when and if a child moves to live with the other parent.

[37] J. is presently 15 years of age. He ceased living with his mother and began to live with his father in September of 2009.

[38] A consent final order was issued on December 4, 2007 in file 05-FC-1041A, (the “December 2007 Order”) pursuant to which custody of C. was transferred from the mother to the father with a corresponding reduction in child support payable to the applicant mother.

[39] On March 4, 2010 (the “2010 Order”), a final consent order was issued in 05-FC-1041-2, pursuant to which custody of J. was transferred from the mother to the father with a corresponding reduction in child support to $230 per month payable to the mother for A. based on the off‑set and taking into account that C. and J. were both living with their father. That order states that the father has sole custody of J. as of September 2009 with the above adjustment in child support effective October 1, 2009. The 2010 Order states that the respective obligations as to child support are based upon gross annual incomes for: (a) the father of $80,500; and (b) the mother of $33,330.

Calculation of Applicant Mother’s Income for Support

[40] By agreement of the parties, the applicant on the birth of their children stayed home to care for them. She did not resume working until the spring of 2004 when she began part‑time clerical work.

[41] The applicant’s latest financial statement filed in this proceeding in March 2011 shows her income from employment and investment interest totals $33,096 per year. I do not have evidence as to why this projection is lower than her line 150 income in the 2009 Notice of Assessment of $34,901. In the past, she held a part time second job to supplement her income which is not now the case.

[42] The Notices of Assessment of Ms. de la Sablonniere indicate her line 150 total income as follows:

(a) 2006 - $27,855,

(b) 2007 - $35,462,

(c) 2008 - $33,366,

(d) 2009 - $34,901.

[43] The applicant argues that the Guideline child support level for two younger children should be reduced under s. 10 of the Child Support Guidelines as the payment thereof would cause her to suffer hardship. I am not prepared to do so. The applicant because of the capital base of Mr. Germain, is able to enjoy holidays occasionally in France, has the use of a cottage, is part owner of a house, has no debts beyond legal fees, currently has no expenses in relation to access and has no children to care for. With an annual income level in the mid-thirties, she has capacity to pay some child support. This is especially true as she voluntarily works less than a forty hour week. Guideline levels exist for a reason and should be deviated only for exceptional reasons.

[44] Given the income level and lifestyle of the applicant, I am unwilling to order child support below the Guideline level.

[45] The respondent argues that I should impute income to the applicant in excess of $33,000, namely some additional $17,000 bringing her annual income to $50,000 on the basis that she is intentionally under-employed.

[46] For the purposes of calculation of child support for C. and J. based on the above, I would normally use $34,000 to calculate child support. The applicant however has since 2008, limited her hours of work under her current employment to 4.5 days/week.

[47] The applicant replies that she has struggled to get back into the work force after remaining at home to care for the children and has successfully increased her income from $24,000 in 2005 to $34,000 in 2009. She currently holds an administrative position in a local social agency. The applicant mother finds her current employment very satisfying and is reluctant to give up her current tenure and job satisfaction in the hope of obtaining comparable employment elsewhere.

[48] The respondent has been employed with Canada Revenue Agency for approximately 33 years. During his testimony he filed copies of job postings, primarily within the Federal government, but outside the federal government as well. These postings seek qualified bilingual administrative assistants and offer an annual income from a low of $30,000 to a high of $54,000. A number of these postings were in the range of $42,000 to $51,000.

[49] The applicant might be able to obtain employment with a higher income. The question, however, is whether she is intentionally under‑employed within the meaning of s. 19(a) of the Child Support Guidelines by refusing to change employment in search of a higher salary.

[50] Compensation is important in the context of employment. The applicant is not alone however in assigning a value to job satisfaction and security. The courts in addition must be careful regarding a spouse who, by agreement, left the work force to care for the children for eight years and then gradually re-entered, working part‑time until in 2004 when she took full time employment. At 52 years of age, the applicant’s current five year job tenure and work satisfaction is of real value to her.

[51] There is no evidence she is intentionally under‑employed at this point in time other than her election to work only 4.5 days per week. She has increased and decreased her hours of work in her current employment. To that extent, a 4.5 day work week is intentionally under-employment. Using her current annual income of $34,000 for 4.5 days/week, I will impute an addition $4,000/annum which represents a 5 day work week at her current annual salary level resulting in an adjusted line 150 annual income of $38,000. I will use this income level in considering and deciding the issues of child support and spousal support.

[52] Based on the Child Support Guidelines for Ontario, the applicant is required to pay the respondent child support for the two youngest children on the first of each month, commencing September 1, 2011, in the sum of $568.

Section 7 Extraordinary Expenses

[53] Even at $38,000 a year, the applicant’s financial flexibility is limited, especially given her obligation to pay $568/month child support. Her current lifestyle is dependent upon the continuation of the benefits and contribution to expenses provided by her partner.

[54] I am not, given the limited income available and the amount of child support herein ordered, prepared to order that she contribute towards special or extraordinary expenses under s. 7 of the Guidelines, with one exception. If C. or J. attend college or university, the applicant, during their first post secondary program, shall annually pay one-third of their annual tuition enrolment fee during their first undergraduate degree. The applicant shall have no other obligation to pay s. 7 expenses. I am further drawn to this conclusion because of what parents with a combined annual income of $150,000 or $120,000 consider to be appropriate expenses/activities are often financially unaffordable in a household with a combined income of $50,000 as in the case of the applicant and Mr. Germain. Obligations towards s.7 expenses under that section of the Guidelines are not mandatory or automatic. By capping the amount in this manner I also hope to reduce further points of friction between these parents such as the respondent’s past request that the applicant pay a share of a driver education course or trips.

[55] The applicant through her current employment has health care and health insurance coverage. The applicant, while she is required to pay child support, shall be required to extend coverage for and designate if eligible, her children as beneficiaries under such insurance available through her employment to off‑set health care, drugs, therapy, eyeglasses and dental expenses incurred for the children.

[56] The applicant’s obligation to pay child support and the one s. 7 expense as indicated shall, in relation to each child, cease upon the happening of one of the following events:

(a) C. or J. no longer reside primarily with one or both parents (this excludes the children living away from home for school, summer employment or vacation);

(b) C. or J. turn 18 years of age unless they are unable to become financially supporting due to illness, disability, education or otherwise;

(c) C. or J. become self-supporting or financially independent;

(d) C. or J. obtain one post‑secondary degree or diploma, or

(e) C. or J. marry or live in a common law relationship.

Spousal Support

[57] The issue of spousal support cannot be decided without determination of the allegations of alienation as the applicant seeks an order that spousal support equal her child support obligation plus $200/month for a total of $700 monthly plus her retroactive spousal support claim. She seeks spousal support to age 65.

Alienation

[58] The applicant testified that the respondent changed after the September 11, 2001, attack at the World Trade Centre. The respondent admits he set up a three day food and water reserve in the home along with a reserve of medical supplies in case of a terrorist attack. The applicant testified he stock pilled sufficient supplies for a week.

[59] He admits purchasing a dust breathing mask which he took with him in his briefcase on a daily basis to work. The applicant complained that he became obsessed with the possibility of a terrorist attack and watched CNN television continuously following 9/11.

[60] The respondent testified that the state of his marriage was very good until 2004. He admits there were occasional arguments between the parents in front of the children but disputes that he yelled at the applicant. He states that his relationship with the applicant became problematic in late 2004. They experienced a lot of silence. He lost confidence in the applicant due to the amount of time she was spending on the Internet. He estimates that she was spending some 70 hours per week on the computer and would remain up alone on the computer until late at night. He states that the applicant’s computer time resulted in her neglect of himself, their home and the children.

[61] The applicant states she was only on line seven hours a day. She states that her husband was withdrawn, serious and fearful of an attack in Ottawa. The applicant states she was lonely and went on line for companionship via chat sites which she enjoyed as she “met” people this way which helped given her recent move to Ottawa.

[62] In April of 2004, the respondent downloaded two files of the applicant on their home computer. He filed, in this trial, copies of some of the e-mail exchanges between the applicant and another male individual which he found on their home computer. In short, the applicant was involved in an Internet relationship with another man. The texts of these exchanges are flirtatious and amorous. The respondent in response to finding these e-mails removed his wedding ring and insisted that the applicant join him for a meeting with his psychologist whom he had been working with since 2000. The applicant complied and attended this meeting whereupon the respondent confronted her with copies of her e-mails from the home computer. He insisted the she stop using the chat sites or provide him with her passwords.

