COURT FILE AND PARTIES

COURT FILE NO.: FD1441/11

DATE: June 15, 2012

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Brandi Lee Bos, applicant

AND:

Sjoerd Bos, respondent

BEFORE: MITROW J.

COUNSEL: Hillary Houston for the applicant

Peter Eberlie for the respondent

HEARD: April 20, 2012

ENDORSEMENT

[ 1 ] There are two motions before the court. First is the motion brought by the applicant, Brandi Lee Bos (“Ms. Bos”), for various interim financial relief, including an interim preservation order regarding property. The second motion is brought by the respondent, Sjoerd Bos (“Mr. Bos”), seeking to implement on an interim basis the recommendations of the assessment report of Dr. Marlies Sudermann dated December 12, 2011.

[ 2 ] The parties had resolved pursuant to partial minutes of settlement all of the interim financial issues with the exception of Ms. Bos’ request for an interim preservation order against property.

[ 3 ] Accordingly, that issue and Mr. Bos’ motion were argued.

POSITION OF THE PARTIES

[ 4 ] Mr. Bos and Ms. Bos were married July 20, 1996. They have four children, namely Brianna, age 14, Mauraine, age 13, Kaylee, age 11, and Zachary, who will be age 7 on June 22, 2012. It is to be noted that Brianna will turn 15 on September 12, 2012.

[ 5 ] The details as to the parties’ separation and the details of the circumstances of the separation were summarized in the endorsement I released on October 7, 2011. As noted in that endorsement, there was some issue regarding the date of separation but, at the latest, the separation occurred in the summer of 2011.

[ 6 ] My order of October 7, 2011 (“previous order”) provided that on an interim basis the children should be in the care and control of Mr. Bos in accordance with a three week cycle as follows (and as set out in paras. 2(b), (c) and (d) of the previous order):

a) during every three week cycle, on the last two weekends from Friday after school until school on Monday morning (to be extended to Tuesday morning if Monday is a non-school day), with the three week cycle to commence Friday, October 14, 2011;

b) on the Thursday prior to Ms. Bos’ weekend with the children, the children shall be with Mr. Bos from after school Thursday until Friday morning school time;

c) commencing October 11, 2011, every Tuesday, Wednesday and Thursday, Brianna shall be with Mr. Bos from after school until 8:00 p.m. (except for the Thursday prior to Ms. Bos’ weekend with the children, when Brianna and the other children shall be with Mr. Bos from after school until Friday morning), and the 8:00 p.m. return time is to be extended to accommodate any activities Brianna may be enrolled in.

[ 7 ] At the time of the previous order, the parties were in the process of participating in an assessment by Dr. Sudermann.

[ 8 ] Paragraph 14 of the previous order dated provided as follows:

This order is without prejudice to the right of either party to bring a further motion dealing with the interim care and custody of the children in the event of a material change in circumstances or after the release of Dr. Sudermann’s assessment but, in relation to the latter, the onus shall be on the moving party to demonstrate that this is an appropriate circumstance for the court to make an interim order on motion pursuant to recommendations in an assessment rather than at trial.

[ 9 ] Mr. Bos’ present motion requests that Dr. Sudermann’s recommendations be implemented with respect to access arrangements for the four children, so that the children are with Mr. Bos every other week from Wednesday after school until Monday morning at school and for two uninterrupted weeks during summer. Ms. Bos opposes any order implementing the recommendations of Dr. Sudermann on the primary basis that assessments are intended for trial and ought not to be implemented on motion on a temporary basis other than in exceptional circumstances. Regarding the two weeks of uninterrupted summer access, it did not appear there was any dispute regarding that provision and, accordingly, an order will go in that regard with both parents to have two weeks of uninterrupted summer access.

[ 10 ] In relation to the interim preservation order regarding property, submissions on behalf of Ms. Bos focused on Mr. Bos being restrained from dealing in any way with his interest in the corporations and his RRSPs. Mr. Bos resists any interim preservation order on the basis there is no evidence to support such an order.

ACCESS ISSUES

A. Relevant Background Facts

[ 11 ] Mr. Bos desires a schedule which can better accommodate his travel requirements mandated by his employment responsibilities. He deposes that although he has made some arrangements to reduce his travel, the existing order does not provide him with a sufficient continuous period of time to carry out his travel obligations and still be available for the children during the time specified in the order. Mr. Bos has also moved into his own residence. At the time of the existing order, he was living with his parents. Mr. Bos further submits Dr. Sudermann’s assessment report should be considered, or at least given some weight in making any changes to the existing order.

