COURT FILE NO.: FS-06-057465-00

(Brampton)

DATE: 20120112

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

BRENDA LEA PERINO

Mark Trenholme for the Applicant

Applicant

• and -

VITO PERINO

J. Kelvin Ford and Patricia Novomestsky for the Respondent

Respondent

Clare E. Burns for Marisa Perino

JUDGMENT

“This might be tricky. My Dad does not like my Mom. My Mom does not like my Dad.” – Marisa Perino

D.L. CORBETT J.

[1] Tricky indeed.

[2] Without any clinical basis, but with competing anecdotal accounts from the parties, I was asked to make a custody and access order for a cognitively impaired adult, in her mid-20’s, who, though not represented at trial, was said by her father to oppose the order. Her mother said that this was a product of parental alienation by the father.

[3] By the end of the trial, with the help of counsel for the woman and a social worker to look into her circumstances, it was clear that this is an extreme case of parental alienation, almost certainly for base motives, with devastating consequences for the entire family. What has happened here is appalling. And gaps in the legislative framework for adult disabled children caught up in custody and access disputes led to this case spinning out for four years, with grievous emotional and financial harm for all concerned.

[4] Justice between the parties would lead me to strip Vito Perino of his parental role, to restore his daughter to her mother, Brenda Perino, and to make the necessary financial and restraining orders to give this effect. I would do this if all this case was about was justice between Vito and Brenda Perino. But it is not. This case is primarily about Marisa Perino and her best interests.

[5] It would be in Marisa’s best interests to have a strong relationship with both of her parents. Of this there is no doubt.

[6] Is this still possible?

[7] In a resounding triumph of hope over experience, I conclude that, despite all that has gone on, it is still possible for Marisa to enjoy a strong relationship with both of her parents. The chances of success for this may seem slim. But I believe it is still possible. And the benefits would be substantial.

[8] And so, in the result:

(a) I decline to make a general custody order at this time;

(b) I direct that Marisa’s primary residence remain with her father at this time;

(c) I direct weekly access between Brenda and Marisa to commence immediately, Saturdays from 8am to 9pm and Wednesdays from 8am to 9pm. Brenda’s boyfriend, John, will not be involved in access with Marisa at this time.

(d) I direct the parties to speak well of each other, and not to criticize each other, directly or indirectly, to Marisa;

(d) I direct Vito not to speak poorly of John, or to permit others to speak poorly of John, in Marisa’s presence;

(e) I direct that Marisa have unfettered telephone access with Brenda on non-access days;

(f) I direct that Marisa’s counsel in consultation with Mr. Cross, facilitate the process for initiating, reporting and monitoring this access, and the other terms of this order (other than spousal support), with a view to (i) ensuring the access takes place as ordered; (ii) recommending changes to increase access between Brenda and Marisa incrementally; (iii) making additional recommendations to facilitate the ongoing relationship between Marisa and both of her parents.

(g) I direct that Marisa’s counsel write to Justice Van Melle, the Regional Senior Justice of the Central West Region and request that she appoint a judge to supervise the implementation of this judgment. That judge may but need not be me, in the Regional Senior Justice’s discretion.

Introductory Comments to the Family

To Marisa

[9] Marisa, I want you to understand that the court knows that this judgment is not entirely what you say that you want right now.

[10] Marisa, you conceded in this trial that you have a cognitive impairment, at the moment, which means that the court has the jurisdiction to make a custody and access order for you. That is why it is my duty to decide this. And it is my duty to decide this in your best interests.

[11] I have seriously considered your views. They have made a big difference in my decision. If you had not said, clearly, that you want to continue to live with your father right now, I would have made a different order. I decided, since this is what you want, that we should give this one more try.

[12] Marisa, I am very sorry you did not want to participate in a custody and access assessment. It isn’t a “test” that people “pass” or “fail”. It is where a neutral person looks at a whole family and makes recommendations about how things should be. It is to help the judge understand what is really going on. And it is not unusual: we have these assessments done in hundreds or thousands of ordinary family law cases every year. But you said, strongly, that you did not want an assessment. And so, even though it would have been helpful for me to have one, I respected your wishes.

[13] Marisa, it is clear that both of your parents love you very much. They both want to be there for you. And – and this is the thing about love Marisa – they both need you to be there for them too. You have a role to play here. It’s okay for you to love both your mother and your father. The love you have for your father does not take away from your love for your mother. And the love you have for your mother does not take anything away from your love for your father. Love is not some small thing, like a monthly allowance, that has to be spent carefully and can easily run out. Love is like the air that we breathe, Marisa: it is everywhere, and there is plenty of it to go around for all the people we love. You don’t have to choose between your mother and your father. You can choose both of them. You should choose both of them.

[14] Marisa, as I said earlier, I am ordering this because I believe it can work. And that is because I believe in you. I believe that you are a warm and generous-hearted person. I believe that you love both your parents, and that if they are both kind and fair with you, that you will be able to have a really good relationship with each of them. And that would be good.

[15] Marisa, it is part of my job to tell people when they have been wrong. That isn’t always easy and it isn’t always nice. But that is my duty: to look at all the evidence and decide what is best. No one likes being told what to do by someone else. I see it all the time. But this is how we solve conflicts when we can’t come to an agreement ourselves: the conflicts go before a judge and the judge decides. I hope, in time, that you come to see the wisdom of my decision. But whether you do or not, you must still obey it, just as your parents must obey it. That is the law: everyone must obey a judge’s order.

[16] Marisa, don’t blame your lawyer, Clare, or the social worker, Stephen, for this decision. It is my decision, not theirs. I listened to everything everyone had to say to me. Clare, did not always agree with you, but she always told me what you wanted. She fought very hard for you, to help me understand the importance of telling both your parents to respect your decisions in many areas of your life. And she fought hard for you to stay living with your father. If she had not done these things, I might well have ordered you to live with your mother and not see your father for a while. I think this is a better decision, for now, and both you and I have to thank Clare and Stephen for that.

[17] Marisa, don’t blame your mother for this decision. It is my decision, not hers. She did what she thought best for you. She did not ask to have you taken from your father’s home until she concluded that there was no way she could ever see you as long as you were living there. This was a reasonable thing for her to think. So far, that has been what has happened, and Marisa, it has happened for no good reason. I have to tell you this, even though you may not like it. You did not have a good reason not to see your mother. She did nothing to deserve this. I don’t mean that she is perfect, of course. She may have done things that made you cross. That happens. What I can say is that nothing she did justified your refusal to see her.

[18] And Marisa, don’t blame yourself for any of this. This has always been about a conflict between your Mum and your Dad. You are not responsible for any of it.

To Vito

[19] Vito, I want you to understand, at the outset, that the court will not tolerate any further manipulation of your daughter. You are by far the most important person in Marisa’s life right now. You have used that position to create and maintain a wide separation between Marisa and Brenda. You have buttressed this with moral support for Marisa’s “independence” and “autonomy” in the pursuit of wholly negative goals. And you have taught your daughter cynicism and manipulation towards a person she loves and needs. One day Marisa may come to realize how much her conduct has hurt her mother. If she ever comes to this adult realization, she may feel terribly guilty. This is a burden she should not have to bear, because it is not her fault. It has been your gift to her, and it has been most ungenerous. You do not promote your daughter’s sense of independence by spurring her on to petty and malicious conduct towards her mother. You do not promote her independence or her best interests by systematically keeping her from friends and family she loves and needs.

[20] Vito, I also want you to understand that I know that you love your daughter and would not want to do anything to hurt her. Despite a clear and consistent pattern of alienation by you for the past 4.5 years, I still believe that your involvement in Marisa’s life is far too important to cast it aside now to restore her relationship with her mother. Since I am leaving Marisa in your home, you will continue to have a formative influence over her. The only way that would end is if I removed you entirely from the family picture. This would be devastating for you and for Marisa. I don’t want to do that. But Vito, I also want you to understand, that if things unfold unsatisfactorily, and if this situation cannot be salvaged if you remain involved, then your involvement will end.

[21] Vito, this should have been clear to you long before the end of this trial. That is what gives me so much pause. You are an intelligent man. You care about your daughter. It has been six years since separation. One would have thought that the strong feelings of hurt and anger that so many feel in the aftermath of separation would have subsided by now, so that you would be able to put your daughter’s best interests first, well ahead of your personal feelings about Brenda. This suggests, powerfully, that you can’t do it. But, despite all the evidence to the contrary, I believe you can still rise above your personal animosity to work for the best for Marisa.

To Brenda

[22] Brenda, I want you to understand that, despite all the frustrations and the hurt, for your daughter’s sake, you need to give this one more try, with Vito still involved. The alternative – tearing Marisa unwillingly from Vito’s home, the only home she has ever known – would be, in the short run, devastating for Marisa, and would be experienced by her as a profound violation of her wishes. I also want you to understand that you have done nothing to merit Marisa’s rejection, which is, itself, a product of Marisa’s trusting nature. Indeed, Marisa’s “choice” not to see you is powerful evidence that she is limited in her ability to make good independent choices at this time.

[23] Brenda, you also must understand that although my decision vindicates your position, you too have work to do if this situation is to be salvaged in Marisa’s best interests. Hard as it may be, you will need to put the bitterness of this long fight behind you to move forward constructively. Just as Vito should not denigrate you to Marisa, you should not say unkind things about Vito to Marisa.

Overview

[24] This is a “difficult” family law case. Several factors make it difficult:

(1) The central issue concerns custody and access of an adult – 28 year old Marisa Perino. Marisa has cognitive impairments. She needs the support and love of her family to thrive.

(2) Prior to separation, Marisa’s mother, Brenda, was responsible for her care. Brenda spent most of every day looking to Marisa’s needs.

(3) Marisa is now estranged from her mother.

(4) The “causes” of this estrangement are ill-defined.

(5) Marisa’s father, Vito, is now the most important person in Marisa’s life. She loves and trusts him unconditionally.

(6) Vito has alienated Marisa from her mother. Marisa has now had little meaningful contact with her mother for the past 4.5 years. Marisa has a sincere fear of her mother’s new boyfriend, John.

(7) Marisa does not wish to be assessed for the purposes of this proceeding. Marisa has a strong personal need to have her wishes taken seriously and respected.

(8) Vito has been less than truthful and less than candid about the issues in this trial. But he is a very capable witness, and has presented his case in a way that has, at times, made it very difficult to find the truth.

(9) Brenda has been truthful and candid, but has not presented the court with practical options for her to undertake sole custody of Marisa.

(10) The proceeding (including the trial) has unfolded with tortuous slowness, which has served to reinforce an unacceptable status quo.

(11) I do not know precisely what to believe about Vito’s assets and income, but I am satisfied that a substantial portion of his means have been devoted to litigating this case. I doubt that there are financial means available to pay what is properly owed to Brenda Perino, and that is before considering any costs order. The result may well be insolvency for the entire family, which will further limit the remedial options available: it will not serve Marisa’s interests if neither of her parents has a roof over his/her head under which she can live.

[25] Custody and access issues must be decided on the basis of Marisa’s best interests, and nothing else. But the decision must operate, not in terms of abstract notions of justice, but in the real world where the Perino family lives. None of the practical remedial options appear both fair and effective. Finding the facts is not particularly hard here; choosing the remedy is truly a multi-pronged Morton’s Fork.

[26] This case is difficult on another basis. It is clear from the history of this proceeding that this case has fallen through several legislative gaps. Various judges have done their best to respond to the case, with the information before them. I am critical of this history, because the net effect has been to leave this family in conflict for years, as different courts have taken different approaches to what is, admittedly, a difficult task.

[27] Custody and access cases involving adult disabled children come up rarely, but regularly. There ought to be a clear legal regime in place, so lawyers, judges, and the parties know how to proceed. The biggest stumbling block in this case is balancing respect for Marisa Perino, as a person of adult years, and protecting Marisa Perino, as a vulnerable person. Both of these values deserve protection, and the legal response should be nuanced and balanced. But a “contextual”, “nuanced” and “balanced” approach should not start from a tabula rasa. I review the history of this case at length in the hopes that it may serve as an example for some much-needed adjustments in this area of the law.

The Perino Family

General

[28] Brenda and Vito Perino were married on April 30, 1983. They separated in the late summer of 2005, after 22 years of marriage.[^1] Brenda moved out of the matrimonial home. Vito remained in it, and is still there today.

[29] The Perinos have two children: Dominic (D.O.B. […]) and Marisa (D.O.B. […]).

[30] At the date of separation, Dominic was 16 years old, living in the matrimonial home with his father and sister, had completed high school, and was working.

[31] At the time of trial, Dominic was living with his domestic partner and their young child. Sadly, Dominic is completely estranged from his mother. Brenda has never seen her first grandchild. Dominic did not testify. I understand from both Brenda and Vito that there was conflict between Dominic and Brenda before separation. Dominic was not keen on staying in school. Brenda thought he should. No doubt the conflict went further than this: strife between a parent and an adolescent child can be exceedingly bitter at times. Both parties considered that Dominic’s anger towards his mother increased as a result of the separation. I see no reason to doubt this. Brenda, through tears, testified that she thinks that her son doesn’t like her very much. While she finds this a very hard thing to bear, she does not blame Vito for it, and she accepts that this is a matter between her and Dominic, and one that may not be resolved. She testified that she believes that Dominic loves Marisa very much.

Marisa’s History

[32] Marisa Perino is impaired cognitively. This was a challenge for her parents throughout their married life.

[33] It is clear from the record that Marisa has made good progress and continues to do so. Marisa should be very proud of her accomplishments. Perhaps one day Marisa will live independently of both her parents. That day has not yet arrived.

[34] Marisa had physical problems when she was a baby. The first year was particularly hard: Marisa had renal difficulties, had a kidney removed, and spent a lot of time at the Hospital for Sick Children. Marisa was slow to develop and was very small for her age. She did not walk until age 2, and her speech, as a young child, was very hard to understand. Marisa was the Perinos’ first child, and so they had little experience with early childhood development. It was not until Marisa was four years old that she was identified, in the school system, as having developmental issues.

[35] The school system evaluated Marisa and referred the Perinos to the developmental clinic at the Hospital for Sick Children, where she was also evaluated. Based on what she was told those many years ago, Brenda believes that the disorder may be the result of lack of oxygen during a difficult birth, but she is not sure of this.

[36] Marisa was assigned a 1:1 teacher’s aide for her first six years in school. She received speech pathology and some physiotherapy outside the school. In grades 7 and 8 she was placed in an “intermediate” special needs class, and was then evaluated again to identify her needs for high school. In high school she went into a specialized class called “Planning for Independence”. She remained in this program until she aged out at 21.

[37] Brenda described Marisa as functioning “at a very young age”. She “lacks awareness” and “retreats into her own world”. As Marisa got older, she became more capable. She could dress herself. She could brush her own teeth. She could assist in her own bathing. Marisa did need to be reminded to do these things, but she was able to help in doing them and generally enjoyed attending to her own hygiene and dress. Brenda described Marisa as not being able to cook for herself, but with some hesitation: these were developing skills, and Marisa was able to do some things in the kitchen.

[38] Marisa loves to shop. But not by herself. Marisa had “never left the front door of the house by herself. This was consistent throughout her life”.

[39] At age 16, Marisa was diagnosed with diabetes. She went into hospital. Brenda took a class to learn how to administer insulin injections. Marisa now controls her diabetes with diet and exercise.

[40] Marisa started going to programs at the adult Community Living Centre sometime in the winter of 2005-06. There was a social night on Wednesday evenings and a one day per week support program. As of trial, Marisa was no longer attending the Community Living Program. Apparently Marisa stopped attending, but they held a place for her for a while. By early 2009, Marisa lost her place in the program because of non-attendance. Brenda regarded this as an important program for Marisa: Marisa enjoyed going to it, they did outings in the community, and it was a place for Marisa to be socially engaged with others.

[41] Brenda also had Marisa involved in a program at the Mary Centre, in Brampton. This started as a half-day support program for adults with disabilities, which emphasized life skills such as how to use money, safety awareness, and board games designed to enhance problem-solving skills. In the year following separation, Marisa went to the Mary Centre for about two half-days per week. This changed part way through to full days, once or twice a week.

[42] While Marisa was at the Community Living Centre program, she participated in “Job Path”, an in-class program where they taught correct behaviour in the work force. Marisa was given a “Job Coach”, who identified local businesses who would take someone on as an employee from the Community Living program. She had a co-op placement at Walmart for one or two semesters, helping another employee stock shelves and tidy up.[^2] She worked one summer at Shoppers Drug Mart shelving products. She worked for a while at Rogers Video helping put videos back in their place. Then she started working at Giant Tiger, a value clothing store chain, two three-hour shifts a week, putting price tags on clothing. She particularly liked this job, because it enabled her to see the new clothes before anyone else. Marisa has stayed in this placement, and continues to work there two three-hour shifts per week.

[43] Brenda described Marisa as not able to “figure out a bus schedule”. When this was probed, Brenda said that Marisa would be able to read bus numbers, and that Marisa has a good memory. Marisa’s challenges lie more in the area of problem-solving.[^3] She can read. She can write, though it is sometimes quite difficult to read what she has written. She is not good with simple mathematics. She can operate a computer. Marisa did not have a computer of her own when Brenda was still in the matrimonial home, but she sometimes used the family computer to go to her favourite Web sites such as Pokemon, and a web site devoted to music (Brenda could not recall its name). Marisa could “keyboard” type with one or two fingers at a time. At the time of separation, Marisa was not using email. After May 2007, Brenda had received some emails that indicated they had been sent by Marisa. She does not know what help, if any, Marisa needed to send the emails.

[44] Brenda described Marisa as being able to use the phone “with assistance”. She can perform kitchen tasks such as helping with baking, using a microwave oven, and simple meal preparation. Brenda taught Marisa how to monitor her own blood-sugar levels, and Marisa is capable of doing that. Brenda was not personally aware of a course taken by Marisa respecting her diabetes, but recalled reading that Marisa had attended one with Vito, as set out in one of Vito’s affidavits in this proceeding.

