COURT FILE NO.: FC-09-032864-00

DATE: 20130712

CORREIGENDA: 20130819

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Alina Polak

Applicant

– and –

Stanislav Polak

Respondent

Carla Adams, for the Applicant

Colin A. Brown, for the Respondent

HEARD: May 24, 27, 28, 29, 30 and 31, 2013

The text of the original decision has been corrected with text of corrigenda (released August 19, 2013) appended.

McDermot J.

Introduction

[1] In family law, as elsewhere, religion can be a divisive issue; fundamental religious differences between parties can result in marriage breakdown and later spawn hard fought and bitter litigation. This case is no different. In her own search for spiritual contentment, the Applicant, Alina Polak, converted to Judaism in 2010. Although she describes herself as a “modern” orthodox Jew, it is obvious that her religion is very important source of comfort to her and her practice of Judaism can only be described as strict.

[2] That alone would not, indeed could not, be a cause for complaint. However, Ms. Polak and her husband, the Respondent, Stanislav (Stan) Polak, have two children, Anthony, who is nearly seven, and Michael, who is nearly five. Ms. Polak believes that her children should also share in her religious conversion. Unfortunately, Mr. Polak perceives that his relationship with the children has suffered as a result of Ms. Polak’s new beliefs. He also perceives that the children have suffered: in September, 2010, more than a year after the parties separated, Ms. Polak had the children circumcised and they were given Hebrew names, all without his consent.

[3] At the time of the circumcision, the children were in the primary care of the Applicant and the Respondent had been seeing the children sporadically. It also then appeared that there was no issue with primary care of the children; however, as matters progressed, Mr. Polak began to assert his access and parental rights to Ms. Polak’s increasing chagrin. Misunderstandings arose along with breaches of orders made by various judges, including myself, made in various interlocutory motions along the way. Two different reports were issued by the Office of the Children’s Lawyer (“OCL”) social worker, Alana Presement. The first report expressed concerns about Ms. Polak marginalizing the father from the children and the final report recommended a change in custody, suggesting that Mr. Polak be given sole custody of the children. Educational issues loomed large; allegations were made that Ms. Polak failed to ensure that the children attended school on time and also failed in adequately clothing or feeding the children for school; Ms. Polak wishes the children schooled in a private Jewish school. Mr. Polak amended his pleadings in October, 2012, requesting custody of the children. The major issue before me, accordingly, was whether custody should change as recommended by Ms. Presement.

[4] The trial took six days during the May, 2013 sittings in Newmarket. Along with custody and access issues, the parties required resolution of child support and spousal support; property matters were finally settled by order of McGee J. dated February 4, 2011. Although the Applicant requested that Mr. Polak share the cost of the children’s Jewish day school, she abandoned that issue prior to commencement of trial.

[5] Prior to trial, Ms. Polak’s counsel, Carla Adams, requested an adjournment of the trial. The reason for the adjournment was the need for third party disclosure by the children’s school and teachers arising from the educational issues noted above. This was the second request by the Applicant for an adjournment; the trial had been delayed once before when it was taken off of the November, 2012 trial list at the Applicant’s request. The parties later appeared before Kaufman J. at a trial management conference on May 15, 2013; he emphasized in his endorsement that, because of the potential for custody change, “this matter begs for resolution prior to Labour Day in event changed school in order.” Because there was no guaranteed trial time prior to the commencement of the 2013-14 school year, I refused the adjournment request on the basis that the prejudice to the children resulting from delay was greater than was prejudice from lack of disclosure. I noted that either party could subpoena either or both of the children’s teachers from the school and, in fact, several witnesses were called by the Applicant that were not on her witness list as set out in the trial management conference endorsement. In view of the fact that both counsel eventually determined that the teachers from the children’s school need not be called as witnesses in any event, the decision to proceed with trial appears to have been the correct determination.

[6] For the reasons set out below, I have determined as follows:

a. The Respondent shall have custody of the children of the marriage.

b. The Applicant shall have access to the children according to the following schedule:

i. Three weekends out of four, from Friday at 5:00 p.m. to Sunday at 7:00 p.m. to be extended to the Monday of a long weekend in the event that access falls on a long weekend;

ii. Thanksgiving and Easter weekends to be divided between the parties;

iii. The children’s Christmas School breaks, March breaks and summer school holidays shall be equally divided between the parties and, unless otherwise agreed, the children shall spend the summer school holidays with each party on a week about basis;

iv. The Respondent shall have the children on Christmas Eve and Christmas Day every year.

v. The Applicant to have Mother’s Day and the Respondent to have Father’s Day irrespective of the access schedule.

vi. The Applicant shall be entitled to access during four Jewish holidays of her choice. She shall provide a schedule of the holidays that she has chosen on or before January 1 of each calendar year. In the event that those holidays fall on weekends other than weekends during which she has access to the children, she shall give the Respondent at least seven days’ notice that she wishes to exchange weekends with the Respondent for this purpose, provided that the the sharing of Thanksgiving and Easter weekends shall take precedence. If she does use one of the Respondent’s weekends for access during a Jewish holiday, the Respondent shall have the next following weekend (other than Easter or Thanksgiving noted above, when it will be the weekend following such shared weekend) including the Monday if it falls on a holiday weekend;

vii. If those holidays fall during the week, the Applicant may take the children out of school for those holidays and the children shall spend those days with the Applicant;

viii. Neither party shall travel outside of Canada without the consent of the other, which consent shall not be unreasonably withheld. That consent shall only be provided based upon a detailed itinerary provided by the travelling parent to the non-travelling parent, including the names of hotels or or other accommodations and telephone numbers where the children can be reached.

ix. The parties will jointly apply for passports for the children, provided that if the Applicant will not sign the passport application, the Respondent may apply for passports without the signature of the Applicant. The passports shall remain in the possession of the Respondent provided that they will be released for approved travel as above.

x. Such further and other access as the parties may agree to.

c. The parties shall respect each other’s religious choices and shall not deprecate the other party’s religion, or permit such deprecation, in the presence of the children.

d. Based on income imputed to the Applicant in the amount of $20,000 per annum, the Applicant shall pay to the Respondent child support in the amount of $306 per month, commencing January 1, 2014;

e. The Respondent shall pay spousal support to the Applicant in the amount of $550 per month commencing August 1, 2013 to and including February 28, 2016, when spousal support shall forever cease irrespective of any change in circumstances, howsoever catastrophic.

