Decaen v. Decaen, 2012 ONSC 966

COURT FILE NO.: FS-010351-07

DATE: 2012-03-13

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

DENISE SUZANNE DECAEN Applicant

• and -

MARC DECAEN Respondent

Counsel: K. Normandin, Counsel for the Applicant M. Mottonen, Counsel for the Respondent P. Meehan, Office of the Children’s Lawyer

HEARD: December 5-7, 9, 12-16, 2011

REASONS FOR JUDGMENT – AMENDED

Ellies, J.

1This custody battle requires the court to make some difficult choices. Because of the acrimony between the parties, joint custody and its variants are out of the question. Therefore, the main issue is whether to grant custody to a father who is more concerned about how much support he is paying for his family than about how much he is supporting it, or to a mother who frequently denied access while living near the father and would now like to move the children hundreds of kilometres away not only from him, but also from their grandparents, aunts, uncles, cousins and friends.

2This case also requires the court to balance the best interests of young twins with those of their older sister in circumstances where those interests may not dictate the same result.

3Because time was of the essence, I made an Order on January 9, 2012 with respect to custody, access and mobility, with reasons to follow. These are those reasons.

4In addition to issues of custody, access and mobility, these reasons will address issues of child and spousal support, arrears of support, and whether a constructive trust should be imposed upon the discharged bankrupt father’s retirement pension.

5In arriving at my decision with respect to matters involving the best interests of the children, I have placed paramount importance on the principle of maximum contact, not only with the parents of the children, but with their extended family, as well. I have also placed great weight on the need for stability in their lives, and on concerns for their safety.

FACTS

6The parties were not able to agree on many facts and their evidence on those in dispute was often widely disparate. I will set out most of my factual findings in this section of my reasons. In the course of doing so, I will comment in this part on the credibility and the reliability of the main witnesses. Where I have accepted the evidence of one of the parties on a matter, I may not make reference to the evidence of another witness with respect to that same matter. I will deal with what I consider to be the more determinative facts in the section entitled "Analysis", below.

Ms. Decaen

7The applicant¹ is presently 41 years of age. She is the oldest of three children, all of whom were raised in the Sudbury area. Her brother and sister continue to reside in the area, as do her parents. I heard evidence from both of the applicant’s siblings, as well as her father. All of them testified that they were a very close family, of which I have no doubt.

Ashley’s Birth

8Ms. Decaen attended high school in Sudbury. It was during her high school years that she met a young man named Sydney Corriveau. By the time she graduated from high school in 1989, she was pregnant with their child. Ashley was born on February 16, 1990. She is now 22 years of age. Because of her age, custody is no longer an issue with respect to Ashley. However, child support remains an issue because Ashley is still a university student.

9Following Ashley’s birth, the applicant and Mr. Corriveau continued to live with their respective parents. According to the applicant, her relationship with Mr. Corriveau ended about six or seven months after Ashley’s birth. However, Mr. Corriveau continued to see Ashley. On April 12, 1992 Ms. Decaen commenced an application in which she alleged that Mr. Corriveau might have sexually abused his own daughter. That allegation was strongly denied by Mr. Corriveau, both then and during this trial, when he was called to give evidence on behalf of the respondent. I will deal further with this evidence, below.

10Despite the mother's allegations, the application was eventually resolved on consent, with the mother getting custody of Ashley and Mr. Corriveau being granted access. Although Ms. Decaen testified before me that the access she agreed to was exercised in her presence, there is nothing in the court order of July 2, 1992 requiring that it be supervised or exercised at any particular location.

11Eventually, according to both Mr. Corriveau and the applicant, he began seeing Ashley less frequently. He has not had any contact with her since December of 1993.

Mr. Decaen

12Mr. Decaen² is now 46 years old. He has been employed with Vale and its predecessor, Inco, for more than 23 years. He was employed there at the time that he and the applicant met. His present position is that of a “Senior Robotics Technician”. As he describes it, he takes care of “anything wireless”. For the past fifteen years, he has also acted as a relief supervisor, when necessary.

13Like Ms. Decaen, Mr. Decaen comes from a family of three children. However, he has a large extended family. Many, if not most, of them live in the Sudbury and West Nipissing regions. Mr. Decaen's aunt and uncle own a business in Sturgeon Falls called "Leisure Farms". At Leisure Farms, members of the public can pay to pick strawberries and raspberries. Corn and pumpkins are also grown at Leisure Farms and there are horses and other animals at the farm. Mr. Decaen's mother works in the bakery there.

14Mr. Decaen's family also owns a "camp" called "Paradise Point", located about 52 miles north of Sturgeon Falls, situated beside Lake Manitou. During the trial, Mr. Decaen spoke of it in glowing terms, describing the layout, the buildings on the property, the boats and the clear, spring-fed lake.

15According to Mr. Decaen, he brought the applicant to these properties when they were dating.

The Parties Meet and Marry

16According to Ms. Decaen, the parties met in January of 1992. She testified that she and Mr. Decaen formed an “instant bond” and enjoyed a very loving relationship right from the start. The parties were engaged in October of 1993 and were married on December 31 of that year, a day that Ms. Decaen described as one of the best days of her life. She was pregnant at the time.

Events during the Marriage

Births of the Children and Residence History

17Following their marriage, the parties lived at the home of the applicant’s parents, Mr. and Mrs. St. Amant, in Minnow Lake. They were living there when Denyca was born on July 16, 1994.

18Mr. Decaen adopted Ashley in the spring of 1995. According to Ms. Decaen, he accepted Ashley as his own and loved her unconditionally from the beginning of their marriage. I watched the emotion with which Mr. Decaen testified about his relationship with Ashley during the trial and it was obvious that this was true.

19The parties moved from the St. Amant home to their own home in Azilda at the end of March, 1997. They moved several times thereafter to various homes in the Sudbury area. In 1999 they moved to Garson, first into a single family dwelling and then into a semi-detached home. They were living in Garson when the twins, Kaleb and Isabelle, were born on October 22, 2004.

20The family moved to Copper Cliff about one year later, in October of 2005, and were living there at the time they separated.

Ms. Decaen's Education and Employment

21Ms. Decaen began her first year of a Bachelor of Arts program at Laurentian University in the fall of the year in which Ashley was born. According to the records of the university, she did not attend university the next year. She attended the same university on a part-time basis in 1992-1993 and on the same basis for the fall term of 1994. At one point during her evidence, she testified that she has not yet completed one full year of her undergraduate program. However, she also testified that, in 2010, she intended to return to university to complete the last year of her undergraduate degree and then to go on to obtain her Bachelor of Education. It is not possible to resolve this conflict in the evidence from the documents submitted as Exhibit 7, being the letter from Laurentian University.

22Although Ms. Decaen testified that it was her intention to go to teacher's college, in 1995 or thereabouts she decided to become a funeral director, instead. As a result, she enrolled in a funeral directors program at College Boréal. The program required full-time study and work placement over a two year period, from 1995 to 1997. She successfully completed the program in 1997. However, according to the applicant, the parties agreed shortly afterwards that she would stay at home, rather than work in her field, because Ashley and Denyca were struggling at the time with her absence and the respondent was making quite a lot of money.

23Ms. Decaen remained at home until the parties separated, with the exception of several short periods of employment. These included a job working in an administrative capacity in the office of an insurance brokerage (with her mother, during the absence of a staff member), seven or eight days of supply teaching (for which she was not qualified, but was recruited because there were no qualified individuals available), and a part-time job working at the LCBO, to which I will make further reference, below. Mr. Decaen testified that the job at the insurance brokerage lasted longer than the two or three months that Ms. Decaen indicated. This was just one of many disparities in the evidence of the parties, but this one is of little or no significance.

24Another difference in the evidence arose when Mr. Decaen testified that the applicant took a course to become a blackjack dealer and appeared in a television commercial relating to that line of employment. However, this was denied by Ms. Decaen. It, too, is insignificant in my view.

Mr. Decaen's Conduct During the Marriage

25Ms. Decaen testified that Mr. Decaen “became controlling” immediately following their wedding. She testified that he insisted that she make his lunches before he went to work every day and, when he returned from work, all he did was sit on the couch and demand that he be served by the applicant while he watched television. According to her, she did all the housework and child-rearing.

26Ms. Decaen gave evidence that Mr. Decaen was always strict with Ashley and became stern with Denyca as she approached the age of two or three. She testified that Mr. Decaen also became “physical and aggressive” at that time, relating one incident in particular that she said occurred when Ashley was about four years of age, during which Mr. Decaen is alleged to have broken down a door at her parents' home.

27I do not accept the applicant’s evidence in this regard, and in a number of other respects. As I will elaborate upon below, her credibility suffers for a number of reasons. For present purposes, however, it is sufficient to point out that the applicant's evidence that Mr. Decaen become controlling and did little to care for the children is contradicted by other evidence, which I find to be more credible and reliable.

28The applicant’s father, Gerry St. Amant, gave evidence during the trial. He is 64 years of age and, although officially retired, he works on a contract basis for Vale. I was impressed with his evidence. Despite his obvious bias in favour of his daughter, he testified in an honest and straight-forward manner. Unlike the applicant and some of the other witnesses, he did not offer uncalled for or gratuitous comments in favour of his daughter’s side of the dispute. He chose his words carefully and never appeared to exaggerate any of his testimony.

29Mr. St. Amant spent a good deal of time with both of the parties while they were married. Of course, he saw them often while they lived in the basement apartment of the St. Amant home, but he also travelled to and from work for a period of time with Mr. Decaen and spent considerable time with him while they renovated the various houses into which the parties moved over the course of time.

30Mr. St. Amant testified that the parties had a good relationship while they lived at his house. He never saw anything of concern occur between them. Based on his evidence, both the applicant and the respondent were busy at that time; the applicant in the house and the respondent outside of it. Mr. St. Amant testified that, after Denyca’s birth, he observed Mr. Decaen playing with the children, for example, by taking them outside for walks. Although he saw less of them after the parties moved out of the Minnow Lake house, Mr. St. Amant testified that he did see Mr. Decaen play with the twins.

31According to the evidence of Mr. St. Amant, it was not until much later, when Ashley was about fifteen years old, that he observed any incidents of aggression by Mr. Decaen towards either Ashley or her mother. In this regard, he related two incidents. One occurred at the St. Amant home and involved Mr. Decaen pointing his finger at Ashley, swearing at her and telling her that she had better do what she was told or that she would “get it” when she got home. In the other, Mr. St. Amant overheard Mr. Decaen tell Ms. Decaen in response to a suggestion that they get rid of the dog that, if anyone was going to go, it would be her. I accept this evidence, but these incidents occurred about a year prior to the parties’ separation, and not shortly after they were married.

32The applicant’s evidence that the respondent became controlling, physical and aggressive early in their marriage is also contradicted by her own behaviour. In particular, she testified that she had her “tubes tied” after Denyca’s birth. By this, I assume she meant to refer to a tubal ligation. However, she testified that she decided that she wanted to have more children and that she had to work to convince the respondent to agree to do so. Eventually, he did and she underwent a medical procedure that Mr. Decaen at first thought was too expensive in order to conceive and later give birth to the twins. Her desire to have more children, and all the effort that she put in to doing so, is inconsistent with her evidence that her marriage was “strained” following Denyca’s birth as a result of Mr. Decaen’s alleged behaviour towards her and the children. It is unlikely, in my view, that Ms. Decaen would want to bring more children into the type of relationship she described, or that a controlling, domineering husband would change his mind in the way Mr. Decaen did.

33Ms. Decaen's evidence that her husband was controlling is also contradicted by the evidence she gave about other aspects of their marriage. For example, she testified that she was the one who took care of paying all of the family's bills out of a single, joint account. If Mr. Decaen was as controlling as the applicant alleges, it is unlikely that he would have given her complete control of the family's finances.

34Other witnesses testified about the behaviour of Mr. Decaen as it relates to the children. The applicant’s brother, Marc St. Amant, was called by the applicant. He gave evidence that, while the parties were living in his parents’ house, he observed Mr. Decaen yell at Ashley when she was in front of the television. He testified that Ashley was about five to seven years old at the time. But Mr. St. Amant, Jr. was also young at the time. According to the evidence, he would have been about fifteen. His observations would have been those of a child or young adolescent and I find the evidence of Mr. St. Amant, Sr. to be more reliable and a better indicator of Mr. Decaen’s behaviour at the time. Further, Marc St. Amant testified that, since the parties separated, he believes that he has been the subject of negative comments made by the respondent at their mutual place of employment, as a result of which Mr. St. Amant, Jr. is considering involving the Human Resources department at Vale. Whether such comments have been made or not, this belief on the part of Mr. St. Amant has the potential to influence his memories, even if only subconsciously.

35Lise Savage was called as a witness on behalf of Mr. Decaen. She worked for the parties from approximately April to October of 1997, while Ms. Decaen was attending the funeral directors program. She is not related to either party and there was no evidence of any bias on her part in favour of either of them. Ms. Savage testified that she would arrive at the parties’ home in Azilda at about 7:30 a.m. and remain there until Mr. Decaen returned home from work at about 4 or 4:30 p.m. She testified that Ms. Decaen would be the only parent home when she arrived in the morning, but that Mr. Decaen would be the only parent home when she left. Ashley was in school at the time, but Denyca was not. This evidence was not challenged in any significant way.

36Further, Ms. Decaen testified that she would often have to work at the funeral home during her apprenticeship from 9 in the morning until 9 at night. During the evening hours, Mr. Decaen would be alone with the children, although Ms. Decaen testified that she would make all the meals for the family in advance.

37It is obvious from all of this evidence that Mr. Decaen did participate in the child-rearing process beyond the minimal amount suggested by Ms. Decaen.

38Ms. Decaen also testified about several other specific incidents that allegedly occurred during their marriage that might have some relevance to Mr. Decaen’s ability to act as a parent to the children, if they were accurate. These included:

• an incident that happened after the birth of the twins when Mr. Decaen allegedly made Ms.Decaen crawl across the bedroom floor to get them because she was too ill to walk herself; and
• an incident in which he lifted Ashley off of the floor and held her against a refridgerator.

39Mr. Decaen denied these allegations and no other evidence was called in support of the allegations. Therefore, the evidence rests entirely on the testimony of Ms. Decaen. As I have indicated, I did not find her to be a credible witness for a number of reasons, which I will now address.

Evidence of Disreputable Conduct on the Part of Ms. Decaen

40Evidence about the past bad conduct (also known as “disreputable conduct”) of a party in a custody battle will be relevant only if it goes either to that party's ability to act as a parent to the children or if it relates to the credibility of the party as a witness.³

41Evidence of disreputable conduct on the part of the applicant was elicited during the trial in two main areas. Firstly, she was asked during examination-in-chief about the sworn allegations she made against Mr. Corriveau in the application referred to above and about the ultimate disposition of that application. I assume that this was done in anticipation of the evidence to be given by Mr. Corriveau later in the trial to the effect that the allegation was false and the argument to be made on Mr. Decaen’s behalf that this was relevant to Ms. Decaen’s ability to act in the best interests of the children. The evidence of Mr. Corriveau, was subsequently given in the context of a voir dire, following which I reserved my decision as to its admissibility.