[45] Brenda and Marisa would go shopping together. Marisa would have her money from Giant Tiger and money Brenda gave her from her ODSP benefits. Marisa could access the money in her own bank account, and pay for her purchases in the store.

[46] Brenda described Marisa as having a “developmental disorder” with “autistic tendencies”.[^4] According to Brenda, this is Marisa’s “diagnosis”. Marisa is “fully supervised” and “always has been”.

[47] Marisa did not have many “friends”. There were people who were “friendly” and would socialize with Marisa when invited over to the Perino home by Brenda. Marisa’s best friend was Elizabeth Hennig. Elizabeth lived with her parents about three blocks from the Perinos. Elizabeth is also a special needs person. Marisa and Elizabeth met in school, when Marisa was about 8 and Elizabeth was about 13. They had less contact when Elizabeth went to high school, but they remained friends and would spend social time together. At the time of separation, Marisa and Elizabeth still saw each other regularly and were still, truly, “friends”.

[48] At the time of separation, Marisa had just finished high school, having “aged-out” of the public school system at age 21. She was in a summer program. After that, she was in no programs until Brenda did the research and enrolled her in programs. It was after that that Marisa was involved at the Mary Centre and the Centre for Community Living. Brenda drove Marisa to these programs because Marisa could not take public transit by herself. Brenda described Marisa as getting “lost and confused very easily” – she could “walk onto the street without paying attention to traffic”. Vito agreed in his evidence that Marisa was not yet able to take public transit on her own, but he was hopeful that one day she would be able to do that.

[49] While the Perinos were living together, Vito never took Marisa to her programs. That was Brenda’s task. Once Marisa was solely in Vito’s custody, he was supposed to take her to her programs, but it is not clear that he did so regularly.

[50] Brenda left the matrimonial home on August 20, 2005, and never returned to live there again. Marisa continued to live in the matrimonial home with her father.

[51] From August 20, 2005 to May 29, 2007 – one year and nine months – life continued on much as it had before for Marisa. Brenda was with her during the days and Vito was with her during the nights. She split her weekends between them.

[52] Brenda introduced Marisa to John, her new boyfriend, shortly after separation. Marisa was initially shy with John, as she usually is with new people. But she warmed to him. They used to have fun “movie nights” together when Marisa spent a weekend with Brenda. From September 2005 to May 2007, John would generally see Marisa every two weeks, on weekends, with sometimes a mid-week dinner.

[53] John described Marisa as “pleasant”, “kind” and “shy”. In his presence she was “child-like”, based on how she entertained and amused herself, the types of movies she would watch, the music she would listen to, her choice of games, and the repetitive nature of the things she did.

[54] John never slept over on nights that Marisa was staying with her mother. Brenda had a one bedroom apartment, and Marisa and Brenda would sleep together, in the same bed, and John would go to his home.

[55] In April 2007, Brenda brought a motion for spousal support. Vito responded with a claim for custody and elimination of access. He alleged (among other things) that Brenda’s boyfriend John had taken or tried to take pictures of Marisa and Elizabeth Hennig in their underwear, and said he would put the pictures on the internet. This incident was said to have taken place at a birthday party for Marisa, on […], 2006, roughly six months earlier.

[56] Vito testified that Marisa’s relationship with her mother “changed” around April 2007. He explained this as Marisa “would have concerns that her mother wanted her to go places she did not want to go” and about “things her mother did to her”. These statements are so nebulous as to be almost meaningless. Vito then testified: “Marisa was hurt by all the things written in the case – and was very hurt when her mother described her as “mental” – she objected to that. She would say “I am not mental”. Vito testified that Marisa “saw all of this in documents shown to her by her (Marisa’s) lawyer.”

[57] From May 29, 2007, Brenda had some access with Marisa. She saw her Fridays and Sundays from 7am to 6pm. This continued until mid-July; after that Brenda was denied access. A court order, granted by Dunn J. in May 2007, mandated this access. It has been breached consistently since July 2007.[^5] I pause here to repeat comments I have made in other cases: a court order is not a “suggestion” or a “guideline”. It is mandatory and it must be obeyed. If someone affected by the order does not think it should apply any more, then the proper course is to come to court to ask to have it changed.

[58] Brenda next saw Marisa once in August, 2007. She received a call from Giant Tiger saying that Marisa had an urgent medical issue: Brenda went to Giant Tiger and took Marisa to hospital.

[59] Brenda next saw Marisa for three hours on Marisa’s birthday, on […], 2007. Brenda did not see Marisa again prior to the start of the trial (August 4, 2009).

[60] Brenda would sometimes go to Vito’s home to try to exercise access with Marisa. She was not supposed to go to there, but she did have a court order for access. Then she was served with some papers by Vito and told she was trespassing. Sometimes Vito would phone the police when Brenda came to try to exercise access.

[61] The last time Brenda tried to exercise access before the trial started was on May 29, 2009. A woman answered the door. She told Brenda that she was not supposed to be there. Brenda told her that she had an order for access. The woman said that she lived a few doors away and that she had a paper from Vito saying that Brenda was not supposed to be there. Brenda asked the woman how Marisa was. This apparently softened the woman somewhat: it would be hard for one mother not to have sympathy for another with such evident concern for her own daughter. The woman told her she could not bring Marisa out to see her: there were surveillance cameras mounted around the property, and Vito would know what had happened.

[62] Under the terms of the order of Dunn J., Brenda was entitled to daily telephone access with Marisa. These calls took place, daily, between May 29, 2007 and mid-July 2007. Then they stopped. Brenda would call, but usually the phone was not answered. When it was answered, her son Dominic, or a woman called “Mrs. Maxwell” told Brenda that Marisa was not there, or that she was sleeping. Marisa was never available and never returned the calls.

[63] Up to May 2007, Brenda had been responsible for arranging programs and services for Marisa. As of the start of the trial Brenda believed that Marisa was not attending any programs like Community Living. She could not say for sure, because she was not being provided with any information about what Marisa was doing.

[64] This informational void included Marisa’s medical records. Up to May 2007, Brenda had arranged for and taken Marisa to all her appointments. She asked for information about this, but her requests were met by silence.

[65] Vito, in his evidence, confirmed that Marisa was not enrolled in any programs at the time the trial started (August 4, 2009). Her last involvement had been in October 2008, nearly a year earlier. To that point she had been in a program at Bayside Community Living. Vito advised that she stopped going because “she has requested that she not attend any more”. So, by the time of trial, Marisa had been out of any organized program for roughly ten months.

[66] Vito was asked to describe Marisa’s usual days. He was asked about Mondays. On Mondays she wakes up between 7am and 7:30am. She goes to the kitchen and checks her sugar level with a meter. Then she takes her pills. Then she cooks and eats her breakfast. She then washes. “And then we plan the day”.

[67] Since May 2007, Vito has had a “succession” of people helping him with Marisa: Angela (a friend of Vito’s), Amanda Sabatino (Dominic’s girlfriend) and Lisa Roberts. I was not told if these people are paid to help Marisa, or whether they have any qualifications. Vito testified that these people spend perhaps four to five hours per day with Marisa.

[68] On an ordinary day, Marisa would go out walking, do some gardening, clean her room, do her laundry, spend time on the computer, perhaps watch a movie. She might go out shopping. Sometimes she would go out to play Bingo.

[69] On the two days per week that Marisa worked, Vito would usually take her to work, wait until she finished her work (a three hour shift), and then take her home. Sometimes, when Vito had no help, he would take Marisa to his own mother’s house, and then he would go to work.

[70] Vito described Marisa as having progressed very well from May 2007 to the start of the trial in August 2009. He couched his answers carefully, but made it clear that he believes that Marisa’s progress had been held back by Brenda, and that Marisa made better progress after he took over her care.

Brenda

[71] Dominic was born in June 1987, when Marisa was nearly four years old. Brenda was the stay-at-home mother. Vito was working shift-work at Canadian Airlines as an aircraft mechanic. He did not have to miss work to care for his children: that was Brenda’s job.

[72] What did all this mean for Brenda? She was Marisa’s caregiver. She was with her “24/7” (except when Marisa was in school). It considerably limited Brenda’s life, but, in Brenda’s words, “this is what God gave me to deal with and I dealt with it, with love and grace”.

[73] Dominic also had some issues, though not as consuming as Marisa’s. He had a modified language arts program at school and required some extra help. He struggled at school and didn’t like it. He quit school at grade 11 and then went to work.

[74] Brenda had no chance to do educational upgrading or go to work. She kept the household, cared for Marisa and Dominic, and managed the time-consuming and difficult process of obtaining programs and services for both her children, especially Marisa.

[75] Brenda did not have meaningful employment during the years of the marriage. She has not completed high school. She married Vito when she was 18 years old and 3 months pregnant with Marisa. She once worked part-time at Sears for seven months. Then, in 2004, she took part-time work at Good Life Fitness Centre, working 8-12 hours per week. In 2005 she earned $4,024 from this work.

[76] In August 2005, Brenda was earning roughly $96 per week from Good Life Fitness. She was also receiving $750 to $800 per month as the trustee of Marisa’s Ontario Disability Support Program payments. Vito agreed to pay her $500 per month in support. Brenda rented a one-bedroom apartment, in which she stayed for a year. The rent was $750 per month. Brenda concedes, as Vito alleges, that she used roughly $300-$400 per month from Marisa’s monthly benefits to pay for her rent and other basic living costs; she says that this was discussed with Vito and he knew and agreed to it. Vito denies that this was discussed or that he agreed that Marisa’s money would be used for Brenda’s expenses. I do not accept Vito’s evidence on this point. By his evidence, money had been tight in the Perino household for some time. By his evidence, since May 2007, Marisa’s benefits have been used primarily for room and board (that is, they have been used by him for household expenses). Vito certainly knew the benefits were being paid to Brenda, and this important source of money for the family must have been part of the financial discussions around separation. Indeed, if Brenda had been turning all this money over to Vito (on account of Brenda’s room and board), then Vito would have been required to pay more in support to Brenda. It makes no sense that the Perinos would take no account of this issue, and I find that they did.

Vito

[77] Vito is an airplane mechanic by trade. He worked for Canadian Airlines until 1999. Then he incorporated his own business, Aerotech Aviation Inc., and through that company purchased an airplane hangar at which he conducted his business. Vito reported employment income from Aerotech of $50,000 to $53,000 in the three years before separation (2002-2004). Brenda claims that Vito also earned significant unreported income from cash transactions.

[78] At around the time of separation, Vito says that he sold his interest in Aerotech (for $7500) and in the hangar (for $70,000), after he which he continued to work for Aerotech as an employee, at a much reduced income.

[79] Vito reports that his income remains much reduced, because of a general decline in business for aircraft mechanics, his need for a flexible work schedule so that he can respond to Marisa’s needs, and less time available to do work, because of his responsibility for Marisa. He argues that any spousal support he might have to pay for Brenda is offset by Brenda’s child support obligation respecting Marisa.

Chronological History of this Proceeding

Separation Until the Spring of 2007

[80] July 24, 2006: Brenda commenced this application. She did not raise custody or access issues.

[81] August 23, 2006: Vito filed his answer to the application. He did not raise custody or access issues.

[82] September 1, 2006: Sproat J. ordered Vito to pay $5,000 to Brenda without prejudice to the characterization of this payment at trial.

[83] December 5, 2006: Baltman J. (case conference) ordered Vito to produce five years of records for Aerotech, all documents related to the sale of Aerotech and the hangar, and documents showing the disposition of the proceeds of sale of the business and the hangar.

[84] December 21, 2006: the parties consented to temporary without prejudice spousal support of $1000 per month, commencing December 1, 2006.

[85] May 1, 2007: support and access issues were argued on an interim basis. Dunn J. ordered interim support of $850 per month, starting June 1, 2007. He also ordered that Marisa continue to reside with her father in the matrimonial home. He made Vito trustee for receipt of Marisa’s ODSP benefits (previously these had been going to Brenda). He ordered that Brenda not attend at the matrimonial home without Marisa’s consent. He ordered daily telephone access between Brenda and Marisa. And he adjourned the access issue back before himself on June 7, 2007.

[86] Marisa had counsel before Dunn J. on May 1, 2007, selected by and paid for by Vito without consultation with Brenda. Through her counsel, Marisa asked to be added as a party to the proceedings. This was done on consent.

[87] June 7, 2007: Brenda argued that Marisa’s well-being was being compromised, because Vito was not maintaining Marisa’s care with outside care-providers and services. Vito responded that he needed information from Brenda about Marisa’s service providers. Dunn J. ordered Brenda to provide the information to Vito, and adjourned the access issue again.

[88] June 13, 2007: Dunn J. ordered access between Brenda and Marisa on every Friday and every Sunday between 8:00 a.m. and 8:00 p.m. He ordered daily telephone access on non-access days between 7:00 and 7:15 p.m. Dunn J. ordered Vito to “do whatever is reasonable to ensure... access” in accordance with the order. Dunn J. directed that access should not take place in John’s presence or at John’s house. He further adjourned the motion to June 25, 2007 to “decide whether or not a capacity assessment should be ordered for Marisa Perino”. The assessment issue was raised by Dunn J., not the parties or Marisa.

[89] June 29, 2007: the matter came back before Dunn J., who wrote: “I am of the opinion that it is quite likely that a capacity assessment should be done here”. Again, the issue was raised by Dunn J. By this time Marisa’s counsel had ceased acting for her. Through Vito’s counsel, Marisa indicated that she wished to retain new counsel. Marisa consulted with duty counsel, who reported back to the court that Marisa had some understanding of simple issues, but did not seem to be able to follow complex descriptions. Dunn J. adjourned the matter for Marisa to obtain new counsel. He directed that “[i]f new counsel has not been appointed by the return date, a capacity assessment will be ordered with a view to determine [Marisa’s] ability to instruct counsel on her own behalf and as to her capacity to manage her own affairs and to care for herself”. The matter was adjourned to July 13, 2007, to return before any judge.

[90] July 13, 2007: the matter returned before Mossip J. Marisa was represented by new counsel. I quote selected portions of the factum filed on behalf of Marisa before Mossip J.:[^6]

1. None of the parties have ever brought a motion for a capacity assessment of the respondent, Marisa Perino. On or around June 13, 2007, Justice Dunn ordered, not on consent, and without either party bringing a motion for such an order, that this matter return before him on June 25, 2007, to determine whether or not a capacity assessment for Marisa Perino should be ordered. This issue has been adjourned to July 13, 2007.

2. The Respondent, Marisa, strongly opposes having to undergo a capacity assessment and is seeking to have the determination of whether or not she requires one dismissed.

3. … Marisa sought to be added as a party so that she could advise the court as to her views regarding which parent she wishes to live with.

4. Marisa works at Giant Tiger. She takes care of herself, helps make her own meals and does most things for herself. She cleans her own room and does her own laundry.

5. … Marisa wants to live with her father and wants her father to take her to her programs. She has made it clear that she does not want to live with her mother and does not want to see her mother’s boyfriend John, who told her on one occasion to pull down her pants so that he could take pictures of her and post them on the internet.

6. … Marisa is now living with her father who has been appointed as the trustee for the receipt of her Ontario Disability Support Program benefits…. She is happy living with her father and does not understand why a court would feel that she cannot decide who she wants to live with.

7. … Marisa does not want to have to take a capacity assessment test. She is capable of instructing counsel and is capable of determining which parent she wishes to live with.

[91] Mossip J. adjourned the motion, sine die, and indicated that the issue of a capacity assessment was not to be brought back on unless Brenda “chooses to bring a motion for guardianship serving and involving… the Public Guardian and Trustee”.

[92] October 1, 2007: van Rensburg J. ordered Vito to pay spousal support of $1500 per month, retroactive to August 1, 2006, based on imputed income of $50,000 per year. In a subsequent endorsement released January 24, 2008, van Rensburg J. ordered Vito to pay costs of $5,000 to Brenda. van Rensburg J. ordered that arrears under her order be calculated taking account of all past payments made by Vito after August 1, 2006, including the $5,000 without prejudice payment ordered by Sproat J. on September 1, 2006.

[93] March 5, 2008: Brenda moved for orders (a) removing Marisa’s counsel as counsel of record for her, (b) removing Marisa as a party to the proceedings, and (c) requiring a medical examination of Marisa under s.105 of the Courts of Justice Act. Murray J. declined to remove Marisa’s solicitors. He found as follows:

The Mother’s motion to remove [counsel] as solicitors of record for Marisa is unmeritorious.

The mother believes that Marisa is incapable of expressing an independent view and that she is manipulated by and under the control of the father. These allegations of control and manipulation are unsubstantiated and represent, at best, the opinion of the mother. The father is paying the legal fees incurred by Marisa… and is responsible for arranging Marisa’s transportation to and from her lawyers’ office. The mother’s motion… is based on these facts.

This Court is not prepared to assume that Marisa’s lawyers are being inappropriately influenced by her father or that they are taking instructions from her father. The facts relied on by the mother do not support a conclusion that [counsel] is not representing Marisa in a manner completely consistent with their professional obligations.[^7]

[94] Marisa did not wish to undergo a “medical examination”. This relief was only available against her if she was a “party” to the proceedings. Therefore, she asked to be removed as a party. Murray J. granted this relief. In a subsequent endorsement, Murray J. ordered $5,000 costs against Brenda for this motion.