[63] The applicant testified that her husband was constantly criticizing her in front of the children, was demeaning towards her and raised his voice against her and the children. She felt harassed by the constant arguments and criticism. She states that to control her, he reduced the credit limit on their credit cards and put a password on the computer to prevent her accessing it.

[64] She testified that she came home one day from work and the respondent locked her out of the house for approximately 45 minutes while she rang the bell and knocked on the door. She states that the respondent was in the house with the two younger children at the time and eventually took the bolt off the door. The respondent denies this happened.

[65] The parties agreed in 2004 or 2005 that the children were being negatively affected by the parental hostility. It appears that A. was disturbed to the point of possibly cutting herself. A school counsellor communicated concerns to the applicant as to A.’s disposition.

[66] Before the separation, C. telephoned her father at work at least once daily and according to the applicant, provided him with a status report as to what was happening in the home. The applicant felt C. was receiving preferential treatment from the respondent. The applicant countered that preferential treatment by trying to provide more support to the other two children who she states were frequently disciplined and punished by their father. Mr. Castagner testified that there were not multiple calls per day between C. and himself.

[67] After one argument in March or April, 2005, the parties agreed that they should separate. The respondent suggested that he and the applicant attend a mediator and thereupon presented her on April 11, 2005, with a draft separation agreement. Based on legal advice, she refused to sign. This proposed separation agreement contemplated that the children would spend 50% of the time with each parent but did not deal with custody or spousal support. The terms were not acceptable to the applicant.

[68] The applicant had been considering and preparing for separation herself. Her lawyer presented an ex parte motion seeking interim custody and support on April 22, 2005, but was directed that such motion must be served on the respondent.

[69] The respondent came home on April 26, 2005, to find that the applicant had moved herself and the three children, a good portion of house contents and the family vehicle to a new residence. She left a note to the respondent refusing to provide her address or telephone number but assuring him that he would see the children on the coming weekend, which occurred. The respondent in fact continued to have the two younger children on alternate weekend access and once during the week from that point forward.

[70] A. was 14 years of age at the time of the separation. She was very angry towards her father prior to and following her parents’ separation. She refused to see him from April, 2005 until approximately February, 2007. One of her e-mails to her father after the separation complains about his level of discipline, which included going without meals and being banished to her bedroom for long periods of time.

[71] As stated, the parties consented on June 30, 2005 to an order that the respondent pay $1,212 child support to the applicant for the three children.

[72] In July of 2005, the respondent sent an e-mail to A. saying that he had just paid child support for her to her mother and specified the amount. The respondent stated in this e-mail that this money was to pay for all of the expenses required for her well-being and that he hoped that she would use the money appropriately. He admitted on examination that it was inappropriate to have communicated this information to this child.

[73] The respondent does not allege that the applicant alienated the children from him.

[74] The applicant alleges that the respondent caused A. to leave her home in July 2011 by offering to pay her child support directly whether she moved out or stayed with her mother. The applicant is correct that she would then have had to negotiate a payment from her daughter and that she would have no say if the respondent later told A. he financially had to reduce payments to her. It is not hard to imagine where A.’s partner would have preferred to live in response to the respondent’s offer to this daughter. The effect in any event is that the applicant lost child support for A. when this daughter moved out in July, 2011. Prior thereto, the applicant had paid for all accommodation, food, cell phone and some other lesser expenses for A..

[75] Following the separation, the wife set up an Internet blog for abused spouses. She posted thereon her history of abuse and invited others to comment. The respondent objects to this blog as his children could have accidentally come across it while on line.

[76] In the 2005 Order, the parties consented to child support in the amount of $1,212 per month with a reduced amount during the summer period when the children would spend considerably more time with their father. The OCL was requested to appoint a lawyer to determine the wishes of the children.

[77] Mr. Germain and the applicant had been e-mailing one another prior to the separation at a time when he lived in France. He came and visited the applicant in July and September of 2005. In July, he came for dinner to the applicant’s house and met the three children. He stayed in the applicant’s house for one week in September of 2005. Due to the separation in April, 2005 and the introduction of Mr. Germain some three months later, there were an awful lot of adjustments in the lives of these children. At Mr. Germain’s invitation, the applicant and A. came to France for Christmas 2005, but not without an emergency motion necessitated by the respondent on December 14, 2005.

[78] The respondent initially gave his permission for A. to travel with her mother to France but as the trip approached he changed his mind and refused to consent. The respondent alleged he was fearful that Mr. Germain’s address in France might expose his daughter to sexually explicit material. The applicant was forced to bring a motion to obtain permission for A. to accompany her. The court rejected the respondent’s objections, granted A. permission to leave with her mother and awarded costs against the respondent in the amount of $2,000.

[79] In refusing consent for A. to travel to France, Mr. Castagner also filed a complaint with the Children’s Aid Society alleging that his children were in need of protection as Mr. Germain’s alleged past activities at his address in France demonstrated that he posed a risk to his children. The evidence was information Mr. Castagner apparently located on the Internet involving the building where Mr. Germain use to live. The CAS examined the matter, rejected the complaint and closed their file by May, 2006.

[80] The parties in 2006 agreed and sold the matrimonial home then occupied by the respondent. They agreed to split equally the proceeds after deducting the costs of disposition and other credits the respondent claimed. The respondent demanded and received credit from the applicant for items, including the following:

(a) A $30 unpaid parking ticket; and

(b) The cost of preparation of the matrimonial home for sale, including $10 for flowers during the house showings and one-half of the $3.73 cost for vanilla oil.

[81] The respondent clearly resented paying any money to the applicant. That attitude has continued.

[82] Mr. Germain returned to Canada for one week at Easter in 2006 and stayed with the applicant. He returned on a visitor’s visa and resided 12 months with her and the children between December 2006 and 2007. He was unable to seek employment in Canada during that time and therefore remained at the applicant’s home making meals, cleaning and meeting the children after school. Mr. Germain was granted landed immigrant status and returned to Canada permanently in March of 2008. He has resided with the applicant since that date.

[83] At the instigation of the mother in April of 2006, J. went to see a psychologist for anger management issues. C. was also seeing a therapist for anxiety and nightmares in this period for 10 to 12 months.

[84] In April, 2006, the respondent father reported to the CAS that Mr. Germain had touched C. in an inappropriate manner. The CAS investigated the matter and found no verification of any concern about the risk of sexual harm to this daughter. In communicating this conclusion, the CAS stated that it did have concern that Mr. Castagner had been trying to negatively influence the children regarding Mr. Germain and that C. reported that her father had told her that he did not trust Mr. Germain. This complaint was also communicated to police.

[85] Based on the report of the OCL, the parties entered into a final consent order in April of 2006 which states that the children will continue to live with the applicant. The 2007 Order, again on consent, grants sole custody and primary residence of the three children to the applicant and continues the child support obligations contained in the 2006 Order.

[86] The 2006 Order states that:

(a) The wife shall receive some $86,000 being an equal division of the husband’s pension with the federal government;

(b) The husband was ordered to pay spousal support of $200/month on an interim basis upon the sale of the matrimonial home; and

(c) Either party could bring a motion to change interim spousal support upon a $10,000 change in income or a change in custody of the children.

[87] The respondent was to pay some $1200/month in child support based on his 2004 annual income of $70,000.

[88] The application in this action is under the Divorce Act, R.S.C. 1985, c. 3, as am. The applicant therein claims spousal and child support.

Police and the Children’s Aid Society

[89] The respondent has on numerous occasions filed complaints with the Children’s Aid Society and the local police force to advance his case. He presumably knew the risk his complaints caused to the chances of Mr. Germain application for Canadian landed immigrant status.

[90] Mr. Castagner in April, 2006 also filed a complaint with police alleging that Mr. Germain had improperly touched C.. After an investigation by police, the matter was closed. CAS as stated, investigated the matter, found no risk of harm and closed its file in May, 2006. CAS notified the OCL which was then conducting an assessment on the issue of custody.