42The other evidence of misconduct on the part of Ms. Decaen also came out during her examination-in-chief, when she testified that she was charged at different times with two offences of dishonesty, namely theft and forgery. With respect to the theft charge, the applicant testified that she was dismissed from her employment with the LCBO and charged with theft in 2000 relating to cash that she put into her pocket, rather than the till. With respect to the forgery charge, she testified that she was charged after she forged Mr. Decaen's name on a document in 2009.

43The relevance of this evidence and that of Mr. Corriveau bring into play the law relating to character evidence.

The Evidence of Theft by Ms. Decaen

44There is a distinction to be drawn between evidence of disreputable conduct introduced as circumstantial evidence to prove or disprove a fact in issue and disreputable conduct evidence introduced to attack the credibility of a witness. As the authors of The Law of Evidence in Canada put it⁴:

On cross-examination, subject to the discretion of the trial judge to disallow any question which is vexatious or oppressive, a witness can be asked literally anything as a test of his or her credibility. This broader rule is subject to the qualification that, if the question is irrelevant to the facts in issue, but is asked purely for the purpose of testing credibility, the cross-examiner is bound by the answer. Evidence cannot be led in reply to contradict the witness.

45The prohibition against calling contradictory evidence applies only to evidence adduced solely to attack credibility and is known as the "collateral fact rule". It applies equally to parties as well as ordinary witnesses.⁵

46The evidence relating to the theft by Ms. Decaen from her employer is not relevant to any issue other than her credibility as a witness. As a result, the respondent would not have been permitted to call evidence to contradict the applicant's answer, unless it was to show that she had been convicted of the offence alleged.⁶

47In this case, however, the applicant was not convicted of the offence. She testified that the charge was dismissed in court. The evidence, therefore, could only be relevant to her credibility if she admitted that the allegations were true, even though she was not convicted of them. The difficulty is that it is unclear whether she did.

48In her examination-in-chief, Ms. Decaen testified that she "had taken some cash" and that she "had put it in (her) pocket instead of adding it up at the end of the day and they found out about it". Her conduct amounted to an offence of dishonesty only if she meant to deprive the employer of the money⁷. It is not clear that this is the case. The charges were dismissed and there was no evidence before this court as to why that occurred. Therefore, the evidence of stealing from the LCBO is not sufficiently clear to affect Ms. Decaen's credibility as a witness, in my view.

The Evidence of Forgery

49The evidence relating to the charge of forgery, on the other hand, is clear. Even though the charge in that case was also dismissed, Ms. Decaen admitted quite unequivocally that she signed her husband's name, not her name, on a document. There was no evidence of any circumstance that would operate as a defence. As a result, this evidence has the potential to adversely affect Ms. Decaen's credibility as a witness.

50Before I turn to the other area of character evidence, namely evidence of disreputable conduct to prove a fact in issue, I pause to note that I found it rather ironic that Ms. Decaen attempted while testifying about the forgery to turn her own dishonest conduct into evidence in support of her quest for custody. She testified that, after she was charged, the two youngest children were upset and afraid that she was going to go to jail, even though she had never told them that. The obvious inference she hoped the court would draw is that the twins were told this by their father and that this was evidence of bad parenting on his part. Maybe so, but committing forgery is no example for a child to follow, either.

The Evidence of the Allegations Against Mr. Corriveau by Ms. Decaen

51As I noted above, the collateral fact rule does not ordinarily prevent a party from calling evidence to contradict a witness where a party seeks to adduce evidence of previous misconduct to prove the existence or non-existence of a fact in issue, and not solely for the purpose of attacking a witness's credibility. Where that is done, the evidence must be put to the witness during cross-examination because of the rule in Browne v. Dunne, in order to allow the witness an opportunity to address it. If the evidence is not admitted, the cross-examiner may usually go on to call contradictory evidence. However, with certain exceptions, there is a general prohibition against the use of evidence of character to circumstantially prove a fact in issue in a civil case.⁸

52One of those exceptions is the use of similar fact evidence. As Lauwers, J. quite properly pointed out in Greenhalgh v. Douro-Dummer (Township)⁹, this may be a bit of a misnomer, especially when used in a civil, as opposed to a criminal, context. What is really sought to be introduced is "similar fact evidence of disreputable conduct".

53Arguably, the evidence of Ms. Decaen’s allegations against Mr. Corriveau is evidence of both types referred to above; namely, evidence going to credibility and to establish a fact or facts in issue. Making a knowingly false accusation against anyone is evidence of dishonesty which will adversely affect a witness's credibility. Where the evidence establishes that such false accusations have been made against a father for the purpose of gaining custody of a child, it may be evidence of conduct on the part of the parent tending to show that she is not capable of acting in the best interests of her children, especially if a pattern of such behaviour can be established.

54However, the evidence will fail to serve either purpose unless it can be proven, firstly, that the accusations against Mr. Corriveau were false. In my view, the situation is analogous to a situation which arises more frequently in criminal than in civil cases, where an accused attempts to call evidence that a complainant has made false allegations in the past. In R. v. Riley¹⁰ it was held that, in order to demonstrate "a pattern of fabrication" is necessary "to establish that the complainant has recanted her earlier allegations or that they are demonstrably false". It is not enough that the individual previously accused, Mr. Corriveau in this case, denies the accusations.

55Ms. Decaen refused to admit during this trial that the allegations against Mr. Corriveau were false. Although the falsity of those allegations might have been established by virtue of the fact that the mother agreed to allow Mr. Corriveau unsupervised access to Ashley in resolution of her custody application, she also testified that she did so because access was always exercised in her presence. Mr. Corriveau was not asked specifically about this and gave no evidence to the contrary. Therefore, the evidence falls short of establishing a previous false complaint against Mr. Corriveau, although it also falls far short of establishing a truthful one.

56In order to establish a pattern of false complaints, it must also be established that the complaints against Mr. Decaen were false. As I will explain later, I am not satisfied that this has been done, either.

Other Factors Affecting Ms. Decaen's Credibility and Reliability

57In addition to the character evidence I have referred to above regarding the forgery, Ms. Decaen's credibility and reliability as a witness suffered in a number of other respects. On occasion, she offered gratuitous comments that were unresponsive to the question. For example, after she was asked in chief if Mr. Decaen was supportive of her early in their relationship and responding in the affirmative, she added, "He liked me at home."

58More importantly, Ms. Decaen's testimony was contradicted by a number of previous statements, all made under oath. For example, she denied during cross-examination that she alleged that Mr. Corriveau was the perpetrator of the suspected sexual abuse of her daughter and that the allegation was made for the purpose of getting Mr. Corriveau out of Ashley's life. However, she was contradicted with her sworn affidavit on both points.

59Ms. Decaen also denied that she worked as a funeral director for as many as five years. However, she was again contradicted by an affidavit she swore early in the present proceedings, on October 19, 2007.

60As a last example, Ms. Decaen was contradicted by her own sworn evidence to the effect that Ashley was no longer living with her all of the time as of June of 2009, when she initially denied that fact during cross-examination.

61As a result of these weaknesses in her evidence, I have approached with great caution any allegation of fact that rests solely on the evidence of Ms. Decaen. Such is the case with respect to her evidence of specific acts of misconduct by Mr. Decaen as a parent during their marriage. I do not accept Ms. Decaen's evidence in this regard.

Mr. Decaen's Role During the Marriage

62I find that, throughout their marriage, Mr. Decaen fulfilled the role of provider and Ms. Decaen was more involved in the day-to-day care of the children and the chores around the house. But I accept the evidence of Mr. Decaen that he participated in child rearing and in the children's activities to the extent that his employment outside the home would permit. These included not only feeding, bathing and putting the children to bed, but also taking the children to and from extra-curricular activities and engaging in a number of activities with them himself. The time spent by Mr. Decaen with his children included family vacations to such places as Moosejaw, Canada's Wonderland, Marineland and to places closer to home, such as Leisure Farms and Paradise Point.

63In the period of time immediately preceding their separation, Mr. Decaen's involvement with the children also included time spent alone with them in the summer of 2007, after the parties bought a camper trailer. During that summer, Ms. Decaen would occasionally spend time at the trailer with a friend, while Mr. Decaen cared for the children.

64Although I do not accept Ms. Decaen's evidence that Mr. Decaen became controlling early in their relationship or that he did little other than work, I do find that his style of parenting became an issue as the girls became teenagers. This is supported by the evidence of Mr. St. Amant, Sr. to which I have referred above, and by Mr. Decaen's own admission that he "butted heads" with Ashley as a teenager. This is not surprising, as I also accept Mr. Decaen's evidence that he was the one handing out most of the discipline as between the two parents.

Ms. Decaen's Conduct During the Marriage

65Mr. Decaen testified that Ms. Decaen threatened to commit suicide on a number of occasions during their marriage. This was denied by Ms. Decaen.

66Mr. Corriveau also testified that Ms. Decaen made similar threats during their relationship. I can find no note that this was put to Ms. Decaen during her testimony.

67This evidence is of very limited value, if any, on the issue of Ms. Decaen's ability to act as a parent to the children, in my view. The last of the alleged attempts had to have occurred over four years ago. There is no need to make a finding on the truthfulness of this evidence, given that fact and given Mr. Decaen's position that Ms. Decaen should at least be a "co-parent"; a position I will address later in these reasons.

The Separation

68The parties separated on September 14, 2007. On that date, Mr. Decaen came home to find a handwritten letter from his wife, in which she advised him that she had taken the children for the weekend and that she wanted to separate. However, Mr. Decaen believed that they could still work things out and wished to remain in the matrimonial home while they made that attempt, or until the home could be sold. He never got that chance.

69On October 16, 2007 Mr. Decaen was arrested and charged with two counts of assault and one count of threatening Ms. Decaen. One count of assault related to an incident alleged to have occurred on October 5, 2007. The other count of assault related to an incident that Ms. Decaen alleged had occurred approximately one year earlier, in which it was alleged that her husband had thrown a television remote control at her.

70The charges were eventually withdrawn when Mr. Decaen agreed to enter into a recognizance (a "peace bond"). In the meanwhile, according to Mr. Decaen, the terms of his judicial interim release order required him to reside with his parents. As a result, Ms. Decaen did not have to share the matrimonial home with Mr. Decaen.

Events Occurring After the Separation

71Ms. Decaen commenced the present proceedings on October 19, 2007. On November 2, 2007 Gauthier, J. made an interim order, on consent, granting the mother custody and the father "reasonable access on reasonable notice". Both parties were represented at that time. Mr. Decaen testified, however, that he was not present when the order was made and had no knowledge that his lawyer was agreeing to such an order. I find this hard to accept. It is a serious matter for a lawyer to agree to such an important order without obtaining his client's instructions, and therefore rather unlikely to have happened. Furthermore, I have problems with Mr. Decaen's credibility, which I will now address.

Problems with Mr. Decaen's Credibility and Reliability

72Like Ms. Decaen, Mr. Decaen's credibility and reliability as a witness suffered from a number of weaknesses. For one, he made implausible statements. The statement about his lawyer is an example. In another, Mr. Decaen testified that he never yelled at any of the children during his marriage. I had the benefit of watching Mr. Decaen testify. He is a very excitable person, to say the least. He had to be told on numerous occasions to just answer the question put to him, even by his own counsel. I find it impossible to believe that he would not have been just as excitable after working many of the overtime hours he once did and coming home to play disciplinarian. Further, as I have indicated, I accept the evidence of Mr. St. Amant, Sr., including his evidence of the incident he witnessed involving Ashley.

73In addition to giving implausible evidence, Mr. Decaen offered gratuitous comments designed to make the opposing party look bad, just as Ms. Decaen did. One example is the detail he added when being examined-in-chief about how he met the applicant. Instead of stopping after answering that he met her while she was working in a tanning salon, he felt it necessary to add that she was dating the 45 year old owner of the business, that she was on Mother's Allowance and that he found out later that she had continued to collect Mother's Allowance for three months after their marriage. None of these allegations were put to the applicant during her evidence, probably because counsel for Mr. Decaen had no intention of introducing it. These comments demonstrate that Mr. Decaen was willing to say whatever he felt would help his case. Indeed, at one point he admitted that he would “do anything to get (his) kids”.

74Like Ms. Decaen, Mr. Decaen was also contradicted on several occasions by his own previous sworn testimony. For example, he testified during the trial that he did not know if the applicant had a university degree, which I found to be improbable. In cross-examination, he was contradicted by a statement sworn on May 4, 2009 in which he deposed that she did.

75Thus, I have also approached with caution any evidence of Mr. Decaen that is not supported by other evidence, or by common sense.

Ms. Decean Repeatedly Denied Access

76One area of the evidence that did not depend solely on Mr. Decaen's testimony is the evidence relating to a number of occasions upon which Ms. Decaen denied him access to the children following their separation.

77In her order of November 2, 2007 Justice Gauthier ordered that access by Mr. Decaen be facilitated through Mr. St. Amant, Sr. Ms. Decaen testified that, in the period immediately following the making of that order, Mr. Decaen exercised access for only a few hours on Saturdays. According to her testimony, Mr. Decaen only began to see the children for longer periods of time after February of 2008, when she decided that the pick-up and drop-off of the children should be arranged through the access centre, rather than through her father. This change in the arrangement occurred, according to both Ms. Decaen and her father, because of an incident of hostility between Mr. Decaen and Mr. St. Amant. I accept this evidence. Nonetheless, Ms. Decaen took it upon herself to alter Justice Gauthier’s order without even advising Mr. Decaen. As a result, he missed some access until he could once again exercise it through the access centre. Once he did, he began to take the children every other weekend.

78In addition to the access he missed due to the change referred to above, Mr. Decaen was denied access on five other occasions, some of them lasting for extended periods of time, namely:

A. In August of 2008, Mr. Decaen was denied access after Denyca broke her arm while she was in his care. The accident happened while Denyca was driving a 4-wheeler. Mr. Decaen took her immediately to the hospital, along with a friend of Denyca's, who was about 15 years old, and the two twins, who were also in his care. Ms. Decaen did not like the fact that the twins were left in the car with Denyca's friend while Denyca was being treated in the hospital. She testified that she couldn't remember involving them, but the CAS did become involved briefly, as a result of which Mr. Decaen "may have missed one access visit", according to the vague testimony of Ms. Decaen. I found the applicant to be purposely evasive about this incident. During cross-examination, she was made to admit that the young lady with whom the children were left in the car was actually three years older than Ms. Decaen was when she first began to babysit.

B. Ms. Decaen admits denying Mr. Decaen access to his children after an incident during which he was seen protesting in a superhero costume later in the same month in which Denyca broke her arm. I will deal with this incident shortly.

C. In the summer of 2009, Ms. Decaen denied the respondent access after she was charged with the forgery to which I have earlier referred.