[ 12 ] It is common ground between the parties that they have on their own altered the provisions of the existing order in two respects.

[ 13 ] The most material change is in relation to Brianna. The existing order permitted Brianna every Tuesday, Wednesday and Thursday to be with Mr. Bos from after school until 8:00 p.m. As explained in the previous endorsement, the reason was to allow Brianna to spend time with her paternal grandmother, who was tutoring Brianna in relation to her school work. However, the parties implemented an arrangement whereby Brianna could stay overnight at her father’s residence every Tuesday, Wednesday and Thursday, rather than having to come home to Ms. Bos’ residence after 8:00 p.m. on those evenings with Brianna then having to get up early to be taken to school in the morning. In relation to Brianna’s needs, Dr. Sudermann stated as follows on page 5 of the assessment:

I think that Brianna’s needs include the following: to be spared being put in the middle of her parents’ issues; to receive top notch assistance with her school work; to receive support and encouragement with her school and social efforts; and to have a less tiring schedule with regard to school day routine. Brianna also needs to maintain a strong connection with her mother and siblings, even through the teen-age individuation (gaining independence from parents) phase.

[ 14 ] Earlier in the assessment report, Dr. Sudermann (at page 4) spoke about what Brianna had reported to Dr. Sudermann. Brianna stated that an important priority was to receive proper help with her school work. She felt it very important to receive tutoring from her paternal grandmother and Brianna expressed to Dr. Sudermann considerable dissatisfaction with having to go home to sleep at her mother’s home on each of those days. Brianna felt this made for an exceedingly early start to the day, did not give her time to have breakfast or shower in the mornings and that when she got home at 8:00 p.m., she would typically be so tired that she went straight to her room and went to sleep.

[ 15 ] Although the change for Brianna to stay overnights with her father was made on consent of the parties, Ms. Bos is very clear in her material that she only agreed to this change on the basis that Mr. Bos would be home and that Brianna would be staying with Mr. Bos. Ms. Bos did not agree with Brianna staying overnights at the residence of Mr. Bos’ parents after the tutoring if Mr. Bos was away. Ms. Bos submits that if Mr. Bos is not available to be with Brianna during the overnight, then Brianna should still come home and be with Ms. Bos. One of the ways to lessen the strain on Brianna, according to Ms. Bos, would be for Brianna to come home sooner than 8:00 p.m. on those evenings.

[ 16 ] The second area where the parties have agreed to alter the existing order was to move the Thursday overnight visit to one of Mr. Bos’ existing weekends rather than have it on the Thursday prior to the children’s weekend with Ms. Bos.

B. When can the Court Consider an Assessor’s Report on a Motion?

[ 17 ] In the often quoted decision of Granger J. in Genovesi v. Genovesi [1] , the court set out the principle that an assessment report prepared for trial should not be acted upon until trial except in exceptional circumstances where immediate action is mandated by the assessor’s report. In coming to this conclusion, Granger J. at para. 19 relied on a decision of the Ontario Court (Provincial Division) as follows:

19 In Shackelton v. Shackelton , a decision of the Ontario Court Provincial Division released on February 17th, 1992 Vogelsang Prov. J. stated at p. 1:

There has been a disturbing tendency in recent months in motions to vary interim custody orders. Typically, in these matters an assessment is undertaken and the report received by counsel. The party who thinks himself or herself favoured in the report moves for a change in interim custody pending trial. I have expressly disapproved of this practice on several occasions, observing that motions judges should be loath to disturb an interim custody disposition when a full trial of the issue is to take place in the immediate future. This practice seems to me an ill-disguised attempt to gain an advantage at trial by the establishment of some form of status quo.

[ 18 ] It is important to note that the concern being expressed in Shackelton was an attempt by one party to alter in a material way, prior to trial, an existing status quo on the basis of an assessment report. Specifically, in Shackelton , the concern raised by the court dealt with situations where a party was seeking a change in interim custody pending trial.

[ 19 ] There is jurisprudence which suggests that it is not always necessary for a court to find “exceptional circumstances” before considering some or all of the recommendations contained in an assessment report on a motion for interim relief.

