COURT FILE NO.: FC-11-964

DATE: 20130417

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Amanda Desjardins (Therrien)

Applicant

– and –

Jarred Desjardins

Respondent

Jennifer M. Wood, for the Applicant

D. Larry Segal, for the Defendant

HEARD: November 26, 27, 28, 29 and 30th; December 3, 4, 5, 6 and 7th, 2012

REASONS FOR JUDGMENT

BLISHEN, j.a.

Introduction

[1] The focus of this trial was on the parenting arrangements for the parties’ four year old daughter, Sophie. Although her parents’ relationship has been characterized by conflict, acrimony and ongoing distrust, Sophie is by all reports a well adjusted, bright, outgoing, delightful little girl. Both Ms. Therrien and Mr. Desjardins are devoted parents, committed to meeting Sophie’s needs. Both deeply love their little girl and appear to have been able to shield her from the conflict between them.

[2] Unfortunately, although both parties believe they are capable of making decisions in Sophie’s best interests, they are having difficulty putting aside the issues and conflict between them in order to move forward and act together in Sophie’s best interests.

[3] Ms. Therrien’s application, filed in April 2011, requests the following final orders:

1. sole custody of the parties’ daughter, Sophie;

2. primary residence of Sophie;

3. access to Mr. Desjardins as at present, every second weekend from Friday evening to Sunday evening and every Tuesday and Thursday after daycare to 6:30 p.m.;

4. child support based on Mr. Desjardins’ income, including a proportionate sharing of special and extraordinary expenses as per Section 7 of the Federal Child Support Guidelines, S.O.R./97-175, as am., (“CSG”);

5. an equalization payment to her of $12,617.48;

6. prejudgment interest on the equalization payment;

7. a divorce; and

8. costs.

[4] Mr. Desjardins requests final orders for:

1. either sole or joint custody;

2. a 50/50 sharing of parenting time with Sophie;

3. payment of child support pursuant to Section 9 of the CSG using the set off method;

4. a proportionate sharing of Section 7 expenses;

5. a payment of $5,732.40 to him as Ms. Therrien’s share of joint household expenses;

6. either an unequal division of net family property in his favour or damages payable by Ms. Therrien for the unwarranted filing of criminal charges against him;

7. pre and post judgement interest;

8. a divorce; and

9. full indemnity costs as a further alternative to damages or to an unequal division of net family property.

Background

[5] Ms. Therrien and Mr. Desjardins had a short term relationship. They met in the fall of 2004 when Mr. Desjardins was the manager of the residence department at Algonquin College and Ms. Therrien was a client service representative and front desk manager. Mr. Desjardins was 28 years old and Ms. Therrien was 20. They dated and then began residing together in an apartment at Algonquin College in late 2005.

[6] On June 1, 2006, they bought a home together on Victor Street in Stittsville, Ontario near their friends, John and Isabelle Coady. Mr. Desjardins alleges his mother loaned the couple $10,000.00 for closing costs.

[7] Mr. Desjardins and Ms. Therrien were married on June 24, 2006 and Sophie was born on December 1, 2008. After Sophie’s birth, Ms. Therrien took maternity leave for a year, then some vacation time and paid leave in order to transition Sophie to daycare. Mr. Desjardins continued full-time employment at Algonquin College.

[8] Less than two years later, in October 2010, the parties separated but continued living in the matrimonial home on Victor Street. The reason for the separation is disputed.

[9] On March 11, 2011, Mr. Desjardins was arrested and charged with assault and criminal harassment based on allegations made by Ms. Therrien who alleges Mr. Desjardins was abusive and controlling throughout their relationship. Mr. Desjardins was released on an undertaking not to have to contact with Ms. Therrien or Sophie except as outlined in a family court order or as approved of by the Children’s Aid Society (“CAS”).

[10] The CAS conducted a brief investigation and concluded there was risk of emotional harm to Sophie due to the conflict between the parties. Access to Mr. Desjardins was approved by the CAS and the file was closed, with the expectation that Sophie not be exposed to any further conflict or violence.

[11] The charges against Mr. Desjardins proceeded to trial in January of 2012. After Ms. Therrien’s testimony, counsel discussed the matter with the judge at his request. The Crown agreed to withdraw the charges against Mr. Desjardins, after the judge imposed mutual 12 month common law peace bonds. Both parties were ordered to keep the peace and be of good behaviour and to have no contact with each other, directly or indirectly, save for the purpose of arranging access.

[12] After the CAS completed its investigation in March 2011, Mr. Desjardins, through counsel, began to request overnight, unsupervised access to Sophie. Ms. Therrien was not in agreement and offered a few hours on Saturday and Sunday with Mr. Desjardins’ friends, the Coadys, to supervise. Ultimately, Mr. Desjardins had his first visit with Sophie on April 15, 2011 from 10:00 a.m. to 6:00 p.m. at his home with his sister present.

[13] After the application was commenced by Ms. Therrien, a case conference was held on May 20, 2011. Master Roger made a consent Order without prejudice that Mr. Desjardins have his first overnight visit with Sophie on May 28, 2011. By the end of June, the parties agreed to an Order that Mr. Desjardins have access every second weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. with access exchanges continuing to be at the Coady’s home, unless otherwise agreed by the parties. Mr. Desjardins was not ordered to pay child support as he had paid the mortgage and some of the home-related expenses. The parties were each to pay 50% of the mortgage, taxes and insurance for the matrimonial home and 50% of daycare expenses.

[14] On August 19, 2011, a motion was argued before Mr. Justice Ray who made the following temporary Order:

1. the parties share joint custody of Sophie;

2. Mr. Desjardins have access every second weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. and every Tuesday and Thursday from pickup at daycare until 6:30 p.m. Sophie was to be returned to the home of the Coadys or elsewhere as agreed between the parties;

3. the pickup and drop off location for weekend access to be at the Coadys subject to agreement between the parties;

4. the matter to be referred to the Office of the Children’s Lawyer (“OCL”) for an social work investigation; and

5. Mr. Desjardins to pay costs in the amount of $600.00.

[15] Mr. Desjardins’ access has remained the same for the past 18 months since that court Order, other than an arrangement made on consent in June 2012 for summer holiday access. The summer holiday access was to continue every second Thursday after daycare to Monday at daycare with Tuesday and Thursday weeknights visits after daycare until 6:30 p.m.

[16] The OCL accepted the referral and in April 2012, clinical investigator, Andree Guillemette, completed her investigation. She provided a report to the parties and the Court dated April 3, 2012. In general, Ms. Guillemette recommended:

1. joint legal custody for the purposes of decision making;

2. equal time sharing with a proposed schedule of two days, two days, three days commencing on a Monday;

3. each party to be responsible for choosing one extra-curricular activity for Sophie; and

4. both parties to engage in a Parenting After Separation course, such as the one offered at the Ottawa Family Service Centre.

[17] Mr. Desjardins was prepared to agree with the recommendations of the OCL investigator but Ms. Therrien was not. She filed a Dispute and her counsel cross-examined Ms. Guillemette at trial.

[18] All the witnesses who testified at trial, including Sophie’s parents, grandparents, friends of both parties and the OCL clinical investigator, agree that Sophie is a delightful, bright, little girl who is thriving. She began attending half day morning kindergarten in September, 2012, and attends daycare before and after school. She is doing well in both settings. As noted, Ms. Guillemette could see no reason why the parenting time for Mr. Desjardins could not be extended now that Sophie is over four years of age and was observed to enjoy the time with her father.

[19] Unfortunately, although the parties have maintained polite email communication, they have been not been able to meaningfully discuss and together resolve issues affecting their daughter, such as Sophie’s school, daycare and medical needs. The power struggle continues. Ms. Therrien ultimately made the decisions regarding Sophie’s change of daycare, school and medical needs after informing Mr. Desjardins. It is her perception that Mr. Desjardins fails to inform himself and does not participate in the decision making, necessitating her making a decision at the last minute, with his reluctant agreement.

[20] Ms. Therrien considers Mr. Desjardins an abusive, controlling individual who always wants his own way and continues to pose a risk to Sophie’s physical and emotional well being while she is in his care.

[21] Mr. Desjardins considers himself a victim of the false allegations made by Ms. Therrien which led to criminal charges and limited contact with his daughter. He has claimed damages against her. Although the criminal charges were ultimately withdrawn, Mr. Desjardins continues to feel abused and misused by Ms. Therrien, who he considers a liar and a manipulator. His distrust is such that he continues to ask his friend, Pete Thomas, to be present during access exchanges to prevent any further “false allegations”. Mr. Desjardins considers Ms. Therrien overcontrolling and overprotective of Sophie and argues she limits the information and communication with him regarding important decisions, resulting either in his last minute acquiescence or a request for further information.

[22] Ms. Therrien continues to work at Algonquin College. Her income in 2011 was $52,351.00 and her most recent financial statement dated November 26, 2012 indicates an annual income of $57,128.00.

[23] After the Victor Street matrimonial home was sold in October 2011, the proceeds were used to pay off the mortgage and joint line of credit with the remaining proceeds equally divided. Ms. Therrien moved into a three bedroom townhouse on Baseline Road in Ottawa close to work, where she continues to reside. Sophie attends junior kindergarten and daycare nearby.

[24] In April 2011, shortly after he left the matrimonial home, Mr. Desjardins purchased a three bedroom townhouse with the assistance of his mother. He continues to reside there. Mr. Desjardins continued his employment as Director of Residences at Algonquin College. His income was $81,075.00. At the end of May of 2012, Mr. Desjardins took short-term disability leave. He indicated the stress of his father’s death, the criminal charges against him and the ongoing family law dispute necessitated his leave of absence. Upon his return on September 17, 2012, Mr. Desjardins was dismissed from his employment. He received $19,427.75 in lieu of notice and $8,994.75 of accrued vacation pay.

[25] After the sale of the matrimonial home in October, 2011 Mr. Desjardins began to pay child support in the amount of $730.00 per month as per the CSG on the basis of his 2011 income which he continued up to the trial in December, 2012. In addition, the parties share the unsubsidized portion of Sophie’s daycare equally.