D. Later that same summer, Ms. Decaen again denied Mr. Decaen access after another act of protest by him, which I will also deal with below. After this occasion, Ms. Decaen unilaterally imposed a condition that Mr. Decaen exercise access under supervision, which he did. This condition was later done away with after Mr. Decaen brought a motion for access, amongst other things. On December 9, 2011 Kane, J. ordered¹¹ that Mr. Decaen be given "liberal, reasonable, unsupervised" access to the twins on alternating weekends from Thursday at 5 p.m. until Monday or Tuesday morning (depending on whether Monday was a school holiday), when he was to bring them to school, and on Thursday evening during the other weeks, from 5 p.m to 7:30 p.m., as well as extended access during holiday periods.

E. In June of 2011, Ms. Decaen again denied Mr. Decaen access after he allegedly threatened her (see the discussion below about further criminal charges).

79Ms. Decaen testified that she withheld access on these occasions because she was acting on the advice of either her lawyer, the police, or the CAS. For reasons I have already given relating to her credibility, and its inherent implausibility, I do not accept this unsupported evidence.

80In my opinion, it is reasonable to conclude from this evidence that Ms. Decaen denied access to Mr. Decaen whenever she was unhappy with his behaviour. Unfortunately, Mr. Decaen gave Ms. Decaen a number of opportunities to be unhappy with him. Before I turn to those occasions, however, it is necessary to set out some of the evidence regarding child and spousal support.

Child and Spousal Support

81Justice Gauthier’s November 2007 temporary order did not address ongoing support. It provided that Mr. Decaen was to pay for the expenses associated with the matrimonial home, of which the applicant was given exclusive possession, and to pay a lump sum amount of $5,000 immediately. Ongoing temporary child support was ordered by Hennessey, J. on December 17, 2007. She required Mr. Decaen to pay child support of $2,500 per month, commencing on January 1, 2008. In addition to that, on January 31, 2008 Justice Hennessey ordered that the respondent pay $1,100 per month in spousal support commencing on February 1, 2008. Unfortunately, there is no indication in either order of the amount of income upon which the order was based.

82The support orders were filed with the Family Responsibility Office (“FRO”) for enforcement. A statement from FRO of amounts paid and owing was introduced into evidence during the trial. However, that statement begins on March 1, 2008. Therefore, there is no record prepared by a third party as to what support was paid between the date of separation and that date and there is a dispute between the parties with regard to that issue, as well.

83According to Ms. Decaen, Mr. Decaen did not pay the child support ordered by Justice Hennessey on December 17, which necessitated the second motion brought before Her Honour in January. Thus, Ms. Decaen maintains that child support is owed for the period between the date of the order and March of 2008. She relies on the FRO statement, which shows that Mr. Decaen owes the sum of $19,079.57 with respect to the support payable from March 1, 2008 to September 8, 2011.

84Mr. Decaen filed copies of cancelled cheques in support of his evidence that he paid all of the support he was ordered to pay and that, in addition, he paid the applicant directly when FRO was unable to redirect the entire monthly support payable from his earnings because of the fact that it could only garnish up to fifty percent of his pay.

85On June 4, 2009 the parties again appeared before Hennessey, J. It would seem from the preamble to her order of that date that FRO was threatening to suspend Mr. Decaen’s driver’s license and that he was seeking a refraining order, as well as an order varying the amount of the arrears and the amount of the ongoing support payable. He was successful, to some degree, on two of the three fronts. Justice Hennessey ordered that the arrears be reduced by $2,544, and that child and spousal support be varied. She set child support for all four children at $1,892 per month and spousal support at $1,054 per month, both commencing on July 1, 2009. These amounts were based on an annual income of $85,000. Mr. Decaen continues to pay support based on this order.

86Ms. Decaen testified that, even if the full amount of support initially ordered was paid, she could not have made ends meet. She filed copies of a number of cheques that were written to her order by what I understand is her father’s consulting company. These cheques span the period from October 17, 2007 to February 4, 2009 and total $25,699.64. Mr. St. Amant, Sr. was never asked any questions concerning these cheques.

87Mr. Decaen’s present base salary is $81,420 per year. From time-to-time, Mr. Decaen is called upon to work overtime. He testified that he can elect to take time off in lieu of extra pay and that, at the time of trial, he had three weeks “in the bank”. Mr. Decaen testified that he did not work a lot of overtime in the years during which the parties lived in Garson, but did while they lived in Copper Cliff. He explained that this was because the price of nickel jumped to $24 per pound from $7. For that reason, he worked an extra two hours per day, five days per week. According to Mr. Decaen, the only times he ever earned a lot of overtime pay were in the year before and the year of the separation, i.e. 2006 and 2007. The financial records filed as part of the pretrial disclosure process indicate that in those years he earned $154,000 and $148,000, approximately. In 2008, he earned the sum of $103,343.12 according to the T4 statement prepared by his employer.

88In addition to his salary, Mr. Decaen is eligible to receive a bonus once each year. The amount of the bonus is based on the performance of the Ontario division of the company, the performance of the particular plant in Ontario, and on his performance as an employee. In 2011, Mr. Decaen received a bonus in the amount of $15,393.42. This amount was paid to him in February and represents his bonus for 2010. If he qualifies for a bonus for 2011, it will be paid to him in February of 2012. Mr. Decaen testified that there is “no guarantee” that he will be paid a bonus.

89Throughout his marriage to the applicant, Mr. Decaen also did work for a company owned by a friend, named “Indus-Comm”. However, none of the financial records produced by the respondent show any income from that source. Ms. Decaen and her father testified that they saw Mr. Decaen cleaning radios in the evenings while the parties cohabited, presumably for Indus-Comm. Mr. Decaen denied this. He testified that he did various “projects” for his friend, including installing a radio tower, as well as installing wireless networks and fibre optics for a helipad at the hospital. In addition, Mr. Decaen testified that he helped his friend perform renovations to a bar he purchased and also worked in the kitchen as a cook. The only work for which he was paid, according to the respondent, was the tower installation, for which he and his father each earned $1,500. For his other work, he was either not paid or, in one case, given two laptops, one for each of Ashley and Denyca.

90Beginning in the fall of 2010, Mr. Decaen also taught on a part-time basis at College Borèal, where he has been a member of the board for many years. He did not yet have a T4 form for his work there during the 2011 calendar year at the time of trial. He testified that he was paid at the rate of $55 per hour and worked two to three times per week for 3 hours at a time. He agreed in cross-examination that his earnings from that source for 2011 could be as high as $11,000. None of these earnings were reflected in the most recent financial statement sworn by Mr. Decaen on September 1, 2011.

91Although he filed copies of his T4 forms as part of the pretrial disclosure process, Mr. Decaen did not file copies of his income tax returns for the years 2009 and 2010. He testified that this was because he did not file returns for those years. According to his evidence, he refrained from doing so because he was concerned that, if he did, FRO would take the refund and give it to the applicant despite his position that he is not in arrears. The T4 statements filed indicate that Mr. Decaen’s income from employment was $82,506.34 in 2009 and $91,892.34 in 2010.

Mr. Decaen's Public Protests

92Apparently, Mr. Decaen did not feel that he was getting his money’s worth with respect to the support he was paying. In August of 2008, he paraded around Sudbury wearing a "Batman" costume and waving a sign that referred to the amount of support he was paying and complaining that he was still not seeing his children. Mr. Decaen testified that he had not seen his children for two months at this point and that this was done as a type of protest engaged in by a group of men called "Fathers for Justice", who fight for access to their children.

93This incident came to the attention of Ms. Decaen through her brother, Marc, who saw Mr. Decaen and recognized him. As a result, she contacted the police and Mr. Decaen was detained and assessed under the Mental Health Act, following which he was released.

94A year later, in August of 2009, Mr. Decaen put up a number of posters in the New Sudbury area showing pictures of the twins, with their first names printed on each photo, under which appeared the words, "Help Kids See Dad" and Mr. Decaen's phone number. I will address these incidents again when I deal with who should have custody, and why.

Mr. Decaen Contacts Mr. Corriveau

95According to Mr. Corriveau, Mr. Decaen contacted him sometime in late 2007 or early 2008 and the two of them discussed Mr. Decaen's separation from Ms. Decaen and Mr. Corriveau's previous relationship with her.

96Mr. Decaen admits that they discussed the possibility of free tuition for Ashley, but he testified that it was Mr. Corriveau that contacted him initially to talk to him about the similarities in their stories. I do not accept that evidence. While there was some evidence to the effect that the two of them had met in the past, no explanation was offered in evidence as to how Mr. Corriveau would know anything about what Mr. Decaen was going through. Further, I found Mr. Corriveau to be a very credible witness. He is married, has his own family and a responsible job. He was well-spoken and very forthright. In explaining why he agreed to allow Mr. Decean to adopt his daughter, he testified that he "was hoping that Ashley would be more of a winner than (he) was a loser". While he admitted that there isn't a day that goes by that he doesn't think of Ashley and that he would like to re-establish a relationship with her, he did not attempt to put the blame for losing her solely on the shoulders of Ms. Decaen.

97Mr. Corriveau explained that, because his wife is a professor at Laurentian University (in fact, Ashley was one of her students), it might be possible for Ashley to study there without paying tuition. He testified that there was a discussion with Mr. Decaen about that and about how to facilitate Mr. Corriveau seeing Ashley again.

98I find that Mr. Decaen was the person that initiated contact and that the possibility of free tuition is the reason why he did so. The respondent was attempting to reduce the costs of supporting his family. In doing so, he alienated Ashley. Predictably, in my view, she was very upset at what he did. She has not talked to him since.

Mr. Decaen's Bankruptcy

99On October 22, 2008 Mr. Decaen filed an assignment into bankruptcy. Amongst the assets listed in the Statement of Affairs prepared in connection with the bankruptcy was the respondent's interest in the matrimonial home, located on Nickel Street, in Copper Cliff. That home was sold in March of 2009 in order to realize his interest. Of course, Mr. Decaen's share of the proceeds went to his trustee in bankruptcy. Ms. Decaen's share, in the amount of $29,640.31, was paid to her.

100The Statement of Affairs also referred to an RRSP of a value of $2,000. No mention was made in that statement of an interest in any other retirement savings plan or pension fund, nor of any debt owed to Ms. Decaen.

Additional Criminal Charges Against Mr. Decaen

101In addition to the criminal charges that were laid against Mr. Decaen in October of 2007, he has been charged with a number of other criminal offences since then, some as result of complaints by Ms. Decaen.

102Counsel for the respondent argues that the evidence discloses a pattern of behaviour on Ms. Decaen's part of making false accusations whenever it furthers her quest for custody of her children. I have already dealt with the shortcomings of that argument as it relates to the accusations Ms. Decaen made against Mr. Corriveau. In my view, the argument also fails because the evidence falls short of establishing that the allegations against Mr. Decaen by Ms. Decaen are "demonstrably false"¹².

103Although Mr. Decaen denied the allegations underlying the assault and threatening charges laid in October of 2007, he agreed to enter into a peace bond as a result of the charges. In August of 2008, Mr. Decaen was charged with breaching the peace bond into which he had entered when the earlier charges were withdrawn. According to his evidence, the breach resulted when he went to Ms. Decaen's house to determine what was taking Denyca so long to join him and the twins, all of whom were on their way to Canada's Wonderland. Mr. Decaen testified that he was only on the doorstep for 20 seconds or so but he admitted that, “technically”, he breached that term of his recognizance. He pleaded guilty to that offence and given an absolute discharge. The latest charge of threatening has yet to be dealt with in a criminal court. Regardless of the meaning to be given to the words "demonstrably false", this evidence fails to satisfy it.

104The respondent was charged in August of 2010 with sexual assault. The alleged victim was a friend of Denyca's. Mr. Decaen hired a lawyer to defend against the charge. Although he denies he touched the complainant at all, the respondent pleaded guilty to a charge of simple assault and was given a conditional discharge. This offence does not form part of the pattern of allegedly false complaints by Ms. Decaen, but I mention it here for the sake of convenience.

105In my opinion, the fact that Mr. Decaen was charged with sexual assault is of no real relevance to these proceedings beyond the negative effect on his credibility of the fact that he pleaded guilty to simple assault despite maintaining that he never touched the victim. The evidence is insufficient to establish that Mr. Decaen poses a threat to his own children and was never relied upon for that purpose.

106In June of 2011, Mr. Decaen was charged again with threatening Ms. Decaen. He denies the allegations and has once again hired a lawyer to defend against them. The trial is scheduled for March of this year.

107While I agree that the timing of Ms.Decaen's complaints is highly suspicious, I find that the evidence fails to establish a pattern of making false complaints that might reflect on her ability to act as a parent to her children.

Denyca Goes to Live with Mr. Decaen

108Mr. Decaen testified that Denyca went to live with him for two periods of time after the parties separated. According to him, the first was a period of about two months during the summer of 2009 and the second was for a period of five months, beginning in March of 2010. Ms. Decaen, however, testified in cross-examination that Denyca went to live with Mr. Decaen for only one period of time, from March to September of 2010. Thus, although there is some disagreement as to whether Denyca lived with Mr. Decaen in 2009, the parties agree that there was a period of approximately seven months where Denyca was living with Mr. Decaen at some point after Justice Hennessy’s order of June 4, 2009 in which Mr. Decaen was ordered to pay child support for four children in the amount of $1892 per month.

109As I understand it, the plan was for Denyca to remain more or less permanently with Mr. Decaen in 2010. However, that plan changed after Mr. Decean was charged with sexually assaulting Denyca's friend. According to all of the witnesses called on behalf of Ms. Decaen, Denyca had a very hard time emotionally after that charge was laid. She changed schools in an effort to avoid the gossip that followed the laying of the charge, but that did not improve her condition. Nor did the help that she was getting through her family physician.

110According to Mr. Decaen, Denyca left in September of 2009 at his request because due to the fact that he was still required to pay support for her to Ms. Decaen. Fortunately for Mr. Decaen, I do not accept this evidence. If it were true, it would not be favourable to him.

Ms. Decaen Plans to Move the Children Without Advising Mr. Decaen

111In May of 2011, Mr. Decaen went to see Denyca at a local fast food restaurant, where she was working. It was during that visit that he learned that Ms. Decaen was planning to move with the children to Mississauga.

112In cross-examination, Ms. Decaen first admitted that she never advised Mr. Decaen of her intention to move. Then she resiled from that position, saying that she may have advised him on May 6th that she was planning to move at the end of June. In any event, she did admit that she advanced the date of the move from the end of June to May 13th, testifying that it was because the principal at the twins’ school told her that it was “a great idea” to move the children six to seven weeks before the end of the school year. She denied that she made the decision to move the children early because she had learned that Mr. Decaen was bringing a motion to prevent her from moving the children. She testified that she gave notice to her landlord in April that she was leaving at the end of May and that she planned to move in with her parents before moving to Mississauga, to save money. I do not accept that evidence.

113Mr. St. Amant never testified that Ms. Decaen had planned to stay with him and his wife in May. Further, I find it improbable that the principal gave this advice. At the very least, it runs contrary to popular thinking. The applicant admitted that fact during her evidence. In light of it, one would think the applicant would have supported her own testimony on such an important issue with other evidence. She did not. I find, therefore, that it is much more likely that she was trying to change the status quo by moving the twins before the father could do anything about it, rather than following the advice of the school principal.