[ 20 ] In Forte v. Forte , [2004] O.J. No. 1738, [2004] O.T.C. 321, 2004 7631 , 130 A.C.W.S. (3d) 329 (Ont. S.C.J.), Corbett J. was dealing with a motion for interim custody. In making an order that the mother have interim custody of the children, the court in reaching its conclusion considered the assessment report from the Office of the Children’s Lawyer. That assessment recommended sole custody to the mother with specified access to the father. Corbett J. stated that little reliance was placed upon the recommendation itself but rather weight was placed on the facts set out in the report regarding statements made by the children to the assessor. In addressing the principle as to whether the assessment report should be considered, Corbett J. stated as follows at paras. 7 and 8:

7 Sandro argued that this court should not consider and should place no weight upon the report from Dr. Janzen. There is authority that assessment reports ought to be used at trial but not on interim motions: see Mayer v. Mayer , 2002 2753 (ON SC) , [2002] O.J. No. 5303 , per D. Gordon J., Grant v. Turgeon , 2000 22565 (ON SC) , [2000] O.J. No. 970 , per V. Mackinnon J., and Genovesi v. Genovesi (1992), 1992 8562 (ON SC) , 41 R.F.L. (3d) 27 (Ont. Gen. Div.) per Granger J. I agree that an assessment report ought to be approached with caution prior to trial. The court cannot delegate its decision-making authority to an assessor from the Office of the Children's Lawyer. That is trite law.

8 However, I cannot accept that the court is precluded from considering all of the evidence that is available in coming to a determination of the best interests of the children. In particular, in this case, I do not accept that the court cannot consider the statements made by the children to the assessor. It is not the report's recommendations, but its substance and analysis that is of value. [my emphasis]

[ 21 ] Similarly, in Kerr v. Hauer , [2010] O.J. No. 1506, 2010 ONSC 1995 , 88 R.F.L. (6th) 411, 2010 CarswellOnt 2191 (Ont. S.C.J.), M.P. Eberhard J. was dealing with a motion by the father for implementation of the parenting recommendations of Dr. Goldstein contained in a report. The mother requested that the motion be dismissed in the face of a trial date which had been set during a three week sitting commencing less than two months after the date the motion was argued. Mother’s counsel estimated three weeks to be required for trial and predicted that the focus would be on the cross-examination and challenge to Dr. Goldstein’s report. In making an order on an interim basis that the father shall have the immediate responsibility of decision-making as to the children’s needs, Eberhard J. considered Dr. Goldstein’s report. In doing so, Eberhard J., at para. 5, considered the principle set out by Granger J. in Genovesi , and at para. 7 quoted from the decision of Corbett J. in Forte , in particular quoting paras. 7 and 8 from Forte as quoted above in these reasons.

[ 22 ] In justifying the propriety of considering Dr. Goldstein’s report, Eberhard J. stated the following at paras. 16, 20, 21 and 22:

16 So, while I naturally accept and follow the caselaw calling for caution at an interim stage when trial is potentially imminent, I also analyze what genuine triable issues should be left alone till more is revealed through evidence at trial and other issues that should be adjudicated on a motion to advance the progress that is ongoing in conferenced based model.

19 But the other issue argued was decision making. There have been no previous orders. There have been many conflicts. Most significant is dispute as to the approach to the boys' special needs. As diagnosis of ADHD is a current concern, the approach and management of medication is important and, frankly, an issue upon which reasonable people can differ. However, the difference in parental approach can and has resulted in one sabotaging the efforts of the other. There are also obvious social adjustment issues for the boys that need to be addressed and in this too, the parents differ as to approach.

20 Broadly speaking, and particularly in this case, these concerns are mental health concerns. The analysis and testing and method of addressing the concerns are the stuff of mental health professionals. The strengths of one parent or another to manage the issues include the soundness or suitability of their own mental health make up.

21 Dr. Goldstein is a psychiatrist. The evidence required for the court to determine the issue is mental health evidence that a psychiatrist, particularly one credentialed to address parenting issues, is an appropriate expert to explore. His opinion took into account parental interviews, testing and observation, as well as input from important collaterals such as the prescribing paediatrician.