[91] In July of 2007 the respondent made a complaint to police alleging that he was harassed by Mr. Germain when he attended on a Wednesday night in the month of July to pick up J.. On that date, the applicant had the children during her two week summer holiday period as contained in the court order. The respondent felt he was entitled to mid-week access notwithstanding the children were to be with their mother for two weeks’ summer vacation. Mr. Germain told C., then living with her father, to return to her father’s car and told J. to go back in the house as he intended to telephone the applicant who was not home at the time.

[92] Mr. Germain called the applicant and asked what to do. She said the respondent was not entitled to mid-week access during her vacation time with J. and to advise Mr. Castagner accordingly. Mr. Germain communicated this response to the respondent. Voices between the two men became elevated. Mr. Germain asked the respondent to apologize for the false allegations the respondent made prior to A.’s departure in December 2005 to France. The respondent refused to apologize. Mr. Castagner then departed and filed a complaint with police against Mr. Germain.

[93] Pursuant to the relevant order, each parent had two non-consecutive 14-day vacation periods with the children during the months of July and August. The respondent alleged that under that order he was entitled during his wife’s 14-day period to have the children with him on the Wednesday night. He further alleged that the applicant did not have a similar right when the children were spending the 14-day vacation period with him. The police responded to this complaint and determined that there was no criminal conduct. The youngest children witnessed this verbal confrontation.

[94] The applicant alleges that C., following the separation, telephoned and spoke to the respondent every night. She stated that these calls lasted as long as one hour and involved a detailed reporting by this child as to what was going on in the applicant’s home. The applicant over heard negative comments about herself made by C. in these calls to her father. To limit these calls, the applicant moved the home telephone from her bedroom to the living room and later reduced the permitted length and then the number of times she could call her father. The applicant states that the relationship between C. and her siblings during this time was difficult with frequent arguments between C. and her two siblings.

[95] Mr. Castagner should not have been having nightly lengthy calls with C.. They were intrusive of the applicant’s and her children’s home environment. It appears C., both prior to and after the separation, had been made a surrogate of and information source for her father. The 2007 Order states that each parent agrees to respect the other parent’s parenting and to not interfere with the other’s household in any way. In my opinion these nightly lengthy telephone calls by the father with C. breached this provision of that order.

[96] C. was sent by her mother to a psychotherapist twice weekly for one year due to the concern about her violent nightmares, her physical interaction with her brother and sister and not listening to her mother. This daughter became fearful of her neighbourhood and did not want to go outside.

[97] The respondent in September, 2006 announced that the mother’s choice of psychotherapist for C. was ineffective, that the child needed a psychologist and that he had found a good one in his area of town. He announced he had discussed the matter with and obtained this daughter’s agreement to see his choice of therapist and he therefore had made arrangements. Counselling for C. stopped when she moved to her father’s home.

[98] In June, 2007, the respondent notified the applicant that A. wanted to come and live with him. The applicant replied that this was untrue. This latter version appears to have been the case.

[99] In May, 2007, C. had an argument with her mother on Mother’s Day. The parents had by then consented in the 2007 Order that the children could choose which parent they would live with, commencing in grade 8. This daughter was about to qualify to be able to make that decision in September, 2007. The applicant told this daughter she did not have to wait the additional two or three months and could choose now. C. responded that she wished to move to her father’s home. The respondent came and picked her up that day.

[100] C. thereafter found reasons to not spend time with her mother and has had virtually no relationship with her mother since May, 2007. The applicant continues to complain that C. left her home on Mother’s Day. She blames the respondent for eroding her relationship with this daughter for his own benefit. The alignment of this child to her father commenced prior to the separation but certainly increased upon moving to her father’s home.

[101] In the summer of 2007, the applicant made a complaint to the Children’s Aid Society against the respondent alleging that J. was being emotionally abused by his father. The Children’s Aid Society did not uphold the complaint but stated to the respondent that the family was dysfunctional due to the high level of tension between the parents. In the notice of file closure to the father, CAS states that the level of hostility between the parent is harmful to the children who, upon interview by CAS, stated their wish that the hostility halt and be replaced by peace between the parents. CAS recommended that the entire family needed family therapy and included a list of therapists. The children and their mother told CAS they would participate.

[102] Mr. Castagner seized upon this recommendation of family therapy. By October, 2007, he obtained a referral from C.’s psychologist of someone in his neighbourhood. By November, 2007, the respondent notified the children’s school of the CAS recommendation of family counselling. He provided the school with the above letter from CAS and the 2006 Order.

[103] There is an interesting e-mail from the applicant to the respondent dated August 15, 2007. In it, the applicant gives her response to 17 demands of the respondent which include:

(a) His demand that she pay him $400 as her share of Equitable life premiums regardless of her $2,000 claim for arrears of child support payable by him;

(b) Reassessment of child support based on C. now living with him to which the applicant stated her position that he owed her $2,000 in arrears of child support;

(c) Reduction in child support because J. is alleged to live with his father in excess of 40% of the time;

(d) Delivery of their historical VHS family tapes of the children and a tripod;

(e) Documents referred to in the 2005 Order;

(f) To provide the respondent with access to J. during the applicant’s summer holiday periods;

(g) That the applicant was not allowed to telephone the children at the respondent’s home as early as 9:00 o’clock in the morning; and

(h) To provide the respondent with a copy of the travel documents used by the applicant to take A. to France in December, 2005, given his refusal to sign a consent letter.

[104] I repeat the above demands to put into context Mr. Castagner’s alleged acceptance and his pursuit of the CAS recommendation that the family needs counselling to halt the acrimony and the children’s stated wish that their parents stop fighting with one another.

[105] The parties went to court in December, 2007 on the issues of reduced child support for C. due to her move to her father, a reduction related to J. based on whether he resided with his father 40% of the time, the applicant’s motion for increased spousal support and her claim for arrears of child support.

[106] The December, 2007 Order was issued in a corollary “A” court file to this action. Mr. Castagner’s motion to reduce child support for the above reasons resulted in the creation of the “A” file. The December, 2007 Order in the “A” file states that the respondent would, on a without prejudice basis, have custody of C. with the corresponding reduction in child support based on the father’s then annual income of $73,495 compared to the applicant’s $26,488. The respondent’s requested reduction related to J. based on the 40% time argument and the applicant’s motion for increased spousal support were adjourned under this order.

[107] C., after moving to her father’s, expressed the wish to come to the applicant’s home in order to visit her older sister, but not while her mother was home. The applicant adopted the position that C. could not come to her home unless she was present. The applicant has communicated to her daughter via e-mail an offer to come to the cottage and, on one occasion, to come to France to visit Mr. Germain’s family. This relationship however has remained strained and virtually does not exist. C. last saw her mother when she went to the applicant’s home because the family cat was sick in August, 2009. The applicant had seen her three or four times since May, 2007.

[108] In March of 2008, the respondent threatened the applicant that he would file a report with the police for a missed day of access he felt he was entitled to with J..

[109] A 60-day Notice of Pending Dismissal in the “A” file was issued in October, 2008. The applicant had determined at that time to not proceed with her motion for increased interim spousal support and did not respond to this notice. Notwithstanding the adjournment of the respondent’s claim for a reduction of child support for J., he similarly did not respond to this notice and the “A” file was therefore dismissed in December, 2008. The respondent then interpreted this as a dismissal in the main action of the 2006 Order to pay interim monthly spousal support in the amount of $200.

[110] Mr. Castagner then sent to FRO the December, 2007 Order dismissing the “A” file in January 2009. He argued that the dismissal order of the “A” file terminated his obligation to pay interim spousal support as contained in the 2006 and 2007 Orders in the main file. He asked that FRO stop collecting the same. FRO agreed but then reversed that position when contacted by the applicant, who paid the arrears in May, 2009.

[111] Mr. Castagner then brought a basket motion in July, 2009, “in the “A” file”, which had been dismissed. He sought to clarify and terminate the interim order of spousal support, suggesting to the court that such relief sought was unopposed. The only information he had at the time was the prior decision of the applicant to not proceed at that point with her motion for increased interim spousal support but he knew, based on her opposition, that FRO had reversed their position and collected the arrears from him in May, 2009.

[112] The respondent sent his above basket motion to the applicant’s solicitor and then left on holidays. That solicitor wrote the respondent right away stating he could not proceed by basket motion implying consent and would have to schedule an opposed motion date to argue the matter. Counsel then left on holidays.