[26] According to the evidence of Mr. Desjardins and his mother, Candace Desjardins, after the closing of the sale of the matrimonial home, Mr. Desjardins paid his mother approximately $30,000.00 on outstanding loans. In a letter dated October 27, 2012, Mrs. Desjardins indicates that, in addition to the $10,000.00 loaned to the parties to purchase the Victor Street home, she loaned her son $20,000.00 for his new home purchase, $14,201.93 to purchase a 2007 Honda Civic and $112,000.00 for legal fees for both his criminal and family law proceedings.

Credibility

[27] Not surprisingly, the parties disagree about numerous facts and issues before the Court. Those of significance are:

1. the nature of their relationship before Sophie’s birth;

2. Mr. Desjardins’ involvement during Ms. Therrien’s pregnancy and Sophie’s birth;

3. the roles of each parent and their relationship after birth;

4. the circumstances surrounding the alleged assault in March 2011;

5. the signing of the mutual peace bonds after the criminal trial in January 2012;

6. Mr. Desjardins’ relationship with Sophie since March 2011; and

7. difficulties in communication and decision making.

[28] Although I find both parties sincere in their desire for what is best for Sophie, their hostility and mutual distrust coloured their testimony. I find difficulties with both parties’ credibility regarding certain aspects of this case.

Ms. Therrien

[29] Ms. Therrien’s testimony was consistent and relatively unshaken during cross-examination. At times, she was unresponsive to the questions, frequently answering “I don’t recall” particularly when questioned regarding Mr. Desjardins’ involvement with Sophie and contributions to the household.

[30] Her testimony regarding her relationship with Mr. Desjardins and his temper and abusive nature was, to some extent, contradicted by other witnesses as was her testimony regarding his ability to parent Sophie.

[31] Despite the observations of Ms. Guillemette, clinical investigator from the OCL, of Sophie’s interaction with her parents, Ms. Therrien remained completely negative as to Mr. Desjardins’ relationship with Sophie and his ability to meet her needs. Her extreme lack of trust and hostility towards Mr. Desjardins was palpable. In discussing the sense of comfort and contentment that Sophie appeared to have with Mr. Desjardins in his home, Ms. Therrien responded that this was a planned visit of an hour or two which does not prove anything. She stated she was sure Jarred could keep his anger in check for an hour when someone was watching him. In responding to Ms. Guillemette’s observations of the affection between Sophie and her father, Ms. Therrien stated she was happy to hear Sophie was affectionate but she loves and is affectionate with all people. Again, Ms. Therrien stated anyone could make an hour long visit happy and wonderful. When Ms. Guillemette mentioned that Sophie’s bedroom in her father’s home was appropriately decorated and well appointed with books and photographs of Ms. Therrien, Ms. Therrien stated Mr. Desjardins took all the photographs when he left and questioned his motivation in displaying photographs of her.

[32] The general observations of Ms. Guillemette were not comforting to Ms. Therrien and did not relieve her concerns. She stated: “I don’t trust Jarred”. Ms. Therrien’s black and white presentation undermines her credibility.

[33] In addition, there are some difficulties with Ms. Therrien’s financial disclosure and evidence regarding financial issues as follows:

a) She indicated she was able to obtain a daycare subsidy after separation, despite the fact she was earning over $50,000.00 and Mr. Desjardins, who was also assisting with daycare costs, was earning over $80,000.00. This was difficult to understand and was not adequately explained.

b) Prior to her financial statement sworn November 26, 2012, Ms. Therrien’s previous financial statements left out her L.I.R.A, did not include her Canada Savings Bonds nor the tax refund owing to her.

c) In her 2010 tax return, Ms. Therrien showed the parties as sharing daycare costs but Ms. Therrien claimed the entire cost of $7,000.00, as well as claiming Sophie as a dependent.

Mr. Desjardins

[34] Mr. Desjardins testified in a straightforward open fashion, at times becoming emotional in discussing his daughter and his desire to be an active parent. His testimony was internally consistent and unshaken under cross-examination. However, I note the following:

a) Neither Mr. Desjardins nor any witnesses called on his behalf acknowledged that he ever lost his temper. Given: the disputes between the parties, the difficulties in their relationship, the involvement of the CAS, the finding of risk of emotional abuse due to conflict and the police involvement, I do not find this believable.

b) Although Mr. Desjardins is more prepared to acknowledge that Ms. Therrien is a good parent, he continues to portray himself as a blameless victim of Ms. Therrien’s manipulative, passive-aggressive behaviour. As with Ms. Therrien, such a black and white presentation undermines his credibility.

[35] In addition, there are some concerns regarding financial issues and Mr. Desjardins’ financial disclosure as follows:

a) His financial statement was not up to date before trial. Mr. Desjardins did not include a number of items in his financial statement, although some of those figures were put in his net family property statement provided November 26, 2012, the first day of trial.

b) Mr. Desjardins’ summary of expenses paid and evidence as to what should have been paid by Ms. Therrien before and after he left the home in March 2011, is problematic. Under cross-examination, it was revealed that among other problems: he included his personal line of credit with Scotiabank; he missed two transfers from Ms. Therrien and did not account for her paying daycare costs from November 2011 to January 2012; and he claimed hydro twice.

Other Witnesses

[36] I found the witnesses called by Ms. Therrien: her parents and friend, Kerry Drake, credible. Mr. and Mrs. Therrien in particular were excellent witnesses – fair, balanced, straightforward and consistent in their evidence both internally and with other witnesses. Although they clearly love their daughter and have observed her to be an excellent mother, unlike Ms. Therrien, they also acknowledge Mr. Desjardins’ involvement and care for Sophie.

[37] Similarly, I found Mr. Desjardins’ witnesses: his mother and friends – Dave Burkitt, Sean Trahan, Isabelle Coady and Peter Thomas, all credible. Although they are all clearly supporting Mr. Desjardins, they were fair, balanced and consistent in their evidence both internally and with one another. The one weakness in the evidence of Mr. Desjardins’ friends was their testimony that he never lost his temper. Although they may not have observed Mr. Desjardins to have a quick and somewhat uncontrollable temper as stated by Ms. Therrien, it is not believable that, given the conflict between the parties, Mr. Desjardins never lost his temper.

Evidence and Findings of Fact

Relationship Prior to Sophie’s Birth

[38] Ms. Therrien testified the relationship between the parties was difficult, even before the wedding. There were lots of arguments. Mr. Desjardins paraded her around like a “Barbie doll” in public and belittled her behind the scenes from day one. Ms. Therrien testified she coped by giving in to Mr. Desjardins about almost everything, hoping that he would be happy. She took a passive approach to the difficulties. Nothing was said to her parents.

[39] Both Ms. Therrien’s parents, Robert and Diane Therrien, testified they were very pleased with the engagement and the prospect of marriage. Both stated that before the marriage, Amanda and Jarred seemed a happy couple who went out and socialized with friends. There were no signs of problems. Mr. Therrien got on well with Jarred. They had good conversations and did things together. Mr. and Mrs. Therrien visited Amanda and Jarred approximately once per month to help with house renovations. Mr. Therrien testified that in addition to the monthly trips to Ottawa, Amanda and Jarred visited them in Millbrook near Peterborough at times and all was well. Everything seemed “great” between the couple, contrary to the evidence of Amanda Therrien.

[40] Ms. Therrien’s friend, Kerry Drake, also testified the couple seemed very happy and there were no signs of problems before the marriage although, after the marriage, Amanda seemed less happy and told Kerry that, at times, Mr. Desjardins was abusive.

[41] I find as a fact that although the relationship had its ups and downs, the parties were content and pleased to be making a life together.

Pregnancy and Birth

[42] Ms. Therrien always thought she would have difficulty getting pregnant due to medical problems. Therefore, it was a surprise when she became pregnant with Sophie. She was excited and pleased but testified Mr. Desjardins just wished to boast about the pregnancy and wasn’t genuinely pleased. Mr. Desjardins testified in fact he was thrilled about the prospect of becoming a father.

[43] Ms. Therrien had a difficult birth and ultimately a caesarean section. Although Mr. Desjardins was with Ms. Therrien, she testified there were arguments regarding who was to hold the baby, whether his sister had enough time with the baby and his reluctance to take the baby down the hall so she could rest.

[44] Mr. Desjardins’ description of the birth of his daughter was detailed and emotional. He described helping Amanda during the birthing process by giving her ice chips and how ecstatic he was when the child was born. Contrary to Ms. Therrien’s evidence, he described taking Sophie down the hall with other fathers and doing the fathers’ “shuffle”. He acknowledged some frustration as family members had come from Simcoe to see the baby and his sister did not have much time with her. Mr. Desjardins’ mother remained for a week or so after the birth and testified everyone seemed very happy after the birth.

[45] I prefer Mr. Desjardins evidence and find that although there was some friction, Mr. Desjardins was an excited, expectant father who wished to be involved.

Roles After Birth

[46] Ms. Therrien took maternity leave for a year, then took vacation time and some paid leave in order to transition Sophie to daycare. She described Mr. Desjardins as taking very little interest in the baby and continuing to belittle her and criticize her parenting.

[47] Ms. Therrien was totally focused on her daughter, nursed her and slept with her in the master bedroom during the night. It was Ms. Therrien’s evidence that Mr. Desjardins was not an involved parent.

[48] Not surprisingly, Mr. Desjardins disagreed. He testified he desperately wished to become involved but Ms. Therrien was obsessed with Sophie and very overprotective. When he wanted to discuss issues or contribute to parenting decisions, Ms. Therrien would not listen to his suggestions but would make her own decisions. She seemed to be totally consumed in caring for her daughter. Mr. Desjardins testified he did a lot of cleaning, cooking, laundry and caring for the pets. At times, with Ms. Therrien’s permission, he assisted at nap time and at bedtime but he became increasingly frustrated with his minimal role.

[49] Ms. Therrien reluctantly acknowledged he did care for the pets and do some housework. However, her most common response when asked about details was “I don’t recall”. For example, when asked if he helped clean the house, she did not recall; did he clean up after dinner, she did not recall; did he ever buy gifts for Sophie, she did not recall; on weekends, did they ever go to the park or on other outings together, she did not recall; was he disappointed when she took parental leave and he did not, she could not recall.