22 This is not a case where the court is delegating its adjudication about parenting to an assessor but one where a relevant expert has provided essential evidence, based on the method and expertise of his discipline. [my emphasis]

[ 23 ] I respectfully agree and adopt the principles in relation to considering an assessment report on a motion as set out in Forte and Kerr [2] . In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are “exceptional circumstances” as set out in Genovesi . In fact, “exceptional circumstances” findings were not made in either Forte or Kerr .

[ 24 ] The court has a duty to make orders in a child’s best interests and it would be counter intuitive to this principle to impose on the court an inflexible blanket prohibition against considering any aspect of an assessment report (absent exceptional circumstances) on an interim motion, especially when the only independent objective evidence before the court is from an expert assessor.

[ 25 ] In the present case, there was no request for cross-examination of the assessor. The parties themselves have in fact implemented a change to Brianna’s schedule whereby they have agreed Brianna can spend Tuesday, Wednesday and Thursday evenings with her father (with the unresolved issue as to whether Brianna can spend those evenings at her paternal grandparents’). It would be somewhat ironic if Mr. and Mrs. Bos could make changes to Brianna’s schedule (contained in a court order) for reasons identified in the assessment report but at the same time the court cannot consider the assessment report absent a finding of exceptional circumstances.

[ 26 ] In any situation when a court is faced with a motion for interim relief in relation to custody and access issues and where an assessment has been prepared and where the court is being asked to consider the assessment without making a finding that “exceptional circumstances” exist, it will be a matter for the motions judge to weigh all appropriate factors within the context of that particular case. Without in any way being exhaustive, these factors may include:

a) How significant is the change being proposed as compared to the interim de jure or de facto status quo?

b) What other evidence is before the court to support the change requested?

c) Is the court being asked to consider the entire report and recommendations, or is it necessary for the purpose of the motion only to consider some aspects of the report, including statements made by the children, observations made by the assessor or any analysis contained in the report which may be of assistance to the motions judge?

d) Are the portions of the recommendations which are sought to be relied on contentious and, if so, has either party requested an opportunity to cross-examine the assessor?

[ 27 ] It must be cautioned that the existence of an assessment report should not make it “open season” for parties to automatically bring motions attempting to implement some aspects of the report or to tweak or otherwise change existing interim orders or an existing status quo. Clearly, the facts of each case will be critical and will guide the exercise of the court’s discretion.

[ 28 ] In the present case, as previously mentioned, the existing order specifically permitted a motion to be brought after the assessment was prepared, subject to the onus on the moving party to satisfy the court that the assessment report could be considered prior to trial. Mr. Bos has met this onus.

(C) Discussion

[ 29 ] The first issue to consider is the matter of the new schedule proposed by Mr. Bos.

[ 30 ] Although Mr. Bos’ motion refers to implementing the recommendations of Dr. Sudermann relating to access, the reality is that the new interim access schedule (and for convenience, I use the words “interim access” or “access,” notwithstanding that the existing order gives each parent care and control of the children) proposed by Mr. Bos is more of a “reorganization” of his interim access as contained in the existing order and is not a substantive change. Mr. Eberlie submitted that if one looks at Mr. Bos’ proposal, which is that the children be with him every other Wednesday after school to Monday morning, then on a six week cycle Mr. Bos will have the children with him one extra overnight as compared to six weeks of access under the existing order.

[ 31 ] Ms. Bos, in her material, does not advance any principled or child-focused reason in opposing the new schedule proposed by Mr. Bos other than to say the court should not implement the suggestion of Dr. Sudermann on an interim basis.

[ 32 ] Ms. Bos, however, would seem to have some benefit from the proposal by Mr. Bos because Ms. Bos would then have the children with her alternate weekends (rather than one weekend out of three as per the existing order). Interestingly, Ms. Bos appends to her affidavit sworn April 17, 2012 a series of emails between herself and Mr. Bos’ sister, dealing with arrangements for access. It should be pointed out that Mr. Bos still remains under a judicial interim release order made in a criminal proceeding not to communicate with Ms. Bos. The relevant exhibit is Exhibit K to Ms. Bos’ affidavit and in a communication from Ms. Bos to Mr. Bos’ sister on February 21, 2012, Ms. Bos’ statement includes the following:

... In terms of Sjoerd feeling he has lack of quality time with the kids, i[sic] would also like to point out that I only have them one out of every three weekends. Weekends are the perfect opportunity to spend quality time with the kids as they are not in school. ...