114However, Ms. Decaen was unable to complete the move fast enough to carry out her plan. On May 13, 2011 Gauthier, J. made a temporary order prohibiting Ms. Decaen from changing the residence of Isabelle and Kaleb from that of the City of Greater Sudbury. On May 26, 2011 Cornell, J. extended the temporary order until the date this application was decided.

115In July of 2011, Ms. Decaen attempted to have Justice Cornell’s order varied on the basis that she had obtained a full-time job in Mississauga, arguing that this constituted a material change in circumstances since the earlier order had been made. Her motion was denied by Hennessey, J. on July 4, as was a request by Mr. Decaen for an order that the police assist him in exercising access, if necessary.

Wishes of the Children

116Thankfully, neither party sought to call any of the children to give evidence during the trial, nor was it seriously suggested that I meet with any of them to determine their wishes. Instead, counsel representing the three youngest children on behalf of the Office of the Children’s Lawyer¹³ (the “OCL”) sought to introduce evidence of the children’s wishes through the testimony of a social worker, Marion Roberts. As a result, a voir dire was conducted to determine the admissibility of that hearsay evidence as a principled exception to the hearsay rule. For reasons delivered orally, I ruled that a number of statements made by the children to Ms. Roberts met the threshold test for admissibility.

117Ms. Roberts has a Masters’ Degree in Social Work and approximately 35 years of experience in that field. Presently, she maintains a private consulting practice and also acts as a “clinical investigator” for the OCL. In the case at bar, she was retained to provide a “clinical assist” to counsel acting on behalf of the children, meaning that she performed two functions. One of them involved observing the interaction between the parents and the children. The other involved determining the children’s views and preferences.

118Ms. Roberts met with the children on a number of occasions in order to determine their wishes. Most, if not all, of the meetings took place in the presence of counsel for the children. Ms. Roberts met most often with the twins, with whom she met on seven occasions. She testified that she and the children’s lawyer employed techniques designed to engage the children and not to influence them.

119Ms. Roberts and Ashley discussed why Ashley was no longer seeing her father during a meeting held in February of 2010. Ashley told her about the respondent contacting her biological father. She also mentioned the fact that she had been told she had been accused by her father of breaking in to his apartment, which accusation Ms. Roberts said Mr. Decaen later admitted making, but also admitted was likely a mistake.

120Ms.Roberts testified that Denyca’s demeanour changed between February of 2010 and May of 2011. In February, she was positive about the access she had shared with her father. In May, she appeared to be sad and, at times, was tearful. In between those two dates, Mr. Decaen was charged with sexually assaulting Denyca’s friend. Denyca advised Ms. Roberts during the February meeting that she had planned to move in with her father because the rules were more relaxed at his home. During the May meeting, she advised Ms. Roberts that she no longer had contact with her father. She told the social worker that she felt she could no longer trust Mr. Decaen. She also told Ms. Roberts that she wanted to live in Mississauga with her siblings and that she was excited about the prospect of attending a high school that had more to offer in terms of art and psychology courses than those she had attended in the Sudbury area.

121Ms. Roberts travelled to Mississauga in November of 2011 to observe the three youngest children with their mother. She described the three bedroom home in which they were living as being in a respectable neighbourhood, with amenities like a community swimming pool and park nearby. She also confirmed some of the evidence given by other witnesses to the effect that Denyca was engaged in art by testifying that Denyca showed her some of her work while there.

122Isabelle and Kaleb told Ms. Roberts in May of 2011 that they were happy to be going to Mississauga. However, Kaleb also told her in his own way that he wanted increased access with his father during the summer by saying that he was going to have “twenty sleeps with Dad”.

123Ms. Roberts testified that, during a meeting with the twins in October of 2011, Kaleb made a distinction between “Toronto” and “Mississauga”, expressing a dislike for the former and demonstrating a positive attitude about the latter. He told her that he was tired of talking about the move to Toronto with his father. Isabelle told Ms. Roberts that her father was afraid he wouldn’t see them again if they moved. Both children expressed sadness at the prospect of missing their friends, but Kaleb told Ms. Roberts that he could stay in touch with them through “Facebook”.

124By November of 2011, Kaleb was no longer positive about the move to Mississauga. He told Ms. Roberts that he didn’t think the move was a good idea, that it took too much time away from his father and that he would be unable to visit Leisure Farms if they moved.

125Due to the fact that Ashley and Denyca were no longer talking to their father, Ms. Roberts was unable to make any observations of the interaction between them and their father. Generally speaking, her observations of the interaction between the parties and the two youngest children were that the interaction was good, with more affection shown between the mother and the children than between the father and the children. Ms. Roberts also observed that Ashley was close to all of her siblings.

The Present State of Affairs

126Ms. Decaen moved to Mississauga without the twins. At the time of trial, she was residing in a home that is owned by her aunt and uncle, who are out of the country until August of 2012.

127Since the order of Justice Gauthier, the twins have been living with their maternal grandparents, Mr. and Mrs. St. Amant, in Sudbury. They seem to be doing very well, although it is clear that they miss their parents. Mr. St. Amant, Sr. testified that he and his wife have already taken steps to move to Mississauga if their daughter is permitted to move the children there.

128Kaleb has been identified as a child who has special learning requirements and an individualized education plan (“IEP”) has been put in place for him at the school he is presently attending. With the applicant’s approval, he and Isabelle have been placed in separate classes for the first time in their short academic careers. Ms. Decaen testified that the IEP is transferrable, should she be permitted to move the twins.

129The applicant testified that she has already enrolled the twins in a French language catholic school about five minutes away from where she is living in Mississauga. She also testified that she has made contact with a family physician. No evidence was introduced in support of her testimony which, for reasons I have already expressed, I have approached with caution. While she may not have been as candid as the respondent about it, I believe that Ms. Decaen would also say just about anything to obtain custody of her children.

130Ashley is presently in her fourth year at Laurentian University, pursuing a career as a speech pathologist. At the time of trial, she was also living with her maternal grandparents. She works part-time for a distributing company. In 2010, she earned $6,192.30. In addition, she has received various student loans and bursaries. She has also taken out a line of credit in the total potential amount of $20,000, for which her grandfather, Mr. St. Amant, Sr. has assumed liability as the primary borrower. According to the evidence of both the mother and Ms. Roberts, Ashley plans to obtain a Masters degree in speech pathology and has applied to a Masters program in Toronto, commencing in September of 2012. At the end of January of 2012, she will begin a nine week placement in Mississauga as part of her present studies. If Ms. Decaen is still there, Ashley will live with her.

131At the time of trial, Denyca was living with Ms. Decaen. According to the evidence of Ms. Decaen and Ms. Roberts, Denyca was doing much better than she was while she was living in the Sudbury area after her father was charged with sexual assault. She had resumed her artwork and was enjoying her new school, which offers more in the way of psychology courses – an area in which she would like to study after high school – than her previous school. According to the applicant, Denyca had also seen a doctor in southern Ontario and been referred to the Trillium Health Centre, presumably for further treatment for her mental health.

132Mr. Decaen has not seen Denyca since May of 2011, when he learned from her about the applicant’s plan to move the children and brought a motion to prevent it. He has had no contact with Ashley since she sent him an “angry” e-mail following his discussions with Mr. Corriveau about becoming involved again in Ashley’s life.

133In contrast to his relationship with the oldest children, Mr. Decaen has been seeing the twins regularly. Since at least March of 2008¹⁴ he has had overnight access every second weekend and since at least June 19, 2009 he has also enjoyed access on one evening every other week, when such access was not denied by the applicant.

134Ms. Decaen has been working for a window and door sales company in Mississauga since June 27, 2011. At the time of trial, she was employed full-time as a “Customer Service Representative/Post-Sales Support” person, at the rate of $1,875 every two weeks. According to her, she felt independent and self-sufficient for the first time in her adult life.

135Mr. Decaen has moved into a three bedroom duplex in Azilda, near the city of Sudbury. During his evidence, he described the various amenities nearby, which include numerous recreational facilities. If he was granted custody, he says that he would move to a three bedroom apartment that is closer to the applicant’s parents and to the school presently being attended by the twins. He testified that, if Ms. Decaen was permitted to relocate the twins, he would seek a transfer to southern Ontario through his employer.

136Both parents have plans in place with respect to such things as transportation to and from school, after school care, etc. The mother's plan is more detailed than that of the father, in my view. However, it has to be. Because she plans on relocating the children, it is necessary for her to arrange such things as schooling, medical and dental services.

ISSUES

137The following issues must be decided:

1. Who should have custody of Denyca and the twins, and on what terms, if any?
2. What access should be given to the non-custodial parent?
3. What child support should be paid?
4. What spousal support should be paid?
5. Should the support orders be made "retroactive"¹⁵?
6. What arrears of support are owing by Mr. Decaen on the existing orders?
7. Should a constructive trust be imposed on a portion of Mr. Decaen's pension or, alternatively, should lump sum support be ordered to remedy any inequity resulting from Mr. Decaen's bankruptcy?

ANALYSIS

Custody

Positions of the Parties

138The parties agree that Denyca is now old enough to choose with whom she would like to live and that her choice is to live with the applicant. The real battle arises with respect to the twins, although both the applicant and the children’s lawyer argue that custody of the twins cannot be decided without considering who will have custody of Denyca. The applicant seeks sole custody of Isabelle and Kaleb. The respondent argues that a shared parenting arrangement would best meet the objectives of the Divorce Act. He relies on the fact that the mother has not alleged that he is unfit to parent the children. The OCL supports the mother.

Discussion

139The Divorce Act (“the Act”) directs that a court which makes an order for custody must consider only the best interests of the child of the marriage as determined by the condition, means, needs and other circumstances of the child¹⁶. The child’s best interests must be determined from the perspective of the child and not from that of the parents. Parental preferences and rights, unless they accord with the best interest of the child, must give way.¹⁷

140Section 16 of the Act gives little guidance on what factors comprise a child’s best interests. However, the section does contain two directives. Pursuant to subsection 16(10) of the Act, a court making an order for custody “shall give effect to the principle that a child of the marriage should have as much contact as possible with each spouse” as is consistent with those best interests. Thus, Parliament has decreed that maximum contact between a parent and a child is generally in the child’s best interests.¹⁸ McLachlin, J. (as she then was) in Gordon v. Goertz held that, while the maximum contact principle is mandatory, it is not absolute.¹⁹ Put another way, however, the maximum contact principle can only be overcome where restricting contact with a parent would be in the child’s best interests.

141The other directive contained in the Act regarding what comprises a child’s best interests is found in subsection 16(9). That subsection provides that, in making a custody order, “the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of the child”. In Gordon v. Goertz, McLachlin, J. held that the motives of the parent who seeks to move the residence of the child are irrelevant under subsection 16(9) of the Act unless they reflect on the parent’s perception of the needs of the child or the parent’s judgment about how they may best be fulfilled²⁰.

142Recently, the Ontario Court of Appeal emphasized the importance of giving sufficient weight to the maximum contact principle in mobility cases. In Berry v. Berry²¹, the court overturned the decision of the trial judge on the ground that he attached too much weight to the mother’s motives for moving and not did not attach enough weight to the fact that the parties had resided in Toronto throughout their marriage and that the child had lived there his whole life.

143Courts dealing with custody issues under the Act have turned to provincial legislation for guidance on other factors comprising the best interests of a child. Subsection 24(2) of the Children’s Law Reform Act provides the following list of relevant factors concerning a child’s needs and circumstances:

(a) The love, affection and emotional ties between the child and, (i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; and (g) the ability of each person applying for custody of or access to the child to act as a parent.

144Nothing is mentioned in section 16 of the Divorce Act regarding orders for joint custody. Thus, joint custody has been defined by the courts, rather than by legislation. It is clear that there is no default position in favour of joint custody.²²

145I do not agree with the respondent's submission that the applicant has not alleged that he is unfit to parent. While it has not been expressly alleged, the applicant has challenged Mr. Decaen's ability as a parent implicitly, through the evidence she introduced of his conduct towards the children. In any event, in Kaplanis v. Kaplanis, the Ontario Court of Appeal held that it is not enough for the parents to acknowledge one another to be fit parents before an order of joint custody can be made. There must be some evidence that the parents can communicate effectively with one another for the purpose of joint decision-making.²³

146“Shared parenting” is also not defined anywhere in the legislation. Unfortunately, perhaps as a result of that fact, the term has been used to refer to different arrangements. In V.K. v. T.S., for example, Chapple, J. points out that, traditionally, the term “shared parenting” has been used to refer to the time-sharing arrangement where sole custody is awarded to one parent²⁴. In the present case, I understand the respondent to be seeking something different. He seeks to participate in the decision-making process with the ultimate decision-making authority going to the applicant, in the event that the parties cannot agree. This type of arrangement also requires cooperation.²⁵

147It is pointless, in my view, to impose a shared parenting arrangement if it is more likely than not that the court would just be creating another battlefield, this time with a predetermined winner. That is exactly what the court would be doing, in my view, if it was to accept the respondent’s submission regarding custody in this case. The parties have been involved in a high conflict situation since the day Ms. Decaen left her “Dear John” note and took the children. Each of the parties has been charged criminally for offences in which the other was the alleged victim. Communication through a medium such as a communication book will not, in my view, do enough to eliminate the conflict between the parties.

148Further, the evidence lead during the trial was to the effect that, during their cohabitation, Ms. Decaen was primarily responsible for making decisions that affected the welfare of the children, although, as I have noted, Mr. Decaen participated in various activities of the children, to the degree that he could.

149There was also evidence that the parties would not be able to agree, even if they could communicate meaningfully, on major issues. For example, Mr. Decaen does not agree with Ms. Decaen’s decision to allow the twins to be separated at school, which Ms. Decaen believes is necessary to allow Kaleb to develop on his own.

150In my opinion, this is a case where custody of the children must be given to one party or the other. The difficult question, however, is to whom it should be given. Neither parent emerges as clear cut choice. Ms. Decaen has repeatedly denied access by Mr. Decaen to the children. Her decision to move the children to Mississauga without even advising their father was a vivid demonstration of her shortcomings as a parent. However, Mr. Decaen has also clearly demonstrated his inability to put the children before his own interests. The “Batman” incident demonstrates an alarming lack of insight into the possible effects of his behaviour upon the very children concerning access to which he was protesting. The “Posters” incident demonstrated a profound lack of judgment. This incident did not stop short at simply embarrassing his children; it put the twins in danger. What kind of an advantage would a predator gain over Kaleb and Isabelle by knowing their first names and what they looked like? What if that predator had also called the phone number on the posters to learn the name of Mr. Decaen; would he or she have been able to use that information to gain access to the children somehow?

151While she may have used the children as tools of punishment against the respondent on a number of occasions, the applicant has, at least, not put them in harm's way. She has been the main caregiver since their birth. In my view, for these reasons, it would be in the best interests of Isabelle and Kaleb for the applicant to have sole custody of them.

152Given her age and her obvious preferences, the same is true with respect to Denyca. Granting the applicant custody of the twins has the added advantage of ensuring that there is maximum contact between them and their older siblings.