Background Facts

[7] Mr. and Ms. Polak met in 2000 at the Respondent’s workplace, which is the Plan Group, a large contracting firm in Toronto. At the time, Mr. Polak worked there as an electrician (he still does) and Ms. Polak was a security guard there.

[8] Ms. Polak is 34 years of age; she was born in the Ukraine and finished high school there in 1996. She immigrated first to Cuba, and then six months later to Canada. Her mother also lives here with Ms. Polak’s stepfather, Alexander Yusfin. Ms. Polak speaks Russian and English. She originally was a non-practicing member of the Eastern Orthodox Church. However, after her mother married Mr. Yusfin, who was Jewish, both Ms. Polak and her mother also converted to Judaism. Ms. Polak has since allowed her security license to lapse and now works part time as a receptionist. She presently lives in Thornhill in a residence owned by her mother and her stepfather.

[9] Mr. Polak is 45 years old; he continues to work for the same employer as a union electrician. He lives in Mississauga. His parents live nearby to his residence and he was born in Canada. He is a non-practicing member of the Roman Catholic Church.

[10] Soon after meeting, the parties began cohabiting in Mr. Polak’s residence which is a three bedroom townhouse located at 3345 Silverado Drive in Mississauga. That home was purchased by Mr. Polak’s parents for him; he says that it was initially in their name and that he paid off the mortgage when he was in his mid-thirties. The home has now been transferred into his name.

[11] When the parties moved in together, Mr. Polak’s parents still owned the home. The living arrangements were unorthodox; Ms. Polak paid rent to the Respondent’s parents who apparently applied the rent to the mortgage. At that time, portions of the home were rented to others. When the parties married on September 20, 2003, Mr. Polak no longer saw the need to charge rent. The parties then divided the household expenses; although it was unclear how this was done, Ms. Polak appears to have paid $600 per month toward the mortgage, but also paid for the food expenses. Mr. Polak paid for the remaining expenses of the home including utilities which were in his name.

[12] As noted, the parties were married on September 20, 2003. They married in the Roman Catholic Church; apparently Ms. Polak had to produce her baptism certificate to prove that she was Christian or otherwise the wedding could not have taken place in that church. The parties were intent upon having children; Mr. Polak testified that they stopped using birth control a year after marriage, but Ms. Polak miscarried her first child. They waited awhile before getting pregnant again; Ms. Polak became pregnant again in late 2005. Anthony Polak was born on August 28, 2006.

[13] When Ms. Polak became pregnant, Mr. Polak asked his tenant to leave the upstairs part of the home; he engaged in extensive renovations, including a new bathroom and new floors. The drywall was replaced and patched and the baseboard removed (Ms. Polak states that it has not yet been replaced). There was a conflict on the testimony as to whether the Applicant assisted in the renovations; she says that she bought supplies at Rona and stripped wallpaper. Nothing rests on this in any event as property issues were ultimately settled through a payment by Mr. Polak of one half of the equity in the townhome, some $115,000.

[14] There was a major conflict on the evidence as to Mr. Polak’s involvement with Anthony after he was born. Ms. Polak says that her husband essentially lived in the basement and alleges that he drank heavily and smoked marijuana daily. She claims that Mr. Polak missed Michael’s baptism because he was using crack cocaine. She says that the drug use began in 2003 and continued right up until the date of separation. Ms. Polak says that her husband had little or nothing to do with Anthony and that she was almost solely responsible for Michael’s care.

[15] Mr. Polak denies the marijuana and alcohol use, although he does admit to spending time in the basement as he puts himself to sleep with the television located there. However, he says that he was involved in Anthony and did what he could within the limitations of a breast fed baby. He says that he got up in the night as a support to his wife, and changed diapers and bought supplies. He says that he assisted in the boiling of bottles and nipples where necessary. He says that he went with his wife and child to the lactation nurse and the Early Years Centre. It appears, however, that although he was involved, Ms. Polak was the primary caregiver of Anthony as an infant, as is obviated by the decision to breastfeed Michael.

[16] Perhaps Mr. Polak’s involvement with his son is best indicated by his reaction to an incident that occurred when Anthony was six months old, and he fell off of the kitchen counter which was being used as a change table. Mr. Polak testified that he had cautioned his wife a week before about leaving the child unattended on the counter; when the incident occurred after those warnings, he was extremely upset at the fact that Ms. Polak had allowed the fall. He says that there was a lot of blood and Anthony had to be taken to Sick Children’s Hospital where he was subjected to a battery of tests including MRIs and x-rays. After a two day stay at the hospital, it was eventually determined that there was a hairline fracture to Anthony’s jaw; there was no surgery undertaken as the injury, by its nature, healed itself.

[17] Mr. Polak’s reaction was to blame his wife; he stated that she was negligent and her actions had “devastated” him. He said that his son was just six months old, and that Ms. Polak had “broken him.” He said that there was a lot of blood “pouring from his mouth” and that there were most likely long lasting repercussions from the testing that was done.

[18] Ms. Polak minimized the incident, and blamed her husband for not purchasing a proper change table. She said that there was blood, but it came from a blood blister that the baby had at the time. She noted that no surgery was necessary. She also noted that Anthony later fell while playing in the care of Mr. Polak resulting in a scar which is still evident today.

[19] Whatever the result, it appears that things went downhill from this point onward. Mr. Polak appears to have been unable to let go of this incident, and continued to blame Ms. Polak for Michael’s injury and for her perceived negligent care for the child. Ms. Polak stated that, on one occasion, her husband called her a “stupid fucking cunt” for missing an appointment with the doctor; Mr. Polak denies having said this. The parties began to fight frequently; although Mr. Polak states that both parties were verbally abusive to each other, Ms. Polak testified that her husband came up “with a whole new dictionary to describe me.” The parties appear to have separated briefly in 2007 when Ms. Polak moved out of the home with Anthony.