[ 33 ] Ms. Bos undermines her opposition to Mr. Bos’ request in her communications with Mr. Bos’ sister when Ms. Bos remarks how weekends are more beneficial to spend with children and that she has only one out of three weekends. The necessity to make a change to accommodate Mr. Bos’ travel schedule is provided in evidence from Mr. Bos and I would be inclined to make this change without having any regard to the report of Dr. Sudermann. Having said that, Dr. Sudermann’s report in fact corroborates the concerns about Mr. Bos’ travel schedule and Dr. Sudermann feels that this change would be in the children’s best interests.

[ 34 ] It further needs to be clarified that Dr. Sudermann’s report considered as a whole is to some extent an interim report as Dr. Sudermann states she is “... reluctant to make any final recommendations at this time, as due to the non-communication order, it is difficult to tell how the parties will later be able to communicate” (see page 22, second paragraph).

[ 35 ] The proposal by Mr. Bos to change the schedule is in the children’s best interests and it represents only a minor (one overnight every six weeks) addition to the time Mr. Bos spends currently with the children and it will allow a significant stretch of time permitting Mr. Bos to travel. Accordingly, an interim order will issue as requested by Mr. Bos.

[ 36 ] With respect to the situation regarding Brianna, I am prepared to adhere to the joint agreement of the parties that on Tuesdays, Wednesdays and Thursdays, Brianna can spend the overnights at her father’s residence. The issue then becomes whether the additional condition of Mr. Bos being present should be part of that order.

[ 37 ] I have already alluded to those portions of Dr. Sudermann’s report where Brianna’s wishes made to Dr. Sudermann are discussed and where Dr. Sudermann assesses Brianna’s needs in relation to ongoing tutoring with Brianna’s paternal grandmother and wanting to stay with either her father or her grandmother on an overnight basis during those weekday evenings and Dr. Sudermann’s recommendations as to Brianna’s needs.

[ 38 ] Also to be considered, however, are the following aspects of Dr. Sudermann’s assessment.

[ 39 ] Dr. Sudermann noted (at page 17) that Mr. Bos criticized his wife far less than his parents did and that he in fact presented very few reservations about her as a parent. Dr. Sudermann also detected some concern about lack of respect in Mr. Bos’ extended family as it relates to Ms. Bos. Dr. Sudermann stated (page 22, 3 rd paragraph):

I do detect in Mr. Bos’ extended family some lack of respect or acceptance for Ms. Brandi Bos, possibly beyond merely what is fuelled by the separation events. Also, some of Mr. Bos’s actions (such as removing her computer, not returning her cell phone, removing her undergarments) during the separation may have shown an attempt to undermine Ms. Bos’s power, aside from the disputed allegations of violence by Mr. Bos. ...

[ 40 ] The facts regarding Mr. Bos’ conduct on separation were explored in detail in the previous endorsement. It was clear that Mr. Bos made statements about Ms. Bos’ alleged infidelity in the presence of Brianna. In fact, Dr. Sudermann notes in her assessment, and commends Ms. Bos, for the fact that Ms. Bos did not mention to the children Mr. Bos’ conduct relating to his infidelity. It is also clear that in relation to the withholding of Ms. Bos’ computer, that Mr. Bos’ father was involved in that act, alleging that the computer was corporate property.

[ 41 ] My initial order attempted to structure a compromise between Brianna’s need in being tutored by her grandmother (and all parties and the assessor report that this tutoring has been extremely beneficial for Brianna and is reflective in her improved grades at school), coupled with the need for Brianna to spend time with her mother.

[ 42 ] On a practical basis, if Mr. Bos was required to be home on Tuesday, Wednesday and Thursday during the week when he was not scheduled to have the children, then that would completely undo the effect of creating travel time for business purposes facilitated by the new interim access order.

[ 43 ] The best approach, and one that is in Brianna’s best interests, is to balance Brianna’s need to have tutoring with her grandmother with Brianna’s need to be in the care of a parent at all times. There is also the concern raised by Dr. Sudermann regarding the past criticism and lack of respect displayed towards Ms. Bos by Mr. Bos’ extended family and I need to take that into account in deciding to what extent a current interim order should allow Brianna to be in the care of her paternal grandparents when Mr. Bos is away.