153But where should that contact occur? There is no doubt that living in Mississauga is good for Ms. Decaen and it is equally clear that it is beneficial for Denyca. But that is not the case with respect to the twins. Living in Mississauga will significantly reduce the access presently enjoyed by the twins with their father. It is no answer, in my view, to throw the children into a vehicle for 7 ½ to 8 hours a weekend once per month, even if there was evidence that playing video games or watching a DVD for those hours was good for the children. Nor is it necessary to place their lives at risk as passengers on a busy highway.

154It is also no answer to say that other members of the family can move south, including the paternal grandparents and the father. The twins have lived in the Sudbury area their entire lives. With the exception of the applicant’s aunt and uncle (who seem to be out of the country more than they are in it), the evidence is that the entire extended families of the children live in the Sudbury and West Nipissing areas. The applicant’s brother and sister, both of whom testified convincingly that they were close to the children, live here. So does the father’s family, none of whom plans to move south, as far as this court is aware. There was no evidence as to whether the respondent would be assured of a transfer to southern Ontario and, if so, at what rate of remuneration. There was no evidence that he had made any serious inquiries about it. The father's continued employment is crucial to the financial health of this already broken family.

155In my view, the applicant has failed to demonstrate that the children’s best interests would be served by restricting their access to their father. She has not demonstrated to this court’s satisfaction that the job she took in Mississauga is the only real chance she has to re-enter the work force. I agree with the submission made by counsel for the respondent that the evidence falls short of establishing that the applicant made an exhaustive, or even a reasonable, search for employment in the Sudbury area before looking south. This was a very important issue in this trial and the applicant’s evidence on the point was vague and unconvincing. She could list only a handful of what she alleged was 20 to 30 potential employers to whom she had applied and produced no documentary evidence in support of her testimony, apart from her own curriculum vitae.

156I accept that Denyca’s condition improved after she left Sudbury and that she very much does not wish to return. Unfortunately, there is more at stake here than just Denyca’s best interests. I bear in mind that she will be undertaking post-secondary education, beginning in September. It is a common occurrence for older children to leave their homes to further their education. While I would like to maximize the contact Denyca has with the twins in the meanwhile, I also bear in mind that both the applicant and Denyca chose to reduce that contact by living in Mississauga despite the orders which prevented the twins from being moved.

157At the conclusion of the evidence, I asked the parties to consider the possibility that the temporary order preventing Isabelle and Kaleb from being moved might be continued permanently and I released my decision doing just that early enough to permit Denyca to return to Sudbury to complete her high school education with as little disruption as possible. I do not know whether she has done that.

158Unlike the situation with Denyca, there is no evidence that the twins will be granted access to any better health or educational opportunities in Mississauga than those to which they are presently granted access in the Sudbury area. The IEP has already been put in place for Kaleb. It appears to be working. There is no evidence that anything Mississauga has to offer the twins could justify the further disruption to their already destabilized lives. They have changed schools three times already. Even if I were to accept the applicant’s evidence about the contact she has made with educators in Mississauga, there is no evidence that the school in which she would enrol the twins is any better than the one in which they are already enrolled. But there is clear evidence that the Mississauga school is very far away from everything and everyone that the twins have known their entire lives. This militates strongly against moving them.

159In making my decision, I have also considered the wishes of the children, but only to a limited extent, for several reasons.

160Firstly, while the hearsay evidence given by Ms. Roberts was sufficient to pass the threshold test for admission, its reliability was weakened by two factors. One was the fact that Ms. Roberts attempted to give detailed evidence about numerous meetings conducted over many months without making any reference to notes that she took during or shortly after those meetings. Whatever the reason for doing so, it defies logic to believe that she could remember accurately all that was said and seen during those meetings, even though what she did recall was impressive.

161Secondly, one of the assumptions upon which I determined threshold reliability was seriously undermined once Ms. Roberts stepped into the witness box. I believed, incorrectly as it turned out, that Ms. Roberts was retained to help the children’s lawyer to determine what was in her client’s best interest. Not so, according to Ms. Roberts, who testified in cross-examination that she knew what position the children’s lawyer was going to be taking before meeting any of the lawyer’s clients. This unfortunate fact causes me concern that bias involuntarily crept into Ms. Robert’s questions, perceptions and recollections, despite her obvious professionalism.

162Lastly, there was evidence that the children’s wishes had been influenced, not just by the father, as argued by counsel for the mother, but by Ms. Decaen, as well. I refer here to several pieces of evidence.

163With respect to Denyca, during the meeting on May 24, 2011 she told Ms. Roberts she was excited about the prospect of moving to Mississauga and spoke of the psychology courses offered at the high school level there. Given that Ms. Decaen had already moved to Mississauga at the time, I believe it is reasonable to conclude that she was the one who provided this information to Denyca.

164The mother also influenced the two youngest children. During a meeting held on that same day with Isabelle and Kaleb, the twins told Ms. Roberts about the swimming pool near the Mississauga home. The children had to have learned about these things through the applicant. As another example, I refer to the evidence that Kaleb told Ms. Roberts on October 18, 2011 that he could keep in touch with his friends in the Sudbury area via “Facebook” if he moved. I found that to be a rather advanced idea for a 7-year-old and is more likely to have been an idea that came from someone older. I am unable to say whether it was his mother or one of his sisters. Who it was, however, is irrelevant. The fact that he was influenced in his thinking is the important point.

165I have also given less weight to the wishes of the twins as a result of their young ages for reasons I probably do not have to expand upon.

166On the other hand, I do not have to rely on the evidence of Mr. Decaen or his father to conclude that the twins enjoy spending time with the respondent’s family and especially enjoy spending time at Leisure Farms and Paradise Point. What 7-year-old child would not?

167Based on all of the evidence, it is my view that Ms. Decaen should be given custody of the children, Isabelle and Kaleb, but that the temporary order restraining her from moving them from the Greater Sudbury area should continue indefinitely.

168I turn now to the possibility that the applicant is only prepared to assume custody of the twins if she is permitted to move them to Mississauga. While I have been critical of the father’s short-sighted decision-making, he is still a viable second choice as custodial parent. Assuming, without deciding, that Mr. Decaen has really only become fully engaged with the twins since discovering that Ms. Decaen wanted to move them hundreds of kilometres away, as argued by the mother, the fact remains that they have done well in his presence. Regardless of his initial motivation, Mr. Decaen has demonstrated that he is capable of caring for the children and I have found it would be in their best interests to remain close to their extended families in the Greater Sudbury area. Mr. Decaen does have a parenting plan in place, including moving closer to the children’s present school, so as not to disrupt them yet again in that respect. This is an example of what I view as responsible decision-making, unlike some of the decisions he has made in the past.

169Therefore, in the event that the applicant fails or refuses to accept custody of the twins on the terms I have imposed within a reasonable period of time after announcing my decision on the issue, the respondent shall have custody of them.

Access

Position of the Parties

170The parties were requested to provide their written submissions with respect to access in the event that Ms. Decaen was given custody, but not permitted to remove the children. The applicant submitted that the respondent should have access on alternate weekends from Friday at 6:00 p.m. until Sunday at 4:00 p.m. and that the parties could share equally the children’s holiday schedules, amongst other things. The respondent continues in his submissions to seek a shared parenting arrangement.

Discussion

171The applicant’s submission with respect to access is a good example of her position throughout the period following the party’s separation. It represents a restriction in the access presently enjoyed by the respondent. As indicated above, Mr. Decaen has been exercising access every second weekend from Thursday at 5:00 p.m. until Monday or Tuesday morning, depending on whether Monday is a school holiday. As well, he has been exercising access for one evening every other week from 5:00 to 7:30 p.m. In my view, the goal of providing stability to the twins requires that this access schedule be maintained and the maximum contact principle requires that it be increased, if possible. Therefore, the respondent will have unsupervised access to Isabelle and Kaleb as follows:

(a) during alternate weeks, from Thursday at 5:00 p.m. until Monday morning, or Tuesday morning, if Monday is a school holiday, when the respondent shall return the children to school; (b) on Thursday evening in the following week from 5:00 p.m. until Friday morning, when he shall return the children to school; and (c) one-half of the children’s school holidays at Christmas, during the March break and during the summer holidays.

172Neither party included any suggestion in their submissions with respect to where access transitions should take place. Nor was any evidence adduced as to the availability in Sudbury of the access centre to which I have referred above. Unfortunately, there was also no evidence adduced with respect to the specific terms of any judicial interim release order into which the respondent may have entered pending disposition of the threatening charge.

173It is reasonable to assume that it will take Ms. Decaen some time to re-establish herself in the Sudbury area if she assumes custody. In the meanwhile, some access point is required. I am mindful of the incident that occurred between Mr. St. Amant, Sr. and the respondent. However, the home of the paternal grandparents is the only option that the evidence reveals is available. Mr. St. Amant testified that he and his wife would only move to Mississauga if the court permitted his daughter to move the children there. Furthermore, I have a great deal of confidence in Mr. St. Amant and I believe that Mr. Decaen has a lot of respect for him, as well. I am hopeful that Mr. Decaen will control his urge to discuss the issues between him and Ms. Decaen. It would be foolish on his part to repeat his earlier mistake, knowing how stern a view a judge might take of it. Therefore, the access transition shall occur at the home of Mr. and Mrs. St. Amant, unless the parties agree on some other location.

174In the event that Ms. Decaen fails or refuses to accept custody of the twins on the terms that I have imposed and that, as a result, Mr. Decaen assumes custody in accordance with this court’s order, then I believe it would be appropriate to impose an access schedule similar to the one that the applicant proposed in the event that she had custody, with the exception of the travel to which her suggestion would have exposed the children. Therefore, in the event that the respondent assumes custody of the twins, the applicant shall have unsupervised access to them on the following terms, namely:

(a) for one long weekend per month, commencing in January, 2012 from 6:00 p.m. on the day prior to the first non-working day of the long weekend until the last non-working day of the weekend at 4:00 p.m. Such access to be exercised only in the City of Greater Sudbury; (b) one-half of the children’s school holidays at Christmas; (c) every other school March break; and (d) one-half of the summer holidays, with the parties having the children on a week about schedule.

Child Support

Positions of the Parties

175The applicant argues that income should be imputed to the respondent as a result of his failure to make proper financial disclosure. She relies on section 19 of the Federal Child Support Guidelines (the “Guidelines”) and upon cases such as Cunha v. Cunha, in which non-disclosure of assets was referred to as “the cancer of matrimonial property litigation”.²⁶ She submits that income in the amount of $147,425 in total, should be imputed to the respondent and that ongoing child and spousal support should be based on that figure. She arrives at that figure by taking the average income of the respondent for the years 2006 through 2008, inclusive, and adding $7,500 for teaching at College Boréal and $5,000 for the respondent’s work for Indus-Comm.

176The respondent argues that full financial disclosure has been made. He maintains that he has earned no income from Indus-Comm and that, although he did not file income tax returns for 2009 and 2010, he provided copies of source documents, including T4 statements and paystubs, which showed income and bonuses, if any, received for those years.

177The respondent argues that, at most, his income for 2011 should be calculated based on a projection, using the income he has earned from January 1, 2011 to November 30, 2011 as a baseline. Doing so would result in income for 2011 of $102,362, including the bonus he received in February, 2011 for the 2010 year.

Discussion

178I agree with the applicant’s submission that the respondent has failed to disclose income. Mr. Decaen’s sworn financial statement of September 1, 2011 fails to report the income he earned from College Boréal and the bonus that he received in February of that year. These are not mere oversights on his part. Given his concern with how much support he is paying, as demonstrated by the wording on the sign he carried around while dressed as Batman, and his refusal to file income tax returns despite the potential penalties for doing so, I conclude that his failure was advertent.

179I reject Mr. Decaen's evidence that he was not repairing radios or some other equipment for Indus-Comm during his marriage. As I have indicated, I found Mr. St. Amant, Sr. to be a credible witness. I accept his evidence that he saw the respondent repairing radios and that the respondent told him that he was doing it for Indus-Comm. I also reject Mr. Decaen’s evidence that he received nothing but two laptop computers for all the renovating work he did and for working as a cook at his friend’s bar. It makes no sense that he would go unpaid for such work when he and his father were paid for their work erecting a tower over a single weekend. If Mr. Decaen was not paid for all of his work, he should have been.

180Thus, I am of the view that some income should be imputed to the respondent beyond that which he reported following the separation. However, I am not in agreement with the manner in which the applicant suggests that it should be estimated.

181It is clear from the T4 statements prepared by Vale that the respondent is earning less income from his employment with that employer than he did in the years 2005 – 2008. I need not accept Mr. Decaen’s evidence on this point to be satisfied that this is the case. It would be incorrect, in my opinion, to base imputed income for 2011 on income earned so long ago, in the absence of some other evidence indicating that the respondent was refusing overtime work from Vale, or otherwise being intentionally under-employed. In my view, imputed income should be added to the respondent’s projected 2011 income, in the amount of $102,362, even though that income includes a bonus. Although I accept that the bonus received each year by the respondent is not guaranteed, it would appear that he was paid something beyond his base salary in the years 2008, 2010 and 2011. Furthermore, the bonus received in the 2011 year was with respect to a year in which, as I understand the evidence, Mr. Decaen’s employer suffered a labour strike.

182Although Mr. Decaen testified that he has worked little overtime since 2007, he also testified that he had about three weeks of accumulated overtime “in the bank” at the time of trial. I conclude from this that Mr. Decaen does work some overtime each year. He testified that he can elect whether to receive compensation for that overtime as money, or as time off. Given that Mr Decaen has a family to support, he should take it as money.

183For the foregoing reasons, I conclude that Mr. Decaen can earn the sum of at least $15,000 in addition to his base pay at Vale as either bonus, overtime, or both, and that, therefore, his projected income from 2011 is an appropriate starting point from which to impute additional income.

184The respondent testified that he taught for College Boréal only because the College needed him this school year, the inference being that it would not be a reoccurring event. I do not accept that evidence. There is no evidence that the college was either dissatisfied with Mr. Decaen or that they were looking for anyone else to teach what he taught. Therefore, I think it is reasonable to assume that the position at College Boréal is or would be open to Mr. Decaen in the future. Given that he has a family to support, the respondent should pursue the position. Because he has been on the board of the school for 15 years, I expect that he will be successful.

185With respect to income from Indus-Comm, the matter is more difficult. Given that the company is owned by a friend of Mr. Decaen’s, I have no doubt that the respondent has work available from that source, if he wants it. However, there is no evidence as to how much money Mr. Decaen could earn. Of necessity, therefore, I must be somewhat arbitrary. I believe that the figures of $7,500 and $5,000 submitted by the applicant as imputed income from College Boréal and from Indus-Comm are reasonable and I would add these amounts to Mr. Decaen’s income for the purpose of calculating ongoing support.

186In total, therefore, I would base support on income, both estimated and imputed, of $114,862. From this, I would deduct the sum of $100, being the approximate amount of union dues payable for 2011, as indicated in the respondent’s most recent financial statement and as required by section 16 of the Guidelines.

187I turn now to the issue of whether child support should be paid for Ashley. Although she is over the age of 18 years, she may still be a child of the marriage where she is dependent upon her parents for support, due to such things as her continued post-secondary education. However, the jurisprudence indicates that she may not be entitled to expect such support where she has terminated her relationship with the payor parent.²⁷ The jurisprudence also indicates, nonetheless, that the reason for the termination is a relevant consideration.