[50] Candice Desjardins, Mr. Desjardins’ mother, also noticed Amanda was somewhat overprotective and did not permit Mr. Desjardins much involvement with Sophie. This was also noticed by Mr. Desjardins’ friends, Dave Burkitt and Sean Trahan. They both gave the example of being at a restaurant with Mr. Desjardins, Ms. Therrien and Sophie, when Mr. Desjardins tried to assist by feeding Sophie. Ms. Therrien pushed him aside and took over. Sean Trahan testified Ms. Therrien seemed anxious when Jarred was trying to help which created tension.

[51] Both Robert and Diane Therrien testified when they visited the home approximately once every two weeks, Mr. Desjardins appeared to be somewhat withdrawn and not as involved as they expected. When he came home from work, he was affectionate and hugged Sophie but during the evening, did not interact with her as much as they expected.

[52] Robert Therrien’s perception was Mr. Desjardins was focused on himself and wanted his wife’s attention. Mr. Therrien felt the problem was perhaps there was “so much attention to Sophie”, there was little for Mr. Desjardins. Nevertheless, Mr. Therrien continued to enjoy his time with Jarred, with whom he had “great” conversations.

[53] Diane Therrien testified Mr. Desjardins did certain things for Sophie like bringing up her “milky” for bed, making funny faces, and playing on the floor in the basement. However, as time went on, she noticed, as did her husband, that Mr. Desjardins seemed more withdrawn and tension was developing.

[54] Before Ms. Therrien returned to work, she began to look for appropriate daycare. Mr. Desjardins suggested a colleague’s wife, Judith Bron, as a possible daycare provider. Ms. Therrien interviewed Judith and she and Mr. Desjardins decided to use her home daycare. After Ms. Therrien returned to work, the parties drove back and forth together, dropping Sophie off and picking her up on the way.

[55] Ms. Therrien continued to describe name calling, yelling and belittling behaviour by Mr. Desjardins. She indicated that on one occasion prior to Sophie’s birth, he shook her; on another occasion, threw scissors at her in frustration and once when they ordered Chinese food, he threw wonton wrappers at her. Kerry Drake testified that in February 2011, just before separation, Ms. Therrien disclosed these incidents to her as well as a sexual assault. Mr. Desjardins denied these events.

[56] Although Ms. Therrien described Mr. Desjardins as having a short temper and continually yelling at her, this behaviour was never noticed by his mother, her parents or their friends.

[57] Isabelle Coady, who is a police officer, has known Mr. Desjardins for many years. She testified Jarred is an intelligent, calm, well spoken, gentle and kind individual. She never observed any anger issues, and has never seen him be aggressive. Her observations were similar to those of Sean Trahan, Dave Burkitt and Pete Thomas, other friends of Mr. Desjardins. As previously indicated, Ms. Therrien’s parents never saw aggressive or angry behaviour by Mr. Desjardins.

[58] Despite Mr. Desjardins’ behaviour, as described by Ms. Therrien, she never considered separation. She testified there was no divorce in her family and she wanted to work on the relationship. Diane Therrien testified there was never any talk about Amanda leaving Jarred.

[59] Based on all the evidence, I find that Ms. Therrien was all consumed by caring for Sophie and was reluctant to allow Mr. Desjardins much involvement. As a result, he became frustrated and began to withdraw as observed by Mr. and Mrs. Therrien. He worked full-time and, as time went on, did less with Sophie in the evening and on weekends although he continued to help with cooking, housework and caring for the pets.

[60] Although, I do not find on the balance of probabilities that Mr. Desjardins physically or sexually abused Ms. Therrien, I do find that he lost his temper from time to time and there was tension and conflict between the parties.

Separation

[61] Much to the surprise of the couple, Ms. Therrien became pregnant again with twins. Sadly, she miscarried in September 2010. According to Ms. Therrien, this was a turning point in her relationship with Mr. Desjardins. Despite her difficulties, Mr. Desjardins was focused on his own needs and became frustrated when he was not as involved as he wished at the hospital.

[62] Mr. Desjardins’ father died in Simcoe at the end of September 2010. Mr. Desjardins went immediately to Simcoe followed by Ms. Therrien and Sophie. Ms. Therrien testified that upon their return to Ottawa in October 2010, they continued arguing. At that point, Ms. Therrien indicated “I’m done”. She wished to separate. Mr. Desjardins wanted to try counselling but Ms. Therrien said it would not do any good and refused. She had suggested counselling earlier in the relationship and, at that time, Mr. Desjardins was not interested.

[63] Contrary to Ms. Therrien’s evidence, Mr. Desjardins testified there were no serious discussions about separation until after Thanksgiving 2010. During the trip to Simcoe after his father’s death, Mr. Desjardins became suspicious about the relationship between Amanda and his brother, Ryan. Upon their return to Ottawa, Mr. Desjardins noticed Amanda began posting her whereabouts on Facebook and when they travelled to the Therriens for Thanksgiving, he noticed Amanda would not answer her cell phone in his presence and was spending a great deal of time on Facebook. This behaviour was unusual.

[64] Back home in Ottawa after Thanksgiving, Mr. Desjardins checked the text message history on Ms. Therrien’s cell phone and discovered sexually explicit text messages between her and his brother, Ryan. Mr. Desjardins testified he was completely devastated. He confronted Amanda, called his mother and called Ryan in British Columbia. Candace Desjardins confirmed Jarred called her immediately after discovering the text messages. In her own conversation with Ryan, he acknowledged the messages, apologized and said he needed help. Since that time, Ryan Desjardins has been estranged from his family. This has been devastating to his mother who testified she lost a son. In her words, the relationship between Amanda and Ryan “decimated” the family. .

[65] In her examination-in-chief, Ms. Therrien did not mention the sexually explicit text messages and her relationship with Ryan Desjardins. It was only under cross-examination that this was acknowledged. She never told her parents, who were visibly shocked when they first learned about the situation under cross-examination.

[66] Mr. Desjardins talked to his friend, police officer Sean Trahan, and then suggested counselling to Ms. Therrien. However, Ms. Therrien did not want to participate and the parties separated. Mr. Desjardins stayed briefly with his friends, the Coadys, and then came back to the matrimonial home and the parties continued to live separate and apart in the Victor Street residence.

[67] Mr. Desjardins testified he felt even more like a stranger in the home after the separation. Ms. Therrien would not let Sophie out of her sight and anytime he tried to be involved, she would intervene.

[68] Ms. Therrien testified Mr. Desjardins was cold towards her and continued to yell and argue with her. Nevertheless, they both continued to work at Algonquin College, drive back and forth together, and drop off and pick up Sophie from daycare.

[69] I find on a balance of probabilities that the relationship between the parties deteriorated significantly around the time of Ms. Therrien’s miscarriage due to Ms. Therrien’s over protectiveness of Sophie and Mr. Desjardins’ increasing frustration at being left out. However, the separation was precipitated by Mr. Desjardins’ discovery of the sexually explicit text messages between his wife and brother.

Alleged Assault

[70] Ms. Therrien was aware that Mr. Desjardins inherited six rifles from his father in approximately 2008. He registered them and kept them in zippered gun bags in the basement. It was agreed between Mr. Desjardins and Ms. Therrien there would be no ammunition in the home. On one occasion, Mr. Desjardins showed Robert Therrien the firearms and they discussed a possible hunting trip together. Mr. Therrien suggested Mr. Desjardins put trigger locks on the guns, Mr. Desjardins agreed and had them installed. Mr. Therrien was not concerned about the guns in the home. He is a retired police officer comfortable with firearms and well aware of the regulations and necessary safety measures that must be taken.

[71] In January 2011, the firearm license had to be renewed. At that time, Ms. Therrien indicated she did not want the guns in the house. She did not feel safe as the couple’s relationship had deteriorated and the verbal abuse was continuing. When she indicated she did not wish to sign the license renewal, she stated Mr. Desjardins yelled at her and said he would take Sophie’s passport or leave with the car so she would have no way to get to work. Ms. Therrien consulted with her father who indicated she could simply refuse to sign or sign the renewal certificate and then call to revoke her consent. Eventually, Ms. Therrien signed the renewal but told Mr. Desjardins she was signing under duress.

[72] Mr. Desjardins testified he became very frustrated when Ms. Therrien refused to sign the renewal. However, given her lack of comfort with the firearms in the home, Mr. Desjardins discussed with Sean Trahan, leaving the firearms at Sean’s house. Mr. Trahan confirmed this testimony.

[73] Ms. Therrien testified she later reached someone at the gun registry and indicated there were some difficulties in the home. She was informed someone would call her back.

[74] Ms. Therrien alleges that after the argument over the firearms renewal, she and Mr. Desjardins were walking upstairs with Sophie who was anxious given the argument between her parents. Ms. Therrien testified the three of them were going up the stairs with Sophie in the middle holding one of each parents’ hands. Ms. Therrien testified that Mr. Desjardins pushed her into the wall by hitting her shoulder with his shoulder.

[75] Mr. Robert Therrien testified Amanda told him about the pushing incident and stated Mr. Desjardins had pushed her while they were going upstairs. Robert Therrien was unaware of any other physical assaults and indicated he was never afraid that Jarred would hurt his daughter.

[76] Mr. Desjardins indicated that he did not commit an assault on Ms. Therrien. He stated in his testimony that when the three of them were going up the stairs, Sophie was in front with Mr. Desjardins immediately behind, followed by Ms. Therrien. When they reached the top of the stairs, Mr. Desjardins began to lift Sophie over the tension bar at the top and Ms. Therrien shoved him on the elbow, pushed him aside and took Sophie over the bar.

[77] In February 2011, despite Ms. Therrien’s concerns and protestations, Mr. Desjardins took Sophie to visit his mother in Simcoe. Mr. Desjardins testified, corroborated by his mother, Sophie had a great time on the visit. Mrs. Desjardins testified Jarred looked after Sophie and was very attentive to her needs. Mr. Desjardins and Ms. Therrien talked every day in the morning and in the evening before Sophie went to bed.

[78] Upon his return from Simcoe, Mr. Desjardins alleged Ms. Therrien became very upset with him and, subsequent to an argument, slammed a door on his back and swore at him. He consulted his friends, the Coadys and Sean Trahan, about this incident. Both Isabelle Coady and Sean Trahan corroborated this discussion and their advice that it was best not to pursue this matter with the police.