[113] The judge dealing with consent motions signed an order in the “A” file, terminating interim spousal support under the 2006 Order but required evidence of service of that order on the applicant. Upon return from holidays, counsel for the applicant wrote the court and asked for a date to argue the matter.

[114] On September 30, 2009, the respondent filed a complaint against the Ottawa trial Coordinator regarding the above matter. The respondent in any event again stopped paying interim spousal support to the applicant in July, 2009.

[115] J. moved from his mother’s residence to his father’s home on September 5, 2009. The applicant and Mr. Germain indicated that J. appeared to be happy and content living with his mother prior to this move. The applicant states that in fact J. immediately before this move told her that he was not enjoying his periods of access with his father and asked that he not be forced to spend time with the respondent in the future. The applicant states that she refused this request and told J. that he must continue to spend time with his father.

[116] The mother received an e-mail from J. on August 13, 2009. In it, J. complained that his then presence at and the situation at his father’s were unbearable. Notwithstanding that complaint, the applicant forced J. to attend a regular access period with his father on August 27, 2009. J.’s difficulty with his father and wish not to see him mysteriously changed one or two weeks later.

[117] J.’s move to his father’s home in early September, 2009, involved the father’s use of police. The respondent refused the request of J. that he accompany the boy the next day to announce his decision to his mother and remove J.’s belongings. J. had made no mention to his mother that he wished to live with his father. The only prior evidence before me is that J.’s wishes were contrary to that.

[118] On September 4, 2009, the respondent telephoned the police and notified them that J. wished to change residence. The respondent asked the police to attend the following day at the applicant’s home in order to keep the peace as J. intended to go to his mother’s home, announce his decision and remove his belongings.

[119] On September 5, 2009, the respondent attended at the applicant’s home and met with police before J. entered the house. The respondent provided a list of things which should be removed including J.’s OHIP card, vaccination booklet, and passport. I doubt that at 13 years of age, these would have been high priority items for J..

[120] The police accompanied J. into the applicant’s home, told the applicant that they were there to keep the peace. J. announced he was moving to his father’s home. The applicant said she wanted to speak to J. alone. The police responded that they would have to be present during such discussion as they had been told that the applicant might hurt J.. J. assembled his things and left with police to join his father outside and then left.

[121] The applicant and Mr. Germain took J. out for lunch to a restaurant one month later and used the occasion to insist that J. explain what had happened and why he apparently had changed his mind so quickly. The discussion apparently did not go well. J. told his mother that he was hurt when she originated the separation from his father and he wanted to retrieve his guitar and photographs from her home. The applicant states she remains dumbfounded as to what caused her son to leave in direct contradiction to what he had said weeks before. She states her subsequent e-mails to J. for the most part went unanswered.

[122] The applicant subsequently complained to police as to how police had treated her on the above occasion. She reported to CAS that J. had moved to his father’s and was picking his lips and had unexplained cuts. The CAS took no protective action.

[123] Paragraph 9 of the 2007 Order states that should any dispute arise as to the child’s grade 8 selection as to which parent they will live with, the child shall attend counselling with a child psychologist to assist the child in dealing with such issues. The parties under paragraph 9 agreed to follow the recommendations made by this professional on such issue.

[124] Mr. Castagner, who has repeatedly resorted to use of psychologists regarding his children, used no such professional on this occasion and gave no prior notice to the applicant as to J.’s decision or what was about to happen. Instead, he followed an option presented by Ms. Cochrane that he involve the police. Following J.’s move to his father, the applicant asked that J. attend at a counsellor as contemplated under paragraph 9 of the 2007 Order to determine the child’s true wishes and what had happened. The respondent did not agree.

[125] The respondent testified that J., then 13, simply advised him one week before moving to his father’s home that he wished to change residence.

[126] The involvement of the police on this occasion is outrageous, unjustified and totally improper. The respondent used the occasion, and his son, to strike the applicant as hard as he possibly could. It is inconceivable on the facts in this case that any right thinking parent, then separated for over two years, could in any way justify police involvement in relation to the “best mother in the world”. Mr. Castagner knew this conduct would communicate a message to his children that their mother was dangerous and they needed police protection from her. There are countless other ways this transition could have been maturely handled. It was not.

[127] The applicant was shocked and devastated. She later told the respondent that this use of the police was inappropriate. She asked for an apology. The respondent refused to apologize, until he testified in this trial. During his testimony he apologized, but qualified it by adding, “if the incident had caused hurt to the applicant.” If Mr. Castagner regretted his involvement of police on this occasion in September, 2009, he would have apologized prior to this 2011 trial.

[128] J. has not seen his mother since October, 2009. She introduced numerous e-mails she sent to J. expressing affection, asking how he is doing etc.

[129] The applicant served motion material in September, 2009, seeking increased spousal support.

[130] In October, 2009, J. mentioned that Mr. Germain had had a gun at the applicant’s home and he had “fired it into a pillow.” The respondent testified he had the impression J. was saying this to see how his father would react. The respondent convened a meeting with J. and C. to discuss the matter.

[131] C. told her father that Mr. Germain had pointed the pistol at her in 2005 or 2006. He understood that the pistol was in the house, it was old and their mother had assembled the children to discuss the subject. The purpose of this meeting by the applicant in 2005 or 2006 was to explain to the children that the pistol was an antique, that it was inoperable and that there was no reason to be fearful of it. During this discussion, Mr. Germain had shown the children that the instrument was inoperable, would not fire and was not a risk.

[132] On November 23, 2009, the respondent made a complaint to police against Mr. Germain concerning an antique pistol that he brought with him from France, which had been seen by the children in the applicant’s home and had been, in 2006 or early 2007, pointed at C. by Mr. Germain.

[133] The respondent, understanding the pistol was inoperable and that this had occurred several years previously reported to police that C. had found the pistol on a night table in the applicant’s home. He told police that C. became fearful as a result of seeing this pistol and began to sleep with scissors under her pillow. The respondent stated to police that the applicant became aware of C.’s concern and organized a meeting between her children and Mr. Germain regarding this pistol. The respondent told police that Mr. Germain in this meeting pointed the pistol at the face of C. in the presence of the applicant, who did nothing.

[134] The respondent also filed a complaint with CAS at the same time about the children needing protection due to the presence of this pistol in the applicant’s home even though he knew the two younger children were not in communication or visiting their mother at this point in time.

[135] The pistol as it turns out, is an antique from the family of Mr. Germain. Its firing mechanism is inoperable and has been for decades. Police interviewed Mr. Germain and the applicant, seized the pistol and later returned it to him. No charges were laid.

[136] Normally adults concerned about a possible risk to their children do their best to find out the facts and attempt alternate measure before escalating the matter to police involvement; unless their priority is to create an atmosphere of danger in the minds of the children, the police, CAS and to attack the other person and advance their own position.

[137] In December of 2009, the respondent wrote to the applicant’s employer. He complained that the applicant was sending him argumentative e-mails to his office e-mail address. He sought the applicant’s employer’s intervention to stop the applicant e-mailing him using his office e-mail address. The respondent in this correspondence to the employer, attached several prior e-mails sent by the applicant to the respondent which include personal information regarding their matrimonial disputes. The respondent acknowledged at trial that he had sent e-mails to the wife’s office e-mail address regarding the issues between them. This is not direct alienation of the children; however, it continues the respondent’s constant attack on the applicant, her employment relationship and prevents any normal relationship between the separated parents of three children.

[138] The respondent proposed and sent several e-mails to the applicant that the two youngest children could spend a week with their mother during the Christmas and New Year period in December of 2009. Alternatively, he proposed access on December 28th or December 29th, 2009, but stated that Mr. Germain could not be in attendance as the children were afraid of him. He suggested three activities the children would enjoy and the name of a restaurant the applicant could take them to.

[139] The applicant was in France over Christmas in 2009 so there was no point to the proposal. The proposals immediately follow the November, 2009 pistol reporting to police and the e-mail to the applicant’s employer. The applicant had previously refused such access unless C. or J. contacted her to discuss the subject. That did not happen. The respondent at the time in addition was seeking a restraining order against Mr. Germain, which if granted, would prevent him being in attendance during access periods of the younger children with their mother.

[140] Mr. Castagner argues that these proposed Christmas 2009 access dates demonstrate his good faith in attempting to reconnect the two younger children with their mother. I do not accept this argument.