[95] It was not necessary for Murray J. to decide the merits of the request for a medical examination, since he removed Marisa as a party. However, he considered it would benefit the parties to address this issue on the merits. Murray J. considered that a “medical examination” under the Rules of Civil Procedure was not appropriate for a child who is the subject matter of custody and access proceedings:

32 In her amended notice of motion, the mother took the position that the Office of the Public Guardian and Trustee should be appointed as Litigation Guardian for Marisa. The Public Guardian and Trustee did receive an application and supporting affidavits from the mother. The office of the Public Guardian and Trustee, in a letter to the mother, dated January 18, 2008 stated:

At ss.22 (3) of the SDA (Substitute Decisions Act), it states: "the court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that (a) does not require the court to find that person to be incapable of managing property, and (b) is less restrictive of the person's decision-making rights than the appointment of a guardian." As Marisa Perino has no assets at this time, and as her income is limited to Ontario Disability Support Plan Payments for which her father is trustee, it is respectfully suggested that there is no need for the appointment of a guardian of property, and that and ODSP trusteeship is a less intrusive means of ensuring that Marisa Perino's income is managed for her benefit and thus the restrictions set out in ss. 22(3) apply here. With respect to personal care, there is a similar wording set out in ss. 55(1) and (2) of the SDA, and, as there is a pre-existing petition under the federal Divorce Act already before the courts, it is again respectfully suggested that there is no evidence that Marisa Perino requires a declaration of capacity for personal care or the appointment of a guardian of the person. The Divorce Act at ss. 2(1) defines a "child of the marriage" as including the child who "is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause to withdraw from their charge or to obtain the necessities of life." This permits parties to a divorce proceeding to address the issue of custody of an adult under disability who meets this definition. It appears that the divorce proceedings, which predate the guardianship proceedings, have occupied the field of determination of whether or not Marisa Perino is a child of the marriage and whether or not a custody and/or access order is in her best interests as such. As Marisa Perino also has counsel in the divorce proceedings, it is not clear what benefit to her would derive from the appointment of counsel under s. 3 of the SDA in the guardianship proceedings, in that the issues of Marisa's residence and maintenance are already before the court in the divorce proceedings in which counsel is already present. Should any of you believe it would be of assistance to the court in the divorce proceedings to see a copy of this correspondence, please feel free to provide a copy to the court.

33 I agree with the position of the Office of the Public Guardian and Trustee that because the issues of custody and access are before the court in divorce proceedings, it is not appropriate to appoint the Public Guardian and Trustee as Guardian for Marisa. 34 Marisa has expressed an interest to live with her father. Interim custody has been awarded to the father. The mother does not accept that this outcome is the proper outcome. If Marisa were found to be incapable as a decision-maker, then the mother argues that it follows that Marisa's views should be given no weight by this Court in making a custody/access decision. 35 This argument ignores the fact that Marisa is not the decision-maker in this case. It is the Court which is the decision-maker with respect to custody/access matters. Even if Marisa were incapable of decision-making (in the sense that she is incapable of understanding information relevant to making a decision concerning custody and access and is not able to appreciate their reasonably foreseeable consequences of a decision or lack of decision), a court would not be acting responsibly if it refused to hear Marisa. For example, assuming both parents were found to be equally competent as potential custodial parents, would the Court not be entitled to take into account the custody arrangements which might make Marisa happier? In this case, among other things, Marisa has expressed a lack of comfort with the mother's new partner. If this new relationship causes Marisa significant discomfort, in making a custody decision would the Court not be entitled to take this fact into account even if Marisa were incapable of decision-making? There may be a host of other things which would be uniquely important to Marisa and which can and should be brought to the attention of this Court prior to making a custody decision. The more difficult question for the Court may be what weight is to be given to her wishes. 36 It is my decision that s.105 of the CJA has no application in this case. Assuming (without deciding) that Marisa's mental condition is relevant to a material issue in the proceeding, s. 105(3) of the CJA requires that there be good reason to believe that there is substance to the allegation being made by the mother that Marisa is incapable of understanding information relevant to making a decision concerning custody and access and is not able to appreciate their reasonably foreseeable consequences of a decision or lack of decision. On the basis of the evidence before me, I do not see that there is any substance to the allegation that Marisa is incapable of understanding this issue. 37 Incapacity in one area of decision-making does not imply incapacity in another area of decision-making. Many individuals with disabilities may require assistance in managing personal care but this does not mean such persons are incapable of decision-making with respect to personal care. 38 I am not satisfied that there is good reason to believe there is substance to the mother's allegation. There is no evidence from a family doctor or other health care practitioner that Marisa is incapable of understanding information relevant to decision-making regarding custody or is not able to appreciate the implications of her decisions. 39 In any event, even if the mother were correct in her assertion that Marisa is incapable, I do not think it would be appropriate to order an assessment pursuant to s. 105 of the CJA. 40 Marisa is neither an applicant nor a respondent. She is neither plaintiff nor defendant. She makes no claim against either party. 41 Rule 33 governs the procedure to be followed on a motion under s. 105 of the CJA. In the commentary which precedes the Rule, the following is stated:

The intent of s.105 and this Rule is to assure that if a party raises an issue as to his or her medical condition, the allegation can be tested under fair conditions by the opponent. If the issue is raised by one party as to the opponent's mental or physical condition the court scrutinizes a request for examination more closely to ensure that the intrusion is justified; the allegation must be relevant to material issue and it must have substance (see s.105(3)).

42 S. 105 of the CJA is not intended to provide the Court with jurisdiction to order a medical examination of a child of the marriage in custody proceedings under the Divorce Act. Pursuant to Family Law Rule 7(2), a "child of the marriage" as defined in the Divorce Act is not a party to proceedings relating to custody and access. 43 In essence, what the applicant mother is requesting is that the court order a capacity assessment of the sort that would be relevant for a determination under the Substituted Decisions Act, 1992. 44 Rule 7.04(1) of the Rules of Practice provides that the Court shall appoint the Public Guardian and Trustee for a party who is mentally incapable within the meaning of s. 6 or 45 of the SDA in respect of an issue in the proceeding. The Rule requiring a litigation guardian is for protection to the party, the other parties and the Court itself. The Rule is designed to protect the mentally incapable party by ensuring that a competent person with a duty to act for his/her benefit is there to instruct counsel and take steps in the litigation on the party's behalf. To other parties, the Rule offers similar protection, that is, a competent person who instructs counsel on how the proceeding is to be conducted and who is responsible for costs and that the Court's eventual judgment is obeyed. The Litigation Guardian offers assurance to the Court that its process is not abused by or against a party under disability and that its order will be obeyed. 45 Even if Marisa were to continue as a party in these custody proceedings, I would not be prepared to order the appointment of the Public Guardian and Trustee to act as her litigation guardian pursuant to Rule 7.04(1). In Barnes v. Kirk, [1968] 2 O.R. 213 (Ont. C.A.) in commenting on unsoundness of mind of a party as being a reason not to submit to discovery, the Court of Appeal stated as follows:

The party's unsoundness of mind constitutes such a valid reason, but the onus of establishing that fact rests squarely on the party alleging it. The question essentially is one to be decided upon medical evidence; without direct cogent evidence from a person duly qualified to speak with authority upon the subject, it is difficult to perceive how the Court could pass upon the question judicially. ... ...If, in fact, there is any real controversy between the parties as to the mental condition of the appellant, and his competency or the lack of it for the purposes of discovery, it is reasonable to assume that evidence upon the subject by medically qualified persons would have been adduced. In the absence of satisfactory medical evidence, the whole course of the proceedings strongly suggests a skirmish between solicitors for tactical advantage.

46 The onus is on the moving party to establish the respondent's disability. (Bilek v. Constitution Insurance, [1990] O.J. No. 3117, 49 C.P.C. (2d) 304 (Ont. Dist. Ct.); Calvert (Litigation Guardian of) v. Calvert (1997), 32 O.R. (3d) 281 (Ont. Gen. Div.), at 295.) This onus implies a presumption of capacity on the respondent. The question of a party's "unsoundness of mind" (i.e. mental capacity) is essentially one to be decided upon medical evidence. (Barnes v. Kirk, [1968] 2 O.R. 213 (Ont. C.A.)). A person can be capable of making a basic decision and not capable of making a complex decision. The courts have recognized varying levels of capacity and there is no doubt that there are degrees of capacity (Calvert, supra.).

47 Marisa may be unable by reason of disability to withdraw from the charge of her parents or one of them or unable to obtain the necessaries of life, but this does not mean she is incapable of understanding information relevant to making decisions concerning her own custody and or is unable to appreciate their reasonably foreseeable consequences of a decision or lack of decision. Furthermore, as mentioned above, there is no evidence before me which sustains a conclusion that she is so incapable.

48 Secondly, Rule 7.04(1) is not intended to apply to a child of the marriage within the meaning of the Divorce Act. Rule 7.04(1) is designed to ensure that a person who is a party in litigation and who is mentally incapable is put in a position to make decisions related to the litigation. As noted above, it is the Court, not Marisa, who will make the final custody order in this case. Marisa will not be required to make a decision in this custody dispute. Rule 7.04(1) does not apply. Family Law Rule 7(2) is consistent with this conclusion.

49 Rule 7.04(3) of the Rules of Practice provides that where in the opinion of the Court, the interests of a mentally incapable person who is not a minor and not a party require separate representation in the proceedings, the Court may appoint, as the mentally incapable person's litigation guardian, the Public Guardian and Trustee or some other proper person who is willing and able to act.

50 In my opinion, Rule 7.04(3) has no application in custody proceedings under the Divorce Act. In such proceedings minors and mentally incapable adults do not require separate representation to have their interests protected. Such individuals are not required to make decisions to protect their own best interests. In custody proceedings there is no need for the appointment of a substitute decision-maker to protect individuals from personal or financial harm. The court's duty is to make a custody decision in the best interests of Marisa without appointing a litigation guardian. If the evidence provided by the spouses is insufficient to allow well informed decision-making by the Court, in such custody proceedings the court has other tools available to acquire information to help inform decision-making in the best interests of the child of the marriage who will be subject of a custody order.

51 Whether Marisa is or is not a party does not change the duty of this Court to make a custody decision in her best interests. Generally a court should be interested in the wishes of a 23-year-old child of the marriage. In deciding the best interests of a child of the marriage, the question of what weight a court should give to the expressed wishes of a minor or disabled person (whether or not mentally incompetent) will always depend on the factual context including the age of the child of the marriage.

Conclusion 52 I conclude that Marisa should no longer be a party to these proceedings. At the time Justice Dunn added Marisa as a party to these proceedings, there was no agreement between the applicant and the respondent that Marisa is a child of the marriage within the meaning of the Divorce Act. Therefore in May 2007, at the time of the order of Justice Dunn, it was not clear that Family Law Rule 7(2) applied. It is now clear that this Rule does apply and she should not be a party.

53 Marisa is 23 years old. It is appropriate for this Court to hear her voice, whether or not she is a party. Marisa will not suffer any prejudice by not being a party in these custody proceedings.[^8]

[96] April 22, 2008: the parties appeared on a motion before me. My handwritten endorsement from that day reads as follows:

This is a very sad case. The parties’ 24 year old daughter, Marisa, is a special needs child. She is in the primary custody of her father. Under the order of Dunn J., she is to spend access with her mother on a regular schedule. This access has not been taking place. Marisa is (according to her father and according to her counsel) not wanting to see her mother.

Both parties participated in raising Marisa until separation (in about August 2005). On the record before me, there is no reason to doubt that Marisa loves both of her parents. Even if she is concerned about, or even cross with her mother, I find it very hard to believe that she does not want to see her at all. If this is her real view, I also find it difficult to believe that this is in her best interests.

However, this is a complicated and sensitive issue. Marisa is now 24, and no doubt it is important for her own sense of self-worth, and her exercise of autonomy that she be able to voice her views and preferences and to have those views and preferences taken seriously. Simply because a person faces intellectual challenges does not mean that they should be infantilized. Murray J. captured this issue in his evocative and thoughtful endorsement dated March 5, 2008, and I echo his thoughts.

Disturbing to me, though, is no sense on the part of [Vito] of his responsibility to nurture and promote a strong relationship between Marisa and her mother and mother’s family. I am sympathetic to Mr. Ford’s argument that the nature and intensity of the litigation thus far, has no doubt had an impact on this point. Nevertheless, a primary custodial parent has a high duty to promote a strong relationship with both parents.

Murray J. has already decided that Marisa, herself, need not undergo an assessment. I believe that a custody and access assessment, with a view to facilitating reunification of Marisa and her mother, would be advisable. Marisa needs to be involved in these discussions, since she will have to be an active participant in the reunification process.

I do not have materials before me that would enable me to order an assessment now. The parties have a settlement conference on May 5, 2008 – in my view this ought to be an important focus of this conference. Although Marisa is not a party, her participation in this process ought to be sought through her counsel… and the parties ought to be in a position to discuss how to move forward constructively.

I am not satisfied that it would be wise to order access against Marisa’s expressed wishes pending the settlement conference. However, I would be reluctant to delay intervention until the end of an assessment process that has not yet been agreed or ordered.

In the result, the order of Dunn J. respecting access is stayed until May 15, 2008, unless further extended by court order. Presumably, if the parties agree on a process for moving forward, they will also agree on what, if any, interim access there will be in the immediate future. If the parties do not agree, then it will be for the primary custodial parent to take the initiative before the court to explain why no progress has been made and to propose interim arrangements, failing which the stay will be lifted and access shall proceed in accordance with the order of Dunn J.

I have ordered a copy of the transcript of the motion before me to assist the settlement conference judge and court on any future motion on this issue.

[97] From the time of Murray J.’s order, neither party has sought an assessment of Marisa.[^9]

[98] May 26, 2008: on consent the trial was set for an estimated 3-5 days for the week of October 6, 2008.

[99] October 6, 2008: the trial was adjourned because Vito’s counsel was unavailable due to trial commitments in Milton.

[100] November 17, 2008: the trial was scheduled for August 4, 2009, for an estimated four days.

[101] August 4, 2009: the trial commenced before me.[^10] At the outset, Vito’s counsel raised a preliminary issue about whether I should hear the trial, since I had had prior involvement in the case – the motion of April 8, 2008. I ruled that, since the prior involvement was a contested motion and not a case conference, there was no impediment to my hearing the case. I advised the parties that I had no recollection of the case prior to refreshing my memory from reading my endorsement from April 8, 2008, and after that I had only a vague recollection of it: the motion had been 16 months before the trial. In any event, I had heard nothing respecting settlement discussions during the contested motion. In any event, there is no bar on a judge who has heard a prior motion in a proceeding from presiding at the trial.

[102] August 6, 2009: the parties settled the equalization issue and all issues relating to the carrying costs of the matrimonial home. I made an order pursuant to the consent filed.[^11]

[103] As of the start of the trial:

(a) Marisa was not a party;

(b) Marisa was not represented by counsel;

(c) there had been no assessment of Marisa’s capacity;

(d) there had been no “medical examination” of Marisa under the Rules;

(e) there had been no custody and access assessment of the family;

(f) there were no reports from Marisa’s doctors, service providers or teachers;

(g) Vito proposed to call Marisa as a witness at trial.

[104] I was told, at the outset of the trial, that I was being asked to make a custody and access order in respect to Marisa, who was above the age of majority. I was told that Marisa opposes the order. At the conclusion of Brenda’s case, Vito moved for judgment on the issue of custody and support. His position was that the court does not have jurisdiction to make such an order in respect to Marisa in the absence of a finding of incompetence. I heard submissions and on August 6, 2009, in Trial Ruling #1, I held as follows:[^12]

1 A preliminary issue was raised by the court respecting the custody and access issues in this case. The Perinos have two children. Both live with their father, and neither have been seeing their mother for roughly the past two years. The younger child, Domenic, is 23 years old. He is no longer a "child of the marriage" within the meaning of the Divorce Act, and no order is sought in respect to him.

2 Marisa Perino, who is now 25 years old, is mentally disabled. Ms. Perino seeks custody of her daughter, on appropriate access terms with her father. In the alternative, Ms. Perino seeks regular generous access with her daughter.

3 I raised a preliminary issue respecting the court's jurisdiction to grant custody and access in respect to an adult child. This issue was pursued by the respondent as a motion for judgment on this issue at the close of the petitioner's case.

4 Section 16(1) of the Divorce Act provides:

(1) A court of competent jurisdiction may, on application, by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

5 Section 2 of the Divorce Act defines "child of the marriage" to include "a child of two... former spouses who, at the material time, ... (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life".

6 The respondent relies on the decision of Karswick J. in Ciolfe (Caravatta) v. Ciolfe[^13] for the proposition that this court does not have jurisdiction under provincial legislation to order custody or access in respect to a child who is not a minor. That case does not assist the respondent. The case does not address this court's jurisdiction under the federal Divorce Act.

7 The respondent acknowledges this conclusion, but argues that Ciolfe is relevant because the applicant has not made out a basis for granting a divorce, and thus the Divorce Act provisions do not apply. This is a purely technical argument. Ms. Perino seeks a divorce in her petition. Mr. Perino agrees to a divorce in his answer. From Ms. Perino's trial evidence I conclude that the parties meet the requirements for divorce: they are long-time Ontario residents, they have been separated for more than one year, and there is no reasonable prospect of reconciliation. All that remains is for the marriage and clearance certificates to be filed. Should it prove necessary, I will permit Ms. Perino to reopen her case for the purpose of filing these documents so that the divorce may issue.

8 The definitions in the Divorce Act differ from those in the Children's Law Reform Act and the Family Law Act. On the face of ss. 2 and 16 of the Divorce Act, custody and access orders may be made in respect to adult children who are unable to withdraw from the charge of a parent. Such orders have been granted in other cases.[^14] Indeed, in a prior motion in this proceeding, Murray J. noted that "[i]t is no longer contested that [Marisa] is a child of the marriage as defined in s.2 of the Divorce Act, being a child of two former spouses who is "the age of majority or over and under their charge, but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life".[^15] Indeed, it is on the basis of this jurisdiction that Dunn J. made a custody order in this case in favour of the respondent, and ordered that there be regular access with the applicant.