[79] On March 10, 2011, the parties attended mediation which was not successful. On March 11, 2011, Ms. Therrien again called the gun registry, outlined the difficulties in the home and the alleged assault. Shortly thereafter, the Ottawa police called her at work. Ms. Therrien repeated the difficulties she had with the renewal of the firearms certificate due to Mr. Desjardins’ assaultive and threatening behaviour and concerns for her safety. The police indicated they would arrest Mr. Desjardins for assault. Ms. Therrien testified all she really wanted was to have the guns removed.

[80] There are problems with Ms. Therrien’s evidence regarding the assault as follows:

1. The evidence presented as to the dimensions of the stairwell demonstrates it is very narrow for three people to go upstairs three abreast.

2. It is difficult to understand how Mr. Desjardins’ shoulder could hit Ms. Therrien’s shoulder over top of Sophie when Ms. Therrien is taller than Mr. Desjardins.

3. After the alleged assault, Ms. Therrien continued to drive to work with Mr. Desjardins and to drop off and pick up Sophie from daycare with him.

4. Although Ms. Therrien indicated she called a friend, “Chris”, and talked to a colleague, “Wendy”, at work, neither testified, although her father confirmed she had called him.

5. Ms. Therrien did not call the police or even her own lawyer regarding this incident.

[81] I note the comments of Justice Nadelle at the criminal trial as follows:

The allegation of assault, I must say, on the scale of assaults I hear here, is trivial in nature. I expect from what defence counsel has put to the complainant in cross-examination that there be a cross-complaint basically of assault on Ms. Therrien’s part on him. In the end, I think both of you are law abiding, upstanding citizens and in the end, I would never be able to decide which one is telling the truth. In those cases, it’s very common for judges to simply impose what’s called common law binding over to keep the peace. It’s no way a conviction or finding of guilt or anything of that nature. It’s just that the court anticipates there could be further problems between you if you’re allowed to communicate with each other. So that’s what I am doing.

[82] Based on all the evidence, I am unable to find on a balance of probabilities that Mr. Desjardins assaulted Ms. Therrien or indeed that Ms. Therrien assaulted Mr. Desjardins. I do find that the situation had deteriorated significantly. The arguments, hostility and conflict were, according to the CAS investigation, putting Sophie at risk of emotional harm.

Arrest and Charges

[83] On March 11, 2011, Mr. Desjardins was arrested at work at Algonquin College, handcuffed, taken to a police cruiser and informed he was being charged with assault and criminal harassment. Mr. Desjardins indicated he was completely shocked and unclear as to exactly what was happening. He was released later that evening on an undertaking not to have any contact with Ms. Therrien or Sophie except by family court order or as approved by the CAS.

[84] Mr. Desjardins stayed with the Coadys and arranged with the police to go to the matrimonial home to retrieve his personal belongings. Shortly after Mr. Desjardins’ arrest, Ms. Therrien and her father changed the locks on the home.

Access

[85] Mr. Desjardins called the CAS to request they investigate the matter as quickly as possible so he could see his daughter. On March 30, 2011, the CAS child protection worker wrote a letter indicating that access for Mr. Desjardins was approved but there were concerns regarding risk of emotional harm to Sophie as she was present during the incident in February 2011 and to due to previous verbal arguments between the parties. The CAS closed their file.

[86] Mr. Desjardins wished immediate overnight unsupervised access which Ms. Therrien was reluctant to provide. She suggested a few hours on Saturdays and Sundays with the Coadys supervising and a gradual increase in access, as that would be less stressful for Sophie. There were numerous letters between the parties’ counsel regarding access.

[87] Mr. Desjardins testified his mother loaned him money and he was quickly able to purchase a three bedroom townhouse in Barrhaven, with a closing date of April 15, 2011. He was anxious to have his own residence so that he could have access there. It was finally agreed Mr. Desjardins would have a visit from 10:00 a.m. to 6:00 p.m. on Saturday at his home with his sister, who was visiting, present. The exchanges would take place at the Coadys.

[88] Ms. Therrien continued to be concerned about overnight visits and would not agree to exchanges at daycare. The first overnight visit took place after the case conference and the Order of Master Roger on May 28, 2011.

[89] As previously noted, a motion was argued motion on August 19, 2011, after which Justice Ray ordered joint custody and access to Mr. Desjardins every second weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. as well every Tuesday and Thursday. Sophie was to be picked up from daycare and dropped off at 6:30 p.m. at the Coadys. In addition, the matter was referred to the OCL for a social work investigation.

[90] Isabelle Coady, who along with her husband, John, is a police officer, testified Sophie is a happy-go-lucky girl who, during the exchanges, was happy to see her father and would run over and jump into his arms. Ms. Coady testified that Mr. Desjardins’ priority has always been Sophie. He loves her dearly and is a very patient, capable father who takes time with, and is interested in, his daughter.

[91] By September 2011, Ms. Coady and her husband, John, were finding the weekly exchanges too difficult and demanding. They spoke to Mr. Desjardins and wrote a letter, after which alternative arrangements were made for exchanges to take place at Ms. Therrien’s and Mr. Desjardins’ homes, or at daycare.

Criminal Trial and Peace Bonds

[92] The criminal trial on the charges of assault and criminal harassment took place in January 2012. Ultimately, after the testimony of Ms. Therrien and a discussion with the judge, the Crown agreed to withdraw the charges upon both parties signing common law peace bonds.

[93] Mr. Desjardins attended at the Justice of the Peace office, signed the peace bond and left.

[94] Ms. Therrien and her father also attended at the Justice of the Peace office. Ms. Therrien testified she was aware she had to sign a bond so signed in at the Justice of the Peace office and continued to wait with her father. Eventually, after approximately two hours, she was told there was nothing to sign.

[95] This evidence is corroborated by Robert Therrien. Mr. Therrien asked a female clerk what was happening and was simply told to wait. He saw papers going in and out of the Justice of the Peace office, asked again and, again, was told to wait. Finally, Mr. Therrien asked another clerk what was happening and was informed there was no bond to sign. After waiting approximately two hours, he and Amanda left the courthouse. Mr. Therrien told his daughter there might be a summons in the mail at some point for her to come in and sign the bond.

[96] Mr. Desjardins did not believe Ms. Therrien had made an effort to sign the bond. He believed she simply avoided doing so in order to, once again, manipulate the situation.

[97] In June 2012, Mr. Desjardins went to the court office concerned that Ms. Therrien had not signed her peace bond. He also wanted to amend his bond. He testified he was worried that if the police called, Ms. Therrien would have “an unfair advantage”. He also testified he was not sure the charges were withdrawn, as Ms. Therrien had not signed the bond. Mr. Desjardins provided the court office with a transcript of the trial judge’s decision and obtained a slightly amended peace bond. In addition, he was able to obtain a copy of Ms. Therrien’s bond.

[98] Mr. Desjardins’ evidence regarding obtaining Ms. Therrien’s peace bond is inconsistent. He initially indicated he went to the court office in June of 2012 to get her peace bond as he was concerned the charges were not withdrawn and she would take advantage of the situation. In addition, he requested some amendments to his peace bond based on the trial transcript. The amendments were typed that day. Although he maintained Ms. Therrien’s peace bond was there from the beginning and she had avoided signing it, the peace bond he obtained in her name was identical to the amended peace bond he obtained in June of 2012.

[99] I prefer the evidence of Ms. Therrien as corroborated by her father and find there was no peace bond available for her to sign on the day of trial.

Daycare and School

[100] In February 2012, Ms. Therrien consulted with Mr. Desjardins regarding a change of daycare arrangements for Sophie. She testified she wished to change the daycare to the daycare associated with the school Sophie was likely to attend in September 2012, St. John the Apostle. In addition, she was not pleased with the daycare arrangements with Judith Bron as Ms. Bron took a lot of time off. She was also interested in obtaining a subsidized daycare spot, if possible. She sent Mr. Desjardins emails but he did not respond.

[101] Mr. Desjardins testified he reluctantly agreed to the daycare change. He did not want another change for Sophie and was concerned the OCL report was not completed and a change in daycare could be perceived negatively. Nevertheless, he agreed overall the change was positive and the daycare setting was a good one for Sophie.

[102] As noted, Ms. Therrien suggested St. John the Apostle as a possible school placement for Sophie for junior kindergarten. Mr. Desjardins did not suggest any alternatives but felt pressured into agreeing. He was clear he wished Sophie to be in French Immersion. St. John the Apostle did provide 50/50 French Immersion. He later learned, in the higher grades, there would be 75% English and 25% French, which was not his preference.

[103] Ms. Therrien testified she sent Mr. Desjardins an email about the changed percentages of French to English in the higher grades and stated Mr. Desjardins could always contact the school directly to obtain information.

[104] Sophie began attending St. John the Apostle school for half day junior kindergarten in September 2012 and is doing well.

[105] It is clear Mr. Desjardins could do more to inform himself regarding Sophie’s activities, school and medical needs. The evidence indicates he waits for Ms. Therrien to contact him and when she doesn’t, he complains as opposed to taking the initiative himself. The OCL investigator, Ms. Guillemette, noted Mr. Desjardins should inform himself as to issues surrounding his daughter. He is perfectly entitled to do so.

OCL Report

[106] As noted above, the parties were provided with the report of Andrée Guillemette, Clinical Investigator with the OCL on April 3, 2012. Her recommendations have been previously reviewed. Mr. Desjardins was prepared to agree with the recommendations but, as noted, Ms. Therrien filed a Dispute and remains opposed to any kind of joint custodial arrangement or equal sharing of parenting time with Sophie.

[107] There are some weaknesses in Ms. Guillemette’s report as follows:

1. The report is somewhat dated. It was completed April 3, 2012 and the trial concluded on December 7, 2012, 8 months later. During that time, Sophie began school and changed daycares; Mr. Desjardins’ employment was terminated; the access exchange location was changed and a summer access schedule had been implemented.

2. Although she interviewed 4 collaterals by telephone (CAS worker, family doctor, family friend, Ms. Coady, and daycare provider, Ms. Bron), Ms. Guillemette did not interview Sophie’s current daycare provider, teacher or grandparents.