[141] In January of 2010, Ms. Cochrane wrote to counsel for the applicant and complained about the conduct of the applicant in the courthouse two days earlier. Ms. Cochrane alleged that the applicant had body checked her in the courthouse hallway. This was the first occasion that the two women were present with one another. Ms. Cochrane stated in the communiqué that she reserved the right to lay criminal charges regarding the incident. The applicant testified that the incident happened in a narrow courthouse corridor, that in passing, she bumped into Ms. Cochrane by mistake, apologized and that it was not intentional.

[142] In January 2010, the respondent consulted with a psychologist about the lack of communication between the mother and the two younger children and their possible feeling of abandonment by their mother. This was part of an engagement of Dr. Picard Lessard by the respondent and Ms. Cochrane to counsel them and their respective four children in the integration of this new combined family. That clearly, in my opinion, eliminated this psychologist from the counselling needed to reunite the applicant with her two children.

[143] In February of 2010, the respondent filed a complaint against counsel for the applicant with the Law Society of Upper Canada alleging wrongdoing against counsel for a number of reasons. That complaint was considered unfounded by the investigator, other than one change to the wife’s financial statement which the investigator concluded was “minor in nature.” No regulatory proceedings were taken beyond a caution. The respondent sought a review of that determination to no avail.

[144] The applicant was forced in February, 2010 (the “February, 2010 Order”) to obtain on a contested basis, an order reversing the July, 2009 termination of interim spousal support. The February, 2010 Order reinstates interim spousal support back to January, 2009, increases such interim support to $400 and provides the applicant with access to the two younger children as agreed to by she and the children.

[145] The above waste of time and money terminating and reinstituting interim spousal support demonstrates the respondent’s aggressive approach in this litigation and his pursuit to eliminate any financial obligation to the applicant. Although the focus was money and revenge, these unwarranted manoeuvres by the respondent were intended and maintained the relations between the parties at a boiling point. The evidence is that the children knew from Mr. Castagner when he was filing documents in this action and when he was going to court. These children have received inappropriate information about this litigation and involvement of community agencies by their father.

[146] The February, 2010, hearing reinstating and increasing interim spousal support included a request by the respondent for an interim restraining order against Mr. Germain. That relief was not granted. Mr. Castagner continued to seek that relief in this trial until the conclusion of his cross-examination of Mr. Germain at which point he withdrew his request for such an order.

[147] In October of 2010, the respondent filed a complaint at the courthouse regarding the conduct of one of the trial coordinators in relation to this case. This does not go to alienation but again demonstrates the respondent’s aggressive approach in this litigation.

[148] The respondent in mid-2010 consulted with a psychologist regarding the relationship between the two youngest children and their mother. He contacted the applicant and suggested engaging Dr. Picard Lessard or three other psychologists allegedly as an attempt to reverse the distance between these children and their mother. The applicant responded that he must first apologize for using the police on J.’s move to the respondent. The respondent refused to apologize.

[149] The applicant finally agreed to use the respondent’s choice of Dr. Picard Lessard to work on reunification. She asked the two younger children via e-mails in January, February and March 2011 to confirm their consent to participate. Receiving no answer, she then asked the respondent to ask the children whether they would consent to participate. The respondent took the children to Dr. Picard Lessard to discuss whether they were willing to participate in such counselling. What better way to escalate in the mind of the children the drama of starting communication again with their mother?

[150] In a March, 2011 settlement conference, the judge recommended that counsellors specializing in alienation be used rather than the psychologists previously discussed by the parties. The applicant requested to proceed in this manner.

[151] The respondent subsequently replied that the children had conditions to participate.

[152] J.’s conditions were the return of his photos on a computer which the applicant stated she had previously delivered on a disc. She had previously asked J. to identify what photos he felt were missing. J.’s second condition was delivery of his guitar which had been dropped and broken by Mr. Germain accidentally after J. moved to his father’s. Despite Mr. Castagner’s apparent willingness to buy J. a replacement guitar, J., according to his father, insisted he wanted the broken instrument.

[153] The respondent stated that C.’s condition was that she would not participate in counselling until this litigation was concluded.

[154] The respondent stated that these were the conditions of his children which he had to respect. That technical response amounts to Mr. Castagner using his children to justify his lack of support towards reunification. Reunification counselling discussions thereupon halted until this trial.

[155] The offers of access at Christmas, 2009 and providing names of psychologists to treat the distance of these children to their mother would normally demonstrate goodwill by the respondent. That ignores however the surrounding sorties the respondent was launching against the applicant, his involvement of police, the CAS, the on-again/off-again talk of reunification counselling and what the children must have heard about these situations. The respondent denies criticising the mother directly in front of these children. He did not have to, as knowledge of these events spoke louder than words.

[156] The respondent proposed to the applicant that C. should go on a trip to Spain in the spring of 2011 and that the two parents should share equally the $2,500 cost of this trip. The applicant refused to pay for this cost on the basis that she could not afford it. The 2007 Order states that “if funds are available, the parents agree to permit the children to travel outside of Canada on educational trips.” (Emphasis added)

[157] Upon the applicant saying she could not afford to contribute to this trip, the respondent thereupon notified C. in writing that she could not go on this trip to Spain because the applicant refused to pay one-half of the costs.

[158] The applicant in the spring of 2011 invited C. to join her and Mr. Germain on a future trip to France. The respondent refused to contribute towards the child’s transportation costs of that trip.

[159] During the trial in June, 2011, the applicant presented a witness from the Ottawa Catholic Family Services which provides counselling in cases of high conflict and a breakdown in a relationship between the children and one or both parents. The applicant presented this evidence as she sought an order appointing professional counselling to assist her to re-establish her relationship with C. and J.. The respondent opposed the appointment of this agency as he was of the opinion that the consulting should be done by a psychologist, not by social workers as proposed by this high conflict centre. The respondent wanted his psychologist(s) to be accepted by the applicant.

[160] The June trial dates concluded with my reminder to the respondent that the services sought were to address the relationship between the applicant and these two children and to that extent, did not involve him directly. I advised the parties that they could either agree upon an appointment or I would make that decision. The trial then adjourned until September 8, 2011.

[161] The respondent throughout the 2011 summer period continued to oppose the terms of a consent order appointing the proposed high conflict counselling service. Mr. Castagner insisted the counsellors should be psychologists and not social workers. As a result, no counselling was obtained for the benefit of these children during their 2011 summer holidays.

[162] Mr. Castagner then abruptly, after argument of this point upon commencement of this trial in September, 2011, reversed his opposition and executed his consent to the order proposed and sent to him in June or early July, 2011. The respondent does not share the concern that these children become reunited with their mother and has found repeated excuses to delay that happening.

[163] The respondent filed a further complaint to police in May, 2011, against Mr. Germain. Mr. Germain went to the respondent’s door, rang the bell and served court documents in this action on the respondent as there was an imminent court date requiring service. Mr. Germain handed the documents to the respondent and proceeded to close the outer door which the respondent had his hand on. The respondent asked the server who he was. I note that Mr. Castagner at that point was in close proximity to Mr. Germain, as he had previously been on the Wednesday night aborted pick up of J.. Mr. Castagner is legally blind, has limited vision and continues to work three days a week.

[164] Mr. Germain did not answer the respondent’s question, left the porch area and returned to his car. He testified that the respondent followed him to his car insisting to know who he was. Mr. Castagner denies he followed Mr. Germain but laid a complaint with police about the door being forced against him. Police interviewed Mr. Germain and closed their file.

[165] I am sure the applicant has shown her frustration to and in front of the children and undoubtedly, has spoken negatively about the respondent in their presence. The introduction of Mr. Germain may have been too fast or difficult for the children.

[166] The difference however is that the applicant has not been in communication now with the two younger children for several years while the respondent has. The alleged “best mother in the world”, who stayed home for a number of years to raise the children, who had interim and de facto custody of the children for several years after the separation and who promoted regular access between the children and their father, is the same person her two youngest children now will not talk to or be with. That reality combined with the warfare between these parties, which has been regularly orchestrated by the father, leads me to the conclusion that the father has alienated these two younger children from their mother. He has also reinforced alienation by finding excuses to delay and defeat the mother’s attempts to commence counselling between herself and her children.