188In my view, Ashley had good reason to be upset with her father. However, he remains her father, even if he has made some sizable errors in judgment in the past. He will not see the true error of his ways until Ashley explains to him exactly how he hurt her. I hope that she will do that one day. In the meanwhile, it is my view that it would be unreasonable for her to expect to be supported by him during her pursuit of a graduate degree, especially when she refuses to even speak to him. On the other hand, given that it was Mr. Decaen’s ill-advised act of attempting to bring Ashley’s birth father back into the picture that caused the present situation, it would not be unreasonable to require him to pay support for four, as opposed to three children, up to the end of Ashley’s present school year, being the end of April, 2012.

189There will be an order for ongoing child support, therefore, as follows:

(a) The respondent shall pay support in the amount of $2,470.02 per month, being the amount payable under the Guidelines by a payor earning $114,762, for all four children of the marriage, commencing on the 1st day of January, 2012 and payable on the first day of each month thereafter, until the 30th day of April, 2012. (b) Commencing on the 1st day of May, 2012, and continuing on the first day of each month following, the respondent shall pay support for the children of the marriage, namely Denyca, Isabelle and Kaleb, in the amount of $2,076.58, being the amount payable under the Guidelines by a payor earning $114,762.

190In the event that Ms. Decaen refuses to assume custody, she will be required to pay support to Mr. Decaen for the twins. Under the Guidelines effective January 1, 2012, Mr. Decaen would be required to pay Ms. Decaen support for Ashley and Denyca in the amount of $1,596.14, based on income of $114,762 until April 30, 2012. Thereafter, Mr. Decaen would be required to pay Ms. Decaen $996.40 for the support of Denyca. Based on her income of $45,000, Ms. Decaen would be required to pay support to Mr. Decaen for the twins in the amount of $664 per month. Section 8 of the Guidelines requires that these two amounts be set-off to arrive at the final amount.

191Therefore, an order will go that, should Mr. Decaen assume custody of the twins, he will pay support to Ms. Decaen for Ashley and Denyca in the amount of $932.14 commencing on the first day of the month following the assumption by him of custody and payable on the first day of each month thereafter until the 30th day of April, 2012. Thereafter, Mr. Decaen shall pay to Ms. Decaen the sum of $332.40 per month for the support of Denyca.

192With respect to section 7 (extraordinary) expenses, I agree with the submissions of counsel for the respondent that there is no evidence of extraordinary expenses presently being incurred on behalf of the children, with the exception of the evidence that Ashley is in university. Unfortunately, there is no evidence as to the amount of Ashley’s expenses, beyond the evidence that she has been required to borrow money and to contribute to those expenses through her part-time employment. In the circumstances, all I can do is hope that the child support that Mr. Decaen has and will continue to pay for Ashley until April 30, 2012 has been used, and will continue to be used to assist her with those expenses.

193With respect to extraordinary expenses to be incurred on behalf of the other children in the future, the parties should bear those expenses in proportion to their incomes, in accordance with the Guidelines. Of course, if Ms. Decaen chooses to remain in Mississauga, she will bear her portion of the expenses on the basis of her present income of $45,000 per year, as opposed to the actual and imputed income of Mr. Decaen, which I have found to be $114,762.

194In the event that Ms. Decaen returns to Sudbury to assume custody of the twins, she will have no income for a period of time and Mr. Decaen will be required to bear all section 7 expenses entirely. For reasons I will develop below, I believe that it would be reasonable to expect Ms. Decaen to find employment or to complete her education within a period of two and one-half years. Therefore, I would order that Mr. Decaen bear all section 7 expenses for that period of time, following which they shall be borne in proportion to Mr Decaen’s income of $114,762 as against imputed income on the part of Ms. Decaen in the amount of $45,000 per year.

195In the even there is a material change in circumstances on the part of either party, of course, they are entitled to apply to vary this order. Further, in Fisher v. Fisher, the Ontario Court of Appeal indicated that the failure of expectations to materialize, such as Ms. Decaen's future employment, will also constitute a material change sufficient to warrant review. ²⁸

Spousal Support

Positions of the Parties

196The applicant argues that she is entitled to compensatory support from the respondent. In addition, she says that, if she is required to leave her job in Mississauga to assume custody of the twins, she will require “needs-based” support.

197The respondent denies that the applicant has any need for spousal support, or that there is any basis for such an award. He says that the applicant had no income before their marriage and remained that way throughout. In fact, he argues that she is ahead of the game because of the marriage, during which she benefited from his income.

Discussion

198Thankfully, the law is based on a different philosophy than that put forward on behalf of Mr. Decaen. It recognizes that, while there may be economic advantages accruing to a spouse during marriage, there may be, and often are, disadvantages arising from the marriage and its breakdown. In Bracklow v. Bracklow, McLachlin, J. (as she then as) outlined the three models upon which modern spousal support is based.²⁹ The compensatory model recognizes these economic consequences.

199The leading case regarding compensatory support continues to be the Supreme Court of Canada decision in Moge v. Moge³⁰, in which the court reviewed the provisions of the predecessor to present section 15.2 of the Act, the relevant portions of which read:

(4) In making an order under subsection (1) or an interim order under subsection (2), 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) ... (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses 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 over 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) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

200The court in Moge held that no one factor in subsection (6) should take precedence over another.

201In my view, Ms. Decaen is entitled to support on a compensatory basis, even if she chooses to remain in Mississauga, and also on a needs basis if she returns to Sudbury to assume custody of the twins.

202The evidence in this case indicates that Ms. Decaen’s education was interrupted by the birth of Denyca. Her career path then changed during the marriage such that she pursued qualification as a funeral director. However, the evidence further indicates that her new career path was also affected by her duties as a mother. Therefore, in my view, Ms. Decaen suffered an economic disadvantage by virtue of the marriage because it interfered with her career. She also suffered an economic disadvantage from its breakdown, as she was left dependant on Mr. Decaen for financial support.

203Further, Mr. Decaen enjoyed an economic advantage arising from the fact that Ms. Decaen assumed the role of primary caregiver to the children, freeing him up to advance his career to the point where, at the time of the separation, he was earning income in the range of $150,000 per year, which he would not have been able to do if he were to have assumed the role of primary caregiver.

204Mr. Decaen’s obligation to support Ms. Decaen is not avoided merely because she is able to obtain gainful employment or even to become self-sufficiency. As Moge teaches us, the goal is to achieve an equitable sharing of the economic consequences of marriage or marriage breakdown. This includes sharing the economic advantage enjoyed by Mr. Decaen, as well as the economic disadvantage suffered by Ms. Decaen. At paragraph 73 of Moge, L’Heureux-Dubé, J. wrote:

The doctrine of equitable sharing of the economic consequences of marriage or a marriage breakdown upon its dissolution which, in my view, the Act promotes, seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse. Significantly, it recognizes that work within the home has undeniable value and transforms the notion of equality from the rhetorical status to which it was relegated under a deemed self-sufficiency model, to a substantive imperative.

205A spouse may be entitled to needs-based support even where that spouse manages to achieve self-sufficiency, either alone or as the result of compensatory support. In Bracklow, McLachlin, J. wrote³¹:

...Where a spouse achieves economic self-sufficiency on the basis of his or her own efforts, or on an award of compensatory support, the obligation founded on the marriage relationship itself lies dormant. But where need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role. Absent negating factors, it is available, in appropriate circumstances, to provide just support.

206Understandably, neither party at trial provided the court with software-generated spousal support calculations in accordance with the Spousal Support Advisory Guidelines (“SSAG”) based on the amount of income on that I subsequently determined was the appropriate amount upon which to base support payments. Therefore, I have performed my own calculations in the interest of deciding the issue without further delay and expense. I have provided the parties with copies of the computer print-outs at the time of the release of these reasons, in order that my calculations might form part of the record.³²

207Those calculations indicate that, if Ms. Decaen continues to reside in Mississauga and to receive support for Ashley and Denyca to April 30, 2012 and Mr. Decaen assumes custody of the twins, the range of spousal support called for by the SSAG is between $485 and $1,036 per month. Because Mr. Decaen will incur expenses to move closer to the twins’ school in this scenario, I would set spousal support in the low-end of the range, but above the lowest end of the range in order to account for the travel expenses that Ms. Decaen will incur for the purpose of exercising access. Thus, I would award support in the amount of $600 per month. I will deal with the commencement date below, in the section entitled "Retroactive Support". The amount of spousal support payable in this scenario, i.e. where Ashley and Denyca reside with Ms. Decaen in Mississauga, must change on the date the child support for Ashley ceases to be paid by Mr. Decaen, being April 30, 2012.

208Continuing with the same scenario, from May 1, 2012 forward, Mr. Decaen would only be required to pay child support for Denyca. The SSAG provide a range for spousal support in those circumstances of between $624 and $1,263 per month. For the same reasons as set out above regarding quantum, I would award $750 per month.

209With respect to duration, the SSAG suggest a duration of between 6.5 to 13 years from the date of separation. Given that the marriage was of only moderate length and that Ms. Decaen is only 41 years of age, I would award spousal support in the amount set out above for a period of 5 years, commencing on January 1, 2012. That would bring the total number of years over which support was paid for Ms. Decaen to 10, subject to what I have decided with respect to Mr. Decaen's pension.

210In the event that Ms. Decaen leaves Mississauga and assumes custody of the twins in the Sudbury area, the loss of her employment in Mississauga dictates quite a different scenario. Should Denyca also return to live with her mother, the SSAG indicate that, up to April 30, 2012, in addition to child support of $2,470 per month, spousal support in the range of $1,014 to $1,450 per month would be appropriate. I would award spousal support in the higher end of that range, to help offset some of the costs of returning to Sudbury, even though those costs were necessitated by the applicant moving to Mississauga in the first place. I would award $1,300 per month, commencing January 1, 2012.

211After April 30, 2012 (the date that I have determined support should cease for Ashley), the SSAG indicate that spousal support in the range of $1,204 to $1,677 per month would be appropriate. I would award spousal support in the amount of $1,300 per month (i.e. the same amount as Ms. Decaen would receive even if Ashley was living with her), given her age and the length of the marriage.

212Based on my earlier conclusion that Ms. Decaen did not do enough to find employment in the Sudbury area, I believe that she is capable of returning to the workforce, should she so choose, within a period of two and one-half years. Alternatively, she might wish to return to university. Based on her evidence that she planned to complete her last year at Laurentian in 2010 and then go on to teacher’s college, she could accomplish that within much the same timeframe.

213Therefore, I would award spousal support in the amount of $1,300 for a period from January 1, 2012 to June 30, 2014. Thereafter, on the same basis upon which I would have awarded compensatory support even if Ms. Decaen had remained in Mississauga, I would continue that support from July 1, 2014 to December 31, 2016 in the amount of $750 per month.

Retroactive Support

Positions of the Parties

214In addition to imputing income for the purposes of ongoing spousal support, the applicant also seeks to have income imputed to the respondent with respect to the years 2008 through to and including 2010. Based on her calculations, this would result in additional retroactive support in a total amount of $86,930.

215Counsel for Mr. Decaen says the figures used to arrive at the above amount are totally fictitious. He argues that the claim for retroactive support ignores the interim orders that were made or, at least, fails to give proper credit for what was paid under those orders. He submits that the applicant fails to recognize that she has been employed since June of 2011 and, yet, has continued to receive support based on an order that was made when she was not working. He argues that the applicant has also failed to show any need during the period in question. In addition, he submits that the entire claim for retroactive support is a last-minute, post-trial attempt to gain an unnecessary and unfair windfall.

Discussion

216I disagree with the respondent’s submissions that the applicant has demonstrated no need. She gave evidence that the amount ordered on an interim basis was insufficient and produced copies of cheques written by her father to her in support of that evidence. As I indicated above, unfortunately, Mr. St. Amant, Sr., was not questioned with respect to these cheques. However, the cheques themselves provide at least some support for Ms. Decaen’s evidence and I am prepared to accept that she found the money insufficient to make ends meet.

217I also reject the argument that the claim for retroactive support should be dismissed on the basis that it was not raised until after trial. The application itself seeks to have the support payments made retroactively to the date of separation. While I would not agree to this request on the basis of the jurisprudence which recognizes that the normal commencement date is that upon which the application was started³³, the fact that there were interim orders made for support does not preclude this court from ordering support commencing on that date.³⁴ Further, the issue of undisclosed additional income earned by Mr. Decaen was “front and centre” during the trial.

218However, I do not fully agree with the amount of income that the applicant seeks to have imputed for the years 2009 and 2010. For the year 2008, she submits that the respondent’s income was $108,343, not the amount disclosed of $103,343. The $5,000 difference appears to coincide with the amount that the applicant submits should be imputed as undisclosed income from Indus-Comm. If so, I am prepared to accept that submission.

219For the year 2009, however, the applicant submits that the respondent’s income should be imputed as $139,925, rather than the $82,506.34 he declared. For 2010, the applicant submits that the respondent’s imputed income should be $147,425, rather than the $91,892.34 that he disclosed.

220There is no evidence that Mr. Decaen worked for College Boréal in 2009. Therefore, for that year, I would impute income of $5,000, representing income from Indus-Comm. With respect to 2010, Mr. Decaen admitted that he also worked for College Boréal in that year. However, he began only in the fall, according to his evidence, which is the only evidence we have on the subject. For that year, therefore, I would not impute that full $7,500 referred to earlier. Instead, I would impute the sum of $3,750, together with the sum of $5,000 as income from Indus-Comm. Thus, Mr. Decaen's actual and imputed income for the years 2008 to 2011 is as follows:

• 2008: $108,343.00
• 2009: $87,506.34
• 2010: $100,642.34
• 2011: $114,732.00

221The orders of Hennessy, J. of December 17, 2007 and January 31, 2008 do not indicate the amount of income upon which the child and spousal support ordered therein was based. However, to extrapolate, the Guideline applicable at the time indicates that child support in the amount of $2,501 per month for four children ought to be paid by someone earning $118,000 per year. This is significantly more than the amount of actual and imputed income that I find was earned in 2008, and more than the amount urged upon me by the applicant with respect to that year. On the other hand, the child support that Mr. Decaen paid in 2009 and 2010 was based on less income than I have imputed to him during those years.

222Based on my ruling, Mr. Decaen ought to have paid child support for the years 2008 through 2011 as follows:

Year	Income	Child Support as per Guidelines
2008	$108,343.00	$2,325.00 per month
2009	$87,506.34	$1,938.00 per month
2010	$100,642.34	$2,181.00 per month
2011	$114,732.00	$2,443.00 per month

223To calculate the amount by which Mr. Decaen either overpaid or underpaid child support, I have prepared the following table:

Year	Amount Actually Paid	Amount Ought to Have Been Paid	Underpayment (Overpayment)
2008	$2,500 x 12 = $30,000	$2,325 x 12 = $27,900	($2,100)
2009	$2,500 x 635 = $15,000 $1,892 x 6 = $11,352 Total of $26,352	$1,938 x 12 = $23,256	$(3,096)
2010	$1,892 x 12 = $22,704	$2,111 x 12 = $25,332	$3,468
2011	$22,704	$2,443 x 12 = $29,316	$6,612
Total			$4,884

224Mr. Decaen argues that he actually paid more child support for 2011 than indicated above, based on the amount that his most recent pay stub shows was deducted for the year. The problem with this argument is that there is no indication on the pay stub of the year for which support is being deducted. It is not possible to know, therefore, whether the amount deducted is also for arrears allegedly owing, and not just for ongoing support.