[20] The marriage finally broke down soon after their second child, Michael, was born on August 25, 2008. Mr. Polak took maternity leave for the birth of this child. After Michael’s birth, Ms. Polak began to spend increasing amounts of time at her mother’s residence which soon turned into every weekend and quickly became a further source of ongoing disagreement between the parties. Apparently, in early 2009, Mr. Polak thought that things were improving; however, his somewhat unforgiving viewpoint was shown by the fact that he stated that he tried to keep silent after Ms. Polak allowed Michael to slip from her lap and fall to the floor. However, things were not getting better and in reality Ms. Polak was attempting to keep the peace while she prepared to move out; she quietly moved her things and the children’s things to her mother’s residence during February, 2009. Ms. Polak left with Anthony and Michael to live with her mother on March 9, 2009. The parties have not attempted reconciliation since.

[21] There is some evidence to support Ms. Polak’s assertion that she was in a controlling and abusive situation leading up to separation. Firstly, Mr. Polak appears to have controlled the finances; he never disclosed his income to Ms. Polak and kept his money separate from hers. He charged her rent. He would not permit her to drive his vehicle or insure her to drive it; he did not trust her because it had taken her five attempts to obtain her license. She was dependent upon him to get to the grocery store, the Early Years Centre or her mother’s home. He was unforgiving about accidents or omissions in caring for both Michael and Anthony that are common in the raising of children. He continues to withhold insurance forms from Ms. Polak from his extended health insurer because she performed “unnecessary medical procedures” (presumably the circumcision); she still does not have insurance cards for Mr. Polak’s extended health insurance for the children.

[22] To his credit, Mr. Polak appears to acknowledge today that he was controlling with Ms. Polak. He states that he would not put himself in that situation again, and would have done it differently if he had to do it again. He testified that it will not happen again, as he does not intend to remarry.

[23] Ms. Polak states, however, that Mr. Polak also descended into physical abuse. She states that Mr. Polak became physically abusive as early as 2003. There were pushing and shoving incidents and Ms. Polak said that she had to set up an escape plan; she packed the children’s things and was prepared to flee. She said that she spent weekends at her mother’s home because of her fear of physical abuse, and because of Mr. Polak’s alcohol and marijuana use. She said that Mr. Polak kicked her in the back on one occasion, causing her to fall. She stated that the final incident occurred at her mother’s home when Mr. Polak was drunk and became enraged at her when he realized that there was no possibility of reconciliation; she says that he choked her on that occasion and left bruises and cuts on her face.

[24] Mr. Polak denies the allegations of physical abuse as he denied the alcohol and drug use. That being said, at the time of separation, Mr. Polak testified that the separation sent him into a deep depression. It was his evidence that once he realized that there was no possibility for reconciliation, he became increasingly unable to do his job; finally, on one occasion, he confessed to a fellow worker that he was not able to safely function at work and that worker told someone in the office. Soon after, Mr. Polak lost his job and was laid off. His income dropped to $47,000 in 2009 and under $40,000 in 2010. He failed to see his children on any sort of consistent basis, and he testified that he did not start seeing his children regularly until December, 2010 (Ms. Polak testified that it was not until March, 2011).

[25] It was during this time that Ms. Polak began exploring her conversion to Judaism. She had become interested in it during the weekends she spent at her mother’s and stepfather’s residence prior to separation; her interest piqued after separation. She discovered that her great grandmother had been Jewish and as such she might not even require conversion (Judaism is passed on through the maternal bloodline). She stated that she enjoyed the lifestyle and customs of the Jewish faith and in particular adherence to the Sabbath on Saturdays. She liked the people that she met through the synagogue and through her stepfather. She decided to convert to Judaism in 2010. As noted above, she states that she is a “modern orthodox” Jew; she says that traditional orthodoxy is “too extreme”. That being said, she is adherent to her faith; she celebrates most Jewish holidays and not just the high holidays in the Jewish calendar.

[26] As part of her conversion, Ms. Polak also took steps to begin the conversion process for her children. They were given Hebrew names; Ms. Polak said that Michael was a Hebrew name and no change was required; however Anthony became Aharon. They began to wear tzitzits and kippahs. Ms. Polak registered the children in a private Jewish school, the Jewish Russian Community Centre Day School (“JRCC”) in November, 2010. More importantly, Ms. Polak arranged for the children to be circumcised in accordance with Jewish custom. This occurred in September, 2010; according to Ms. Polak it was a procedure performed by a doctor and a rabbi with the use of anesthetic. It is to be noted that this procedure did not complete the conversion of the children to Judaism; that only occurs when the children turn 13, when they can make an informed choice about becoming Jewish prior to their bar mitzvah. Ms. Polak acknowledged, however, that by doing circumcising the children and giving them Hebrew names, she was choosing the children’s religion, as she says she was entitled to as the mother of the children.

[27] Mr. Polak only found out about the circumcision when he exercised access to the children in October, 2010. He found out about the Hebrew names even later when he saw the different names on a school notebook. He was extremely upset by Ms. Polak’s decision circumcise the boys; he called it a “mutilation.” He testified that Ms. Polak was well aware that he did not wish this done, and in fact notes that early on both parties had agreed that their boys would not be circumcised. He says that he was never consulted about this decision, and had he been consulted, he would have refused his consent.

[28] It is significant that, when this decision was made to circumcise the boys, Ms. Polak did not have custody of these children. The only order in place at this time was the consent order of Ferguson J. dated September 14, 2009; that order gave Ms. Polak “primary residence” of the children subject to access to Mr. Polak. The order further states that the children could “be exposed to both the Jewish religion and Roman Catholicism.” There was nothing in place giving Ms. Polak the right to make a unilateral decision regarding the health or religion of the children.