3. The collaterals were interviewed briefly (15-20 minutes) by telephone only.

4. Ms. Guillemette reviewed police reports and emails but the emails were from Mr. Desjardins only and were not provided to Ms. Therrien for a response. Ms. Therrien had the opportunity to provide other emails if she wished but chose not to do so.

[108] Despite these weaknesses, I found Ms. Guillemette to be a candid, straightforward professional witness with extensive experience as a clinical investigator for the OCL for over 12 years. She also has over 20 years experience as Social Worker with the CAS and is now a supervisor of the Ottawa CAS Kinship and Adoption Unit. Although the weaknesses in her report affect the weight to be given to her recommendations, overall, I found her evidence of assistance.

Access

[109] Mr. Desjardins’ access continues to be every second weekend from Friday evening to Sunday evening and Tuesdays and Thursdays from after daycare to 6:30 p.m. Mr. Desjardins enjoys his time with his daughter and, according to the report of the OCL and the evidence of Mr. Desjardins’ friends: Dave Burkitt, Sean Trahan, and Isabelle Coady, he is an involved, capable parent who dearly loves his daughter.

[110] Given his concern regarding possible allegations of abuse or improper care, Mr. Desjardins arranged for his friend, Pete Thomas, to be with him as a witness during access exchanges. There have been no difficulties other than an incident on September 11, 2012. On that occasion, while Ms. Therrien was waiting in the car, Mr. Desjardins took the dog out leaving Sophie in the home with Mr. Thomas. Mr. Thomas testified Sophie was playing and he went to the washroom. At that point, Sophie left the residence and went out to her mother’s car. Ms. Therrien was very concerned and called the police as Sophie was, in her view, unattended. The CAS was informed. They did not open a file or pursue the matter. It was Ms. Therrien’s testimony that she wished this incident documented in case something happened again. The parties’ distrust of one another continues.

[111] Mr. Desjardins testified he will frequently email Ms. Therrien and ask for slight changes to his access. Most of the time, she refuses and refers to the court Order. She refused Mr. Desjardins’ access on Father’s Day in 2012 and on Thanksgiving weekend in 2012, although she had Sophie with her for the two previous Thanksgivings. On Sophie’s birthday, December 1, 2012, Mr. Desjardins tried to arrange a telephone call with his daughter. Ms. Therrien indicated she would call but called Mr. Desjardins’ home phone instead of cell phone. There was no telephone visit.

Activities

[112] Ms. Therrien registered Sophie in gymnastics but does not wish Mr. Desjardins to attend as she feels uncomfortable in a small space with him. Mr. Desjardins wished Sophie to participate in the music program offered at daycare but Ms. Therrien refused stating Sophie has homework. Mr. Desjardins chose soccer as an activity and both Ms. Therrien and Mr. Desjardins attend Sophie’s soccer practices and games.

[113] Mr. Desjardins has been coaching seven to 10 year old junior football for a number of years. The practices are often at 6:30 p.m. When Sophie is with him on Tuesdays and Thursdays until 6:30 p.m., he will take her home and be a bit late for the practice. In the summer on Thursdays and, at times, on Sundays, Sophie attended the football practices with her father. Mr. Desjardins and his mother testified Sophie loved the practices, wore her soccer outfit and played with the other kids. According to Candace Desjardins, Sophie calls the football players the “football teamers” and enjoys spending time with her father at the practices.

Medical Issues

[114] Mr. Desjardins testified, at times, Ms. Therrien does not inform him of medical issues effecting Sophie. He provided the example of a hospital visit to the Queensway Carleton when Sophie had a persistent cough. Ms. Therrien testified she felt it inappropriate to inform him given the peace bond.

[115] On July 1, 2012, Ms. Therrien took Sophie to the Children’s Hospital with her friend, Kerry Drake, due to a cough. She emailed Mr. Desjardins and indicated what was happening but asked him not to come to the hospital. Mr. Desjardins did go the hospital, arriving just as Ms. Therrien and Sophie were leaving. Ms. Therrien said everything was okay and asked Sophie to kiss daddy. Ms. Therrien and Ms. Drake testified Mr. Desjardins seemed upset and irritated. He testified that he was irritated and simply left the hospital. He did not follow up with the staff or the doctor regarding the situation with Sophie.

[116] A recent issue between the parties has been Ms. Therrien’s belief Sophie suffers from a wheat allergy. Ms. Therrien testified Sophie often has rashes and eczema. Ms. Therrien tried eliminating wheat-based products from Sophie’s diet and the skin problems cleared up. When Mr. Desjardins suggested Dr. Whalen or an allergist be consulted, Ms. Therrien tried to get an appointment with an allergist. Mr. Desjardins continued to push the issue and, on November 15, 2012 when he was caring for Sophie, he took her to Dr. Whalen who saw no reason to make a referral to an allergist. However, Mr. Desjardins did not inform Dr. Whalen that Sophie has been on a wheat-free diet. When Ms. Therrien clarified this, Dr. Whalen made a referral to an allergist for mid-January 2013. This issue is a good example of the continuing struggle for the parties to resolve issues affecting their daughter. Nevertheless, despite the struggle, the parties were able to reach a mutually acceptable compromise to meet Sophie’s needs.

Law and Analysis

Parenting

[117] Section 16(8) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am., provides that in making an order for custody or access under the Divorce Act “the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child”.

[118] Although the Divorce Act does not provide a specific list of factors to be considered in determining best interests, it is helpful to refer to the non-exhaustive list of factors provided under Section 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as am. (“CLRA”), which states as follows:

24(2) The court shall consider all the child’s needs and circumstances, including,

(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;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

[119] Since the Supreme Court of Canada decisions in Young v. Young, [1993] 4 S.C.R. 3 and Gordon v. Goertz, [1996] 2 S.C.R. 27, the best interests of the child have been elevated from a “paramount” consideration to the ultimate and only relevant issue in deciding matters of custody and access.

[120] There was a great deal of evidence provided in this case as to the past conduct of both parties.

[121] Section 16(9) of the Divorce Act notes:

16(9) In making an order under this section, 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 a child.

[122] Although the evidence of past conduct is relevant to Mr. Desjardins’ claim for damages or an unequal division of net family property, I do not find on a balance of probabilities any past conduct on the part of either Ms. Therrien or Mr. Desjardins, relevant to her or his current ability to act as a parent to Sophie. The real difficulties in this case arose when the parties were residing and parenting Sophie together. As the CAS investigator noted in March 2011, the risk in this case is a risk of emotional harm to Sophie due to the conflict between her parents. When the CAS closed the file, it was with the expectation that Sophie not be exposed to any further conflict or violence. As noted above, since separation, both Mr. Desjardins and Ms. Therrien have been devoted parents, committed to meeting Sophie’s needs. All witnesses report Sophie to be a well adjusted, bright, happy go lucky, little girl.

[123] In making any order for custody or access under the Divorce Act, the Court is expressly directed to consider the maximum contact principle as outlined under Section 16(10) as follows:

16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[124] As noted above, Mr. Desjardins wishes to continue the Order of joint of custody made by Mr. Justice Ray on August 19, 2011 as recommended by the OCL, with a 50/50 sharing of parenting time with Sophie. Ms. Therrien wishes an order of sole custody with Sophie’s primary residence remaining with her and a continuation of the status quo with respect to Mr. Desjardins’ access.

[125] In considering the factors listed under Section 24(2) of the CLRA as to Sophie’s best interests, I note the following:

1. Based on all the evidence, I find there is a great deal of love and affection and there are significant emotional ties between Sophie and each of her parents. In addition, she is fortunate to have three grandparents who love her dearly and with whom she has been able to establish a meaningful relationship.

2. Since the date of separation, Sophie has resided in a stable home environment with her mother. Since August 2011, for the past year and a half, Sophie has also spent significant quality time with her father in an access arrangement. According to the evidence of the OCL social worker, Andrée Guillemette, Sophie has her own room, toys, books and clothes in both parents’ homes. She was observed to be very comfortable in both homes, easily seeking comfort and attention in a similar fashion with both of her parents, who each responded appropriately. It was Ms. Guillemette’s conclusion that all of Sophie’s day-to-day needs appear to be met in both homes.

3. Both Mr. Desjardins and Ms. Therrien have the ability and willingness to provide Sophie with guidance and education and with the necessaries of life. Since separation, Ms. Therrien has taken the initiative in organizing daycare and school for Sophie. She has also been alert to Sophie’s medical needs. I find that she has informed Mr. Desjardins and sought his input on issues affecting Sophie. The difficulty has been the timing of communication and, at times, the lag in response time by Mr. Desjardins. As was noted by Ms. Guillemette, Mr. Desjardins has the right to inform himself regarding Sophie’s activities, school and medical needs as opposed to waiting for Ms. Therrien to contact him.

4. Both parties have long-term, stable residences. Unfortunately, Mr. Desjardins recently lost his job at Algonquin College but is confident that he will be able to obtain other meaningful employment in the near future.

5. I find both parents willing and able to meet Sophie’s needs and act in her best interests.

Joint Custody

[126] When the parties physically separated in March 2011, there is no doubt their relationship was characterized by hostility and conflict. Mr. Desjardins was arrested on charges of assault and criminal harassment based on allegations by Ms. Therrien. The situation escalated to the point that the CAS was concerned about risk of emotional harm to Sophie. In January 2012, the assault charges were withdrawn and both parties were ordered to sign common law peace bonds. Since that time, although they continue to distrust one another and struggle to make decisions together regarding Sophie’s needs and interests, they have been able to maintain polite email communication. Ultimately, it has been Ms. Therrien who has informed Mr. Desjardins about an issue and who has made the decision, sometimes at the last minute, with his reluctant agreement.

[127] In Kaplanis v. Kaplanis (2005), 10 R.F.L. (6th) 373 (Ont. C.A.), the Ontario Court of Appeal made it clear that joint custody should not be awarded in high conflict situations. The Court stated at paras. 11 and 12:

11 The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.

12 Insofar as the ability of the parties to set aside their personal differences and to work together in the best interests of the child is concerned, any interim custody order and how that order has worked is a relevant consideration for the trial judge and any reviewing court. ...

[128] In that case, the Court ultimately set aside the trial judge’s order of joint custody finding that the Court had “erred in principle in awarding joint custody (a) where there was no evidence of historical co-operation and appropriate communication between the parents, and (b) in the hope that it would improve the parenting skills of the parties”.