225In his submissions addressing the issue of arrears of support, the respondent submits that he is entitled to a credit for child support paid as a result of the fact that Denyca lived with him for seven months. The submission of counsel for the respondent that his client should be credited the amount of $2,114, representing the difference between the child support ordered for four children (in the amount of $1,892) and the amount of support payable for three children at the time (in the amount of $1,590 per month) for a period of seven months, is based on the support that Mr. Decaen actually paid pursuant to the order of Hennessy, J. of June 4, 2009.

226However, this credit must be calculated on the basis of what Mr. Decaen ought to have paid on the income I have imputed to him for the years in question, not on what he did pay. Therefore, I will deal with his submission in this section of my reasons, rather than in the section dealing with arrears.

227In order to calculate the credit, I must resolve the conflict in the evidence regarding when Denyca came to live with her father, because I have imputed different incomes to him for the two years in question. I accept the evidence of the respondent that Denyca lived with him for two months in 2009 and for five months in 2010. Ms. Decaen's evidence on this point arose in the context of her cross-examination, when counsel for Mr. Decaen put the proposition to her that Denyca went to live with Mr. Decaen from March to September of 2010 and she simply agreed with it.

228Based on what I have found regarding income, Mr. Decaen ought to have paid child support for three children for two months in 2009 in the amount of $1,629, rather than the amount of $1,938. That means he is entitled to a credit of $618 for that period. For the five months that Denyca lived with him in 2010, he ought to have been paying $1,835 per month rather than $2,181, a difference of $346 per month, for a credit for that year of $1,730. Therefore, the total credit that Mr. Decaen ought to receive based on the income I have imputed to him is $2,348. This amount should be deducted from the underpayment calculated above, to arrive at a figure for retroactive child support in the amount of $2,536.

229I turn now to the issue of retroactive spousal support. Spousal support is awarded on a more discretionary basis than is child support, as a result of the applicability of the Guidelines to the latter. For this reason, I would not vary retroactively the amounts that the respondent was required to pay for spousal support in the years 2008 and 2010. The amounts ordered by Hennessy, J. for those periods were within the range suggested by the SSAG, even with the additional income I have imputed to the respondent.

230With respect to the year 2009, however, even with additional income from Indus-Comm imputed to him, the respondent paid more than the SSAG would indicate was appropriate. Taking into account what the Guidelines applicable at that time provided with respect to child support, the SSAG would have suggested that spousal support in the range of $636 to $983 be paid. I would award spousal support in the amount of $800 for that calendar year. Bearing in mind that Mr. Decaen paid $1,100 per month until July 1 and then $1,054 per month from that point forward for a total of $12,924, he overpaid by $3,324.

231There is one other “retroactive” award to consider. Above, I deferred a discussion of the commencement date for the present spousal support order applicable to the situation where Ms. Decaen lives in Mississauga and receives support for Ashley and Denyca only. In my view, fairness dictates that this support should commence the month after Ms. Decaen obtained employment, namely July 1, 2011. Therefore, there is a further credit due to Mr. Decaen. For the period from July 1 to December 31, 2011 I would award spousal support roughly in the mid-range of the amount suggested by the SSAG, taking into account the Guidelines at the time. This is the amount of $454. There is a difference between what Mr. Decaen was paying for spousal support and my present award for that period in the amount of $600. Over the six months from July 1 to December 31, 2011 this represents an overpayment of $3,600.

232As I have no evidence with respect to what occurred after the trial, I am unable to quantify any adjustments for overpayments after December 31, 2011 based on the amount of spousal and child support that I have ordered. I leave it to counsel, therefore, to do so and to incorporate that calculation into the final order.

233Altogether, therefore, Mr. Decaen ought to be credited for overpayments in child and spousal support totalling $4,388. Those overpayments ought to be deducted from the arrears allegedly owed by Mr. Decaen under the previous orders. I turn now to the issue of exactly what those arrears should be.

Arrears of Support

Positions of the Parties

234The respondent seeks a reduction in the arrears of interim spousal support and an adjustment or credit with respect to arrears calculated by FRO since the interim support orders of Hennessy, J. were filed for enforcement. He also seeks an adjustment to spousal support arrears based on the fact that Ms. Decaen has continued to receive spousal support at the same rate ordered by Justice Hennessy, despite becoming employed in June of 2011. I dealt with this last submission in the section above, as I did with the respondent's request for an adjustment with respect to the support paid for Denyca.

235The applicant submits that the respondent has failed to prove that the arrears as calculated by FRO are incorrect. As I indicated earlier, she also seeks spousal support despite obtaining employment.

Discussion

236The statement of arrears prepared by FRO was introduced through the applicant (Exhibit 16). In the analysis that follows, I have proceeded on the assumption that the statement of arrears is admitted as a business record on the consent of both parties. No objection was made by the respondent when it was being introduced. Indeed, counsel for the respondent included a copy of it in a brief he prepared for trial purposes that was also admitted as an exhibit (Exhibit 44, the “financial brief”). The issue is not whether the statement of arrears is accurate with respect to the payments received by FRO, but whether the arrears reflected in it should be adjusted to account for payments made by the respondent directly to the applicant and to reflect support that the respondent says he ought not to have paid at all.

237Counsel for the respondent also introduced copies of a number of other documents (Exhibit 42) relating to support arrears at trial. These consisted, for the most part, of copies of the front and back of cancelled cheques. All of the cheques were written by Mr. Decaen to Ms. Decaen. They total $20,400. In addition, the respondent introduced a receipt showing a direct transfer into Ms. Decaen’s bank account of $1,000.

238Mr. Decaen testified that some of the cheques were written because FRO could only garnish up to fifty percent of his wages and, therefore, he wrote cheques directly to Ms. Decaen, usually in the amount of $1,500, to make up the shortfall. However, only six of the cheques were written after the interim orders were filed for enforcement, effective March 1, 2008. One of those was written on March 1, before the earliest date of garnishment, being March 13, 2008. Nonetheless, I am prepared to accept that it was written with respect to the support that Mr. Decaen was to pay on March 1st in the total amount of $3,600. The six cheques and the direct deposit total $9,900.

239Ms. Decaen admitted that she received and cashed the cheques written on March 1, March 15, and May 15, 2008. The other three cheques are dated June 30, July 31 and September 15, 2008. They are each in the amount of $1,300. Mr. Decaen was only able to produce a copy of the front of these cheques. He testified that, at one point, FRO told him to stop making payments directly to the applicant. Therefore, he sent the cheques directly to FRO. He recalled one of the cheques “bouncing”, but admitted that he did not know for sure whether any of the others cleared the bank.

240Ms. Decaen was also uncertain about how many, if any, of the $1,300 cheques cleared the bank. She testified that she did not recall receiving any cheques from Mr. Decaen after July 31, 2008.

241The FRO statement shows that one cheque in the amount of $1,300 was credited to Mr. Decaen on July 22, 2008 and another on October 3, 2008. I am prepared to accept that these relate to the cheques dated June 30 and September 15, 2008. This is because the copies of these two cheques have “date(s) de retrait” that correspond to the dates that FRO received payments in these amounts. I am not satisfied that the July 31 cheque was either forwarded to FRO or cashed by Ms. Decaen. The FRO statement of arrears indicates that two cheques in the amount of $1,300 were returned “NSF”. However, these cheques were returned on January 26, 2009, well after any of the cheques submitted into evidence by the respondent were written.

242Therefore, based on the evidence adduced by the respondent, I am prepared to accept that he made payments directly to Ms. Decaen in the total amount of $6,000 with respect to the interim orders of Hennessy, J.

243Unfortunately, that does not end the matter of payments made directly by Mr. Decaen to Ms. Decaen. Counsel for the applicant submitted during the cross-examination of her client that the matter was res judicata, because Mr. Decaen had made a similar request of Hennessy, J. when he appeared before her on June 4, 2009. Based solely on Justice Hennessy's endorsement of that date, I permitted the respondent’s counsel to cross-examine on the issue. I have now had an opportunity to review the record of the proceedings before Hennessy, J. and I find myself in agreement with the submissions of the applicant’s counsel.

244In her endorsement concerning the issue of arrears, Hennessy, J. wrote:

Mr. Mottonen argues that Mr. D. should receive credit of $8,800 based on payments made throughout 2008 in addition to the max. amount deducted by FRO, plus other credits. Mr. Arseneau submits that the max. deduction from arrears statement should be $2,544 – since certain payments should be credited to o/s orders that pre-dated January 31, 2008: $1,800 – interim paymt 1,500 – costs 5,544 – house exp At this time, declaration that arrears be reduced by $2,544 – there was no evidence that above 3 payments made. The credit issue is not finally resolved. (emphasis in original).

245Hennessy, J.’s endorsement to the effect that the credit issue is not finally resolved must be put in context by examining the materials that were before her. Thsee materials reveal that Mr. Decaen relied then upon the same evidence (the cheques and deposit receipt) that he relied upon before this court. The materials also contain a copy of a letter written by (then) counsel for Ms. Decaen, which sets out what must be the same argument that he made before Hennessy, J. I say that because the letter indicates that his client is prepared to give Mr. Decaen the exact same credit as Justice Hennessy eventually gave him, and sets out why.

246The argument made on Ms. Decaen’s behalf before Justice Hennessy was that the payments made directly to Ms. Decaen, which (not counting the two $1,300 cheques that FRO credited to Mr. Decaen) totalled $18,800, ought to be credited to the total amount that was owing (including the house expenses of $5,544.46 that Gauthier, J. ordered be paid in her order of November 2, 2007, the $1,800 that Mr. Decaen had agreed to pay as a term of an adjournment, $1,500 in court costs ordered by Hennessy, J. on January 31, 2008 and child support of $2,500 per month for three months) of $16,344.46. This left a credit of $2,455.46 which, when deducted from the $5,000 payment made by Mr. Decaen on November 1, left a credit for spousal support (not child support) of $2,544.46.

247It is apparent, therefore, that when Hennessy, J. wrote that the issue was not finally resolved, she meant that it was still open to the respondent to demonstrate to this court’s satisfaction that the payments totalling $8,844 referred to in her endorsement were also paid in addition to the payments Mr. Decaen relied upon both before her and before this court. In other words, by accepting the argument made by the applicant’s counsel at the time, Hennessy, J. must have accepted that the direct payments were made by Mr. Decaen, but applied them to payments due to Ms. Decaen prior to the first monies that she received from FRO.

248At the trial, Mr. Decaen did not attempt to prove that any payments were made in addition to those he relied upon before Hennessy, J. Therefore, in my view, the matter has been decided. Hennessy, J. has already taken into account the payments Mr. Decaen made directly to Ms. Decaen. Simply deducting the $2,544 credit she gave Mr. Decaen from the credit I would otherwise have given him, as submitted by respondent’s counsel, would be giving him twice the benefit of the direct payments that he made.

The Respondent's Pension

Positions of the Parties

249The parties agree that Ms. Decaen’s entitlement to an equalization of net family property became unenforceable as a result of Mr. Decaen’s bankruptcy. However, Mr. Decaen’s employment pension survived the bankruptcy, because it is an exempt asset under section 67(1) of the Bankruptcy and Insolvency Act (with the exception of contributions made within 12 months of the date of bankruptcy). The applicant seeks either a lump sum transfer of up to 50 percent of the respondent’s pension by way of a spousal support order or, alternatively, by way of the imposition of a constructive trust. She bases her argument on the submission that the respondent will otherwise be unjustly enriched.

250The respondent interprets the applicant to argue for the imposition of either a resulting or a constructive trust. He makes three arguments against both, although not in this order. First, he argues that there is no evidence of an agreement upon which to base a resulting trust. Second, he argues there is no evidence of a direct or indirect contribution by Ms. Decaen to the pension so as to justify the imposition of a constructive trust. Lastly, in the alternative he argues that Ms. Decaen should not get 50 percent of the pension, but only a proportionate share based on the number of years of marriage.

Discussion

251I believe that the respondent's interpretation of the applicant's argument is based in large measure on the issues she raised at the trial management stage. I do not interpret the applicant to be asking for the imposition of a resulting trust in her favour. Nor do I view Ms. Decaen as asking for 50 percent of the Mr. Decaen’s pension. Ms. Decaen is seeking a constructive trust or lump sum spousal support equivalent to no more than 50 percent. I will address the constructive trust argument first.

252In Schryer v. Schryer,³⁶the appellant wife had been denied recovery of an equalization payment by a Manitoba court due to her husband’s bankruptcy, whereas he had retained ownership of the family farm after being discharged from bankruptcy. The wife argued that the husband was estopped from asserting his discharge against her claim for equalization because in that case, like the case at bar, he had not listed her as a creditor.³⁷ Alternatively, the wife argued that the husband had been unjustly enriched and, just like the applicant in the present case, argued that the court should impose a constructive trust over one-half of the farm.

253The Supreme Court of Canada dismissed the appellant’s claims. With respect to her claim of unjust enrichment, the court held that the issue was not properly raised at first instance and that no evidence was adduced on the issue. The same cannot be said in the present case, although the evidence adduced at trial failed to include any valuation of Mr. Decaen’s pension. Both parties are to blame, in my view. Mr. Decaen failed to list his pension in his financial statements. Ms. Decaen only raised the issue of a constructive trust shortly before the trial was scheduled to begin. While it would have been very helpful to have a valuation of the pension, I do not believe that the applicant’s claim should fail where the respondent is partly to blame for the poor state of the evidence on the issue.

254In another case decided by the Supreme Court of Canada just a few short months before the release of its decision in Schryer, the court dealt squarely with the principles of a claim for unjust enrichment in the family law context. In Kerr v. Baranow,³⁸the court heard appeals relating to two cases in which claims were being made by common law spouses with respect to property accumulated or acquired during the common law relationship. Cromwell, J. on behalf of the court held that the time had come to acknowledge that there is no continuing role for a common intention resulting trust in the resolution of property disputes between unmarried persons.³⁹ Instead the court held that such disputes should be resolved by resort to the “sturdy framework” of the law of unjust enrichment as the primary vehicle to address claims of inequitable distribution of assets on the breakdown of a domestic relationship⁴⁰ and engaged in a review of that law.

255Cromwell, J. reviewed the various categories of cases in which the law of unjust enrichment has been used to permit recovery. He held that there is no separate line of authority for “family” cases and that the basic principles governing the rights and remedies for unjust enrichment remain the same for all cases⁴¹, although they must be applied in ways that respond to the particular context in which they are to operate.⁴²

256In order to succeed on a claim of unjust enrichment, the applicant must establish:

(a) that the respondent has been enriched by the applicant⁴³; (b) that the applicant has suffered a corresponding deprivation⁴⁴; and (c) that the benefit and deprivation have occurred without a juristic reason⁴⁵.