[29] Ms. Polak was dismissive of Mr. Polak’s concerns at trial. She stated that she had no doubt that she was entitled to have the children circumcised based upon the fact that access continued to be sporadic after the September 14, 2009 order and because the parties had little or no communication during this time. She states that there was no prejudice as Mr. Polak was a non-practicing Roman Catholic. She notes that Mr. Polak was never supportive of her decision to convert the children to Judaism; she says that, in fact, he obstructed her attempts to inculcate the Jewish religion in the children. She says that he cut Michael’s hair without her consent to frustrate a haircutting ceremony that was to take place the following week on his third birthday. She claims that Mr. Polak told her that “Hitler had the right idea.” She also claims that Mr. Polak encourages the children to repudiate the Jewish religion in his household, and that when he comes to pick up the children, they quickly remove and hide their tzitzits and kippahs.

[30] Mr. Polak denies making the Hitler statement; he also denies cutting Michael’s hair to frustrate that ceremony and states that he was not even aware that it was to take place. However, he does cut their hair, preventing them from having forelocks which is contrary to Ms. Polak’s wishes. He does not keep kosher in his home and is clearly not “on board” as far as Ms. Polak’s desire to convert the children is concerned. He says that he does not discourage or deprecate Judaism when the children are with him; however he does not encourage it either.

[31] Finally, it is to be noted that Ms. Polak states that there were medical reasons for the circumcision; she notes that Michael had suffered from an infected foreskin and that Anthony suffered from a paraphimosis, or a retracted foreskin which resulted in an emergency situation. The latter occurred in 2009 and Anthony had to be taken to Sick Kid’s Hospital as a result. Ms. Polak says she was given conflicting advice by two doctors; one recommended circumcision, the other did not. Mr. Polak does not recall any advice that a circumcision be performed.

[32] And it is apparent that the war over religion is now being fought on a number of fronts. After the first investigation by the OCL, which recommended that the children be placed in public school, Ms. Polak re-enrolled the children at JRCC. In August, 2012, Mr. Polak sought and obtained an order placing the children in Westminster Public School, which is close to Ms. Polak’s home in Thornhill. As Mr. Polak has failed to buy into the children’s religious conversion to Judaism, Ms. Polak has also refused to buy into the public school system; it is her view that the children should be registered in a private Jewish school such as JRCC. Unfortunately, this has adversely affected the children’s education as will be discussed below.

[33] Whatever the situation is respecting the parents, it is now clear that the children are caught up in this religious battle: in her first report, the investigator, Ms. Presement, noted that Anthony was clearly uncomfortable in discussing his religious clothing and in removing them for his visits with his father; Michael told the investigator that “his mother said that his father will throw his tzitzit in the garbage which… is bad.”[^1] In December, 2012, Anthony told Sabrina Propper, a worker with the Jewish Family & Child Services (the “JF&CS”) that he does not love his father because he is “not Jewish like him and his mother”;[^2] this statement is one reason that the protection file remains open with JF&CS.

[34] It is also apparent that the religious dispute concerning the parties’ children has spilled over into the litigation between them, and ultimately caused this matter to become a custody battle between the parties.

Litigation and Access History

[35] One of the major issues raised at trial was Ms. Polak’s inability, or unwillingness, to comply with directions from the court. As such, it is instructive to review the history of this litigation in light of the evidence from the parties regarding time sharing and relations between themselves and the children.

[36] These proceedings were commenced by Ms. Polak soon after separation, on June 16, 2009. Mr. Polak filed an answer; in it, he claimed joint custody and access and confirmed that, in July 2009 at least, he was content with the children “having their primary residence with the Applicant.” This position was reflected in the consent order of September 14, 2009 noted above, which provided primary residence with the Applicant, subject to access to the Respondent.

[37] The access arranged at that time differentiated between the two children. This probably reflected the fact that Michael was an infant when the order was made. Mr. Polak was to have access to Anthony every second weekend from Friday at 7:00 p.m. to Sunday at 6:00 p.m. He was also to have access to both children every second Wednesday after a non-access weekend from 6:00 p.m. to 7:30 p.m. Finally, Mr. Polak was to have access to Michael every Friday from 12:00 p.m. to 7:00 p.m. and every Sunday from 10:00 a.m. to 6:00 p.m. (the latter of which would overlap with access with Anthony every second weekend.

[38] That order also settled temporary spousal support and child support. Under the consent, Mr. Polak agreed to pay $601 per month commencing April 1, 2009 and spousal support of $565 per month between September, 2009 and April, 2010, thereafter $460 per month. Credit was given for payments already made and the consent recited Mr. Polak’s income to be $40,000 per annum.

[39] It is acknowledged by Mr. Polak that he initially did not exercise the access under that order on a regular basis. He testified that he remained depressed until he sought counselling help with Catholic Family Services in 2010. The counsellor asked Mr. Polak how his children knew that he loved him. Mr. Polak says that snapped him out of his depression and he began to see the children more regularly. He says that by December, 2010, he was seeing the children consistently, although he acknowledged that the Wednesday access was problematic because of his job, which he had also returned to during that year. As noted, Ms. Polak states that the access did not really become consistent until well into 2011.

[40] The access was adjusted by the consent order of McGee J. dated February 4, 2011; those adjustments were apparently intended to deal with the fact that the Respondent had returned to work. Under that order, the Respondent picked up Anthony and Michael at 3:00 p.m. on Fridays, but returned Michael the same day at 7:00 p.m. Anthony was to be returned Sunday at 7:30 p.m. As well, Mr. Polak had a four hour visit on Wednesdays with both boys.

[41] The order further made allowances for Jewish holidays. The parties agreed that if access fell on a Jewish holiday, the weekend before or after would be compensatory access.

[42] Finally, as noted above, equalization issues were settled in that order on a final basis by payment of $115,000 to the Applicant by the Respondent.

[43] It was apparent from this point onward that time sharing became increasingly problematic. I cannot help but conclude that this occurred because of the Applicant’s attitude toward access to the Respondent: she minimized its importance and consistent contact between the children and their father often took second place to her own needs or her practice of her Jewish faith. There were numerous incidents where the children were deprived of regular time sharing to the Respondent because of holidays taken by the Applicant, or because of religious holidays, many of which were outside the understanding or comprehension of the Respondent. These increasing difficulties with access largely coincided with breaches of the order; when this occurred, the Applicant excused those breaches by stating that make up access was offered and taken.

