ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-11-371063
DATE: 20130628
B E T W E E N:
JASON VI AU TRAN
Applicant
- and -
JIE LING “MAY” CHEN
Respondent
Jenna Beaton, for the Applicant
Gary E. Shortliffe, for the Respondent
HEARD: May 13 to 17, 21 and 22; June 3 to 7, 2013
STEVENSON J.
REASONS FOR DECISION
Introduction
[1] The applicant, Jason Vi Au Tran ("Mr. Tran"), issued an Application on July 29, 2011 wherein he was seeking joint custody or, in the alternative, sole custody and an order for time sharing with respect to the children, Madelyn Tran ("Madelyn"), born March 21, 2001, and Ethan Jacob Tran ("Ethan"), born December 13, 2006. He was also seeking an equalization of net family property and other relief. Prior to the commencement of trial, Mr. Tran served an Amended Application on the respondent, Jie Ling "May" Chen ("Ms. Chen"). At trial Mr. Tran sought leave to file the Amended Application which was granted.
[2] Mr. Tran is seeking an order for sole custody; a suspension of Ms. Chen's access to the children for a period of no less than six months; an order that the children attend counselling directed at the re-unification of the father-child relationship; and that as a condition for the resumption of Ms. Chen's access with the children that she attend and complete a group anger management course; she undergo a psychological assessment; and that she attend counselling. Mr. Tran also seeks child support, equalization of net family property, an adjustment accounting for the unequal division of the proceeds of sale of the matrimonial home, life insurance, occupation rent, prejudgment and post-judgment interest and costs.
[3] Ms. Chen seeks an order for sole custody of the children and that Mr. Tran share time with the children in accordance with the recommendations of the Office of the Children's Lawyer (the "OCL"). In closing submissions, she proposed that the children both have the time sharing arrangement that the OCL recommended for Ethan, including weekend access in week one and Wednesday and Thursday overnight access in week two. She agrees to consult and provide information to Mr. Tran on all important issues affecting the children and to cooperate with proper interventions that may help Mr. Tran improve his relationship with Madelyn.
[4] Ms. Chen also seeks ongoing child support in accordance with Mr. Tran's current income and for the period from March 1, 2011, through to March 2012, when she contends no child support was paid. Ms. Chen also seeks spousal support. With respect to equalization of net family property, Ms. Chen submits that the parties have already equalized the net proceeds from the sale of the matrimonial home and that it is unconscionable for Mr. Tran to claim that Ms. Chen should be responsible for his student loan when she supported Mr. Tran during the marriage. She also contends that the parties agreed that there would be no equalization of net family property. Ms. Chen also seeks costs.
Facts
[5] In approximately 1997 the parties commenced residing together while they were still in high school. They were subsequently married on March 10, 2001, and separated on March 1, 2011.
[6] Mr. Tran is 31 years of age and Ms. Chen is 32 years of age. Madelyn is 12 years of age and Ethan is 6 years of age.
[7] The parties struggled financially throughout their entire relationship which was a source of major conflict between them. There were physical altercations during the relationship with both accusing each other of verbal and physical abuse. Many of these incidents took place in front of the children. In 2003 Mr. Tran was charged with domestic assault. Both parties claim they suffered injuries as a result of the physical altercations between them through the years.
[8] There were other sources of conflict between the parties during the relationship, including an allegation by Ms. Chen that Mr. Tran had an extramarital affair and that he viewed pornography on his computer. Mr. Tran denies having an extramarital affair, but admits to having an emotional affair with a co-worker. During the marriage, as a result of the ongoing conflict between the parties, Mr. Tran left the home on a number of occasions, sometimes for a few hours or days, and once for a few months.
[9] Madelyn enjoyed a close relationship with Mr. Tran prior to separation. After separation, Mr. Tran's relationship with Madelyn deteriorated. Madelyn has not spoken to Mr. Tran since approximately the fall of 2011, although she continues to have access visits with Mr. Tran. At times Madelyn would not eat at Mr. Tran's home and insisted on bringing her own food to his home. Madelyn will often refuse to go on any outings with either Mr. Tran or with Mr. Tran and Ethan. Since separation, Madelyn has rarely spoken to Mr. Tran's mother or sister and rarely speaks to her own brother Ethan during her time with Mr. Tran.