[129] In Ladisa v. Ladisa (2005), 11 R.F.L (6th) 50 (Ont. C.A.), the Court of Appeal upheld an Order for joint custody in a high conflict situation. The determining factor distinguishing this case from Kaplanis was the parties’ apparent ability to put aside their differences and communicate and co-operate in the interests of the child.

[130] Despite the fact that where there has been a history of conflict between the parents, joint custody should normally not be awarded, in Ursic v. Ursic (2006), 32 R.F.L. (6th) 23 (Ont. C.A.), the Ontario Court of Appeal dismissed the mother’s appeal from an Order of joint custody in the parallel parenting mode.

[131] The Ontario Court of Appeal notes in Ursic at para. 26:

26 ...Many trial courts have recognized that joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child's life, yet have difficulty communicating or reaching a consensus on the child's upbringing. See T.J.M. v. P.G.M. (2002), 25 R.F.L. (5th) 78 (Ont. Sup. Ct. J.), and Mol v. Mol, [1997] O.J. No. 4060 (Sup. Ct. J.). The trial judge viewed parallel parenting to be suitable in this case, and I am not persuaded that he erred in ordering it.

[132] In a typical parallel parenting order, decision making will be allocated on major matters so that in case of a conflict, one parent will have the final say.

[133] At the end of the day, there can be no hard and fast rule as to when a joint custody order will be appropriate. I agree with the comments of Gray J. in Warcop v. Warcop (2009), 66 R.F.L. (6th) 438 (Ont. Sup. Ct.). At para. 94, the Court noted:

94 In the final analysis, in my view, an order for joint custody is not to be rejected based on any rigid standard as formerly reflected in Baker, supra. The focus is simply on the best interests of the child. The best interests of the child will obviously not be fostered if the parents are unable to communicate and cooperate in making decisions that affect the child. However, a standard of perfection is not required, and is obviously not achievable. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. In making this assessment, the Court must be governed by the evidence that has been presented as to the communication and cooperation between the parties to date; the mechanisms that are in place to ensure that it will continue; and the assessment of the judge as to the capabilities of the parties to do so in the future.

[134] Since the date of separation, Sophie has resided primarily with her mother but has had significant quality time with her father under a regime of access ordered on August 19, 2011 when an Order was made for joint custody. That regime of access and the joint custody Order have continued over the last 18 months other than an increase in access during the summer months 2012, which took take place without any significant difficulty.

[135] As previously noted, Sophie is, according to the evidence of all witnesses, a well adjusted, bright, outgoing, delightful little girl who loves both her parents. I see no reason why the relationship with both her parents should not be encouraged and supported. This is also the view of the OCL’s social work investigator. Although communication and co-operation must be addressed, as in the Warcop case, I find that an order fostering a positive parental relationship with both parties is overall in Sophie’s best interests. The fact that Sophie has had her primary residence with her mother since the date of separation is only one of many factors to consider.

[136] Mr. Desjardins argues that an equal time sharing regime would be in Sophie’s best interests. He would agree with the recommendations of the OCL’s social worker for a proposed schedule on a 2-2-3 day schedule starting on a Monday, or to a week on-week off shared parenting arrangement.

[137] Ms. Therrien is adamantly opposed to a change in the residence plan or day-to-day parenting arrangements for Sophie. She argues that Sophie is doing very well despite the difficulties between her parents and that she is flourishing in the current arrangement. Given her age, she needs a place to call home and would not be well served with a week about or any form of equal time sharing arrangement.

[138] Although I find that both Mrs. Desjardins and Ms. Therrien are equally good parents and caregivers to Sophie, this does not mean that a mathematical calculation should be done to ensure that they each have exactly equal time with their daughter.

[139] A claim for equal time sharing was considered by Mr. Justice Vogelsang in Foster v. Foster. The Court notes at para. 35:

35 The annotation of Philip Epstein Q.C. to Cavanaugh v. Balkaron (2008), 2008 ABQB 151, 53 R.F.L. (6th) 295 (Alta. Q.B.) is instructive. Conceding that the Divorce Act promotes maximum contact, Mr. Epstein observes that the statute does not create a presumption of shared parenting and that no onus is placed, in this case on Ms. Foster, to prove that shared parenting should not be ordered. That, I think, correctly states the law. While spending more time with the children would be in the best interests of Mr. Foster, it does not necessarily follow that it would be in the best interests of Olivia and Gavin: Coulson v. Farmer (1999), 50 R.F.L. (4th) 345 (Ont. Gen. Div.). Where "maximum contact" is raised, it is important to remember that "quality parenting time is not measured by days and hours alone - those are a measure of quantity ..." in the words of Sandomirsky J. in Milleker v. Milleker (2005), 2005 SKQB 455, 21 R.F.L. (6th) 381 (Sask. Q.B.).

[140] In the case at bar, I note the following:

1. An equal time sharing regime would be a significant change in the life of this four year old child.

2. Sophie has had her home and primary residence with her mother since the date of separation.

3. Sophie is thriving and flourishing under the current arrangement.

4. Equal time sharing requires even better and more communication than the current schedule. Communication and co-operation have been a challenge for the parties.

5. Mr. Desjardins’ emphasis has been on his rights, his desire to see Sophie and his feelings regarding missing time with Sophie; for example, the Father’s Day brunch and the telephone call on her birthday. Mr. Desjardins continues to feel wronged and victimized by Ms. Therrien.

[141] Overall, I find it in Sophie’s best interests to increase the time with her father but I do not find that he has met the onus on him to prove on a balance of probabilities that a 50/50 time sharing, at this particular point in four year old Sophie’s life, would be in her best interests. It does appear that the summer access schedule worked well and a shared parenting arrangement based on that kind of schedule would be reasonable and in the best interests of this little girl.

[142] In considering decision making, there have been ongoing concerns as previously noted. Nevertheless, there has been polite email communication between the parties. They struggle to make decisions together but ultimately, decisions have been made regarding schooling, daycare and medical issues. Mr. Desjardins needs to inform himself and take a more active role with respect to decision making. The danger in allowing one of the two parties to have sole decision making authority is, as noted by Ms. Guillemette, that would “easily permit that parent to leave the other parent completely out of any decision”. Ms. Guillemette goes on to note that “at this time, there appears to have been a certain level of agreement for Sophie’s school registration for the fall of 2012 and changes to daycare were recently accomplished in preparation for school as well. Although the parties do not share a common vision as to how these decisions came to be made, they did in fact occur. There is no reason why either of these decisions would need to change in the foreseeable future. Both parties have purchased their homes and there are no plans to move. Their current homes make it convenient for their work, Sophie’s school and daycare and any changes to this should be undertaken with very careful consideration”.

[143] Therefore, based on all the evidence including the report from the office of the OCL as well as the jurisprudence, I find that an order of joint custody with a parallel parenting component to be in Sophie’s best interests. In other words, both parents are to communicate and co-operate with one another in attempting to make all major decisions regarding their daughter together but if they cannot reach an agreement, one party will have ultimate authority to make the final decision as will be outlined below.

[144] I note the parties were able to reach an agreement prior to trial regarding parenting time during the summer and other holiday time periods which will be incorporated into any final order.

Parenting Order

[145] A final order shall issue as follows:

1. The parties shall have joint custody of the child, Sophie, born December 1, 2008 for the purposes of making important decisions as to the child’s welfare including: education, daycare, religion, medical and dental needs.

(a) The parties shall consult with each other by e-mail or otherwise as agreed, in order to make important decisions regarding Sophie’s welfare.

(b) Where there is a disagreement, the parties shall send each other an e-mail containing the following information:

(i) Details of the decision to be made;

(ii) The information that either parent has with regard to the decision to be made;

(iii) Any information with regard to the child’s views;

(iv) The date by which the other parent must respond and provide her/his comments and preferences with regard to the decision to be made.

(c) Only after completing the process outlined in paragraph (b), where there is a disagreement between the parties, Ms. Therrien shall have final decision making authority in the areas of daycare, education and religion. Mr. Desjardins shall have final decision making authority in the areas of medical and dental needs. Both parties shall immediately inform the other in writing of the decision made.

(d) In the event of an emergency, the parent having care of the child shall make any required decisions and promptly notify the other parent by phone, text or email.

(e) The child’s health card shall travel with her between their homes.

(f) Both parents shall consult in writing and agree upon the number, nature, location and associated costs of Sophie’s extracurricular or recreational activities before she is enrolled in the activity and any costs are incurred. Each parent will ensure that Sophie is present for all practices, rehearsals and lessons on the day that he/she is caring for Sophie in his/her home. Both parties will be entitled to attend games, competitions and presentations irrelevant of where Sophie is on that particular day.

(g) Both parents shall be permitted to obtain information about the child and consult directly with her doctors, teachers, dentists, daycare providers, babysitters and other service providers and shall be permitted to attend teacher meetings, medical and dental appointments, school events, field trips, and extracurricular activities to observe the child’s progress and participation, whether or not it occurs during their parenting time.

(h) Both parents shall be entitled to receive and shall be entitled to obtain at her or his own costs, copies of all medical, dental, school and other reports related to the child.

(i) Both parents shall keep the other updated as to their current addresses and telephone numbers.

2. Commencing the Monday after the release of this judgment, the parties shall parent Sophie on a shared parenting basis as follows:

(a) Week 1: Ms. Therrien shall be responsible for Sophie’s care from Monday morning drop-off at school or daycare to Thursday after school or daycare. Mr. Desjardins shall be responsible for Sophie’s care from Thursday after school or daycare to Monday morning drop-off at school or daycare.

(b) Week 2: Ms. Therrien shall be responsible for Sophie’s care from Monday morning drop-off at school or daycare to Tuesday morning drop-off at school or daycare, Tuesday night from 7:30 p.m. to Thursday after school or daycare and from Friday after school or daycare to Monday morning drop-off at school or daycare. Mr. Desjardins shall be responsible for Sophie’s care from Tuesday morning drop-off at school or daycare to 7:30 p.m. when he will drop her off at Ms. Therrien’s home and from Thursday after school or daycare to Friday after school or daycare.

(c) When there is no school or daycare, Sophie shall be picked up from the other parent’s home at 4 p.m. and dropped off at the other parents’ home at 9 a.m.