9 None of the authorities cited are binding on me. Mr. Ford argues that the reasoning of the application judge[^16] in Ross is more persuasive than the reasoning of the B.C. Court of Appeal in that same case.[^17] I do not agree. The application judge found that granting a custody or access order in respect to a disabled adult child "would infringe his rights as an adult." The application judge also found that granting such an order could put the parent of an adult disabled child at risk of a contempt order if that child refused to participate in court-ordered access. On this basis the application judge found that the court does "not have jurisdiction" under the Divorce Act to grant a custody or access order in respect to an adult disabled child.[^18]

10 The Court of Appeal found that on a plain reading of the Divorce Act, there is jurisdiction to make a custody and access order respecting adult children, so long as they are within the definition of a "child of the marriage" under the Divorce Act. The court noted that the age and circumstances of the child are important considerations as to whether such an order should be made, and that a child's own decisions may "be very important in [the] assessment [of whether a custody or access order ought to be granted]."[^19]

11 As noted above, the learned trial judge in Ross concluded that a custody or access order in respect to an adult child would infringe that child's rights "as an adult". This is another way of saying, presumably, that the applicable provisions of the Divorce Act are contrary to the Canadian Charter of Rights and Freedoms. There may be issues respecting the constitutionality of these custody and access provisions, but they are not properly addressed by a sweeping conclusion predicated on notional "rights of adults". A constitutional challenge to these provisions would presumably be based on s.15 of the Charter, and would require notice and evidence (including, presumably, a proper evidentiary record in respect to issues arising under s.1 of the Charter). Those issues are not raised in the case before me, and I decline to decide them in the absence of proper notice and a proper record. Thus I proceed on the basis that the provisions in the Divorce Act are constitutional, and do not infringe Marisa Perino's "rights as an adult".

12 In dealing with adult children with mental disabilities, the court is mindful that the legislation applies to a broad spectrum of possible circumstances, ranging from adult children who have no capacity to voice preferences, make decisions, or understand the issues (on one extreme), to children who have sufficient emotional and mental capacities to make determinative decisions as to where they will live and whether they will have contact with family members.

13 Thus, since Marisa Perino remains a "child of the marriage" within the meaning of the Divorce Act, the court has the jurisdiction to make an order in respect to her custody and access between her and her non-custodial parent. The issues that remain are (a) whether such an order should be made, and if so, what it should be; and (b) what process should be followed in the trial to provide the court with a proper record for making these decisions, including what, if any role, Marisa Perino herself should have in the trial.

[105] August 11, 2009: in Trial Ruling #2, I held as follows:

[2] On August 6, 2009, I released my first trial ruling in this case. The concluding paragraph of that ruling reads as follows:

Thus, since Marisa Perino remains a “child of the marriage” within the meaning of the Divorce Act, the court has the jurisdiction to make an order in respect to her custody and access between her and her non-custodial parent. The issues that remain are (a) whether such an order should be made, and if so, what it should be; and (b) what process should be followed in the trial to provide the court with a proper record for making these decisions, including what, if any role, Marisa Perino herself should have in the trial.

[3] By August 7, 2009, the applicant had closed her case and I had heard the evidence-in-chief of Mr. Vito Perino. I raised concerns with counsel before cross-examination of Mr. Perino. Those concerns were as follows.

[4] First, I had heard from Ms. Perino that her daughter, Marisa, has an intellectual disability. As a result, Marisa had the benefit of teachers’ assistants throughout her public education. She did not complete a regular academic program, but she did graduate from the supported program when she “aged-out” of the public education system at age 21. During this program, Marisa worked co-op terms at local employers, including at a local Wal-Mart store, where she attended for half-days and did tasks such as re-stocking shelves.

[5] Ms. Perino describes her daughter as capable of some tasks related to her own care and well-being, such as microwaving food, attending to matters of basic hygiene, and the like. Ms. Perino also told me that Marisa is not able to live independently. She cannot, for example, take public transportation by herself. She would be unable to manage her own finances, although she could make some personal purchasing decisions.

[6] Mr. Perino also describes his daughter as unable to withdraw from a supported living environment. He believes that Marisa is more capable of aspects of daily living than does her mother, although, in fairness to both of the Perinos, he says that Marisa’s abilities have developed positively over the past two years, when she has been living full-time with Mr. Perino and not seeing her mother.

[7] Earlier in this proceeding, Mr. Perino added Marisa as a party. Counsel was obtained for Marisa, paid for by Mr. Perino. Ms. Perino sought to have this counsel discharged on the basis that Marisa was not competent to instruct counsel, and that in any event counsel for Marisa was guided by and effectively acting for Mr. Perino. Murray J. dismissed the motion to discharge Marisa’s counsel. However, when it became clear that, if Marisa remained as a party, her capacity as a party might be assessed, Marisa sought to be removed as a party. Justice Murray granted this order, and Marisa was removed as a party.

[8] As indicated in my first ruling, the parties agree that Marisa is a “child of the marriage” pursuant to s.16(1) of the Divorce Act. Thus this court has the jurisdiction to make an order respecting custody of and access with Marisa. As a rule, children do not have standing and are not parties to family law proceedings between their parents. However, a system has developed to ensure that these children have a voice, and, when appropriate, representation in respect to issues of custody and access. Typically, in these situations, the Office of the Children’s Lawyer is asked to become involved, either to represent the children’s interests, or to conduct an assessment.

[9] Marisa Perino, while a “child of the marriage” pursuant to the Divorce Act, is not eligible for the services of the Children’s Lawyer because she is not a minor. She may be eligible for services from the Public Guardian and Trustee. However, this is not a guardianship application. Perhaps it could be; but at this stage it is not.

[10] The case is now at trial. The Perino family needs a trial decision so that they may move on with their lives. Ms. Perino was Marissa’s primary caregiver for some 22 years. On the evidence elicited at trial thus far, Ms. Perino has done nothing wrong, and certainly nothing that would arouse a mature response to terminate all contact between mother and daughter. And yet this is said to be Marisa’s view, and it has been the reality for almost two years.

[11] The court is faced with a spectrum of possibilities here. On one end, Marisa Perino may be able to make her own determinations of her own best interests in such matters. Whether a court thinks her decision is wise, or not, would be beside the point, if this is a decision that is within Marisa’s abilities to make in her own best interests. At the other end, it may be that Marisa is not able to voice an informed preference on these issues.

[12] During oral argument, I likened the spectrum to the range of deference accorded to minor children, depending on their age and other related factors. As a general rule, a court will not hesitate to order custody and access in respect to an unwilling 5 year-old child, if the order is in the child’s best interests. As a general rule, a court will not make a custody or access order in respect to a 17 year old minor on the basis that people of this age will make their own decisions, in consultation with their parents. The spectrum based on age is merely an analogy. Marisa’s chronological age is likely irrelevant; rather, it is probable the court will have to engage in a functional and practical determination of Marisa’s intellectual and emotional development, not overall, but specifically in respect to her ability to participate in custody and access decisions.

[13] By the end of Mr. Perino’s evidence-in-chief, it was clear that the court would be asked to decide this case based on the personal views of Mr. Perino and Ms. Perino, after hearing testimony from Marisa Perino. In effect, the court was being asked to assess Marisa’s ability to participate in this decision without the benefit of an independent assessment, or even Marisa’s medical and therapeutic records.

[14] I advised the parties that I was not prepared to proceed in this way. If this was a matter touching only the interests of the parties, the court might leave the parties to develop the record without input from the court. However, important interests affecting Marisa are at stake. An interim custody and access order has already been made in this case, by Dunn J., and implicit in this order is a conclusion that these are not decisions Marisa can make entirely on her own.

[15] Mr. Ford indicated that one difficulty in obtaining an assessment may be reluctance on the part of Marisa to participate. Perhaps. One document in the record is a handwritten note from Marisa, addressed to “the judge”, indicating that one reason she is upset with her mother is that her mother believes her to be mentally disabled. It may well be that a source of Marisa’s current unhappiness with her mother springs from a desire for greater independence and recognition. This hearkens back to the functional and practical analysis that is required here. It would, of course, be wrong to disregard Marisa’s capacities because she has a disability. But similarly, it would be wrong to ignore her disability because she has capacities.

[16] These are important and difficult issues. The court wants the best possible information concerning Marisa, so that the decision best accords with her interests. An important part of that process is understanding Marisa’s wishes, and evaluating the weight to be placed on those wishes. It is clear that Marisa’s capacity to make such decisions is in question, and it will not advance the issue to permit sensitivity to Marisa’s feelings about her disability to preclude placing a full record before the court. On the other hand, Marisa has important interests at stake here, and the court should not embark on a course that may be invasive for her without hearing from her.

[17] The court is not satisfied by the efforts of Marisa’s parents to place a proper record before the court. In all these circumstances, the court invokes its parens patriae jurisdiction to order appointment of counsel for Marisa. I so ruled on August 7, 2009, for brief oral reasons delivered that day. This endorsement supplements those reasons.

[18] After consultation with counsel for the parties, the court has requested Ms. Clare Burns to undertake Marisa Perino’s representation. Ms. Burns has agreed to do this on condition that (a) satisfactory arrangements are made to pay for her services; and (b) she is satisfied she can act on Marisa’s behalf after consultation with the parties and with Marisa herself.

[19] The parties advise that they are unable to pay for counsel for Marisa. As a result, Ms. Perino intends to move for an order pursuant to R. v. Rowbotham, or by analogy to that case, that counsel for Marisa be paid by the Province of Ontario. Such motion must, of course, be brought on notice to the Province. Subject to availability of counsel, that motion shall proceed before me on August 28, 2009, at 9:30 a.m.

Other Issues

[20] I have provided my first trial ruling to Ms. Burns. It concerns the jurisdiction of the court to make a custody and access order respecting Marisa. Marisa was not represented before me at the time of the ruling. If Marisa intends to challenge the jurisdiction of the court to make such an order, I would be prepared to reconsider the issue, since she has not been heard on the issue. If Ms. Burns is retained for Marisa Perino, she is to advise the parties and the court before resumption of the evidence if her client intends to ask that the issue be reopened.

[21] I have ordered transcripts of the trial evidence so that they may be available to counsel for Marisa Perino. Copies are to be provided to counsel at the court’s expense.

[22] A schedule must be established for moving the trial to a conclusion. If the trial is not concluded before […], 2009, there may be considerable difficulty completing the matter before 2010. Counsel will attend on August 28th with a view to setting a schedule for completing any steps necessary prior to resumption of the trial, and establishing further trial dates. On the basis of advice from counsel for the parties, I estimate that a further 1-2 days will be required for evidence. This estimate may change, of course, depending on whether further evidence is required beyond that which was anticipated by the parties.

[23] I am not making any order for production of medical, therapeutic, or other records, for evidence from health practitioners, or for an assessment. I will consider whether to make such orders after Marisa’s counsel has consulted with counsel for the parties and I have heard from all counsel on these points. If there is not consent in respect to any of these issues, I have asked counsel to put their minds to the issue of the source of the court’s jurisdiction to make any of these orders in the context of this trial.

[106] August 29, 2009: the parties, Ms. Burns, and counsel for Ontario appeared before me. I adjourned the matter to September 8, 2009, to enable Ontario to file materials.

[107] September 8, 2009: I heard argument on the issue of ordering Ontario to pay for counsel for Marisa, and related issues.

[108] September 28, 2009: I delivered my decision (Trial Ruling #3) on these issues.[^20] In the result, I concluded that the court has the parens patriae jurisdiction to appoint counsel for Marisa, and to direct Ontario to pay reasonable compensation, particulars of which I fixed in my order.

[109] October 16, 2009: I scheduled resumption of the trial for January 6, 2010.[^21]

[110] November 19, 2009: I suspended enforcement of support arrears pending further court order. I declined to vary interim support, with the effect that any non-payment would accumulate and be dealt with in my final order.

[111] Then Ontario appealed my order respecting appointment of counsel for Marisa. It was clear that Ontario considered this ruling to be an important matter of principle, transcending the issues in this one case.

[112] Ms. Burns could not start work until Ontario’s appeal was resolved, or else she would have risked not being paid. I was concerned about expediting the trial. Inevitably there would be delay associated with my decision to appoint counsel for Ms. Perino. But I sought to minimize this delay to the extent that I could. By way of conference call I inquired into whether Ontario would fund Marisa’s counsel in accordance with my order, without prejudice to its position on the appeal. Ontario was prepared to do this, but only if Marisa’s counsel repaid any overpayment on the basis of the disposition of the appeal. That was no help. I asked the parties to take steps to request the Court of Appeal to expedite the appeal, given that the trial would be delayed in the mean time. Ontario declined to do so. Brenda, who was on a Legal Aid certificate, reported that Legal Aid would not fund her representation for the appeal. Vito’s counsel took the position that Vito could not afford to participate in the appeal. So no one would contact the Court of Appeal and ask that the appeal be expedited.

[113] The appeal was scheduled for April 2010.

[114] The day before the appeal was to be heard, Ontario abandoned its appeal.

Developments Leading to Temporary Minutes of Settlement

[115] Ms. Burns then commenced her representation of Marisa. I pause here to describe Ms. Burns’ appointment. The decision to appoint counsel for Marisa was mine. I suggested several candidates for this role, including Ms. Burns. Counsel for both Vito and Brenda agreed that Ms. Burns would be a good candidate to act for Marisa.

[116] Ms. Burns retained social worker Stephen Cross to assist her. Mr. Cross is a senior social worker, with more than 20 years experience, including roughly ten years as a clinical panel member for the Office of the Children’s Lawyer. He has significant experience in all aspects of custody and access issues, including those involving children with disabilities. As disclosed in his curriculum vitae,[^22] Mr. Cross is a senior clinician in this area.

[117] Mr. Cross met with Marisa on May 17, 2010 and July 12, 2010. During these meetings, Marisa indicated that she did not want to see her mother because (a) Brenda “lies”, is “out of control” and “lazy”; (b) Brenda called Marisa “mental” in the court proceedings; (c) Brenda let her boyfriend (John) take pictures of Marisa in her underwear. Marisa repeated these statements to Mr. Cross in the same language on each visit with him prior to July 22, 2010, but was unable to give any underlying factual explanation for her statements.

[118] On July 22, 2010, Marisa met with Brenda together with Stephen Cross and Clare Burns. Marisa had not slept well the night before, and had scratched herself until she bled She was obviously experiencing considerable stress about this meeting.

[119] Marisa expressed concerns about where Vito and his friend Angela would be during the meeting. It was agreed that Vito would be called and the meeting ended if Marisa told Stephen Cross twice that she so wished. The meeting continued; Marisa never asked to end the meeting.

[120] As soon as Vito and Angela left the room, but before Brenda entered, Marisa told Mr. Cross that she wanted to tell her mother: (a) “I’m not mental”, (b) “I’m not a baby”, and (c) “you lie about me”.

[121] According to Mr. Cross, when Brenda and Marisa met, they were both visibly nervous. But Marisa quickly relaxed and they had a relaxed conversation about Marisa’s activities including her school, the movies she was watching, and clothes. Marisa initiated discussion about Brenda’s relatives through her mother (none of whom she had seen since October 2007), Brenda’s friends, and John. She was smiling and expressed delight at some of Brenda’s answers.

[122] Marisa and Brenda discussed a shopping trip and agreed they would go out again in future. They exchanged email addresses and agreed to keep in touch that way.

[123] Marisa was asked “several times” after Brenda’s arrival if she wanted to tell Brenda anything. She said that she did not. She did not repeat the statements she had made to Mr. Cross about Brenda before Brenda entered the room.

[124] After Brenda’s departure, Marisa told Stephen Cross: (a) “this went really well”, (b) “I’m going to tell my Dad, my Mom’s not bad, she’s good”, (c) “She’s changed in a good way”, (d) “I’ll tell Dad I am going to email my Mom”, and (e) I’m “not scared anymore”.

[125] This was after one brief meeting. Marisa wanted to see her mother again.

[126] When Vito and Angela returned, Marisa told them the meeting with Brenda “was so excellent” and that she was “not scared anymore”. Vito did not express any happiness about Marisa’s statements. Instead Vito said: (a) “It’s about time she changed”, (b) “Is she going to bring your passport?” (c) “What about your birth certificate?” and (d) “Did you ask for your passport or birth certificate?”

[127] According to Mr. Cross, Vito sat “stone faced”, he “showed little emotion”, and showed no support for Marisa’s excellent visit with her mother. Vito ended the meeting by saying he “was in a hurry because of work”.

[128] It was obvious that (a) Vito (and perhaps Angela) had coached Marisa about negative things to say to her mother. Marisa remembered them long enough to tell Mr. Cross about them, but forgot about them during the delight of her visit with her mother. (b) Vito (and perhaps Angela) had coached Marisa to make demands of her mother for return of her birth certificate and passport, but Marisa forgot to ask for these things. (c) Vito did not share his daughter’s joy at having had such a good meeting with her mother.

[129] On August 18, 2010, a registered letter was received at Ms. Burns’ office. It contained a copy of Marisa’s typewritten instructions given to Stephen Cross on May 17, 2010, what appeared to be an email from Marisa to Stephen Cross telling him that she did not want him to appear in court on her behalf, and a typewritten note saying that Marisa wished to speak to the judge.

[130] Mr. Cross had no recollection of receiving the email, and there was no evidence before me that it was, in fact, sent. Marisa did not send the registered letter. No one has acknowledged sending the letter. The only reasonable inference here is that this material was sent by Vito, or at his direction. Vito knew that the meeting with Brenda had gone well, expected Marisa’s counsel and Mr. Cross to support re-establishing access between Marisa and Brenda, and so he sought to interfere with the relationship between Marisa and her solicitor.

[131] The next time Ms. Burns and Mr. Cross went to see Marisa, Debra McPhedran was present. Ms. Burns and Mr. Cross had not been given advance notice of this; it was a complete surprise. Ms. McPhedran introduced herself as a “social worker” who was a friend of the family there to assist Marisa. Ms. McPhedran did not tell Ms. Burns or Mr. Cross (a) that she had sworn an affidavit for Vito earlier in the proceeding, (b) that she was not a licensed social worker, (c) that she had not had any clinical social work experience for more than 30 years. Ms. McPhedran indicated that she intended to stay for what would otherwise have been a privileged discussion. She said that she had explained privilege to Marisa and Marisa’s ability to waive it.

[132] Ms. McPhedran also taped a conversation with Marisa beforehand, and she presented a typewritten “summary” of Marisa’s views to Mr. Cross and Ms. Burns.