[10] Mr. Tran contends that Madelyn has been alienated from him due to Ms. Chen's inappropriate behaviour. He is concerned that this will also happen with Ethan. He states that there has been a noticeable change in Madelyn's attitude towards him after there has been any incident between he and Ms. Chen. He contends that Ms. Chen has blamed Mr. Tran for the conflict, and shares her views and negative feelings about Mr. Tran with the children on an ongoing basis. Mr. Tran and Madelyn, along with Ethan, have been involved in counselling in an effort to repair the relationship between Madelyn and Mr. Tran. Madelyn was also involved in art therapy. Madelyn attends counselling, but rarely participates. Despite the counselling, the relationship between Mr. Tran and Madelyn remains strained.
[11] On May 25, 2012, the OCL agreed to provide services pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Ms. Zaria Duncan was appointed to investigate the issues of custody and access. A report was subsequently completed on October 12, 2012, and recommendations were made. Mr. Tran filed a dispute to the report dated November 8, 2012.
[12] During the course of the litigation, Mr. Tran experienced access difficulties and on July 5, 2012, Ms. Chen was found in contempt by Greer J. with respect to Herman J.'s order of March 21, 2012, regarding access and counselling. On October 12, 2012, Greer J. sanctioned Ms. Chen for her contempt. On November 6, 2012, Greer J. indicated in her endorsement that Ms. Chen had purged her contempt by writing a letter of apology to the Court and to Mr. Tran, registering for counselling and attending counselling sessions on anger management. Mr. Tran contends that Ms. Chen is in need of further counselling and that she has continued with her inappropriate behaviour. He does acknowledge that access is currently taking place.
[13] Ms. Chen denies interfering with access and contends that she encourages and supports the children going on visits. She states that Mr. Tran has broken promises to Madelyn and that Madelyn was upset by the loss of her home and best friend when she had to move. Ms. Chen states that she has ensured that Madelyn attends her current counselling sessions with Ms. Parker.
[14] During the course of the marriage Mr. Tran attended George Brown College and obtained a diploma in electronics. He furthered his studies by attending York University and he obtained a degree in computer science. Mr. Tran presently earns an income of approximately $74,000 gross from his employment.
[15] Ms. Chen contends that she supported Mr. Chen throughout his educational pursuits. The parties differ as to whether there was an agreement that Mr. Tran attend university after obtaining his college diploma, as Ms. Chen contends that she was seeking to further her education. Eventually Ms. Chen completed her high school education and completed the law clerk program at Seneca College, which was a program she was enrolled in at the time of separation. She is presently working in a contract position and earns a gross annual income of approximately $28,000. Mr. Tran contends she is earning $30,000 and can earn additional income.
[16] The parties’ only significant asset was their matrimonial home, which was sold in March 2012. Ms. Chen was given an additional $7,661.96 from the proceeds to assist her with the purchase of her new condominium. Mr. Tran seeks an adjustment to the proceeds as he contends he was not given one-half of the proceeds and he seeks an equalization of net family property. Ms. Chen's position is that the additional funds paid to her were with the consent of Mr. Tran and he should be estopped from now claiming repayment. She contends that the parties agreed that there would be no further equalization of net family property.
[17] During the course of the parties' marriage, Mr. Tran incurred a debt of approximately $40,000 with respect to a student loan. Ms. Chen submits that it is unconscionable for Mr. Tran to seek reimbursement from her with respect to his student loan as she fully supported him as he pursued his education. Mr. Tran contends that most of the funds were used for joint household expenses during the marriage and only a fraction was used for tuition fees and school expenses.
Issues
[18] The issues for determination are as follows:
(1) Are the children, in particular, Madelyn, alienated from Mr. Tran and if so, what role has Ms. Chen played in the alienation?
(2) What type of custodial arrangement is in the best interests of the children?
(3) What residency or access arrangements are in the best interests of the children, including holiday time?
(4) What is the proper amount of child support payable and should child support be ordered from March 1, 2011, to March 1, 2012?
(5) Is Ms. Chen entitled to spousal support from Mr. Tran and if so, what is the appropriate quantum and duration of spousal support?
(6) Should there be an equalization of net family property? Should there be an adjustment with respect to the distribution of the proceeds from the sale of the matrimonial home?
(continued in full exactly as in the source decision…)
Stevenson J.
Released: June 28, 2013
COURT FILE NO.: FS-11-371063
DATE: 20130628
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JASON VI AU TRAN
Applicant
- and -
JIE LING “MAY” CHEN
Respondent
REASONS FOR DECISION
Stevenson J.
Released: June 28, 2013