[44] During 2011, the Applicant took a number of holidays. She went to the Ukraine and to Florida. She also went to New York State, where she was dating a gentleman there. She finally spent an extended period of time with her mother and stepfather who had rented a condominium in Collingwood, Ontario. The circumstances of the latter holiday, which took place during the summer of 2011, were raised during trial.

[45] Ms. Polak went to vacation with her mother and stepfather in Collingwood for a month in July, 2011. When Mr. Polak called to pick up the children, he was told that he would have to pick them up in Collingwood, which was a 2 ½ hour drive from his home in Mississauga. He stated that he lost a weekend; when he finally made it to Collingwood, he was only able to see Michael for 1 ½ hours as Ms. Polak insisted upon him being returned as provided for in the order. He took Anthony home and kept him until Wednesday until Alex came and got him. Ms. Polak accused Mr. Polak of overholding; however, she later stated that she agreed that Mr. Polak could have the extra time because he had lost an access weekend. However, the incident left a bitter taste in Mr. Polak’s mouth because of the distance he had to drive and the fact that he was not told of the holiday. He says that in 2011, he lost between 8 and 10 access weekends.

[46] It became apparent that Ms. Polak was not pleased that her husband was becoming consistent in his exercise of access. Mr. Polak requested a week of summer access, and the Applicant refused. He brought a motion for that summer access as well as weekend access to Michael returnable in August, 2011. Ms. Polak objected to this, and tried to reduce access to day access. That motion was argued before me on August 24, 2011; Mr. Polak was wholly successful. He received regularized access to Michael on the same basis on which he exercised access to Anthony and he also received a week of summer access. Ms. Polak was unsuccessful in reducing his access. The OCL was ordered to become involved. It was apparent from my notes appended to the OCL order that, as of August, 2011, this matter remained an access case; Mr. Polak was not then seeking care and control of the children.

[47] One interesting piece of evidence filed by Ms. Polak at that motion was an e-mail dated August 2, 2011 from Mr. Polak to her. That e-mail stated, after requesting extended summer access (which was refused and eventually argued), “Also, and this is extremely difficult for me, but in response to your idea of me not paying child support in exchange for me not being involved with the children, have you changed your mind on this?”[^3] Ms. Polak was filing this as evidence of the fact that the Respondent was willing to forego access to the children if he did not have to pay support.

[48] In fact, Mr. Polak testified that the e-mail was intended to “rope” Ms. Polak into an admission that she had initially suggested this. That was unnecessary. Ms. Polak freely admitted during trial that she had offered that if Mr. Polak would forego access to the children, she would give up any claim to support. Mr. Polak stated on the witness stand that he was “disgusted” by this proposal; apart from his perhaps misplaced indignation, considering the e-mail sent to the Applicant, the offer shows the state of mind of Ms. Polak in August, 2011 concerning the importance to her of her husband’s relationship with the children.

[49] As noted, Mr. Polak states that he lost numerous access weekends with the children; according to him, Ms. Polak cancelled access visits at the last moment and this was not necessarily because of a Jewish Holiday. A number of e-mails were filed in support of Mr. Polak’s contention. Mr. Polak filed an e-mail dated November 30, 2011 when he asks when he can pick up the children; Ms. Polak responds that “I would like to switch this weekend with you and keep kids for this weekend.”[^4] Several weeks later, on December 14, 2011 (which was Mr. Polak’s weekend; they had switched weekends pursuant to the earlier e-mail), Mr. Polak again e-mails to ask when he can pick up the children; Ms. Polak responds on the same day that:

I would not count on it. It is going to be my weekend. You can wait for your “make up access” longer, since you are seeing them next week anyway and they need to recover still from past weekend they spend with you.[^5]

[50] It is apparent that if this was a make-up weekend, this was a breach of the order of McGee J. dated February 4, 2011; that order specified that the “weekend immediately before or after” would be compensatory access.

[51] On December 4, 2011, support was adjusted to take into account the fact that Mr. Polak was now working on a full time basis, and his income was now much higher. Child support was increased to $1,171 per month; because of the increase in child support, spousal support was reduced to $400 per month, all commencing December 1, 2011. Support has not been adjusted since that date. It is apparent that, in this order, support was adjusted based upon Mr. Polak’s increase in income to his former salary of $80,000 per annum, more or less.

[52] The next major dispute concerned a proposed trip to be taken by the children to her mother and stepfather’s condominium in Florida. Ms. Polak requested Mr. Polak to sign a travel consent permitting the children “to travel with Sarah Rachel Yusfin and Alla Iounoussova who is children’s grandmother to visit the United States of America from February 27, 2012 to March 08, 2012.”[^6] Ms. Polak testified that she had difficulty in finalizing the wording of this travel consent; Mr. Polak had wished the wording “estranged wife” inserted, which the passport office did not like. Ms. Polak had requested that the dates read as being “approximate” and Mr. Polak refused to sign with that wording, because, as he testified, he wanted the dates pinned down; otherwise he did not trust her to return the children.

[53] As it turned out, his suspicions were well founded. The children were not returned on March 8, and when Mr. Polak questioned the Applicant about that, she asked him what the big deal was as the children were having fun. It turned out that Ms. Polak had always intended that the children remain in Florida until April 18, some six weeks after they travelled to Florida and five weeks after the return date in the travel consent. Surprisingly, Ms. Polak admitted to this in her evidence in chief; she stated that she falsified the return date on the consent because Mr. Polak would not have otherwise signed it. As a result of the Applicant’s actions, Mr. Polak lost several weekends of access and the children were out of school for six weeks; at this time, Michael was in Kindergarten at JFCC.