[133] Vito testified that Ms. McPhedran’s participation in this meeting was discussed ahead of time. Although he denied responsibility (on his account, this was between Ms. McPhedran and Marisa), he was certainly aware of it and permitted it to happen. It matters not whether this was Vito’s idea or Ms. McPhedran’s. This was an inappropriate attempt to interfere with Marisa’s relationship with her independent counsel. I accept Ms. Burns submission that Vito “was concerned about the positive visit Marisa had had with Brenda on July 22, 2010 and wanted to take whatever steps were necessary to prevent that relationship being re-established”.[^23]

[134] Marisa then met with Stephen Cross, without Ms. McPhedran present. Marisa told Mr. Cross (a) “my mom is a snake in the….” (Marisa could not remember where one might find sneaky snakes), (b) Marisa had to “see if mom can be trusted”, (c) she was afraid that her mom “will put her in a mental institution”, and (d) she was worried that John “will take pictures of [her] underwear”.

[135] Upon being told these things, Mr. Cross reminded Marisa of the meeting she had had with Brenda. Marisa recalled feeling “very happy” and remembered saying “she’s changed”. Marisa then expressed the view that she was prepared to see her mother to go shopping or to go to the movies once a week, so long as she did not have to have any contact with John. Then Marisa said “this might be tricky: my dad does not like my mom. My mom does not like my dad”. Marisa also told Mr. Cross, as she had done before, that she is afraid of John because he took photographs of her.

[136] It is clear that Marisa’s expressed concerns came from Vito. None of them arose from the meeting between Marisa and Brenda on July 22, 2010.

[137] Based on Marisa’s expressed wish to have visits with her mother, the parties entered into partial minutes of settlement.

[138] August 30, 2010: I endorsed the record as follows:

The parties have resolved the custody and access issues on a three-month trial basis. Order to go per the partial minutes of settlement, filed. As per para. (e)(i) of the minutes of settlement, the review of the issues with respect to Marisa’s parenting is adjourned to return before me on November 22, 2010, 10:00 a.m., via teleconference, to be spoken to.

Trial on support issues adjourned to September 1, 2010, 10:00 a.m. I have given counsel oral directions on how to proceed respecting disclosure issues raised by Mr. Ford today.

[139] The partial minutes of settlement provide as follows:

The parties agree that the parenting of [Marisa] shall be determined as follows:

A. There shall be no order as to custody of Marisa, notwithstanding the parties recognizing the jurisdiction of the Court to make the Orders relating to incidents of custody.

B. The primary residence of [Marisa]… shall be Vito Perino.

C. Access with Marisa shall include:

1. Brenda… shall have access visits with Marisa initially one day per week, which shall be Saturdays from 9am to 6pm.

2. Brenda’s access shall not take place at the parties’ former matrimonial home….

3. Brenda shall be entitled to such additional access as Marisa may request and the parties shall accommodate her wishes in this regard.

4. Vito shall facilitate drop-off [of] Marisa for her access time with Brenda. Brenda is responsible for returning Marisa. Pick up and drop off of Marisa shall be at Saint Richard’s Catholic School.

5. Depending on the review in paragraph E(i) below, there shall be no contact between Marisa and John during each access visit unless Marisa requests such contact through Clare Burns or a court orders otherwise.

D. The parenting of Marisa otherwise shall be conducted in accordance with the following principles:

(i) Vito and Brenda shall communicate regarding all matters through a communication book that shall travel with Marisa during her time with either party. All communication regardless of form shall be civil, non personal and shall relate to the interests and needs of Marisa. The communication book is the property of Marisa.

(vii) Marisa shall retain the right to decide as to her participation in educational or recreational programmes, though Vito and Brenda may both suggest programmes to Marisa.

E. Review/termination period:

(i) The issues with respect to Marisa’s parenting shall be adjourned for a period of three months.

[140] September 1, 2010: evidence concluded on issues other than custody and access.

[141] September 2, 2010: on consent, I granted a divorce order, effective in 31 days. The balance of my decision was reserved until final resolution of the custody and access issues.

[142] Pursuant to the partial minutes of settlement, Brenda visited with Marisa twice: on August 28 and September 4, 2010.[^24]

[143] On August 28th, Brenda and Marisa visited in the late morning. They could not visit for the entire day because Marisa was scheduled to go to play Bingo with Vito’s friend Angela. No explanation was provided by Vito as to why the Bingo was not rescheduled for another time: he said this was Marisa’s choice. This pattern repeats: Vito attributes all conduct undermining Brenda’s access to Marisa’s decisions.

[144] On this visit, Marisa and Brenda had lunch at McDonald’s and then went to a park. Brenda returned Marisa to Vito as agreed. Brenda and Marisa exchanged a “high-five” as Marisa left.

[145] Vito gave evidence that immediately after this lunch, Marisa told him “It’s all about John; she wants me to visit her house.” This did not happen. Neither Vito nor Marisa knew that Brenda had moved in with John on August 28th. Vito has made this up, and likely persuaded Marisa that this is what happened. Further, Brenda understands that “John” is a sensitive issue for Marisa. Brenda is not stupid. She did not press this issue with Marisa on their first visit in three years.

[146] On September 2, 2010, Marisa met with Stephen Cross. She told Mr. Cross that the August 28th visit had gone “o.k.” She did not report any displeasure about the visit or have any specific complaints.

[147] Marisa was scheduled to have another visit with Brenda the following weekend. Marisa told Mr. Cross that this could be a problem because she might be going to the CNE Airshow. Vito denies that he suggested going to the Airshow instead of visiting with Brenda; he says that this was Marisa’s idea. In view of the history of the case, I simply do not believe him on this.

[148] On September 4, 2010, Marisa and Brenda did visit from 9am to 6pm They had lunch, went shopping, and went to see a movie. Brenda’s uncontradicted evidence is that Marisa asked for a kid’s menu at Kelsey’s, where they had lunch. Brenda’s uncontradicted evidence is that Marisa volunteered: “I am not allowed to go to John’s house” when they were discussing getting together to make a t-shirt together.

[149] Brenda sent Marisa an email on October 24, 2010, saying she would see her for access on her birthday. There was no reply. On […], 2010, Brenda went to the access exchange. Marisa and Vito did not attend. Vito testified that Marisa’s brother Dominic scheduled an appointment for Marisa to have her hair highlighted on her birthday, something Marisa had long wanted to have done. This was an enticement to Marisa not to spend the scheduled access with Brenda. Vito disavowed involvement and attributed this solely to Dominic. Dominic did not testify.

[150] When Marisa and Vito did not show for the access visit, Brenda went to the matrimonial home to try to see her daughter. Vito told her that if she did not leave, he would call the police.

[151] Marisa has not seen her mother since […], 2010.

[152] Vito baldly asserts that he has encouraged Marisa to have access with Brenda. This is a lie. He has done what he can to discourage it, including scheduling events to dissuade Marisa from seeing her mother, suggesting criticisms of Brenda, and doing what he can to find fault with Brenda.

[153] Marisa met again with Stephen Cross on February 4, 2011. Marisa told Mr. Cross;

(a) She does not want to see her mother because her mother’s boyfriend “is a pervert” who takes pictures of people in their underwear;

(b) Vito has told her he “cannot trust his ex-wife”;

(c) She does not want to see her mother, even in the absence of John, because she had already got her CD’s back and that was the only reason she had wanted to see her mother in the first place;

(d) She “does not trust” her mother, but she does not know why she does not trust her;

(e) Vito does not want her to see Brenda;

(f) Even if Vito told her she should see Brenda, she would not go;

(g) She will see her mother “when she is good and ready”.

[154] Marisa told Mr. Cross that she was “sad” during her first access visit with Brenda, even though that is not how she reported the visit immediately afterwards. She now says that Brenda made her feel like a “baby” at McDonald’s by making her order a “Happy Meal”. When asked further about this, Marisa could not recall who had ordered the meal. Again, Marisa had not mentioned this immediately after the visit.

[155] I accept Ms. Burns’ submissions on this evidence, which demonstrates that since August 2010:

(a) there has been nothing done by Brenda that caused Marisa to refuse to see her mother;

(b) Vito has not encouraged Marisa to see her mother;

(c) Vito has accepted Marisa’s refusal to see her mother;

(d) for no apparent reason, Marisa has returned to the belief that Brenda “is not a good person”;

(e) Vito has permitted the scheduling of special treats, such as the hair highlighting, in order to dissuade Marisa from having access with her mother;

(f) Vito told Marisa to instruct her counsel that Mr. Cross only be allowed to give evidence about Marisa’s views and preferences.

[156] I also accept Ms. Burns’ submission that “the only reasonable explanation for the difference between Marisa’s views about seeing Brenda immediately prior to the partial settlement (when she was prepared to see her mother) and subsequently (when she is not) is that Vito… is actually discouraging them.”[^25]

[157] I conclude that Marisa’s views with respect to her shelter arrangements, including where she will reside primarily and access with Brenda, are not independent. They are the result of Vito’s systematic alienation of Marisa from Brenda.

[158] February 7 - 9, 2011: evidence concluded on the custody and access issues. Ms. Burns was directed to provide written argument by February 18, 2011.[^26]

[159] March 11, 2011: oral argument was completed.

The Custody and Access Issues

[160] Marisa is a vulnerable person. She is vulnerable to influence, most especially from those she loves most and trusts best. At the very top of Marisa’s list, the person she trusts and depends upon the most, is her father, Vito.

[161] This case concerns a profound wrong done to Marisa by her father. Oh, Vito has not abused his daughter physically: He loves her dearly and would never harm her in such a way. Vito has not abused her mentally in a direct way: the love he feels for his daughter was palpable in his testimony: he is loving and gentle with her.

[162] No.

[163] What Vito has done is to use his position of trust to separate Marisa from her mother, mentally and physically. He has succeeded in this.

[164] This has been harmful to Marisa. It has been devastating for Brenda. And, in the long run, it has been bad for Vito too. His whole life has been distorted to achieve this end, with dire financial consequences for him, and, in the long run, for the rest of the family as well.

[165] Vito has engaged in a deliberate, systematic and successful campaign to alienate Marisa from her mother. There is a strong temptation to do something dramatic about this, to make it clear how unacceptable this kind of conduct is. At its core, it is narcissistic and selfish. It is controlling, and places Vito’s emotional needs ahead of his daughter’s best interests. It uses his daughter’s vulnerabilities as a weapon against Brenda, without regard to the cost this also inflicts on Marisa.

[166] But the goal of this decision is not to spill vitriol on Vito, or to give him his just desserts. To follow that path would have the incidental effect of causing more harm to Marisa. And I am mindful that the custody and access order I make here must be determined solely on the basis of Marisa’s best interests.

[167] This would be easy if I could hope that Vito would accept this judgment, see the errors of his ways, and support a reintegration of Marisa and her mother. If Vito would support it, it would happen, naturally, easily, and in very short order. For Marisa’s nature is trusting. She has a sunny disposition. She would quickly re-assume a warm and happy relationship with her mother. But this has been tried, during the trial, and the results are clear: Vito will not, perhaps cannot, support re-unification. And so long as he is a significant presence in the life of his daughter, his influence will have an overwhelming effect on his daughter’s choices. The well has been so thoroughly poisoned, all it takes is an additional whiff of the toxin, in the form of a few well-placed comments, and Marisa will retreat back to outright rejection of her mother.

[168] One of Marisa’s interests concerns her own autonomy, and respect for her as a person. In most custody and access cases, which involve minor children, the children have not yet come into the full control of their own lives. And in most custody cases, the children will “age out” of a custody and access order: even before a child attains the age of majority, her parents and the court expect and will accord increasing respect to her choices when she reaches her mid-teens. Here, Marisa’s circumstances may well not be static. I have no crystal ball to help me understand when she might progress out of a need for a custody and access regime.

[169] We have moved away from stark categories of “competence” and “incompetence”. Now, the focus is on a person’s ability to do a particular thing. Ms. Burns made this argument forcefully and urged the court not to grant a sweeping custody order that would preclude Marisa from exercising control over many important aspects of her life. One of the court’s goals in this judgment is to respect an area of autonomy for Marisa, consistent with her cognitive abilities and her potential for further growth, while at the same time protecting her and providing suitable living arrangements for her. This is no easy task in the context of such extreme parental alienation.

[170] A further challenge concerns Brenda’s personal circumstances. By the end of the trial Brenda was living with John, largely for financial reasons: Vito has not been paying support, and so Brenda has little in the way of money to pay for accommodations on her own.

[171] As a result,. If I ordered that Marisa reside primarily with her mother, as matters now stand, she would also be primarily resident with John. Marisa is afraid of John, and it would not be fair to order her to live with him.

[172] This matrix of factors provides little room to fashion a remedy that balances all of the interests at stake here. I am convinced that it is in Marisa’s best interests to have a strong and active relationship with both of her parents. On the record to date, which is eloquent, this could be achieved with Marisa still living with her father, provided he supported Marisa’s relationship with her mother. He will not do so. The obvious remedy in the face of his refusal to cooperate for his daughter’s best interests is to transfer custody, and reduce or eliminate Vito’s access with his daughter if he will not change his approach to these issues. That would be a draconian response, and hard on everyone in the family. From a practical perspective, this would be extremely difficult to achieve without John being involved as well, something that would cause Marisa considerable stress and grief at this stage.

[173] So, what to do? “Tricky”, as Marisa said.

Analysis

(a) Jurisdiction to Make a Custody and Access Order

[174] The parties and Marisa concede, for the purposes of this proceeding, that Marisa is a “child of the marriage” of Brenda and Vito Perino, within the meaning of the Divorce Act. In particular, Marisa “is the age of majority or over and under [her parents’ charge] but unable, by reason of… disability… to withdraw from their charge or obtain the necessities of life.”[^27]

[175] Marisa makes this concession “because of her current cognitive limitations”. Marisa does not wish to be subjected to an assessment as part of this proceeding, a position she has taken steadfastly throughout. Thus she does not wish her “current cognitive limitations” measured.

[176] Thus, for the reasons I expressed in Trial Ruling #1, this court has the jurisdiction to make a custody and access order in respect to Marisa. What is not so clear is what, if any weight, should be given to Marisa’s expressed wishes.

(b) The Assessment Issue

Availability

[177] It is a serious derogation of a person’s autonomy for the court to order her to live in a particular place, with and subject to the authority of, particular people. Though the parties have agreed from the outset that Marisa is a “child of the marriage” for the purposes of these proceedings, that have not agreed on the extent to which Marisa requires parental involvement in her day-to-day life. It is difficult for the court to resolve disputes in this area without a professional assessment.

[178] Ms. Burns argues that an assessment may only be ordered “where the capacity of the person to be assessed is in issue”.[^28] An assessment is “essentially a psychiatric examination” and thus is a “substantial intervention into the privacy and security of the individual”.[^29]

[179] Ms. Burns concludes this part of her argument that (a) since Marisa does not wish to be assessed; and (b) neither of her parents ask that she be assessed; therefore (c) the court should not “[interfere with her] fundamental rights” by ordering an assessment.[^30]

[180] This seems straightforward. But when the contested issues are examined fully, it is clear that this court must understand (a) the extent and nature of Marisa’s “current cognitive limitations”; (b) the effect of those limitations on her ability to express her preferences; and (c) the intellectual prism through which those preferences arise.

[181] I have concluded that Marisa’s expressed views are not independent. They are a product of Vito’s views and his consistent campaign to alienate Marisa from her mother.

[182] Early in this proceeding, when the custody and access issues first arose, Dunn J. expressed strong concerns about Marisa. He couched these in terms of the potential need for a capacity assessment.

[183] Mossip J., to whom this issue fell, declined to order a capacity assessment. She directed Brenda to pursue such a request only on notice to the Public Guardian and Trustee.

[184] Eventually Brenda did pursue this with the PGT. The PGT took the position that its involvement was not warranted, since the issue could best be dealt with by way of a custody and access order under the Divorce Act.

[185] Murray J. agreed with the PGT. He also concluded that a “medical examination” under the Rules of Civil Procedure was not the proper way to address the issue.

[186] Murray J. found that “[i]f the evidence provided by the parties is insufficient to allow well informed decision-making by the Court, in such custody proceedings the court has other tools available to acquire information to help inform decision-making in the best interests of the child of the marriage who will be subject to the custody order”.

[187] Murray J. did not specify what these “other tools” are that are available to the Court. The Divorce Act does not specify such tools. And Marisa does not fit the definition of “child” under the provincial legislation that governs comparable situations for children not above the age of majority, as I noted in Trial Ruling #3.

[188] The only “other tools” to which Murray J. could have been referring are those available in custody and access disputes involving minor children. For the reasons I expressed in Trial Ruling #3, the gaps between provincial legislation and the Divorce Act do not appear to be the product of a considered decision by the legislature to preclude application of tools such as custody and access assessments for “children of the marriage” who are not “children” under provincial law. They appear to be nothing more than unintended lacunae arising from differences in terminology between federal and provincial legislation.

[189] In retrospect, this case would have been resolved much faster, and with far less heartache and expense for the Perinos, if a custody and access assessment through the OCL had been available and had been ordered in May 2007. Now, four years later, so much damage has been done, so much pain inflicted, that it is not clear that this family can ever recover.

[190] Brenda was right all along. The substance of her complaint was that Marisa was not voicing an independent view and was being manipulated by her father. Brenda has been told, at each turn, that she was not using the right approach to address this issue in court. Indeed, she could conclude that she was told four different things by three different judges and the PGT.

Manipulation of this Issue by Vito

[191] There is a further complication, not unusual in cases of cognitive impairment. Marisa is sensitive about her disability. She does not want to be “assessed”, “tested”, defined. She hates being labeled. She is not “mental”. She reacted very negatively to her mother’s evidence about her ability to take an independent role in this proceeding and her vulnerability to manipulation.

[192] I will call this the “assessment card”. Vito has played the “assessment card” throughout these proceedings, and he has played it very well.