[167] Mr. Castagner testified that the children knew step-by-step when he was in court on this case and when he was filing documents. He stated that he answers any questions of the children related to this case. He tells the children how much child support he has been paying and has showed them his bank deposit slips to evidence his payments and demonstrate that he is not a dead beat father. This is an inappropriate level of involvement by the father of the children in this case. I believe these actions were intentional to drive a wedge between these younger children and their mother.

[168] The respondent alleges that the applicant is not without fault. To some degree he is correct. The respondent points to the applicant’s failure to comply with the family law rule requirement to file an up-to-date financial statement prior to the commencement of the trial. He is correct but conveniently omits his admission that he failed over several years to comply with a court order that he annually provide the applicant by June with a copy of his Notice of Assessment.

[169] Ms. de la Sablonniere was not averse to filing a complaint with the CAS after J.’s departure to live with his father. She used her first meeting with J. in a public restaurant after he moved to his father’s to insist that he provide an explanation as to his decision to move rather than recognizing that J. undoubtedly at the time felt tremendous pressure from both parents and was not anxious to deliver his announcement to move to his father’s home. He was 12 or 13 years old at the time. Rightly or wrongly, this child at the time saw his father as the victim of the separation, may have felt his mother was drinking too much and had been told, likely by his father, that Mr. Germain was an unsavoury character. All of that was adult baggage and accusations which J. had no responsibility for and yet got dragged into.

[170] In conclusion, each parent has committed errors in how they handled this separation in relation to their children. It is not uncommon that that happens occasionally. This however has gone on now for six years.

[171] Each parent has failed to shield their children from their hurt, anger and attacks of the other parent. I find however that the respondent has intentionally, methodically and more frequently interfered in the children’s relationship with their mother and alienated the children from her. I find he has used his superior financial position, community resources and aggressive behaviour to inflame the family environment and turn the two younger children against their mother. His words and conduct since separation in front of the children constituted direct and indirect manipulation of them against their mother. Mr. Castagner’s calm rational approach in this trial is in direct contrast to his repeated use of police and the CAS against the applicant and against Mr. Germain. This demonstrates his aggressive, confrontational conduct to defeat the applicant and drive a wedge between her and the children.

[172] The applicant immediately on separation accepted and respected the need for and the best interest of the children in maintaining their relationship with their father. She immediately on separation provided continuous communication and access between the children and their father. She has supported and required the children to maintain their relationship with the father notwithstanding the normal irritants that arise from time to time.

[173] The two youngest children now need counselling to repair the damage to their relationship with their mother. The respondent is largely responsible for that damage and alienation.

Spousal Support

[174] I now return to the issue of spousal support.

[175] The applicant commenced the present application under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended, seeking a divorce, spousal support and other relief. A Decree of Divorce was granted on July 23, 2007, without dealing with spousal support.

[176] The applicant, with the assistance of a law student or articling student, in the original application asked for spousal support of $250/month for five years. That equates to $15,000. The respondent argues he has paid that amount since then and should therefore have to pay no more. I am not limited by this original pleading as the respondent knew thereafter that the applicant via interim motions and subsequent filings was seeking spousal support in excess of $250/month and $15,000 in total.

[177] Section 15.2(1) of the Divorce Act provides that this Court has jurisdiction to make an order requiring a spouse to pay what is considered to be a reasonable lump sum or periodic sum support. In making such an order, the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including: (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. Misconduct of a spouse in relation to the marriage is not to be taken into consideration. The court is to recognize any economic advantage or disadvantages to the spouse[s] arising from the marriage, to apportion between the spouses any financial consequences arising from the care of the children of the marriage over and above any obligation for support and in so far as practicable, to promote the [economic] self‑sufficiency of each spouse within a reasonable period of time.

[178] The Supreme Court in Moge v. Moge (1992), 1992 CanLII 25 (SCC), 43 R.F.L. (3d) 345 requires the court to consider that:

(a) Spousal support is compensatory and is not based on self‑sufficiency which is only one of the many factors to be considered.

(b) The length of the marriage is relevant. The longer the relationship, the greater will be the presumptive claim to equalize the standards of living on dissolution. The spouses, rather than the state, should bear the financial burden of the marriage breakdown.

(c) The purpose of the law of support is to recognize and reinforce the marital pattern of dependency. Entitlement depends on need or economic advantage or disadvantage.

(d) The law recognizes three grounds for entitlement to spousal support: (1) compensatory (what they contracted for and have lost due to marriage breakdown); (2) contractual; and (3) non-compensatory (financial incapacity even in the absence of not foregoing career opportunities or becoming handicapped by the marriage). Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420 (S.C.C.) paras. 15, 29 and 40.

(e) Marriage per se does not automatically entitle a spouse to support as that would ignore the independent, clean-break model of marriage. Bracklow v. Bracklow, supra, para. 40.

[179] Compensatory support in my opinion is the appropriate basis for review in this case.

[180] In determining the amount and duration of support, the court should consider the following:

(a) The dependence and the respondent’s current assets and means;

(b) The assets and means that the dependent and respondent are likely to have in the future;

(c) The dependent’s capacity to contribute to his or her own support;

(d) The respondent’s capacity to provide support;

(e) The dependent’s and the respondent’s age and physical and mental health;

(f) The needs, including the accustomed standard of living while the parties resided together;

(g) The measures available to the dependent to become able to provide for his or her own support and the length of time and cost involved to enable the dependent to take those measures;

(h) A legal obligation of the respondent or dependent to provide the support for the other person;

(i) A contribution by the dependent to the realization of the respondent’s career potential;

(j) The length of time the parties cohabited; and

(k) The effect on the spouses’ earning capacity as a result of assuming responsibility during cohabitation for the care of the children.

[181] The applicant and the respondent, currently 52 and 58 years of age, lived together 19 years and were married for nine years thereof prior to separation. The parties moved to Ottawa in order for the respondent to accept employment with the federal government with whom he has now been employed in excess of 30 years.

Applicant

[182] The applicant was out of the work force for a number of reasons to care for the children by mutual agreement of the parties. Her career was accordingly interrupted during a time when the respondent’s career progressed. The impact of that interruption can be seen in the anticipated retirement income of the parties. There was and is a material disparity in income between the parties.

[183] The applicant argues that she has been economically disadvantaged by remaining out of the workforce to care for her children pursuant to the agreement with her then husband. I agree she gave up her employment to care for their child and to follow the respondent to Ottawa. Her annual income in continuous employment would be higher than is now the case.

[184] Her present employment provides no pension. She is limited at her present age to the amount in her RRSP which she states she cannot presently afford to contribute towards. The present $116,000, plus $2,000/year annual contributions to age 65, have been roughly calculated to provide her at 65 with an estimated annual income of $16,500 or $1,375 per month, compared to the respondent’s future retirement income of $44,640/year or $3,270/month. This is a material difference which would have been lower if the applicant’s employment had not been interrupted by becoming a stay at home mother.

[185] The applicant’s debt level on separation has been eliminated. She has no debts currently other than the current 10 year mortgage to Mr. Germain in the amount of $76,000.

[186] Mr. Germain sought employment for one year in Canada before finding his current employment driving a school bus and earning $12,000/year. His liquidation of assets in France has permitted him to buy a cottage close to Ottawa and to lend to the applicant sufficient money that she and he could jointly purchased a home for some $220,000.

[187] Mr. Germain contributes a minimum of $1,200 per month to their joint expenses. The applicant on her income and while receiving child support, was able to pay for her airfare for up to three trips since separation to France to visit her partner’s family. Accommodations during these vacations in France were, for the most part, provided by family or friends of Mr. Germain. The applicant has paid for the airfare of A. for some of these trips.

[188] The latest financial statement filed by the applicant in March of 2011 does not fully reflect her current position. At the time the applicant completed her March, 2011 financial statement, A. and her boyfriend lived in the applicant’s residence. The applicant then received the off‑set of child support for A. in the amount of $200 per month which she is no longer entitled to. The applicant’s expenses included food for A. as well as the full cost of items such as property taxes, property insurance, repairs and maintenance, gas and oil, repairs and maintenance to automobiles, telephone, cable, Internet, groceries, pet care and meals outside the home for herself and her partner.