[54] The parties appeared before Gilmore J. on April 3, 2012, who was not impressed by the Applicant’s actions. She ordered the children returned on or before April 6, 2012 at 10:00 a.m. at the Applicant’s expense. She ordered make-up access to Mr. Polak from April 6 to 9, 2012 and April 13 to 15, 2012 and further ordered that the Applicant could not take any further vacations without the Respondent’s consent or court order. She awarded costs against the Applicant in the amount of $2,145.59.

[55] Ms. Polak went to Florida, according to her evidence, on the same day as the ruling of Gilmore J. She did not return the children as directed. She stated that she was unable to find a flight, or if she could, the price was prohibitive. She said that the only flights available were late night flights, inappropriate for the children. She said that by the time that she was able to find a flight, it was Passover and the children could not travel during that time. She did not return the children until the date that she had originally planned to do so, being April 18, 2012. It was pointed out that, on that date, the children had a late night flight, returning to Toronto close to midnight.

[56] This incident probably did more than most to shift the focus of this litigation from a simple access case to a custody trial. We rely upon court orders and travel consents to ensure that children have an orderly custody and access regime, to ensure that both parents are informed about trips to be taken by another parent and finally to ensure that the border authorities know that the trip is authorized by both parents. If everyone disobeyed orders as did the Respondent, the system would become unworkable; the courts rely upon the goodwill of parties in the enforceability of court orders. By her actions, the Applicant appears to have flaunted that very system that she presently relies upon today to award custody of the boys to her.

[57] In the present case, the Applicant firstly drafted a travel consent which misrepresented to the Respondent the dates that the children were intended to travel to the United States; in fact, the travel consent fails also to mention that a trip was planned to the Bahamas that the children went on. The Applicant acknowledges that she knowingly did this for the purpose of tricking the Respondent into signing the consent, as he thought that the children would be returned no later than March 8, 2012. And in keeping the children in Florida past this date, she breached not only the terms of the travel consent, but McGee J.’s order of February 4, 2011 and my order of August 24, 2011 which together gave the Respondent regular weekend access to the children.

[58] To compound matters, the Applicant then further breached the order of Gilmore J. which both ordered her to return the children to Canada on or before April 6, 2012. It is no excuse that there were no flights available except at great expense; all parties standing in court on April 3, 2012 would have known that it would be costly to return the children to Ontario on short notice, and Gilmore J. specifically ordered, in light of the circumstances, that they be returned at the Applicant’s expense. The complaint that there were only late night flights is belied by the fact that the return of the children on April 18 was also a late night flight. Ms. Polak also breached the make-up access provisions in the order insofar as the children were not returned as ordered. If the children had to travel during the Passover Holiday, the only person responsible was the Applicant. The breaches were unambiguous and blatant.

[59] My only surprise is that there was no pre-trial motion or previous motion to strike the Applicant’s pleadings in this case, or to declare her in contempt of the Gilmore J. order. The statement that, “[a]n order is an order, not a suggestion” as made by Quinn J. in Gordon v. Starr, 2007 CanLII 35527 (ON SC), [2007], O.J. No. 3264 (S.C.J.) at paragraph 23 jumps to mind. It is apparent to me that the actions of the Applicant were contemptuous in nature on a de facto basis, if not de jure. This incident raises a strong suspicion that Ms. Polak is an ungovernable litigant, who will obey court orders in the future only if it suits her.

[60] On May 22, 2012, the OCL representative, Alana Presement, issued her first report. That report discussed this incident along with others. A major concern expressed by Ms. Presement was that Ms. Polak was attempting marginalize Mr. Polak from the children. She was doing this through her religious and educational choices for the children. Ms. Presement confirmed that “Ms. Polak has blatantly made decisions regarding access unilaterally and contrary to Court Orders and Court Endorsements.” She noted that Ms. Polak stated to her that her boyfriend, David Manheim, in New York was a better example to the children than was their father; according to the report, Ms. Polak told the investigator:

“If [the children’s] relationship with their dad were to die off, I wouldn’t discourage it. They will have David. He is an involved Dad. He is a good role model.”[^7]

[61] It is to be noted that by the time of the second OCL report, David Manheim was no longer in Ms. Polak’s life.

[62] Ms. Presement concluded that Ms. Polak should have “one last opportunity to nurture and encourage a close relationship between the children and their father.”[^8] Although she stated that primary residence should remain with Ms. Polak, this was to enable Ms. Polak during the following six months “to show the Court that she is committed to encouraging a relationship between the children and their father; she will be able to demonstrate that access visits occur often and for extended periods of time.”[^9]

[63] The report recommended that educational decisions be left with Ms. Polak; however, the investigator also stated that the children should be placed in a public school so that their father could be involved in their education. Medical decisions were to be left to the father; in other words, the suggestion was for some sort of parallel parenting. Perhaps wisely, however, Ms. Presement did not specify which parent would have the authority to make religious decisions. Weekend and midweek access was suggested with equal time sharing during the school holidays, including the summer school break. Ms. Polak would have Rosh Hashanah, Yom Kippur and the first two days of Passover; otherwise the access schedule would continue uninterrupted by Jewish Holidays. In the event that the suggestions were not followed, Ms. Presement suggested that the Court consider “placing Anthony and Michael in the custody and primary care of their father, with regular and frequent access to their mother.”

[64] Although the parties did manage to share custody of the children during the summer months of that year, it became apparent that Ms. Polak was not willing to buy into many of the other recommendations. Notwithstanding the specific recommendations that the children be placed in the public school system, Ms. Polak registered the children in JRCC; she stated that there was an ambiguity in the report that she could not resolve, insofar as she was to be given the right to make educational decisions, but the children were to be placed in a public school, which would not be her choice.

[65] Yet another motion had to be brought. Salmers J. did not agree with Ms. Polak’s contention that there was an ambiguity in the report. He ordered on August 22, 2012 that the boys be enrolled in Westminster Public School in Thornhill, Ontario. This school is apparently about nine houses from the Respondent’s residence.