[193] First, he inspired Marisa’s anger at and distrust of her mother because Brenda raised concerns over his manipulation. He showed Marisa the things that were being said about her, and married this to a derogatory characterization of it: he said Brenda thought Marisa is a “baby” and “mental”.

[194] Then he selected and retained counsel for Marisa. He paid that counsel. Marisa was added as a party to the proceedings, represented by this counsel. He encouraged her to get involved this way. And in doing all of this, he provoked Marisa to believe that the core of this case concerns Marisa’s rights as a person and her mother’s failure to respect those rights. This case has never been about that.

[195] The alacrity with which Marisa relaxed when she saw her mother for the first time in three years speaks volumes. Mr. Cross’ evidence makes it clear that Vito undermined this progress. Vito’s subsequent efforts to separate Marisa from her counsel and from Mr. Cross makes it clear what his real reason has been for resisting an assessment in this case: because I would reveal the truth. He wishes to control who speaks for Marisa, because in that way he can ensure that she says what he wants her to say.

[196] I close this point by noting that the gap in the legislative framework I discuss above made this fertile ground for manipulation by Vito. For the benefit of future families who may find themselves in a similar situation, the tools available to assist the court ought to be clearly marked, as they are for families with children below the age of majority.

No Need For An Assessment Now

[197] I would not have ordered an assessment “of Marisa”. In the absence of Ms. Burns and Mr. Cross, I likely would have ordered a custody and access assessment. I am satisfied, however, that I was able to find the truth through the evidence of the parties and of Mr. Cross. To be clear, though, the evidence of Mr. Cross was not an assessment. He did not provide his opinion about an appropriate custody and access regime. He did provide me with his view that Marisa’s views are not independent, based on the facts that he described for me. This was delivered in an understated fashion. His primary task was to testify about what he saw and heard and what he did and said, to help me understand Marisa’s position.

[198] If I had not been able to reach a conclusion about Marisa’s views, and whether they are independent, I would have ordered a formal custody and access assessment, even given the protracted nature of these proceedings.

(c) Marisa’s Representation in this Proceeding

[199] I have not named the lawyers who “acted” for Marisa prior to trial. Those lawyers were not parties to this proceeding and were not called as witnesses. They have had no opportunity to defend their conduct. I appreciate the ethical difficulties this case could have posed for counsel. I am in no position to judge counsel’s conduct, since I have not heard from them. But I have grave reservations about what took place. For the purposes of this trial, as between Vito and Brenda, I am satisfied that Vito retained these solicitors, paid them, and whether directly or through using his influence with Marisa, ensured that they would present the perspective he wanted.

[200] Vito testified that his involvement with these lawyers was limited to driving Marisa to and from her appointments with them, and paying their accounts. He testified that he paid the first lawyer $5,000, and the second lawyer between $26,000 to $27,000. This is an astonishing sum for him to have paid for counsel for Marisa, for the very limited periods they were involved in the case, given the Perinos’ limited means.

[201] Ordinarily, in family law proceedings, where a child is to be represented, the parents select a mutually agreeable solicitor for the child. Here, where Marisa is above the age of majority, the court might take a different view of it if it was shown that Marisa had decided she wanted a lawyer herself, and had selected and retained the lawyer herself. But that is not what happened here.

[202] There is a rich literature about the role of counsel for children in custody and access disputes. This literature makes it clear that, in some cases, it is a solicitor’s duty to separate her client’s stated wishes from her client’s best interests. This is generally framed on the basis of the lawyer making an assessment of (a) whether the client is expressing an independent and free choice; (b) whether the client has sufficient intellectual and emotional maturity to make the choice; and (c) whether the choice is in the client’s best interests.

[203] This is a fraught and difficult area for solicitors acting for children. Traditionally, it is the lawyer’s task to follow her client’s instructions. If, for some reason, she cannot do that, then her duty is to withdraw from the case.

[204] That is not the law when it comes to representing children in custody and access cases. The lawyer’s job is to try to determine the client’s wishes, and then to assist the court with the weight to be attached to that stated preference.

[205] This was the task that fell to Ms. Burns.

[206] If this had not been the task that fell to Ms. Burns – if I could not have expected her to advise the court of her submissions as to whether Marisa’s stated views were the product of independent judgment, borne of sufficient emotional and intellectual maturity to make an independent judgment, then it would not have been sufficient to appoint counsel. If Ms. Burns’ role had been limited to parroting what Marisa told her, then I would not have been satisfied with just appointing counsel for Marisa. I would have insisted on a custody and access assessment.

[207] I am satisfied that the balance struck here was appropriate. Marisa clearly did not want an assessment. With Ms. Burns’ submissions, and the evidence from Mr. Cross, I am satisfied that a clear enough picture emerged of what has been happening here.

(d) Calling Marisa as a Witness

[208] Vito proposed calling Marisa as a witness, if I would permit it.

[209] I was uneasy about Marisa being called as a witness. The general approach to determining the wishes of minor children is through their parents or with the assistance of independent counsel for them (often provided through the Officer of the Children’s Lawyer). Some now advocate that the judge speak directly with the children, in some cases, though this remains controversial. Children are not called as witnesses and examined or cross-examined by their parents, about their views.[^31]

[210] The reasons are obvious. Children should not be placed in the midst of their parents’ conflict. They should not be asked to take sides; they should not be made to feel that they have taken sides. Usually there are better ways to determine the wishes of the children, such as through counsel appointed for them.

[211] But there is no ironclad rule against children testifying, and certainly adult children with testamentary capacity sometimes do.

[212] I decided that I would not hear from Marisa until counsel had been appointed for her.

[213] Ms. Burns did not seek to call Marisa as a witness. Vito’s counsel did not renew the request to examine Marisa after Ms. Burns had been appointed. I took it from this that the request was not being pursued, in view of Ms. Burns’ participation on Marisa’s behalf.

[214] In fairness, though, Vito did not know what position Ms. Burns was going to take on behalf of her client until final argument. Vito objected to Ms. Burns taking positions that were not in accord with her client’s wishes and instructions. Had Vito known in advance that Ms. Burns would do these things, he might well have continued to seek to call Marisa as a witness.

[215] I would not have allowed it.

[216] Nothing would have been added from hearing Marisa say the things she has said to Mr. Cross, which are in evidence before me. It is clear that Marisa wishes to live with her father, and that her current position is that she does not wish to see her mother.

[217] Having Marisa testify would be yet another step in a process of manipulation, harmful to Marisa, damaging to the prospects of reconciliation, and of no help in the process of finding the truth. As I said at the outset of this decision, finding the facts is not difficult here; deciding what to do about them is “tricky”.

(e) Custody and Access Order

General Scope of the Order

[218] Brenda seeks an order for custody of her daughter. Marisa objects to a broad custody order, for fear that this would adumbrate the entire “bundle or rights and responsibilities” that should be within Marisa’s own power. This is a real concern, and it is appropriate that Marisa raise it, so that the court may craft an appropriate order.

[219] In practical terms, Brenda does not wish to interfere with day-to-day decisions around wardrobe and nutrition. It seems clear that Marisa does exercise some degree of control over these facets of her life. It also seems clear that she is willingly guided in respect to these matters. Only if an issue came to a serious pass would the issue of the “power” to “decide” arise. Most decisions would be worked out together.

[220] What Brenda does seek is the ability to decide where and with whom Marisa lives, and who she sees – matters of primary residence and access. She seeks this, not because she disrespects her daughter, but because Vito has and will continue to exercise his influence over Marisa to maintain complete estrangement between mother and daughter. This behaviour can only be restrained, the argument goes, if these matters are placed in Brenda’s hands. Brenda does not seek orders permitting her to decide what Marisa eats or wears.

[221] In this context, there is no need for this court to make a “broad” custody order. The court will deal with the questions of Marisa’s primary residence, access, and matters necessary to give effect to these points. In declining to make an order respecting other incidents of custody, they remain matters of general application. That is, in the absence of a decision to the contrary, they remain matters for Marisa to decide, as a person over the age of majority.

[222] The court will not expressly reserve other areas to Marisa, despite her request that the court do so. To make an express reservation would imply that this court has determined that Marisa has a functional capacity that includes these items. I cannot come to that conclusion on the record before me.

[223] This may seem a distinction without a difference. I hope it may prove so. However, for example, if an issue respecting medical treatment arises in future, and either parent is not satisfied that Marisa is pursuing medical treatment that is appropriate for her, the issue of Marisa’s capacity to make that specific decision may be addressed at that time, unburdened by an order from this court. In the mean time, issues such as medical treatment, education, recreation, diet, hygiene, and the like, shall be dealt with in a functional way between Marisa and her parents. It is expected and hoped that, as in the past, future issues will be resolved by persuasion, without a need to decide who has the right to make the decision.

[224] I take this approach to all the issues raised on behalf of Marisa, with the exceptions of primary residence, access, and access to medical, education and program records and information.

Primary Residence and Access

Initial Causes of Estrangement

[225] Vito had two explanations for the initial estrangement in April 2007. First, he said that Marisa expressed concerns about Brenda taking her places she did not want to go and “things her mother did to her”. None of this was particularized during Vito’s evidence. Second, Vito testified that Marisa was upset at Brenda’s descriptions of her in the family law proceedings. In addition, Vito says that Marisa was scared of John, because of the alleged incident on […], 2006.

[226] Vito is less than candid when he says that the estrangement between Marisa and Brenda was prompted by statements made by Brenda about Marisa’s intellectual impairments. These matters were not in issue until after the issues of custody and access were raised, by Vito, and thus could not have prompted them. Vito has the order reversed. After the issue had been raised, by him, he showed the court materials to Marisa, to persuade her that her mother was saying unkind things about her. Until April 2007, the only issues in this case were spousal support and equalization.

[227] I do not accept that Marisa saw and understood the allegations as a result of conduct “by her lawyer”. Nowhere, in any of the materials, does Brenda describe her daughter as “mental”. She never says this. And yet, over and over, this is the characterization placed on it by Vito. Vito prepared a brief of the statements made by Brenda about Marisa in court materials. This brief is designed to create the impression that Brenda denigrates Marisa’s abilities. Vito showed this brief to Marisa. I find that he did so, not Marisa’s lawyers, and that he did so to persuade Marisa that her mother thinks she is “mental” and a “baby”. I find that these are Vito’s words, not Brenda’s. And they were used with the purpose of vilifying Brenda in the mind of her daughter.

[228] I have reviewed all of the statements made by Brenda in her affidavits that are listed in Vito’s brief. They are not criticisms of Marisa. They are descriptions. And, based on the evidence adduced in this proceeding, they are fair and accurate summaries of Marisa’s challenges.

[229] It is hardly unusual that Marisa is sensitive about her disability. She does not want to be labeled. And certainly she does not want to be labeled in a derogatory fashion. How hurtful it would be to think that her own mother, the person who raised her, was using such demeaning, hurtful language to describe her.

[230] Vito may be sincere in his optimism for Marisa’s future. He is not sincere in the distinction he has drawn between his own and Brenda’s appreciation of Marisa’s capacities. Vito knows full well that Marisa has a significant intellectual impairment. He knows full well that, whatever progress Marisa has made, she is still not able to live independently. He knows full well that Marisa needs support. He has manipulated this issue to portray Brenda as holding a low opinion of Marisa and her abilities, to make Marisa feel angry with her mother. It is transparent that this is what he has done. And in doing this, he has preyed directly on one of his daughter’s vulnerabilities to turn her against her own mother.

Alleged Serious Misconduct by John

[231] John is a retired member of the Ontario Provincial Police. He impressed me as a thoughtful and easy-going man, caught in a difficult situation. He has handled this situation with moderation and professionalism. He should not be tainted by the smear that attends the serious allegations made against him.

[232] In the spring of 2007, Vito alleged that John took, or attempted to take, pictures of Marisa and her friend, Elizabeth Hennig, in their underwear. This was alleged to have taken place at John’s home during a birthday party for Marisa on […], 2006.

[233] In his testimony, John summarized his understanding of the gist of the allegation as follows: “… at some point during a birthday party at my residence, while her mother was momentarily out of the room, I got Marisa and her girlfriend [Elizabeth] to pull down their pants and I took pictures of them in their underwear”. When asked in direct if these events actually occurred, John responded “absolutely not”. He was not cross-examined on this issue. It was never suggested to him by Vito’s counsel that he had actually done this thing.

[234] I heard testimony from Elizabeth’s father, David Hennig. Mr. Hennig was not asked by either side about this incident itself. Rather, he was asked about its aftermath.

[235] Mr. Hennig testified that his daughter Elizabeth, roughly six years older than Marisa, is developmentally handicapped “with traits of autism as outlined through an assessment by CAMH”.[^32] He told me that Elizabeth had known Marisa for about ten years, and that they were “very good friends”.

[236] At the time of the trial, Marisa and Elizabeth were not seeing each other anymore “as per Mr. Perino’s guidelines and orders”. They stopped seeing each after Vito claimed that John had acted improperly. In pursuing this claim, Vito obtained “signed statements” from both Marisa and Elizabeth. This was an improper thing for Vito to do. As regards Marisa, this was not a proper way to investigate a serious allegation of misconduct towards a vulnerable person. As regards Elizabeth, this was doubly improper: it failed to recognize Elizabeth’s vulnerability, and it should never have been done without first consulting her parents.

[237] The day after Vito took the statements, Mr. Hennig and Elizabeth went over to Vito’s house to discuss matters. Mr. Hennig testified that, based on what Vito said, “it was signed and so far as he was concerned it was something that had occurred”.

[238] Mr. Hennig testified that Elizabeth told him that she had signed the document because Vito had told her she had to or else she would not be able to see Marisa any more.[^33]

[239] Mr. Hennig summarized his information, including what he had been told by his daughter, and put it in an email. He subsequently provided an affidavit in these proceedings, attesting to the truth of the events I have just described. Once that affidavit was produced in the proceedings, in July 2007, all contact between Elizabeth and Marisa came to an end. Mr. Hennig testified that Vito telephoned him and told him that he did not want Elizabeth phoning Marisa any more.

[240] The two friends have not seen each other since, except in passing on the street or at the mall.

[241] The incident has had an unfortunate effect for both Marisa and Elizabeth. They could have been described as “best friends” before this incident. Vito has ended that. It is hard to fathom why he could possibly think that ending this close friendship was in his daughter’s best interests. I was not given an explanation for this by Vito. I presume that Vito has done this either because he is angry at this young woman’s parents for not believing the story of abuse, or that he is concerned that continuing contact between Marisa and Elizabeth might have led Marisa to reconsider whether the incident had ever happened.

[242] John reported these allegations to Peel Regional Police as soon as he heard of them. No charges were ever brought. John is not aware of whether there was an investigation.

[243] Vito did not allege, during the trial, that this incident took place. However, he indicated in his testimony that he believes that it did, on the basis that he “believes his daughter”.

[244] It is clear that Marisa now believes that John did these things, and that he is a “pervert” (a word she has clearly come to associate with John as a result of Vito’s use of this word).

[245] It is important for Marisa, for John, for Brenda, and for Vito, that this issue be laid to rest. This is far too serious an allegation to have lurking over the family. It should have been reported to authorities. It should have been investigated.

[246] I draw an adverse inference from Vito’s failure to pursue this allegation in the trial before me. This is the only event that has been described that could possibly justify the estrangement between Marisa and Brenda. No other reason has been given to explain it. Vito’s failure to make the allegation, or to prove it, undermines his stated belief that it actually happened. Vito does not want the allegation investigated. Why? Because a close investigation of it might reveal that it has been concocted, by him, and then “sold” to Marisa, who now believes it.

[247] I cannot conclude that this is what has happened. Marisa’s counsel pointed out the proximity of this allegation with Brenda’s motion for spousal support. There is a tempting inference floating between those two events, but that is too frail a basis on which to draw firm conclusions.

[248] What I do conclude, however, is that if Vito honestly believed this allegation to be true, he would have pursued it at the time.

[249] John, of course, is an innocent man, by presumption of law. But that precept carries limited moral suasion in this family law proceeding. It colours this case: I am convinced that Marisa believes the incident happened, believes that John is a “pervert”, is afraid of John, and holds her mother responsible (a) for exposing her to John in the first place; and (b) continuing in a relationship with John since the incident.

[250] It was strongly in everyone’s best interests that this incident be fully investigated at the time it took place.

[251] The timing of these allegations does not assist Vito here. If this incident happened in October 2006, why did he wait until May 2007 to raise it? If he believed John had done these things, why did he not go to police or the Children’s Aid Society? Why did he not consult with Elizabeth’s parents about what to do, instead of forging ahead on his own? Why did he not explain his motivation for obtaining a “signed statement” from two vulnerable young women? Did he not understand that inappropriate questioning of a victim of this kind of abuse can so taint their evidence as to render investigation difficult?

[252] I wish there had been a timely report of this incident to authorities. I wish I had been provided with all of the evidence on this issue. Everyone involved in this case deserves to have that issue aired fully. I am impelled to one conclusion on this issue by Vito’s conduct here. He does not have the courage of his stated convictions. If he truly believed this happened, he would have pursued it in October 2006; he would have pursued it at trial.

[253] I conclude that the incident never happened. I do not know if it was invented entirely by Vito, or whether there is some explanation for why he raised the allegation initially. I am satisfied that he has come to know, or willfully shut his eyes to the truth, that this never happened.

[254] I am also satisfied that this incident continues to be used by Vito as part of his battle for Marisa’s heart and mind. He “believes” his daughter, where no one else does. His “faith” in her sets him apart from Marisa’s mother, who “believes” her boyfriend and not Marisa. This is how Vito has positioned this issue. I say this clearly, more for Marisa’s benefit than Vito’s: Vito does not truly believe this. He would do anything to protect Marisa from harm. If he had believed that John had done this in October 2006, he would have dealt with it immediately. And he would not have backed down at trial. And even if he knew he could not “prove” that it happened, he would be at great pains to show the court that he was sincere, and had a reasonable basis for saying what he has said, and doing what he has done.