[189] Mr. Germain’s $1,200/month contribution towards expenses is not shown as an off‑set to the expenses listed nor shown as an income figure. Crediting this $1,200 towards those expenses, deducting the monthly expense of educational cost for A., deducting the contribution to an RRSP which is not being made and reducing groceries by $200/month related to A., produces total monthly expenses of $3,612. This is to be compared to her employment income, without support, in the amount of $2,883, resulting in a monthly shortfall of $729/month.

[190] I have adjusted and imputed income to the applicant as stated producing an annual income of $38,000. I reject the respondent’s argument that:

(a) The applicant income should be further increased as she could rent out a room in her house to a boarder, and

(b) The repayment of the mortgage loan to Mr. Germain should be added to his income, other than the interest portion thereon which is minimal.

Respondent

[191] The respondent’s annual gross income at the time of separation in 2005 was $70,800. His income increased to approximately $81,000 as of February, 2011 and decreased to some $49,000/year upon his election to take a two-year pre-retirement transitional benefit in working three days/week to permit him time to take courses or training for a person visually impaired.

[192] The respondent is visually impaired. He has:

(a) myopia (near sighted);

(b) glaucoma (impairs peripheral sight); and

(c) macular degeneration (causes blindness).

[193] Over the years, the respondent has had three eye implants and has undergone two eye laser surgeries.

[194] His glaucoma and macular degeneration will continue to deteriorate and may well result in him at some point becoming totally blind according to Ms. Plante.

[195] I have no medical evidence as to the respondent’s current or future eyesight conditions. According to Ms. Plante, a consultant with CNIB, the respondent has some sight in his right eye and almost none in his left eye. According to the CNIB, he is currently legally blind in both eyes but continues to work three days/week with the assistance of equipment to enhance his vision.

[196] Sally Plante has been working with the respondent since January of 2011. She conducted a home assessment of his residence. She has provided the applicant with information as to educational programs available to him, including Braille. She has counseled him on mobility issues including the use of public transportation, the use of a cane and how to cook.

[197] Through the CNIB, the respondent has received low vision equipment including magnifiers and electronic equipment. Ms. Plante testified that the respondent has indicated a wish to learn Braille. This program will take approximately one year. She testified that the respondent needs more orientation training because of his impairment. She has recommended he participate in a support group which lasts eight weeks.

[198] Ms. Plante recommends that the respondent should have a guide dog and that when an animal becomes available, that will involve the respondent attending school for one month.

[199] Ms. Plante testified that she considers the respondent to be motivated in learning and using the equipment being made available to him through CNIB but that his time is currently limited by family and work commitments. She testified that in her experience, a reduction in the number of days at work is very common among those suffering the visual limitations experienced by the respondent.

[200] Neither Ms. Plante nor the respondent testified that the CNIB training would consume or requires two days per week during the next two years as opposed to doing it in 2012 or part of it upon his retirement in 2013. I do not know when total blindness is projected. This is an important gap in the evidence.

[201] No evidence was led that the state of the respondent’s remaining eye sight will deteriorate in the next two years or will deteriorate in the next year to the degree that the respondent’s proposed training cannot be done or will be less effective if done in 2012 or 2013.

[202] The Federal government offers pre‑retirement transitional leave to its employees. It is the opportunity to reduce one’s hours of work and take up to two days a week leave without pay during the two years preceding retirement.

[203] Employees during this transitional period retain their existing benefits, including all insurance and pension benefits which continue to grow during the 24‑month period. Such transition has a maximum duration of two years prior to retirement. Once applied for and accepted by the employer, such an arrangement cannot be changed except under exceptional circumstances. A term of obtaining such transitional leave involves the agreement of the employee to proceed to retirement at the end of the transitional leave period.

[204] Ms. Cochrane testified that Mr. Castagner stopped driving a car in January, 2009. He now travels to work by bus and uses cards to identify to the driver the points of pickup, drop off and connecting buses. The children accompany him to the store to read labels and locate items. His use of computers requires they be equipped with audio expression and that they visually enhance the images.

[205] The respondent applied and was approved for pre‑retirement transitional leave in January, 2011. He elected to reduce his hours of work during the transitional period for the full two days available and justifies that decision based on:

(a) His current level of visual impairment; and

(b) The fact that he needs time to be able to work and complete the various programs of training available to him through CNIB.

[206] The respondent has executed an engagement with his employer pursuant to which he has undertaken to retire on February 6, 2013. The reduction in gross salary during the transitional period is $48,900/year or 40%.

[207] The present calculation of the respondent’s gross annual income upon retirement is $44,640.

[208] Documentation was produce as to long‑term disability through the employer’s insurer. The employer’s description of that coverage states that it will provide a monthly income benefit for employees who are unable to work for a lengthy period of time because of total disability, illness or injury. The respondent is not totally disabled as he will continue to work three days per week.

[209] Transitional leave provides that the employer may request overtime from employees on transitional leave, in which case they will be paid their salary at the rate of time and a half.

[210] The applicant argues that I should impute part‑time income to the respondent of $15,000 in addition to his transitional income of $48,500.

[211] The respondent’s annual Notices of Assessment indicate his previous annual income level in the Federal government as:

(a) 2005 - $70,800,

(b) 2006 - $73,000,

(c) 2007 - $74,600,

(d) 2008 - $83,100 (which apparently includes a $5,000 RRSP withdrawal)

(e) 2009 - $79,200,

(f) $80,943 as of February, 2011

[212] Ms. Cochrane, is 47 years of age, and is employed as a dispatcher with the Ottawa Police Service for the last 23 years. She has custody of her two children who are 9 and 11 years of age. Her salary is $70,000 per year. The respondent met Ms. Cochrane on‑line.

[213] Ms. Cochrane and the respondent have since purchased a home together in 2009 for approximately $300,000. The respondent and Ms. Cochrane in the purchase of their home each paid $15,000 cash and financed the balance. She drives the respondent’s car since he stopped driving in January of 2009.

[214] Ms. Cochrane plans to retire at age 55 at which point she will receive 62% of her income, being approximately $48,000 per year.

[215] Ms. Cochrane contributes $4,000 per month towards the joint household expenses.

[216] The respondent’s latest financial statement is dated May 16, 2011. He declares monthly gross income of $4,100 which is $49,200 per annum, plus child tax benefits for a total annual income of $50,600.

[217] His monthly expenses include:

(a) Employee pension contributions of $368 (compared to nil for the applicant);

(b) Mortgage $1,500;

(c) Gas and oil for transportation in the amount of $250 (even though he no longer drives);

(d) Automobile insurance $106;

(e) Automobile payments or lease costs of $363;

(f) Groceries $1,300;

(g) Telephone and cellular telephone $210; and

(h) Educational costs for A.; driver education for C.; and theatre costs for the two children of Ms. Cochrane of $390 per month.

[218] The respondent’s monthly expenses total $9,440/month. That amount must be reduced by the $4,000/month contributed by Ms. Cochrane. This is to be compared to his current income level of $ 4,221/month, plus $568 child support ordered herein. That produces a $650 monthly shortfall.

[219] The respondent’s inclusion of support for A. is not a legal obligation and must be reduced in considering capacity to pay.

[220] The parties have filed several Statements of Financial Information since 2005. The ones before me may be summarized as follows:

(a) The respondent estimates his one-half interest in the home with Ms. Cochrane is worth $145,000 compared to the applicant’s one-half interest in the home purchased by her and her partner which she declares is worth $110,000. I consider this from the point of view of financial capacity and not net worth;

(b) Mr. Castagner in his statement declares that the value of his pension is $182,000 which compares to the applicant’s declaration in her statement that her RRSP is worth $115,000. Only his pension will be indexed;

(c) Independent of the mortgage on his and her home, the applicant’s debt level has remained at NIL since her receipt in 2006 of one-half of the sale proceeds of the matrimonial home until the present time;

(d) Mr. Castagner’s debt in the same period was $12,500 in 2005 and climbed to $31,000 by October, 2009. His debt level has decreased to $20,600 since then. This debt reduction by the respondent since October, 2009 contradicts his declaration that his monthly expenses exceed his monthly income by some $650/month, at least until his February, 2011 pre-retirement transition reduction, whereupon his gross annual income reduced from some $81,000 to $50,000;

(e) The applicant’s assets, including the value of RRSPs, cash in the bank and pension value, plus one-half of the home purchase price, less mortgage, grew from $63,000 in 2005 to $153,000 in 2011. The same comparable for the respondent grew from $62,000 in 2005 to $196,000 currently. Important in these amounts is the equal division of the respondent’s pension credits following separation;

(f) Mr. Castagner during the current transition to retirement continues monthly contributions to his employer’s pension plan at the rate of some $182/month.