[66] A review of the report confirms that there is no ambiguity regarding schooling. Ms. Polak is obviously an intelligent woman, and would see the intent of Ms. Presement from a reading of her report which states that:

The recommendation that follows seeks to neutralize the children’s school experience by reflecting neither a Catholic nor a Jewish curriculum. By enrolling the children in public school, both of their parents can take an equally active role in their children’s schooling, can assist with homework and can participate in the activities of the school community, such as concerts, assemblies and extra-curricular activities.[^10]

[67] There is no ambiguity between the recommendation that the Applicant be responsible for educational decisions and the recommendation as to the choice of school. It is obvious from the report that there was a specific recommendation that the children be placed in the public system; that was not an educational choice which could be made by the Respondent. The reasons and rationale for this specific suggestion are set out in the report. For Ms. Polak to maintain that the report is ambiguous confirms, unfortunately, that Mr. Polak is correct when he states that Ms. Polak uses any ambiguity in a court order, report or otherwise, to suit her own purposes.

[68] This was shown by the experience testified by Mr. Polak as to the children’s first day of school, which took place on a day that he had the children. He got them new clothes and backpacks and filmed the event. He brought Anthony to school; he started in Grade 1 in the morning. When he arrived with Michael at noon (Michael had a later starting point, being in Junior Kindergarten), he found Ms. Polak’s mother and stepfather at the school, and they had removed Anthony from class. They said that Anthony was tired and needed to go home. They also insisted on taking Michael out of school. Mr. Polak asked them what they were doing, and he was told by Ms. Polak’s stepfather that they had spoken with Ms. Polak who gave them permission to do this. Mr. Polak followed them to their residence, which as noted was close to the school. At that point, they released the children and Mr. Polak returned them to school.

[69] And it became apparent as to the viewpoint that Ms. Polak had a similar reaction to the suggestions in the report that she encourage access to her husband. Ms. Polak refused access to the Respondent during the Thanksgiving weekend in 2012; she stated that she was cancelling access because of a Jewish holiday; in her e-mail dated September 29, 2012, approximately one week prior to Thanksgiving, she states that:

Thanksgiving is not a religious holiday, you can have them weekend after and make up access weekend after that just like it is agreed upon in court agreement, religious holidays are exempt from your access but you are entitled for make up access weekend after that. The high holidays are almost over and your regular access will be resumed with make up access included.

[70] She later states that “I WILL ONLY FOLLOW WRITTEN AGREEMENTS SIGNED IN COURT BETWEEN US.” She then states that the OCL report has “no legal power” and that the “social worker involved in this case as good as fired already.”[^11]

[71] It can never be said that the holidays celebrated by Ms. Polak are less important than those chosen by Mr. Polak. However, the import of the e-mail concerns the dismissive attitude of Ms. Polak of her husband’s family celebrations which may have been as important to Mr. Polak and the children as was the remembrance of Passover to Ms. Polak. In our secular world, it is apparent that holidays such as Thanksgiving, which are an opportunity for extended family to gather in purported celebration of the harvest, are important to most. Ms. Polak not only made a value judgment as to the importance of Thanksgiving as opposed to her own religious holiday; she acted on it thereby depriving the children of important family time with their father. It indicates that Ms. Polak was unable to practice flexibility to ensure a balanced approach to each family’s lifestyle and religious and other choices.

[72] Unfortunately for the Applicant, Ms. Presement was not “as good as fired” and in fact was re-appointed pursuant to the trial management endorsement of McGee J. dated October 18, 2012, soon after this e-mail exchange. That endorsement also permitted Mr. Polak to amend his Answer to claim custody; that amendment was made October 29, 2012. Ms. Presement commenced her new investigation on January 3, 2013.

[73] On November 20, 2012, the parties appeared before Kaufman J. and the matter was removed from the trial list. Ms. Polak’s lawyer was not present; indeed, he had been administratively suspended and had not appeared for the past few court appearances. The net effect of Kaufman J.’s order was that access to Mr. Polak was increased and on a four week cycle, access was as follows:

a. Week #1: from Friday after school to Sunday at 7:30 p.m. .or Monday morning at the beginning of school and then from Monday after school to 7:30 p.m.;

b. Week #2: from Monday after school to 7:30 p.m.;

c. Week #3: from Friday after school to Sunday at 7:30 p.m. or Monday morning at the beginning of school and then from Monday after school to 7:30 p.m.;

d. Week #4: from Sunday morning at 10:00 a.m. to Monday morning at the beginning of school and then from Monday after school to 7:30 p.m.

[74] In the meantime, a teacher at the school had noticed Ms. Polak grabbing Michael by the shirt in what was perceived was an overly rough, if not abusive manner. That teacher reported the incident to JF&CS in mid-December, 2012. A file was opened and a social worker, Sarah Propper, assigned. It is to be noted that Ms. Propper confirmed that she attends the same synagogue as did Ms. Polak but, if this created a conflict, Ms. Polak waived it.

[75] Ms. Propper spoke with the school. Outside of the specific incident resulting in the referral, Anthony’s teacher, Robert Tamblyn confirmed to Ms. Propper that the Anthony was late to school almost every day. He said that Anthony was behind in school and that his mother did not assist him in his homework.

[76] Ms. Propper met with Ms. Polak and the children on December 19, 2012. Ms. Polak stated that she grabbed Michael to prevent him from running in front of a car. Ms. Polak spent much of the interview with Ms. Propper speaking about her husband and she blamed her husband for the children being late to school; she stated that the boys were brought back late and it was difficult to put them to bed and to get them up in the morning, especially Anthony. She told Ms. Propper that Mr. Polak “tells the kids bad stuff about her” and that Mr. Polak had a “drinking problem.” She complained of the children being registered in school by the Respondent using their legal, rather than their Hebrew names; she said that when Anthony went to the new school, he developed a tic, while Michael had bowel problems that had not had for years.