[ 44 ] At this time, I find that Brianna’s best interests are accommodated by providing that during the week when the children are not scheduled to be with Mr. Bos, Brianna can spend up to two weekday overnights at her paternal grandparents’ residence. During the week when Mr. Bos does have the children, he would not be travelling from Wednesday after school to Monday morning and Mr. Bos should be able to arrange his schedule so he is home on the Tuesday night of that week also. Accordingly, on the Tuesday of Mr. Bos’ access week, if he is not going to be home overnight, Brianna will be returned to her mother. On Ms. Bos’ non-access week, Brianna shall be returned to her mother if Mr. Bos is away, subject to Brianna’s option to spend up to two overnights with her grandparents. To accommodate a better schedule for Brianna, on those nights when she will be staying with her mother, the tutoring shall be from after school and Brianna shall be returned home to her mother’s residence by 7:00 p.m.

[ 45 ] I have taken into account Brianna’s age and the fact that she will be 15 fairly soon. The overall objective of the order being made is to allow some of Brianna’s wishes and preferences to prevail but, at the same time, to strike a balance between those wishes and Brianna being in the care of her mother if Mr. Bos is away.

[ 46 ] It is necessary for Mr. Bos to provide timely advance notice as to when he will not be available to care for Brianna on an overnight basis. It shall also be a condition of Mr. Bos’ Wednesday to Monday access that he is available to care for the children.

MS. BOS’ REQUEST FOR AN INTERIM PRESERVATION ORDER

[ 47 ] Ms. Bos deposed that subsequent to separation Mr. Bos engaged in some unilateral acts regarding finances, including withdrawing $7,000 from two accounts and closing those accounts, withdrawing most of the $2,000 from an account the parties had for Brianna, cutting off Ms. Bos’ access to a Royal Bank credit card and joint line of credit, and then closing the joint line of credit. These allegations do not appear to be denied by Mr. Bos and, in fact, his financial statement shows a Bank of Montreal account with a balance of a little over $6,200 as at date of separation was closed in August 2011.

[ 48 ] Each party filed an updated financial statement sworn in March 2012. Mr. Bos shows a net family property of $129,452 but this does not include any values for the three corporations in which Mr. Bos has an ownership interest, namely Weather-Bos (C.M.) Inc., Bos Holdings Inc. (which owns 1,000 common shares of The Sansin Corporation) and Santec Equipment Inc. Regarding the latter, it was also identified as “Santec Equipment” on Mr. Bos’ financial statement. At the time of the hearing of the motions, the valuation of Mr. Bos’ interest in these corporations was in progress.

[ 49 ] Mr. Bos’ financial statement also discloses a Bank of Montreal RRSP, having a valuation date value of $39,015 and a statement date value of $30,812.

[ 50 ] Ms. Bos showed a net family property of $126,447 in her March 2012 financial statement but this is based on valuing the jointly owned matrimonial home at $450,000 as opposed to Mr. Bos, who valued the matrimonial home at $470,000. To have a more accurate comparison of the net family properties of each party, it is necessary to either increase Ms. Bos’ net family property (or decrease Mr. Bos’ net family property) by $10,000 to account for the matrimonial home, with the result that Ms. Bos would have a net family property approximately $7,000 greater than Mr. Bos’ net family property on the assumption that the financial statement of each party is otherwise accurate and also on the basis that there is no value shown for Mr. Bos’ interest in the corporations.

[ 51 ] Mr. Eberlie relies on the decision of Granger J. in Lasch v. Lasch , 1988 4581 (ON SC) , [1988] O.J. No. 488, 64 O.R. (2d) 464, 13 R.F.L. (3d) 434, 10 A.C.W.S. (3d) 33 (Ont. H.C.J.). In para. 16, Granger J. states:

16 A restraining order should be restricted to specific assets and there should be an onus on the party seeking the restraining order to prima facie show that he or she is likely to receive an equalization payment equal to the value of the specific assets.

[ 52 ] It is trite to state that Ms. Bos is in no position to make a reasonable estimate of any potential equalization payment until Mr. Bos’ interest in the corporations has been valued.

[ 53 ] The purpose of an interim preservation order is to ensure there are sufficient assets to meet a potential equalization payment (see Lasch at para. 12 ). Other than Mr. Bos’ interest in the corporations, his other main assets are his interest in the matrimonial home (which is largely leveraged, having a mortgage on the date of separation at close to $340,000) and his RRSP at Bank of Montreal.