[255] John is part of Brenda’s life. She should not be required to choose between her daughter and John.

[256] Brenda has not proposed a course of counseling or treatment to address this issue among herself, Marisa, and John. This may have been wise. She needs to re-establish her own relationship with Marisa before trying to address this one. However, if possible, it needs to be addressed.

[257] For now, given Marisa’s sincere concerns about John, Brenda’s access with Marisa will not be exercised in John’s presence. This is for Marisa’s comfort, and is not based on a conclusion that there is any truth to the allegations against John. In the coming weeks and months, the parties will work with Marisa’s counsel to devise a plan to try to address this issue in the future.

[258] Vito is ordered not to say anything derogatory about John to Marisa, or to permit anyone else to do so in Marisa’s presence.

Marisa’s Social Life

[259] I find that Marisa’s social life has been impaired as a result of the estrangement from her mother. Of course, Brenda was a fundamental figure in Marisa’s life. That is the most significant loss for her. But there is more. Marisa has been deprived of a healthy and happy relationship with Brenda’s new boyfriend, John. This was most unjust, and may be very difficult to repair now.

[260] There is more. Marisa has lost contact with Elizabeth, who used to be her best friend. She no longer has contact with Brenda’s family. I heard from Laurie Anne Switzer, Marisa’s aunt (Brenda’s sister). Marisa used to visit the Switzers with Brenda, especially at holiday times. That ended with Brenda’s estrangement. Of course, Brenda could not take Marisa to see her aunt. But it went beyond that. Ms. Switzer tried to make contact over the Christmas period, for a short visit, to give Marisa some gifts. Ms. Switzer did talk briefly with Marisa on the telephone but was told that “Marisa was not able to come” out for a brief visit or to get her presents.

[261] I conclude that Vito has systematically prevented Marisa from contact with anyone associated with Brenda. And when Vito went so far as to exclude Elizabeth from Marisa’s life, he was doing so on the basis that he saw Elizabeth’s parents as “siding with” Brenda. Elizabeth’s parents were “siding” with Elizabeth, as they ought to have done. Vito’s perception of the matter is restricted to a tunnel-vision view of what he conceives as a titanic struggle for the heart and mind of his daughter.

Marisa’s Programs

[262] I accept that Marisa continues to make good progress. I do not accept that Brenda held her progress back. I do not accept that Vito is a better caregiver for Marisa than Brenda.

[263] Brenda managed Marisa’s care from the time she was born until May 2007. Brenda liaised with schools and service providers to obtain services for Marisa. There is no evidence, whatsoever, that Brenda did anything other than an excellent job in doing these things for a period of 22 years.

[264] When Marisa aged out of the public school system, it was Brenda who arranged programs at Community Living and the Mary Centre. It was Brenda who facilitated Marisa’s work, through the programs, and drove her to and from work.

[265] Vito testified that he and Brenda would discuss these things between themselves. I accept this evidence. Vito was not “uninvolved” or “uncaring” about these things. I expect he cared about them very much. He was not available to do these things because he was working hard to support his family. I accept that he went to family events for Marisa, when they were in the evenings or on weekends and he was available to go. He did what he could, and I do not doubt that he did it out of love and support for Marisa. But to suggest that Brenda was holding her daughter back is most unfair. It is also completely unsupported by any independent evidence.

[266] Vito testified:

Marisa has high potential to become fully independent…. My worries for Marisa are where she is going to be in 25-30 years from now. I always thought she had potential to reach her goal and I believe she can…. Brenda always thought that she had a disabled daughter. Brenda often told me that she was having a hard time with her – her expression was that she has become a burden. Everywhere I go she is behind my ass and I have to bring her everywhere.

This captures, in a nutshell, the way Vito has positioned his relationship with Marisa and Brenda’s relationship with her. I wonder if he believes it? Could he believe it? I suppose he might believe it. But how could he believe it?

[267] I do not know what is meant by “fully independent”. Vito acknowledged that his daughter had never taken public transit by herself. He hopes and expects that one day she will be able to do that. Marisa herself acknowledges that she is not able to live on her own outside her father’s home. This was suggested to her late in the trial process, and apparently is something she would like to work towards. The placement being discussed is a supported independent living environment, though, and not renting an apartment by herself and living entirely on her own.

[268] I accept Vito’s evidence that Marisa takes an active interest in her own diet, and has expanded her food interests to include things like salads, which she makes herself. I accept that she does well monitoring her own sugar intake, and takes pride in pointing this out to him when they are shopping by reviewing foods for their sugar content. I accept that she likes to dress well, and in a more adult fashion than she did when she was younger. I accept that Marisa takes pride in her own appearance, and spends time and care on such things as makeup and personal hygiene.

[269] As for the negative comments attributed to Brenda, I call these the “causation” and “respite” issues.

[270] Vito has not emancipated his daughter from a dour and overbearing mother. Brenda is not to blame for Marisa’s disability. Nor is she to blame for Marisa’s progress in overcoming it. Rather, Brenda deserves respect, gratitude and praise for all that she has done.

[271] Vito’s evidence is that Marisa has made good progress since May 2007. I accept that she has, and that she and Vito are justifiably proud of what Marisa has accomplished. But there is no reason to believe that Marisa would not have fared just as well under Brenda’s care. There is no evidence that progress was “slow” or “held back” before May 2007, and that suddenly Marisa “blossomed”. If Vito had really believed this, he would have been well advised to bring evidence to the court to show that his care of Marisa has been so much better for Marisa than had been her mother’s. The evidence of the one care provider who testified does not say this. It attests to Marisa continuing to make good progress. It says nothing about the quality of Marisa’s care up to may 2009.

[272] There is a further point to be made here. There are some aspects of the services provided for Marisa after May 2007 that have not been good. There have been increased isolation. There have been periods when there were significant gaps in Marisa’s attendance at programs, gaps that were plugged rather coincidentally with scheduled court re-attendances.

[273] I want to be clear that I am not critical of Vito’s overall care of Marisa, apart from issues of isolation and deliberate estrangement from her mother. Marisa is healthy. She seems happy, apart from the stress over the conflict between her parents. She is continuing to make good progress. On the basis of the evidence before me, it is reasonable to hope that one day Marisa would do well living independently of her parents in a supported living environment. If both her parents are active supports for her, it may make this possible earlier and certainly will make that new arrangement better for her.

[274] In respect to the “respite” issue I must be more circumspect. It was put to Brenda that her sense of Marisa’s realistic expectations was not as optimistic as Vito’s. This point was put less neutrally: that Brenda thinks Marisa is a child and will always be a child, and that’s how she treats her. I did not hear from a single independent witness that Brenda treats her daughter inappropriately. Only Vito.

[275] Which brings me to comments attributed to Brenda describing Marisa as a “burden”.

[276] Marisa, as a living, breathing, loving person, is not a “burden”. She is a wonderful daughter, and both Brenda and Vito love her.

[277] Caring for a child with significant developmental issues is, however, a burden. It has been a burden for Vito. It has been a burden for Brenda. It has been a burden for Dominic. Most of all it has been, it is, a burden for Marisa. It is hard. It may be filled with joy and love, but it is also filled with challenge, commitment, and foregone opportunities.

[278] I do not know what Vito and Brenda may have said to each other about this task, in Brenda’s words, “what God has given” them. It is surely enough that Vito and Brenda have been “given” this task. It is surely enough that they have bent themselves to it for years. It is surely enough that they both continue in their commitment to their daughter, to love and support her and be there for her. Is it fair to go further and demand that they be saints, and never grumble or complain, never get tired or frustrated, always accept whatever is thrown their way, with a smile, with no complaint? I accept that Brenda may well have expressed less than perfect sentiments, in times of stress and anguish, in times of fatigue. She did this task, largely on her own, for two decades. She would be superhuman if she had not, sometimes, to her trusted husband, and the other person “given” this task, share some of how she was feeling. To turn that around in this trial to suggest that Brenda does not care about her daughter, and considers her nothing but a “burden”, with no prospects for improvement, is unfair and untrue.

Primary Residence

(i) Leaving Marisa With Vito

[279] Marisa has been clear and consistent that she wishes to continue to live with her father in the matrimonial home. By the end of the trial, Marisa had indicated an interest in living independently from both of her parents one day.

[280] In granting this order, I leave Vito as the de facto primary parent.

[281] Whether under the Substitute Decisions Act or under a custody and access order, a person in Vito’s position has a high duty to facilitate and encourage someone in Marisa’s position to maintain a close and happy relationship with all involved members of the family. What Vito has done, since May 2007, has been a profound violation of his duty to Marisa.

[282] If I concluded that Vito will continue to violate this important duty, this, by itself, could justify terminating his primary role in Marisa’s life. And, in my view, in the overall circumstances of this case, it would justify it. And I would do it.

[283] I am convinced, however, that Marisa truly is of great importance in Vito’s life. And while I do not expect that Vito will suddenly recognize that he has been wrong, and wholeheartedly embrace the principles set out in this decision, I do expect that he will recognize that, as a consequence of this decision, he will have to change his behavior, or he will lose his primary role in Marisa’s life. Indeed, if he persisted in his conduct after a change in primary residence, he could lose having any role in Marisa’s life.

[284] My decision does not require Vito to agree with me. It does not require Vito to apologize. It does not require him to like Brenda or to have a good relationship with her. It does require that he treat Brenda with respect, and that he conduct himself on the basis that it is acceptable, to him, for his daughter to have a healthy and loving relationship with Brenda. It will be hard for Vito to do this, despite his protestations that he has always encouraged the relationship between Brenda and Marisa. But I think, on balance, he will do it, because the consequences of not doing it, for him and for Marisa, would be serious.

(ii) Placing Marisa With Brenda

[285] It was never Brenda’s primary goal to compel Marisa to move in with her. Brenda moved out of the family home and left Marisa living there. She continued in this pattern for a year and nine months and never once suggested that Marisa should move out and move in with her. She did not claim custody or seek Marisa’s primary residence with her in her application. It was only when Vito manipulated the situation to terminate access that Brenda raised this issue, and then only in frustration, as she came to conclude that she could never have a healthy access relationship with Marisa if Marisa continued to live with Vito.

[286] Brenda’s counsel argued that everything has been tried and has failed, and that now the only course is for an order that Marisa live with Brenda. There is much force to this argument.

[287] On the other hand, there is no plan for Marisa and Brenda to live together. Brenda now lives with John, and it is clear that Marisa would not be comfortable living there, at this time. Mr. Trenholme argued that suitable arrangements could be made once the order has been made. This is not very persuasive. It would be jarring for Marisa to be forced, against her will, to move from her home. To be told that she was moving, but not where and into what environment, would add to the stress. With respect, when a party seeks to have a child in her primary residence, it is incumbent on that party to provide the court with a concrete and practical plan.

[288] If I had decided that Marisa should live with her mother, I would have made that order subject to a suitable plan being put before the court. The delay between my order and approval and implementation of the plan would have been extremely stressful for everyone, especially Marisa. And if I had determined that the plan was not acceptable, that would have led to yet further litigation and uncertainty.

[289] This is beside the point now, in view of my decision to leave Marisa with Vito. But Brenda must understand that if difficulties implementing my order lead her to seek a variation of it to change primary residence, she needs to offer a concrete plan to the court.

(iii) Marisa Living Independently of Both Parents

[290] As I have mentioned, it is possible that one day Marisa will wish to live independently of both of her parents. My order should not be taken as precluding or prejudging that option. I make no finding on whether Marisa may be able to live away from both Brenda and Vito some day. Should this develop as a feasible option that Marisa wants, it is to be hoped that the parties will be able to agree upon it. If not, either of them, or Marisa, may seek a variation of my order.

Access

[291] Before the estrangement, Brenda saw Marisa almost daily, and had primary responsibility for supervising her during the day. Ideally, that arrangement will be resumed, subject to the exigencies of the party’s schedules and Marisa’s needs and schedule. Not only did this work well for Marisa, but it maintained an efficient balance of responsibility within the family.

[292] As I indicate in my reasons on spousal support, it is not open to Vito to unilaterally redefine his and Brenda’s roles, and decide that he will reduce his income and that as a result Brenda will have to increase hers.

[293] That said, the situation has changed since the estrangement in April 2007. Marisa has new routines and new people in her life. Brenda is no longer welcome in the matrimonial home. Things will never to return to precisely where they were prior to April 2007.

[294] To start, I order access for two days per week, Saturdays and Wednesdays. The parties may change the days and times, on consent, before settling the final form of the order; if they disagree on the best days then they may address this issue in brief written submissions. Pending the final order being issued, the parties will strictly observe the schedule I am providing in this decision.

[295] I direct Ms. Burns, with such assistance from Mr. Cross as she requires, to facilitate implementation of these initial access terms.

[296] The access order is intended to start the process of establishing an appropriate access regime. The goal of the process is to reintegrate Brenda into the regular fabric of Marisa’s life. This will require input from both of the parties and Marisa. Ms. Burns, with such assistance as she requires from Mr. Cross, is directed to facilitate this process on Marisa’s behalf.

[297] The parties or Marisa may seek directions from the court on implementation of the access order.

[298] The trial judgment must be settled before me; directions respecting the access order may be sought from the court after the final order has been issued. Ms. Burns is directed to write to Regional Senior Justice Van Melle requesting Her Honour to appoint a judge to supervise implementation of this judgment and any matters arising from it after it has been issued and entered.

Marisa’s Medical, Educational and Program Records and Information

[299] Marisa argues that her personal information belongs to her, and that she should be the person who decides who has access to it.

[300] Prior to estrangement, Brenda was responsible for these aspects of Marisa’s life. There is no evidence that she ever made Marisa undergo treatment she did not agree to, or participate in programs she did not want to attend. Vito’s nebulous, unparticularized allegations to the contrary around April 2007 hold no weight.

[301] I am content to leave the power to decide to Marisa by not making an order in respect to that incident of custody. This does not mean that I have found that she can or should make these decisions on her own. Rather, I am satisfied that, in consultation with her parents, Marisa will select appropriate programs and attend to her health properly.

[302] I am not content to leave the issue of access to records and information to Marisa. For no good reason, Brenda was denied information about these matters during the period of estrangement. Vito testified that this was at Marisa’s direction. The records from Marisa’s doctor did not disclose that she provided this instruction to the doctor, and the doctor did not testify at trial.

[303] I have similar concerns about Marisa’s programs. There were significant gaps in Marisa’s attendance and enrolment in suitable programs during the period of her estrangement. Brenda was not provided with information about this in a timely way. In my view, this refusal to provide information or access to information to Brenda was all part of Vito’s campaign to blot Brenda out of Marisa’s life.

Spousal Support

[304] The Divorce Act provides:

(1) The Court may make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum(s) or periodic sums as the court thinks reasonable for the support of the other spouse (s.15.2(1)).

(2) The court may make an order for spousal support for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just (s.15.2(3)).

(3) In making an order for spousal support, 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) and order, agreement or arrangement relating to support (s.15.2(4)).

(4) An order for spousal support should (a) recognize any economic disadvantages or advantages arising from the marriage or its breakdown, (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage and above any obligation for the support of any child of the marriage, (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage, and (d) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time (s.15.2(6)).

[305] The court must examine all four objectives set out in s.15.2(6), from the perspective of both spouses, to achieve an equitable sharing of the economic consequences of the marriage and of marriage breakdown. This implies a broad approach to recognizing and incorporating significant features of the marriage or its termination which adversely affect the economic prospects of the spouses.[^34]

[306] Where it is not possible to determine the extent of the economic loss of a disadvantaged spouse, the court will consider need and a reasonable standard of living as primary criteria, together with the ability to pay of the other party.[^35]

[307] The court may impute income where a party’s lifestyle indicates that his/her income is greater than claimed or where the party is deliberately underemployed.[^36]

Brenda’s Income

[308] Brenda never finished high school and never had significant employment prior to separation. She worked part-time as a retail clerk for Sears many years ago, for about seven months. She worked part-time at Good Life Fitness in a clerical capacity, earning about $96 per week for 12 hours work. She was in this employment at the time of separation. She was terminated from this work in May 2007, not for cause, and for no explanation. Brenda found new employment at another fitness facility, Curves, on October 7, 2007. She earned $9.50 per hour for 16 hours per week. After a 3 month probation period, this wage was increased to $10 per hour.

[309] Brenda testified that she has taken other steps to find employment. She applied for a job as a meter-reader; she was interviewed but did not get the job. She applied for a job at a veterinarian’s office, without success. She placed a resume on “workopolis”. She mailed her resume to various employment agencies. She has not found employment, aside from the part-time work at Curves.

[310] Brenda says that she has not been supported by her boyfriend, John. Until close to the end of trial, they had not been living together. John loaned her some money for a car, but she paid that back. They have taken one or two trips together, and he may have paid more than half the cost. John is a member of a motorcycle club made up of retired police officers. They sometimes take short trips. When that happens, if Brenda goes too, John pays for that. Brenda was recalled at the end of the defence case. She testified that she had recently moved in with John, and was paying him $400 per month as rent and towards monthly expenses.

[311] I am satisfied that Brenda has limited employment opportunities, in large part because of the role she played in the marriage. I agree with Vito that she should be able to find full-time employment. I doubt that this employment would pay her more than the cost of hiring someone to assist Marisa, the role Brenda performed throughout the marriage, and for nearly two years after separation.

[312] I agree with Vito that Brenda could be working more than 16 hours per week. If she was working 30 hours per week, at $10 per hour, she would earn roughly $15,000 per year. I impute that amount to her.

Vito’s Income

[313] Up to 1999, Vito was employed as an airplane mechanic at Canadian Airlines. I was not told what he earned in this employment. He described this employment as “stressed” because it involved a lot of shiftwork. He decided to open his own business, Aerotech, which he did in April 1999. He described this as “part-time” at first. In the years 2002-2004, Vito took draws from Aerotech of between $50,000 to $54,000. He acknowledged receiving some income in addition to these draws during this period, which he described as “barter” (dental services to a value of about $30,000 over roughly three years). This would increase the value of his income by about $10,000 per year, with a small gross up for tax. Vito denies that there were any other unrecorded income transactions during this period. I have doubts about this but accept it for the purposes of this analysis. I place Vito’s income, for support purposes, at $62,000 to $66,000 for the years 2002-2004.