257The respondent argues that there is no evidence of a direct or indirect contribution by the applicant to his pension such as would support a claim for a constructive trust. He argues that the pension in question is a “non-contributory” pension in the sense that even Mr. Decaen was not required to contribute to it. Therefore, he argues, there was no contribution from the family unit whatsoever.

258This argument cannot succeed, in my opinion. Firstly, I have been unable to find any evidence in the record with respect to the type of pension plan enjoyed by Mr. Decaen. Secondly, even if there was such evidence, I would hold there was a contribution, albeit indirect, by Mr. Decaen and by the family unit. Mr. Decaen was entitled to the contributions made by his employer by virtue of the fact that he was employed by Vale and its predecessor. He was assisted in his ability to engage in that employment by virtue of the domestic services provided by Ms. Decaen during the course of their cohabitation. As Cromwell, J. wrote in Kerr⁴⁶:

A critical early question in domestic claims is whether the provision of domestic services could support a claim for unjust enrichment. After some doubts, the matter was conclusively resolved in Peter, where the court held that they could. A spousal or domestic partner generally has no duty, at common law, equity, or by statute, to perform work or services for the other. It follows, on a straightforward economic approach, that there is no reason to distinguish domestic services from other contributions (Peter, at pp. 91 and 93; Sorochan, at p. 46). They constitute an enrichment because such services are of great value to the family and to the other spouse; any other conclusion devalues contributions, mostly by women, to the family economy (Peter, at p. 993). The unpaid provision of services, including domestic services, or labour may also constitute a deprivation because the full–time devotion of one’s labour and earnings without compensation may readily be viewed as such.⁴⁷

259In my opinion, the applicant has established the first two prerequisites for her claim to a constructive trust based on an unjust enrichment. However, she cannot establish the third.

260In Kerr, the court wrote the following regarding the established categories of juristic reasons⁴⁸:

Juristic reasons to deny recovery may be the intention to make a gift (referred to as a “donative intent”), a contract, or a disposition of law (Peter, at pp. 999-991; Garland, at para. 44; Rathwell, at p. 455). The latter category generally includes circumstances where the enrichment of the defendant at the plaintiff’s expense is required by law, such as where a valid statute denies recovery (P.D. Maddaugh and J.D. McCamus, The Law of Restitution (1990) at p. 46; Reference re Goods and Services Tax, 1992 69 (SCC), [1992] 2 S.C.R. 445; Mack v. Canada (Attorney General) (2002), 60 O.R. (3d) 737 (Ont. C.A.)).

261Thus, a valid statute that denies recovery constitutes a juristic reason.⁴⁹ That is the case here. It is the Bankruptcy and Insolvency Act that has caused what might otherwise be seen as an unjust enrichment. This was acknowledged by the Supreme Court in Schryer, in which LeBel, J. wrote⁵⁰:

I do not doubt that an outcome like the one in this appeal looks unfair, given that the appellant’s equalization claim was based primarily on the value of an asset – the farm property – which was exempt from bankruptcy and therefore not accessible to other creditors. None of the policies underlying the BIA require that the appellant emerge from the marriage with no substantial assets. Parliament could amend the BIA in respect of the effect of a bankrupt’s discharge on equalization claims and exempt assets. But the absence of such an amendment makes the outcome of this case unavoidable. The only way Ms. Schryer could have avoided it would have been to obtain an order from the bankruptcy court lifting the stay of proceedings imposed by operation of s. 69.3 BIA so she could seek a proprietary remedy under s. 17 FPA. As will be discussed below, however, the circumstances were such that Ms. Schryer did not pursue these recourses.

262As the respondent points out, the applicant in the case at bar could also have sought a lift of the automatic stay of proceedings to seek a remedy under the Family Law Act, but did not do so. As a result, her claim to any equalization of net family property has been released.

263In support of her alternative argument for the payment of lump sum spousal support, the applicant relies upon the comments made by LeBel, J. in Schryer when he wrote⁵¹:

In its current form, therefore, the BIA offers limited remedies to spouses and the appellant’s position. In this regard, family law may provide them with a safer harbour after the bankrupt has been discharged, more particularly through spousal support… If a support order were made in a case like this one, the court might well aim to mitigate the inequities arising from the bankruptcy, such as the release of the debtor spouse from an equalization claim or the retention by the debtor spouse of an exempt asset (see Turgeon v. Turgeon, [1997] O.J. No. 4269 (Gen. Div.); and Sim v. Sim (2009), 2009 6835 (ON SC), 50 C.B.R. (5th) 295 (Ont. S.C.J.). Such determinations must be made on a case-by-case basis.

264It is well-established that courts cannot use the vehicle of spousal support to redistribute capital. In Marriano v. Marriano⁵², the Ontario Court of Appeal held:

The law is clear that lump sum maintenance should be awarded only in very unusual circumstances, where there is a real risk that periodic payments would not be made. Such awards should not constitute a redistribution of capital assets in the guise of support. See Jazenko v. Jazenko (1985), 1985 4972 (ON SC), 46 R.F.L. (2nd) 351 (Ont. Dist. Ct.) and Zabiegalowski v. Zabiegalowski (1992), 1992 13978 (ON SC), 40 R.F.L. (3d) 321 (Ont. U.F.C.).

265In Turgeon v. Turgeon⁵³, Aitken, J. upheld the award of an arbitrator to whom the parties had submitted their family law dispute. The husband had been forced into bankruptcy as a result of significant debts that the parties had accumulated during their marriage. His RRSPs and his employment pension had survived the bankruptcy, as in this case. But, unlike the present case, the wife in Turgeon was awarded periodic support based on the husband’s income from these sources. In the present case, Mr. Decaen is not yet in receipt of income from his pension and Ms. Decaen is seeking lump sum support from the pension, not periodic support.

266The other case referred to by LeBel, J. in Schryer is only somewhat closer on its facts to the case at bar. In Sim v. Sim⁵⁴, the applicant sought a variation order securing lump sum support against the respondent’s pension after an order for equalization had already been made, but the respondent had subsequently gone bankrupt. In Sim, Marshman, J. held that the husband’s bankruptcy constituted a material change in circumstances justifying a variation of the earlier spousal support order and substituted an order that the wife was entitled to lump sum support in the exact amount of the equalization payment ordered earlier, to be secured against the husband’s pension. Of course, there is a significant distinction between the facts in Sim and those of the case at bar. In the present case, Ms. Decaen is not looking to replace an order for indefinite spousal support with one of a lump sum – she is seeking both.

267Recently, a five-member panel of the Ontario Court of Appeal had occasion to consider its earlier decision in Mannarino. In Davis v. Crawford⁵⁵, the appellant argued that the trial judge had erred when she ordered that he pay his common law spouse a lump sum of spousal support in an amount which was calculated with reference to the respondent’s share of the proceeds of a piece of property which appears to have been owned by the parties jointly, but which the appellant caused to be mortgaged as a result of the improper diversion of funds. The Court of Appeal rejected the appellant’s argument that the trial judge had improperly caused redistribution of capital through an order of spousal support. In the course of so doing, the court wrote⁵⁶:

We reject the appellant’s submission that Mannarino should be treated as restricting a court’s ability to award lump sum spousal support to situations “where there is a real risk that periodic payments would not be made” or to other limited and “very unusual circumstances”. To the extent that Mannarino has been interpreted that way, in our view, that interpretation is correct.

Both the Family Law Act, R.S.O. 1990 c. F.3 and the Divorce Act (1985, c.3 (2nd Supp.)) contain provisions conferring a broad discretion on judges to make an award of periodic or lump sum spousal support, or to make an award comprising both forms of support.

Both Acts include sections addressing the purposes of an order for spousal support and the factors to be taken into account in making such an award...

None of these sections contains restrictions of the type set out in Mannarino.

Had Parliament or the legislature intended that the discretion to make an award of lump sum spousal support to a married or an unmarried spouse be as highly constrained as the appellant argues is prescribed in Mannarino, those bodies would have said so. Moreover, we can find nothing in the legislative history relating to either Act, or to predecessor Acts, suggesting such an intention.

It is well accepted – and undisputed – that a lump sum award should not be made in the guise of support for the purpose of redistributing assets…Moreover, the governing legislation does not recognize redistribution of assets as one of the purposes of spousal support.

That said, a lump sum order can be made to “relieve [against] financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home)”: Family Law Act, s. 33(a)(d).

In any event, the purpose of an award must be distinguished from its effect. Any lump sum award that is made will have the effect of transferring assets from one spouse to the other. The real question in any particular case is the underlying purpose of the order: Willemze-Davidson at para. 32.

268The periodic spousal support that I have ordered, above, is designed to alleviate to the extent possible the economic disadvantages suffered by Ms. Decaen and to recognize the economic advantages that were enjoyed by Mr. Decaen as a result of the duties that Ms. Decaen assumed during the course of their cohabitation. However, without a further order of spousal support payable at a point in time where the parties will retire, the task of reconciling those advantages and disadvantages will not be complete. Mr. Decaen’s bankruptcy has prevented the reallocation of capital that would have included a pension. Under the recent amendments to the Pension Benefits Act, Ms. Decaen could have applied to the court for a transfer of a portion of her husband’s pension plan, which would have provided her with some income at a future date. The loss of that income has created a further disadvantage to Ms. Decaen, who would have been able to contribute to her own pension plan had she not assumed the duties that she did.

269Therefore, I believe that it is just to require that Mr. Decaen pay support to Ms. Decaen in an amount equal to one-half of the value by which his pension increased between the date of marriage (December 31, 1993) and the date of separation (September 14, 2007). However, I would not order that this support be paid either now or in the future as a lump sum. As the court pointed out in Davis, the ability of a payor to pay is an important consideration in making an award of spousal support, including lump sum spousal support.⁵⁷ For that reason, I would order that Mr. Decaen recommence paying periodic spousal support on the first day of month following the earlier of the date upon which he retires or the date upon which he is first eligible to retire.

ORDER

270An order will go accordingly, incorporating my order of January 9, 2012 and the additional orders made above.

COSTS

271Success in this matter was divided. For that reason, neither party shall be awarded costs.

ONTARIO SUPERIOR COURT OF JUSTICE

DENISE SUZANNE DECAEN – and – MARC DECAEN

REASONS FOR JUDGMENT

Ellies, J.

Released: 20120313

Footnotes

1. 1I will also refer to the applicant in these reasons as "Ms. Decaen" (because she is now divorced from Mr. Decaen) or "the mother", depending upon the context.
2. 2To whom I will also refer at different points in these reasons as “the father” or “the respondent”.
3. 3Divorce Act, R.S.C. 1985, c. 3 (2nd supp.), section 16(9)
4. 4Bryant, Lederman & Fuerst, The Law of Evidence in Canada, Third Edition, LexisNexis, at paragraph 10.13
5. 5ibid, at paragraph 16.201
6. 6ibid, at paragraph 16.201; Evidence Act, section 22
7. 7Criminal Code, R.S.C. 1985, c. C-46, section 322(1)
8. 8Bryant, Lederman & Fuerst, supra, paragraph 10.8
9. 92009 57147 (ON SC), [2009] O.J. No. 4380, at paragraph 17
10. 101992 7448 (ON CA), 11 O.R. (3d) 151 (Ont. C.A.), at paragraph 8
11. 11His reasons are reported at [2009] O.J. No. 5250
12. 12See paragraph 54, above.
13. 13Ashley was past the age at which she could be represented by the OCL at the time of trial.
14. 14In her written submissions, the children’s lawyer submitted that Mr. Decaen did not exercise weekend access until September of 2011. However, during her evidence-in-chief, the applicant testified that Mr. Decaen exercised such access after she unilaterally imposed a condition that the exchange take place at the access centre, which occurred in February of 2008.
15. 15I recognize that this is a misnomer when support is sought only from the date of the application (see McKinnon v. McKinnon, 2005 13191 (ON CA), 75 O.R. (3d) 175 (Ont. C.A.), at paragraph 21). However, I will use the terminology adopted by counsel in their submissions on the point.
16. 16Section 16(8)
17. 17Young v. Young, 1993 61 (SCC), [1993] 3 S.C.R. 3 (S.C.C.), at para. 76.
18. 18Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.).
19. 19Supra, at para. 24.
20. 20Supra, at paragraph 23
21. 212011 ONCA 705
22. 22Patterson v. Patterson, 2006 53701 (ON SC), [2006] O.J. No. 5454 (S.C.J.).
23. 232005 1625 (ON CA), [2005] O.J. No. 275, at paras. 10 and 11; see also Ladisa v. Ladisa, 2005 1627 (ON CA), [2005] O.J. No. 276 (Ont. C.A.), at para. 16.
24. 242011 ONSC 4305, [2011] O.J. No. 4046 (S.C.J.), at para. 69.
25. 25Kappler v. Beaudoin, 2000 22579 (ON SC), [2000] O.J. No. 1558 (S.C.J.), at para. 20.
26. 261994 3195 (BC SC), [1994] B.C.J. No. 2573 (B.C.S.C.), at para. 9.
27. 27See, for example, Lampron v. Lampron, 2006 16375 (ON SC), [2006] O.J. No. 1972 (S.C.J.).
28. 28(2008), 2008 ONCA 11, 88 O.R. (3d) 241, (Ont. C.A.), at para. 71.
29. 291999 715 (SCC), [1999] 1 S.C.R. 420 (S.C.C), at paras. 15 and 49.
30. 301992 25 (SCC), [1992] 3 S.C.R. 813.
31. 31Supra, at para. 49.
32. 32See Fisher v. Fisher, supra, at para. 103.
33. 33See Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 207.
34. 34See for example, Jamieson v. Jamieson, [2005] N.S.J. No. 193 (N.S.S.C. Fam. Div.), at para. 45, per Dellapinna, J.
35. 35Justice Hennessy’s order of June 4 varied the child support payable effective July 1, 2009.
36. 362011 SCC 35, [2011] 2 S.C.R. 605 (S.C.C.).
37. 37Schryer v. Schryer, supra, at para. 10.
38. 382011 SCC 10, [2011] 1 S.C.R. 269.
39. 39Kerr v. Baranow, supra, at para. 15.
40. 40At para. 30.
41. 41At para. 33.
42. 42At para. 34.
43. 43Paras. 36 and 37.
44. 44Paras. 38 and 39.
45. 45At para. 40.
46. 46At para. 42.
47. 47See also Sim v. Sim, infra, at para. 11.
48. 48At para. 41.
49. 49See also Sentinel Hill v. Canada (Attorney General), [2007] O.J. No. 1377 (Ont. S.C.J.) at para. 15.
50. 50At para. 25.
51. 51At para. 37.
52. 521992 14022 (ON CA), [1992] O.J. No. 2730.
53. 53[1997] O.J. No. 4269 (Ont. Gen. Div.).
54. 542009 6835 (ON SC), [2009] O.J. No. 678 (Ont. U.F.C.).
55. 552011 ONCA 294, [2011] O.J. No. 1719.
56. 56At paras. 51 through 62.
57. 57Supra, at para. 65.