[ 54 ] Given Mr. Bos’ penchant to act unilaterally regarding financial matters, as mentioned above, coupled with the fact that Ms. Bos’ inability to estimate an equalization payment arises from Mr. Bos’ failure to value his companies, this is an appropriate case to make a preservation order in relation to Mr. Bos’ interest in the corporations and also his RRSP.

[ 55 ] However, it is also appropriate in the circumstances, to make this order without prejudice to Mr. Bos’ right to seek a variation or termination of the interim preservation order once his interest in the corporations has been valued and disclosed to Ms. Bos.

ORDER

[ 56 ] For reasons set out above, I make the following interim order:

1. Paragraphs 2(b), (c) and (d) of my interim order dated October 7, 2011 are vacated.

2. The children shall be in the care and control of Mr. Bos as follows (“children” means all four children unless otherwise stated):

a) during the school year, each alternate week from Wednesday after school until Monday morning at school time (to be extended to Tuesday morning at school time if Monday is a non-school day) and during this time Mr. Bos shall be present to care for the children;

b) when the children are not in school, the schedule set out in subpara. (a) is changed such that the Wednesday pickup time shall be 5:00 p.m. and the return time Monday shall be 9:00 a.m. but, if the Monday falls on a long weekend, then the return time shall be 9:00 a.m. Tuesday;

c) during the school year, in addition to the Wednesday and Thursday Brianna will spend with Mr. Bos as set out in subparagraph (a), Brianna shall also be with Mr. Bos on every remaining Tuesday, Wednesday and Thursday from after school until school time the following morning in order to facilitate Brianna being tutored by her paternal grandmother but subject to the following conditions:

i) Brianna shall spend these additional overnights each Tuesday, Wednesday and Thursday at Mr. Bos’ residence and Mr. Bos shall be present while Brianna is there overnight;

ii) if Mr. Bos cannot be present during any overnight, he shall ensure that Ms. Bos is provided with at least four days written notice of same through his sister or other intermediary, and Brianna shall be returned to Ms. Bos by 7:00 p.m. that evening, except that during the alternating weeks when the children are not scheduled to be with Mr. Bos, Brianna, if she chooses, may stay with her paternal grandparents for up to two overnights on either Tuesday, Wednesday or Thursday of those weeks if Mr. Bos is away.

3. Each party may have care and control of the children for up to two weeks during the summer months uninterrupted by access by the other party, and these arrangements shall be worked out by the parties through counsel.

4. If any issue arises regarding the implementation of this order in relation to the children’s schedule, counsel may contact the trial coordinator and arrange a date to speak to this matter before me at 9:30 a.m.

5. Pending the final disposition of this court case, Mr. Bos is restrained from transferring, selling, encumbering, pledging as security or in any other way dealing with his interest in the following property:

a) Weather-Bos (C.M.) Inc., Bos Holdings Inc., Santec Equipment Inc. (also known as “Santec Equipment”) and The Sansin Corporation; and

b) Mr. Bos’ RRSP at Bank of Montreal identified as account #211-22216, according to Mr. Bos’ financial statement sworn March 13, 2012.

6. This order is without prejudice to Mr. Bos’ right to bring a motion to vary or terminate paragraph 5 of this order after Mr. Bos has provided to Ms. Bos a valuation of his interest in the property listed in subparagraph 5(a).

7. If the parties are unable to agree on costs of the motions, then written submissions on costs may be made, addressed to the Family Court administrative assistant in letterform within 30 days.

[ 57 ] If any of the corporate names shown in paragraph 5(a) of the order are not accurate, then counsel may substitute the correct names in the formal order.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: June 15, 2012

[^1]: 1992 8562 (ON SC) , 1992 CarswellOnt 268, 41 R.F.L. (3d), 93 D.L.R. (4th) 262 (Ont. Ct. (Gen. Div.)); see also to the same effect Grant v. Turgeon , 2000 22565 (ON SC) , 2000 CarswellOnt 1128, 5 R.F.L. (5th) 326.

[^2]: See also the helpful decision in Verma v. Chander , [2009] O.J. No. 1445, 2009 ONCJ 136 , 66 R.F.L. (6th) 226, 176 A.C.W.S. (3d) 443, 2009 CarswellOnt 1859 (Ont. C.J.), where the court canvassed relevant authorities as to the ability of a judge on a motion to consider an assessment report and where the court considered the observations of the clinical investigator.