(d) Each parent will be responsible for making play dates for the time they are caring for Sophie. Sophie will attend all birthday parties to which she has been invited, if she wishes, irrelevant of which parent she is with on the day of the party.

(e) Each parent shall be entitled to speak to Sophie by telephone at 7:30 p.m. or another agreed upon time on a daily basis when she has not been in the care of that parent that day. The other parent shall ensure that Sophie is available to receive the telephone call.

3. The parenting schedule referred to in paragraph 2 above shall continue throughout the year with the exception of parenting time during the summer and other holiday periods as agreed upon between the parties which shall be incorporated into this final order.

4. When either parent wishes to travel with Sophie, the other parent shall provide his/her written consent to the other’s travel with the child in accordance with the regular and holiday parenting schedules. The travelling parent shall provide the other parent with an itinerary including the date and time of departure and return and contact information for the child as soon as it is available.

5. Neither parent shall plan to move with the child out of Ottawa without providing 90 days written notice to the other parent and obtaining the other parent’s written consent or a court order.

6. Neither parent shall speak in a disparaging or negative manner about the other parent or allow or encourage others to do so in the presence of the child.

7. Neither parent shall discuss with the child, or with another party in the presence of the child, present or past legal proceedings or issues between the parties relating to present or past legal proceedings, including conflicts between the parties relating to parenting issues.

8. Neither parent shall leave out or leave accessible to the child information or documents pertaining to any issue arising from the parties’ separation and divorce, financial or parenting disputes, and neither will permit the child access to their personal email where communication regarding these matters are stored.

9. The parents shall communicate about the child primarily by email. These emails shall not be read by the child. Each parent shall respond promptly by return email to the email of the other. The parents shall exchange information regarding the child’s care, developmental milestones, likes and dislikes, scheduled activities and appointments, medical and otherwise, any requests for changes in the parenting schedule and travel plans.

10. If one parent requests information or a temporary change by email, the other parent shall respond within 24 hours. In the event of an emergency or a time sensitive matter, the parents shall telephone each other.

Child Support

[146] The parties agreed that if Mr. Desjardins reached the 40 percent threshold as outlined under s. 9 of the CSG the child support payment would be calculated using the simple or straight set-off method.

[147] Section 9 of the CSG states:

Shared Custody

9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[148] In Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, the Supreme Court of Canada indicated that s. 9 requires a two-part determination: first, to establish that the 40 percent threshold has been met; and second, if it has been met, to determine the appropriate amount of child support based on a budget.

[149] As noted by the Ontario Court of Appeal in Froom v. Froom (2005), 11 R.F.L. (6th) 254 (Ont. C.A.), there is no universally accepted method for determining the 40 percent threshold. An approach which seeks to avoid a rigid mathematical calculation and considers whether physical care of the child is truly shared, is appropriate.

[150] In this case, I find that there is a shared parenting arrangement. Overall in the course of the year, Mr. Desjardins will have physical care and control of Sophie and be responsible for her not less than 40 percent of the time. During the school year, in Week 1, Mr. Desjardins will have physical custody and responsibility for Sophie for three and one-half days and four nights. In Week 2, he will have physical custody and responsibility for her for two days and one night. If one were calculating the number of days and nights in a 14-day period, Mr. Desjardins will have five and one-half days or 39.3 percent of the days, and five nights or 36 percent of the nights in a 14-day period. This, combined with the shared holiday schedule agreed upon by the parties, in my view, results in Mr. Desjardins having physical custody of Sophie for not less than 40 percent of the time over the course of a year.

[151] As previously noted, the parties have agreed to use the simple or set-off method of calculating child support. Neither party provided a list of child expenses, nor a budget for child expenses.

[152] Both parties worked full-time at Algonquin College during the course of the marriage and after separation. Although Mr. Desjardins lost his job near the end of 2012, he was prepared to continue to pay child support on the basis of his 2011 income in the expectation that he would soon find new employment. Mr. Desjardins’ child support payment calculated on the basis of his 2011 income of $81,075.00 is $731.00 per month. Ms. Therrien, who continues to work at Algonquin College, indicated in her most recent financial statement dated November 26, 2012 that her annual income was $57,128.00. Her child support based on that income would be $518.00 per month. The set-off amount is $213.00 per month payable by Mr. Desjardins.

[153] Mr. Desjardins is to pay child support for the child Sophie in the amount of $213.00 per month commencing May 1, 2013, and on the first of each month thereafter.

[154] In addition, pursuant to s. 7 of the CSG, Mr. Desjardins is to pay his proportionate share of special or extraordinary expenses which, based on the parties’ incomes as disclosed, is 63 percent. Therefore, he is to pay 63 percent of Sophie’s daycare costs, health related expenses that exceed insurance reimbursements by at least $100.00 annually, and the expenses for two extracurricular activities as agreed upon between the parties.

[155] The parties are to exchange copies of their personal income tax returns and Notices of Assessment and Re-assessment by June 30th of each year.

[156] In the event that Mr. Desjardins does not find employment in 2013 or finds employment at an income level significantly less than his income for 2011 and 2012, the amount of child support payable may need to be renegotiated.

Damages Claim

[157] In his Answer, Mr. Desjardins made a claim for damages against Ms. Therrien for “her unwarranted criminal allegations that led to unwarranted criminal charges as against the Respondent.” Very few particulars were provided; the nature of the damages was not specified; and no particular amounts were claimed.

[158] At trial, counsel for Mr. Desjardins requested damages in the amount of $21,000.00 which were the costs for legal fees and disbursements paid to Mr. Desjardins’ criminal defence counsel. It was not until counsel’s submissions at the end of the trial that it was clarified that Mr. Desjardins’ claim for damages was based on malicious prosecution. .

Malicious Prosecution

[159] In J.G. Fleming, The Law of Torts (5th ed. 1977), at p. 598, the author notes that:

There are four necessary elements which must be proved for a plaintiff to succeed in an action for malicious prosecution:

a) the proceedings must have been initiated by the defendant,

b) the proceedings must have terminated in favour of the plaintiff,

c) the absence of reasonable and probable cause;

d) malice, or a primary purpose other than that of carrying the law into effect.

a) Proceedings “initiated” by Whom?

[160] In Lee v. Lee, 2005 BCSC 1178 at para 2, a report was made by Ms. Lee to the RCMP that she had been assaulted and threatened by her husband and charges were immediately laid against him. He was later acquitted as the trial judge did not find Ms. Lee credible. It was argued that she went to the police with a false story hoping to gain advantage in the family law proceedings.

[161] Justice Gill noted the four necessary elements outlined above and as elaborated upon in Nelles v. Ontario, [1989] 2 S.C.R. 170. The Court found Ms. Lee initiated the proceedings in the sense that she reported the matter to police and in that way did what she could to launch criminal proceedings against Mr. Lee.

[162] In this case, Ms. Therrien called the gun registry initially outlining her concerns regarding Mr. Desjardins’ request to renew his firearms’ licence given the deterioration in the relationship between the parties. Later, after the alleged assault, she called the registry once again outlining the difficulties in the home as well as the alleged assault. It was after that telephone call that the Ottawa police were contacted and called Ms. Therrien who repeated her allegations regarding Mr. Desjardins’ assault and threatening behaviour. The police then arrested Mr. Desjardins and the Crown decided to prosecute him for assault and threatening.

[163] Although it is arguable that Ms. Therrien initiated the proceedings in the sense that she reported the matter to the gun registry who then called the police, I do not find she did whatever she could to encourage and pursue criminal proceedings against Mr. Desjardins. It was the police who decided to initiate the criminal proceedings and the Crown that agreed to the laying of the charges. Ms. Therrien did not take an an active role.

b) Proceedings Terminated in Favour of Mr. Desjardins?

[164] In considering whether or not the proceedings were terminated in favour of Mr. Desjardins, I note that unlike Lee, Mr. Desjardins was not acquitted of the assault. In fact, the charges were withdrawn by the Crown. However, Justice Nadelle’s comments at the end of the criminal trial made it clear that he felt both parties were law abiding citizens who were making cross-complaints against each other for assault. He decided to impose common law peace bonds on both parties making it clear he was not convicting either one nor finding them guilty of anything. He clearly anticipated there could be further difficulties between them at that particular point in time if they communicated with one another. I do not find that the proceedings therefore were terminated in favour of Mr. Desjardins as, although the criminal charges were withdrawn, a common law peace bond was imposed given the concerns of the criminal court judge.

c) & d) Absence of Reasonable and Probable Cause and Malice

[165] In considering the absence of reasonable and probable cause and the requirement of malice or an improper purpose, I note once again that the telephone call made by Ms. Therrien was made to the firearms registry and not to the police. Given the relationship difficulties at the time, there were concerns on her part with respect to firearms in the home. I do not find on a balance of probabilities that Ms. Therrien wished to gain a collateral advantage in the family law proceedings by calling the firearms registry in January and March of 2011.

[166] In conclusion, I do not find Mr. Desjardins has made out a case on a balance of probabilities for malicious prosecution and there will be no damages payable.

Unequal Division of Family Property

[167] Although his Answer claimed an equalization of net family property, at the outset of trial Mr. Desjardins indicated as an alternative to damages, he was claiming an unequal division of net family property under s. 5 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”). Once again, there were no particulars provided in the pleadings. It appeared he was relying on having an unreasonable debt load as a result of the criminal prosecution.

[168] Pursuant to s. 5(6) of the FLA, the court may order an unequal division of net family property if the court is of the opinion that equalizing net family properties would be unconscionable having regard to various factors.

[169] In this case, Mr. Desjardins argues that equalizing net family property would be unconscionable given that he has incurred a disproportionately large amount of debt due to the criminal prosecution. I do not find that argument to fit within the factors outlined under s. 5(6) of the FLA, nor do I find an equalization of net family property unconscionable given his debt to his criminal defence counsel. Debt load is addressed under factor s. 5(6)(f) which states that equalizing net family properties would be unconscionable having regard to the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family. Any debt incurred by Mr. Desjardins with respect to the criminal trial was not for the support of the family.

[170] Mr. Desjardins may also be relying on some other circumstance, as outlined under s. 5(6)(h), which may make an equal division unconscionable. I do not find such a circumstance in this case.