[314] Vito described Aerotech as a “family business” and said that the understanding he had with Brenda was that “they would all work at it”. I do not accept this evidence. Brenda had not worked outside the house except for low-level clerical positions. She had neither the education nor the training to be of significant help in an aircraft maintenance business.

[315] Vito testified that he expected Brenda to do things like writing cheques, ordering supplies and keeping the books. He said that sometimes she made bank deposits, but never more than that.

[316] I do not know what Vito’s expectations were for Brenda. He testified that she would not help because she said she was too busy with Marisa. He did not accept that, since Marisa had times when she was fully occupied in programs outside the home. Vito testified that there “is a lot of paperwork” in an aircraft maintenance business. I accept this evidence. But most of that paperwork was the sort of thing that Brenda could not possibly do: filling out forms recording the work that had been done on aircraft, to comply with aviation standards: all of this would have fallen to Vito regardless of who did the books.

[317] Vito testified that financial pressure was one of the sources of conflict in the marriage. Brenda disagreed. She said that they seldom discussed money. She agreed that money was always tight, and that they lived frugally. But she denied there was pressure from Vito for her to help out with the business, or for her to go to work outside the home. She acknowledged that Vito worked hard to keep food on the table. This was the division of labour they had followed throughout their marriage.

[318] In terms of general credibility, I prefer Brenda’s evidence to Vito’s, as must be clear from the rest of this judgment. On this point I am not sure. It is possible that Brenda is minimizing the stress under which Vito was living in 2004-2005, when business seemed to be doing less well. It is also possible that this has been manufactured after the fact by Vito, as is the case with some of his evidence. On balance, I cannot determine which account to accept. Either could be true.

[319] This said, the Perinos’ personal financial records – to the extent that they are in evidence – do not show a dramatic deterioration in the family’s financial affairs in 2004-2005. They had equity in their home. Vito had significant RRSP’s. There was some consumer debt, but it did not reflect financial collapse. I accept Vito’s evidence that he was under stress, and not doing as well financially as he had been. But I also conclude that money was not the tipping point for the Perinos. It may have been one of several factors, but if so, it was less significant than others.

[320] Vito testified that he sold his business and the aircraft hangar in August 2005. This was right after Brenda told him that she was leaving the marriage. Vito testified that he “went on sick leave” for about a month at this time, because of the stress. He went to his doctor. The doctor’s records were not produced.

[321] I accept that Vito was under great stress at this time. He was very upset about the end of his marriage. He may also have been under stress because of the state of his business. His decision to sell his business may have been a poor one; it may not have been. It seems, given the overall timing, that it was likely a sudden decision, perhaps arising from the stress of the separation.

[322] Marisa challenged the sale transaction in these proceedings. She says that they were concocted by Vito, and that the hangar was worth a lot more than the $70,000 Vito reports as the sale price.

[323] I cannot resolve this issue. The parties settled the equalization issue before Vito testified, and I did not receive complete evidence on this issue as a result.

[324] Vito says that after he sold the business, he became employed by the business, but at a much reduced rate of pay. He says the new owner, Mr. Vodarek, agreed to pay him $20 to $22 per hour, for an expected work week of 35 hours. Vito would commute to the Kitchener/Waterloo airport (as he had done when he owned Aerotech) at his own expense.

[325] I was not told what Vito earned when he worked at Canadian Airlines. I was not given evidence of the average rates of pay of airline mechanics, although I was told that Vito’s time is charged out at $60 to $70 per hour. Vito’s rate of pay strikes me as singularly low for this sort of specialized mechanic’s work, but I have not been provided with much of a factual record, by either side, to draw firm conclusions. I note here that Vito was licensed as an M1 and M2 aircraft mechanic. Vito told me that this restricted him to working on smaller aircraft of up to 12,500 pounds.

[326] Vito generally agreed with Brenda’s general description of the arrangements for Marisa after separation: he placed his pick-up time of Marisa in the evenings at around 5pm rather than 6pm, but otherwise his evidence corresponds with Brenda’s. Nothing turns on the one hour difference; either way, Vito could continue to work full-time..

[327] Vito testified that he continued to work as an employee at Aerotech, after he sold the company, at reduced wages, until December 31, 2006. He says he was then unemployed until March 2007, when he took a new job that paid him $20 per hour. He says he was paid on an “as-billed” basis, and that he averaged billing 6 to 6.5 hours a day. Vito testified that time taken away from work to attend to this court case cost him the difference between the hours he actually worked and a regular 8 hour day.

[328] I do not accept this. I accept that Vito will have had some time away from work to deal with this litigation. But it pales in comparison to the time he has had away from work to care for Marisa. On the evidence, Marisa is never alone for any extended period. Vito has had people to help 4-5 hours per day. Sometimes he has left Marisa with his own mother. But it is clear that he has also spent considerable time not working because he has been with Marisa.

[329] There was no evidence that, after Vito sold his business, he sought employment with a major company like Air Canada or Westjet. I have no evidence of whether such employment could have been available to him, at what rates of pay, or why he did not seek it. Similarly, there was no evidence of the general market for aircraft mechanics. It is clear that this is skilled work, with licensing requirements. Vito was highly experienced, and I would have expected him to adduce evidence of his general efforts to find work if he wished to establish that he was not able to earn the kind of income he had been accustomed to earning traditionally.

[330] I am satisfied that, on balance, the reason Vito has not been earning the income he has earned historically is because he has been spending a lot of time looking after Marisa. That is the rub of this case financially. Until May 2007, Vito earned a living for the family and Brenda cared for Marisa. As of May, 2007, Brenda was excluded from her historic role. Vito, with help, assumed Brenda’s role and reduced his work hours. He now wishes to pay support based on his reduced income.

[331] I can accept that there have been depressions in Vito’s employment income. I can accept that Vito was in great distress after the separation, and that for that reason he sold his business and took a month from work. I do not accept that he has been earning a depressed income since May 2007 because he is unable to find suitably remunerative employment. He made a choice – to exclude Brenda, and then to work less as a consequence: he testified “I cannot earn more money because of responsibilities I have with Marisa right now”. I find that he could have been working at competitive wages throughout the time since separation, with perhaps a few brief periods earning less.

[332] Put in simple terms, it was not open to Vito to unilaterally decide that he would reduce work to care for Marisa, and transfer the cost of that decision, his decision, to Brenda. And that is precisely what he did. Whatever Vito’s actual income might be, I would impute income to him to at least the level he was earning at Aerotech before he sold it. I do so because Vito is intentionally underemployed. I place this at somewhat under the average of the range for 2002-2004, at $60,000 per annum.

[333] I also find that Vito has not been truthful about his actual income. Vito claims he is now earning about $24,000 a year and has been making much less than $50,000 per annum since separation. I really do not know what Vito is actually earning, but it is clearly a lot more than he says it is..

[334] Vito was cross examined about his financial statements. He confirmed that his claimed monthly expenses are roughly accurate. They show a shortfall of about $$900 to $1,000 a month. He says he has been incurring that shortfall roughly since separation (August 2005 to August of 2009 = 48 months: this would produce a shortfall of between $43,000 and $48,000. And this does not take account of roughly three months when he was between jobs and one month when he stopped working on a “stress leave”, when he had no income at all.

[335] Vito explained that he has borrowed substantial sums – slightly more than $160,000 since August 2005. Assuming, without accepting, that this is so, it still does not avail Vito: he acknowledges having spent more than $172,000 in legal fees for himself and for Marisa during the same period, none of which is accounted for on his financial statement. On these numbers alone, there is $60,000 not accounted for over this period (the $48,000 shortfall in monthly expenses, and the amount his legal fees exceed his borrowings). This works out to roughly $15,000 per year. Grossing this amount up for tax and adding it to his reported income would place Vito’s income in the mid-$40,000’s. All of this is net of the support Vito has paid to Brenda (which was averaging between $850 to $1029 per month until it stopped). It seems likely that Vito’s income has continued to compare to what he was earning at Aerotech. However we cannot be sure of this because he was not told the truth.[^37] To the extent that he has not earned this much, it is because he has chosen to be deliberately underemployed, in part to take care of Marisa. And he did this as a consequence of and for the purpose of excluding Brenda from Marisa’s life.

[336] On Vito’s evidence, his cycle of increasing debt has no apparent end. When asked if he has taken any steps to find a better job, to relieve his financial situation, he responded “I will as soon as Marisa is situated”. I was not told what Vito meant by this: at the time of this testimony there was no proposal that Marisa’s “situation” was likely to change any time soon.

[337] On Vito’s figures he must be insolvent.

[338] This case began about spousal support. Vito could have paid more than ten years of spousal support for what it has cost him to defend this proceeding. If tax deductibility is taken into account, he could have paid twenty years of support. This court shakes its head in wonder and disbelief. But for all the money spent on this proceeding, perhaps he and Brenda might have had some money to pass on for Marisa’s benefit one day. Now that seems extremely unlikely.

Notional Child Support Payable By Brenda

[339] I agree with Vito’s position that Brenda has an obligation to pay child support for Marisa. This should be netted against the spousal support payable from Vito to Brenda.

Findings

[340] I impute income to Brenda of $15,000 and I impute income to Vito of $60,000. Marisa has no income other than her ODSP benefits (roughly $12,000). I do not impute income to Brenda as a result of her living with John, although I acknowledge that this arrangement does reduce her expenses. I also note that she moved in with John because she could no longer meet her expenses.

[341] Vito shall pay spousal support of $1,500 per month, retroactive to the date of separation. This figure is net of Brenda’s child support obligation.

[342] Vito shall pay interest on arrears calculated in accordance with the interim support awards that have been made in this case. Vito will be given credit towards support for $400 per month of Marisa’s ODSP benefits, to May 2007, as well as all payments made or characterized as made on account of support.

[343] Vito will likely not be in a position to pay his arrears immediately. It is in no one’s interest for Vito to lose his driver’s license as a consequence of enforcement steps that could be taken by the Family Responsibility Office. Current support shall be enforceable immediately, retroactively effective to January 1, 2012. If the parties cannot agree on calculation of or terms for payment of the arrears to December 31, 2011, then they will make written submissions on this issue when they deliver their costs submissions.

Release of this Decision

[344] Ms. Burns asked that I release the decision to her two days before releasing it to the other parties, so that she would have a fair chance to explain it to Marisa and obtain her instructions. The other parties did not object.

[345] In view of the inappropriate attempt to interfere with Marisa’s relationship with her solicitor during the trial process, I concluded that it would be reasonable to follow this unusual approach in this case. The decision is released to Ms. Burns, who may disclose it to her client and to Stephen Cross, on January 10, 2012. The decision is released to the parties and publicly on January 12, 2012. Ms. Burns, Mr. Cross and Marisa are ordered not to disclose the substance of the decision to anyone else prior to 10:00 a.m. on January 12, 2012.

[346] I do not release the portion of this decision dealing with spousal support (paragraphs 304-343) to Ms. Burns in advance on January 10, 2012.

Costs

[347] If the parties cannot agree upon costs then they shall exchange written submissions as follows:

(a) Ms. Burns shall advise if she is seeking costs by January 19, 2012. If she is, she shall serve and file those submissions by January 26, 2012.

(b) Brenda shall serve and file her costs submissions by February 9, 2012;

(c) Vito shall serve and file his costs submissions by February 23, 2012;

(d) there shall be no reply or oral submissions unless I direct otherwise.

[348] Any issues concerning calculation of spousal support arrears, terms of payment of those arrears, or the form of the formal judgment shall be addressed in written submissions delivered with the written costs submissions.

[349] Any issues concerning implementation of this judgment shall be brought back before me, on short notice if necessary, pending appointment by Van Melle R.S.J. of a judge to supervise implementation of this judgment.

[350] Judgment to issue in accordance with these reasons.

D.L. CORBETT J.

Released: January 12, 2012

[^1]: The parties differ slightly over the date of separation. Brenda says it was August 20, 2005, the day she left the matrimonial home for good. Vito says it was September 1, 2005, the day that Brenda’s lease for an apartment commenced. It does not appear to me that anything now turns on this issue. In case either of the parties considers this still to be important, I prefer Brenda’s position to Vito’s. Brenda had decided to leave, and had communicated her decision. The date she signed the new lease is not relevant: many separated couples continue to live separate and apart under the same roof, sometimes for extended periods after separation.

[^2]: It was not clear to me whether this co-op placement was through Community Living or Marisa’s high school.

[^3]: Brenda agreed that in 2005, during a co-op placement at Walmart, a teaching aide had suggested that Marisa take the bus to work on her own. Brenda testified that she and Vito discussed this and decided that they were not confident that Marisa was ready to do that on her own. Vito did not testify on this point.

[^4]: Brenda was challenged on this point in cross-examination. It was suggested to her that this was her own diagnosis, based perhaps on her own internet research. Brenda responded that this was the diagnosis provided at the Hospital for Sick Children in the1980’s. She did not have the records available to her to show this, but she had not made this up herself. Vito did not testify on this point.

[^5]: I stayed this order temporarily, on April 8, 2008, until May 15, 2008, when access was to be discussed at a conference.

[^6]: I quote frequently and copiously from prior decisions in this case. They are an important part of the trial context in this case, and underscore the legislative lacunae facing adult disabled children in custody and access disputes.

[^7]: Perino v. Perino (2008), 2008 11048 (ON SC), 52 R.F.L. (6th) 341 (S.C.J., at paras. 5-6, 8, per Murray J.

[^8]: Perino v. Perino (2008), 2008 11048 (ON SC), 52 R.F.L. (6th) 341 (S.C.J.), per Murray J., at paras. 32-53.

[^9]: Other pre-trial appearances included August 28, 2007 (largely procedural order, per Mackenzie J.), December 11, 2008 (consent procedural order , per Corbett J.).

[^10]: There were numerous other appearances in this case not summarized in my decision: December 20, 2006, April 23, May 3 and 17, September 5, November 26, 2007, April 8, 2008 (adjournments), May 5, 2008 (settlement conference), May 22, 2008 (motion dismissed as “all issues still outstanding to be determined at trial”, June 10, 2008 (refraining order)

[^11]: In October 2007, the parties had previously settled the issues regarding the matrimonial home: Brenda transferred her interest in it to Vito and received $93,000 in return: Trial Exhibit s #3 and 4.

[^12]: Perino v. Perino (August 6, 2009), 2009 CarswellOnt 4708, [2010] W.D.F.L. 1072.

[^13]: 2006 ONCJ 118, per Karswick J. (Ont. C.J.).

[^14]: See, for example, Cassar v. Cassar, [2002] O.J. No. 657 (S.C.J.), per Langdon J. See also Ross v. Ross (2004) 2004 BCCA 131, 2 R.F.L. (6th) 200 (B.C.C.A.).

[^15]: Perino v. Perino (2008), 2008 11048 (ON SC), 52 R.F.L. (6th) 341 (Ont. S.C.J.), per Murray J.

[^16]: sub nom. M.T.R. v. I.S.R. (2003), 2003 BCSC 384, 34 R.F.L. (5th) 123 (B.C.S.C.).

[^17]: (2004), 2004 BCCA 131, 2 R.F.L. (6th) 200 (B.C.C.A.).

[^18]: At paras. 26 and 27.

[^19]: At paras. 19 and 22.

[^20]: Perino v. Perino (2009), 2009 82009 (ON SC), 99 O.R. (3d) 575, 52 E.T.R. (3d) 62, 76 R.F.L. (6th) 179, 85 C.P.C. (6th) 162.

[^21]: Perino v. Perino (unreported endorsement, October 16, 2009).

[^22]: Trial Exhibit 31.

[^23]: Marisa Perino’s Closing Argument, para. 94.

[^24]: The first visit preceded, but was premised upon, the minutes.

[^25]: Marisa’s Closing Argument, para. 122.

[^26]: In the midst of the cross examination of Vito by Ms. Burns, Mr. Ford asked me to require Ms. Burns to advise the court of the position she would be taking at the end of the evidence. I declined to make this order, for reasons set out in an oral ruling on February 8, 2011. However, at the end of the evidence I concluded that it was reasonable to require Ms. Burns to take a clear position on the issues before oral argument, and suggested that the best place for her to do this was in written argument. This she agreed to do. I did not require the other parties to file written argument before oral submissions. No objection was taken to this direction.

[^27]: Divorce Act, R.S.C. 1985, c.3, as am., s.2(1).

[^28]: Neill v. Pellolio, 2001 6452 (ON CA), [2001] O.J. No. 4639 (C.A.), at paras. 13-15, 28-30.

[^29]: Abrams v. Abrams, [2008] O.J. No. 5207 at paras. 50, 53.

[^30]: Marisa Perino Factum, para.8.

[^31]: There may be exceptions, where a child is an important fact witness (for example, where the child has witnessed scenes of domestic violence that are contested).

[^32]: The Centre for Addiction and Mental Health.

[^33]: As I noted during the trial, this is hearsay and cannot be admitted for the truth of its contents unless under the principled exception to the hearsay principle. No application was made to admit this statement for the truth of its contents, and so I do not consider it for the truth of its contents. It do consider it, however, to explain Mr. Hennig’s state of mind and subsequent conduct and Vito’s response to it.

[^34]: Hickey v. Hickey, 1999 691 (SCC), 46 R.F.L. (4th) 1 (S.C.C.).

[^35]: Ross v. Ross (1985), 1995 6228 (NB CA), 168 N.B.R. (2d) 147 at 156 (N.B.C.A.).

[^36]: Chernyakhovsky v. Cherntakhovsky, 2005 6048 (ON SC), 2005 CarswellOnt 942 (S.C.J.); Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.).

[^37]: I note that these calculations do not include Marisa’s benefits as income to Vito, but do show them being used to defray household expenses.