[221] Given their present ages, it is anticipated that the children’s first university degrees will be completed as follows:

(a) A. in 2013;

(b) C. in 2016; and

(c) J. in 2018.

[222] Based upon the respondent’s present level of visual impairment and the time requirement to complete the training available from CNIB, I am unwilling to find that the respondent intentionally has become under‑employed beyond his decision to transfer to this transitional status until just before the trial. Why the commencement date is February 1, 2011, and not before or after that date is not in evidence. The respondent had the onus on this request to reduce or eliminate spousal support to prove his visual impairment forced him to reduce his income not by 10% or 20%, but by 40% and to do so immediately. He has failed to do so.

[223] There clearly was and is substantially more combined income entering the respondent’s home than the applicant’s home. The income and assets of these parties’ present partners however are not assured to remain in the future. Neither couple is married. Ms. Cochrane’s income is not available as support for the applicant.

[224] The respondent has not fully explained why his commencement to pre-retirement began this year. He is anxious to begin more training through the CNIB but remains employed. The court is not about to financially penalize a legally blind person for commencing training to offset their disability. It simply has not been demonstrated however that the training or reduced work week had to commence immediately in February, 2011. I am of the opinion that this commencement date was precipitated, at least in part, by this upcoming trial and in order to reduce the respondent’s financial exposure. I am of the opinion that the commencement of the transitional date and taking the full two days rather than one was motivated by the respondent’s wish to reduce his exposure to pay spousal support. To that extent, this is intentional underemployment.

[225] At some point, the applicant must become responsible for her ongoing decision to not seek a higher income in government or the private sector. It is well known that experienced bilingual administrative assistants in Ottawa can earn more than $34,000/year. At some point in time, that reality impacts upon her “need” for support.

[226] I conclude that the applicant is in need of and entitled to compensatory spousal support for a period of time.

[227] I further find that the respondent has some ability to pay spousal support based on the following considerations.

[228] Taking one day off work rather than two days, during the twenty four month transitional period, decreases Mr. Castagner’s annual income from $81,000 by 20%, rather than the current 40%. That results in a gross annual income of $64,800 instead of his current $48,600. In considering his expenses, I must reduce them by the annual child support herein ordered, namely $6,800.

[229] The parties each submitted Divorcemate calculations with dramatically different figures. The principal reason for that difference is because Mr. Castagner incorrectly used the “With Child Support Formula” and should have used the “Custodial Payor Formula”. Those titles are confusing. In short however, the “With Child Support” formula applies when the custodial parent is receiving spousal and child support which is not this case. ‘Custodial Payor” formula typically applies when the custodial parent is the one paying spousal support as in this case.

[230] I am imputing additional income to the respondent of $16,200 in 2011 to reflect four days’ work for the reasons stated above. That creates an annual income until February, 2012 of $64,800 which will decrease to $49,000 from March 1, 2012 until his date of retirement when his retirement salary will be $45,000/annum. These income levels for the respondent, together with the imputed income of $38,000 to the applicant and child support in the amount of $567/month, are the figures I have used with Divorcemate using the Custodial Payor formula.

[231] The Divorcemate ranges of spousal support obtained using the above figures are:

(a) At 81,000, L- $682, M- $796, and H-$909

(b) At $64,800 – L-$462, M-539$, H-$616

(c) At $49,000 – L-$203, M-$237, and H-$271

(d) At $45,000 – L-$115, M-$134, and H-$154.

[232] On the issue of alienation, I do not accept that such finding warrants the increase of spousal support equal to child support herein ordered, plus $200. I have reviewed CS v MS (2007), 2007 CanLII 6240 (ON SC), 37 RFL (6th) 373 and Bruni v Bruni, 2010 ONSC 6568.

[233] The respondent argues and I agree that s. 25 and s. 35(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, (as am.) are not available to the applicant in this action brought under the Divorce Act.

[234] Section 20 of the Divorce Act however states that orders of custody and access are enforceable by the laws of the province in which they have effect. The Ontario Family Law Rules, (O. Reg. 114/99, as am.), r. 1(2) (iv), apply to actions under the Divorce Act. A custody and access order may be enforced by a contempt order pursuant to r. 26(4)(b) and r. 31(5) of the Family Law Rules.

[235] I am satisfied on proof beyond a reasonable doubt that the respondent’s actions in alienating the younger children from their mother constitutes a breach and contempt of the provision of the February, 2010 Order granting access to the applicant, in that their father has effectively defeated the children’s consent thereto having turned these children against their mother. There is no other evidentiary or logical explanation why the two younger children have completely refused contact with their mother, who the respondent described as “the best mother in the world.” The respondent seeks this Court to accept that even though he directly and indirectly (Mr. Germain) attacked the applicant relentlessly in the courts, the police, the CAS, her employer and kept his two youngest current on his court filings and attendances on this action, he did not communicate negatively to the children about their mother. I do not accept that evidence.

[236] Given the amount of time spent during the trial on this issue and the respondent’s knowledge that the applicant was litigating alienation and seeking financial relief for it, I am not concerned by the absence of a Notice of Motion and affidavit alleging contempt. Such a motion would be redundant in this trial.

[237] Pursuant to r. 31(5) of the Family Law Rules, the respondent is ordered to pay to the applicant the sum of $4,000 for such contempt.

[238] The applicant seeks arrears of spousal support in the form of increasing such support to $800/month since October 1, 2009. The respondent has been on notice that the applicant was seeking a higher level of spousal support as reflected in the 2007 Order and the March, 2008 Orders. This Court, however, in its interim orders placed a higher priority on child support which changed with J.’s departure as of October, 2009, as reflected in the February, 2010 Order, in that the two younger children then lived with their father.

[239] I conclude that arrears of spousal support should be limited to the period commencing October 1, 2009. From October 1, 2009, until February 1, 2011, the respondent shall pay total monthly spousal support, less the amount already paid, in the amount of $800/month based on his then annual income of slightly less than, and then, $81,000.

[240] Commencing March 1, 2011, and on the first day of each month thereafter, the respondent shall pay spousal support in the amount of $540/month until and including the first day of March, 2012, based on his imputed annual income of $64,800. Commencing April 1, 2012 until February 1, 2013, the respondent shall pay monthly spousal support on the first of each month in the amount of $250 based on his annual transitional income in the amount of $49,000.

[241] Spousal Support Advisory Guidelines refer to the duration of support based on the reality of this couple’s life together of between 9.5 to 19 years. Commencing March 1, 2013, and on the first day of each month thereafter, the respondent shall pay spousal support to the applicant in the amount of $150, based on his anticipated annual retirement income of $45,000, until April 1, 2017 at which point it will terminate.

[242] While either child or spousal support is payable hereunder, the parties are required to provide the other by June of each year with a copy of their previous year’s full income tax return, including attachments and the Notice of Assessment from the CRA for that year.

[243] The respondent is required and directed to provide his full unlimited support towards the alienation counselling order granted herein and dated September 8, 2011. The obligation created thereunder requires the respondent to continuously encourage, without limitation, C. and J.’s attendance at the recommended counselling sessions and his absolute support towards these children’s future contact with and time with their mother. He is directed to cease all negative comments or communication about the applicant and Mr. Germain which can be heard by any of his children.

[244] There is no need for a restraining order against the respondent, nor is there a need for a limitation to his future access to the courts at this point of time. It is my hope that this decision settles the issues between the parties for some time. Costs awards remain available should the respondent persist in his pursuit of the applicant.

Costs

[245] The parties may make written submission to this Court regarding cost within 30 days. Costs submission sought should exclude all interlocutory and final orders granted by the court prior to trial which provide for or refuse to order costs.

Mr. Justice Paul Kane

Released: January 6, 2012

COURT FILE NO.: 05-FL-1041, 05-FL-1041-A and 05-1041-2

DATE: 2012-01-06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHANTAL DE LA SABLONNIERE

Applicant

– and –

PIERRE CASTAGNER

Respondent

REASONS FOR decision

Kane J.

Released: January 6, 2012