[171] The test for unconscionability is, as stated by the Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, exceptionally high due to the policy underlying the FLA which encourages finality, predictability and certainty. I do not find that Ms. Therrien’s telephone calls to the firearms registry, which resulted in the police contacting her and ultimately the criminal charges against Mr. Desjardins and his hiring of defence counsel, to be an unconscionable result in assessing equalization of net family property.

Equalization of Net Family Property

[172] The parties filed a Net Family Property Worksheet prepared by counsel for Ms. Therrien after all the evidence was heard at trial (Exhibit 19). As previously noted, there were credibility issues on financial matters on the part of both Ms. Therrien and Mr. Desjardins. At the end of the day, the Net Family Property Worksheet based on the parties’ Net Family Property Statements indicates a request by Ms. Therrien for an equalization payment from Mr. Desjardins of $12,617.48. Mr. Desjardins’ position is that he owes an equalization payment to Ms. Therrien of $5,732.40. He requests that amount be reduced by the amount owing to him by Ms. Therrien for joint household expenses paid by him both before and after leaving the matrimonial home. Although his original claim, as outlined in his Book of Financial Documents, exhibit 7, tab 46, was for $10,600.77, after examination at trial the revised amount claimed is $5,732.40.

[173] The three main areas in dispute as to the equalization of net family property are:

(1) The amount owed to each party on the date of separation for their 2010 tax refunds;

(2) The net value of property owned by each party on the date of marriage;

(3) Whether or not the $10,000.00 provided by Mr. Desjardins’ mother prior to the purchase of the matrimonial home was a gift or a loan to both parties or to Mr. Desjardins alone.

Tax Refund 2010

[174] The evidence is that on August 2, 2011, Ms. Therrien received a tax refund of $4,433.56. Mr. Desjardins received a tax refund of $481.52. Given that the parties separated on October 25, 2010, the tax refund owing as a result of their employment prior to separation would be with respect to those ten months only. Therefore, I find that Ms. Therrien’s calculation for the tax refund owing on the date of separation should be utilized in equalizing net family property. The amount owing to Ms. Therrien was $3,694.63 and to Mr. Desjardins $401.27.

Property Owned on Date of Marriage

[175] Mr. Desjardins has provided evidence that in August of 2004 he purchased a 1984 Honda Shadow motorcycle for $700.00. The parties were married June 24, 2006. There is no evidence as to the value of the motorcycle on that date. Mr. Desjardins inserts a value of $500.00 in his Net Family Property statement presumably allowing for some depreciation. There is no evidence that a 1984 Honda Shadow motorcycle would depreciate over a less than two-year period. Therefore, the best evidence available is that the vehicle was worth $700.00 which will be utilized in calculating net family property.

[176] Mr. Desjardins alleges that he had $15,872.93 in bank accounts and savings on the date of marriage. The only evidence provided in his Book of Financial Documents is with respect to a joint Scotiabank power chequing account, a joint Scotiabank money master account and a Manulife Financial RRSP totalling $5,899.78. It is unclear as to what he is attributing the other approximately $10,000.00. Similarly, the only evidence presented by way of financial documents with respect to Ms. Therrien’s bank accounts and savings on the date of marriage is that including the joint accounts she had $1,655.30. The evidence supports $5,899.78 for Mr. Desjardins and $1,655.30 for Ms. Therrien. These figures will be utilized in the calculation of net family property.

Funds Provided by Candace Desjardins

[177] Amanda Therrien testified she had very little to do with financial matters either before or during the marriage. Most of the finances were controlled by Mr. Desjardins. She does recall both sets of parents providing generous gifts in the amount of approximately $10,000.00 each to the parties prior to their marriage. She does not specifically recall Candace Desjardins and her husband providing the couple with funds for closing costs when they purchased the matrimonial home prior to marriage.

[178] Both Mr. Desjardins and his mother testified that Mr. Desjardins’ parents provided the couple with $10,000.00 for the costs of closing the house deal. Although nothing was ever put in writing, Mr. Desjardins and his mother testified there was an understanding this was a loan which was to be paid back once the matrimonial home was sold. Mrs. Desjardins provided the court with a letter written just prior to trial on October 27, 2012, indicating she had loaned Mr. Desjardins a number of amounts including $10,000.00 to Mr. Desjardins and Ms. Therrien for the purchase, real estate fees, closing costs and new home set-up for the matrimonial home purchased prior to marriage.

[179] Ms. Therrien has no recollection of any loan or arrangement for repayment.

[180] Neither party signed any loan document; there was no repayment plan; there was no timeframe within which the amount should be repaid; no interest payments were discussed nor anticipated and no payments were ever made prior to the separation of the parties. There has been some partial repayment of sums advanced to Mr. Desjardins by his mother for a number of expenses since separation.

[181] The criteria outlined above are relevant to a determination as to whether advances by parents to children should be looked upon as gifts or loans, as outlined in the jurisprudence. see: Lock v. Lock, 2000 BCSC 1300, [2000] B.C.J. No. 1850 and Cunningham v. Montgomery, [2009] O.J. No. 1310 (Sup. Ct.). I am satisfied on a balance of probabilities that Ms. Therrien was not legally obligated to repay any funds advanced in this matter prior to the purchase of the matrimonial home. The process was anything but formal; she signed no loan agreement; there was never any discussion about a repayment plan nor interest payments. When the matrimonial home was in fact sold, the evidence is the proceeds of sale were used to pay off the mortgage and a joint line of credit.

[182] Therefore, despite the fact that Ms. Therrien includes the $10,000.00 as a loan to Mr. Desjardins individually in her Net Family Property statement, I find on a balance of probabilities these funds were advanced by Mrs. Desjardins to assist the young couple with the purchase of the matrimonial home. This money was informally provided by the Desjardins with no expectation of repayment unless the young couple could afford it, likely when the matrimonial home was sold, if ever. I find that such an informal arrangement without any clear evidence that the advance was a loan, on balance results in a finding that it was a gift. This gift was used in the purchase of the matrimonial home and was of benefit to both parties. It will not be subject to equalization.

Conclusion

[183] Therefore, in reviewing the Net Family Property statements and the Net Family Property Worksheets, filed as exhibit 19, I find that:

1. The value of the property owned on valuation date is as noted in Ms. Therrien’s Net Family Property statement, $51,662.49 owned by her and $50,869.44 owned by Mr. Desjardins.

2. In considering the value of debts and other liabilities on valuation date the amount argued to be a loan from Candace Desjardins will be removed and there will be an allowance for notional tax on the RRSP held by Mr. Desjardins as noted in his Net Family Property statement. Therefore, the debts on valuation date for Ms. Therrien are $35,518.51 and for Mr. Desjardins $14,613.86.

3. Considering the net value of property owned on the date of marriage, once again removing the funds received from Candace Desjardins, results in a net value for Ms. Therrien of $1,655.30 and for Mr. Desjardins of minus $1,816.44.

4. The total of debts and other liabilities on the date of separation plus the net value of property owned on the date of marriage for Ms. Therrien is $37,173.81 and for Mr. Desjardins $12,797.42.

5. Net family property for Ms. Therrien is $14,488.68 ($51,662.49 - $37,173.81) and for Mr. Desjardins is $38,072.02 ($50,869.44 - $12,797.42).

6. Therefore, Mr. Desjardins owes Ms. Therrien an equalization payment in the amount of $11,791.67 (total net family property $52,560.70 ÷ 2 = $26,280.35 - $14,488.68 = $11,791.67).

Claim for Household Expenses

[184] As previously noted, Mr. Desjardins claims Ms. Therrien owes him payments for household expenses made by him both before and after he left the matrimonial home.

[185] Mr. Desjardins provided a summary at tab 46 of his Book of Financial Documents indicating a net payment owing by Ms. Therrien of $10,600.77. He later, during the trial, amended that summary to claim $5, 732.40. After cross-examination, numerous difficulties with the summaries were highlighted as follows:

1. Little supporting documentation was provided to substantiate the figures listed by Mr. Desjardins. There were no credit card statements, no line of credit statements, no bills or receipts provided. There are numerous errors and omissions in his summary for example he included his personal line of credit with Scotia Bank; he claimed hydro twice; he missed two transfers from Ms. Therrien and did not account for her paying daycare costs from November, 2011 to January, 2012. Some of these errors were corrected in his new summary of household expenses owed by Ms. Therrien filed as exhibit 20 at the end of the trial on December 7, 2012.

2. Although Mr. Desjardins indicates that there was an agreement that he pay 60 percent of the household costs and Ms. Therrien pay 40 percent, there is no evidence of any such agreement. In addition, Mr. Desjardins has included numerous expenses which are unaccounted for and which are questionable as to whether they are in fact joint household expenses. For example, Brown’s Cleaners, Costco, Sobeys, Play it Again.

3. Mr. Desjardins has also made a claim for sole debts, his line of credit and Visa, which are already included in his Net Family Property statement for the purposes of equalization.

4. At the case conference on May 20, 2011, Mr. Desjardins was not ordered to pay child support as he had paid the mortgage and some of the home related expenses. As of that date the parties were ordered to pay 50 percent each of the mortgage taxes and insurance for the matrimonial home and 50 percent of daycare expenses. No order was made with respect to any other expenses.

5. From the date of the sale of the matrimonial home to the date of trial, there were no shared expenses other than daycare. Therefore, it is difficult to determine exactly what if anything should be payable by Ms. Therrien. In reviewing the latest summary provided by Mr. Desjardins and adding the figures for the mortgage, joint line of credit, home insurance, hydro and water, and dividing that in proportion to the incomes of the parties, or even equally, less the amount paid by Ms. Therrien, it appears without further evidence and without further detailed accounting, there is no quantifiable amount owed by Ms. Therrien. Therefore, given the lack of evidence and the errors made by Mr. Desjardins in preparing his summary, I am not prepared to find on a balance of probabilities that Ms. Therrien owes Mr. Desjardins anything for household expenses.

Costs

[186] If the parties cannot reach an agreement on costs, written submissions of no more than two pages with attached Offers and Bills of Costs are to be provided by the Applicant within two weeks, followed by the Respondent within a further two weeks, with the Applicant to have a further one week for reply submissions, if necessary.

Blishen J.

Released: April 17, 2013