[77] As noted above, Ms. Propper interviewed Anthony. I have already noted that Anthony told the worker that he did not love his father because he was not Jewish like him and his mother. More, however, was said to the worker. Anthony also stated that “once my dad won in court, but now my mom is winning.” He continued to make negative statements about his father: he stated that when he sleeps at his father’s home, “dad does bad things”, citing the fact that Anthony watches TV when he falls asleep. He said that his father makes him have fun, but that “[I] still don’t like him.” He told the worker that his “dad said kosher is junk.”[^12]

[78] Although Ms. Propper attempted to call Mr. Polak, he was not home when she called. She left a message that JF&CS was calling, but gave no further details. Mr. Polak did not return the call, but said that he thought it was a charity calling or the Applicant was playing a “prank” on him. He states that, had he known that there was a child protection investigation underway, he would have called right back. As it was, he noted that he did not understand that JF&CS was a child protection agency. Had the call come from a Children’s Aid Society, he also would have known to call back right away.

[79] Ms. Propper determined in her assessment that the alleged incident of physical abuse was not verified. She did not feel that the schooling issues raised by Mr. Tamblyn were sufficient to raise protection issues; her wording during testimony was that these concerns regarding schooling did not raise “immediate risk of harm” to the children. She did, however, note a potential of emotional harm to the children resulting from conflict between the parents; she cautioned Ms. Polak not to make negative statements about her husband in front of the children and suggested counselling for the children.

[80] Shortly after completing the assessment, Ms. Propper went on maternity leave; the file was transferred to her replacement, David Azuelos. Little was done by Mr. Azuelos until he was contacted by Ms. Presement in the course of preparation of her Supplementary Report; at that time, in May, 2013, Mr. Azuelos interviewed Mr. Polak, Mr. Tamblyn and Ms. Polak. He noted that Mr. Polak was upset, and this was probably because he was only being involved at this late date in the investigation. Mr. Tamblyn reiterated his concerns about personal hygiene, inadequate lunches and numerous late arrivals at the school. Mr. Azuelos described that protection issues arising from emotional harm to the children as being “moderate” and meriting “a bit of a follow up.” He stated that the concerns about lateness, nutritional lunches and personal hygiene as “below the line” presumably of protection issues concerning to JF&CS.

[81] Around the time that Mr. Azuelos was interviewing the parties, Ms. Presement issued her updated report on May 10, 2013. Ms. Polak had the report in hand when she was called on that date by Mr. Azuelos, who cautioned her not to share it with the children.[^13] Ms. Presement’s investigation did determine that relations between the parties appeared to have improved; the investigator stated that, “[t]he tumultuous and ongoing dispute that permeated the rapport between Ms. Polak and Mr. Polak one year ago seems to have settled down” and that both parties described their relationship as being “minimal, yet cordial.”[^14] She also concluded that the experiences of the past year made it apparent that these parties could not, in any meaningful fashion, co-parent their children together.

[82] The matters, however, that now caught the attention of the investigator were raised by the public school in which the children were now enrolled pursuant to the order of Salmers J. noted above. Ms. Presement interviewed Mr. Tamblyn, Anthony’s grade 1 teacher, as well as Ms. MacDougall, who is Michael’s junior kindergarten teacher at Westminster Public School. Both teachers confirmed serious concerns with the care provided to the children by Ms. Polak; in contrast to the conclusions of Ms. Propper and Mr. Azuelos of JF&CS, these concerns led the investigator to conclude that “Ms. Polak has failed to meet the physical, emotional and educational needs of the children, placing their wellbeing in serious jeopardy.”[^15]

[83] Mr. Tamblyn confirmed that Anthony was chronically late to school when in the care of his mother. He noted that Anthony began Grade 1 well behind other children in his reading skills, but that he was not able to engage Ms. Polak in discussions about remedial steps which could be taken at home. In fact, Ms. Polak told Mr. Tamblyn that her goal was “to get Anthony out of public school.”[^16] Ms. Polak refused to engage in educational discussions; in fact, she would insist upon speaking about her dispute with Mr. Polak, sometimes in the presence of Anthony. Ms. Polak became increasingly insistent upon discussing the family law litigation and Mr. Polak, and Mr. Tamblyn eventually determined that it was unsafe to meet with Ms. Polak alone, and decided that he would not meet her without an administrator present. Mr. Polak came to parent teacher interviews alone; Ms. Polak did not attend. Mr. Tamblyn advised the investigator that Anthony almost always arrived at school in dirty clothes; he was also unclean and he sometimes smelled. In contrast, Mr. Tamblyn observed that when Anthony comes from his father’s home, he is dressed in clean clothes, is on time and is clean. It was Mr. Tamblyn’s impression that Anthony’s father reads with him, while his mother does not.

[84] Similar information was provided to the investigator by Ms. MacDougall, Michael’s junior kindergarten teacher at Westminster. She also noted that Michael was chronically late to school; often 60 to 90 minutes late. She stated that Michael was late so often that he was not familiar with the morning routines of the class, even though she was speaking to Ms. Presement nearly half way into the school year. Ms. MacDougall stated that there were numerous absences; Ms. Polak explains these by stating that the absences were for Jewish Holidays. Ms. MacDougall told the investigator that, as with Anthony, Michael often arrives in dirty clothing and is unclean; his lunches are also inadequate. Again, Ms. Polak does not read with Michael; she is unresponsive to notes from the school. And again, in contrast, when the children arrive from their father’s home, they are clean, well rested and on time. Mr. Polak attends at school meetings; Ms. Polak does not.[^17]

[85] The report cards filed at trial showed that, by February 2, 2013, Anthony had been late 41 times. The report card for Michael for the same date showed that he was late 4.5 times; this appears to have been in contrast to what Ms. MacDougall was telling Ms. Presement and appears to have been in error; how can a child be late by a fraction (.5)? Mr. Polak testified that, by the time of trial, he was told that the numbers of lates had climbed to 75 lates. Mr. Polak also testified that the school had told him that religious holidays were not included in the absences shown on the report card.

[86] As a result of these concerns, Ms. Presement recommended that Mr. Polak be given sole custody of the children. She recommended extensive access in favour of Ms. Polak, similar to that recommended for Mr. Polak in her earlier report, and that holidays be equally divided. Again, the Applicant was to have three Jewish holidays as in the earlier report.

[87] Ms. Polak testified that the report cards and the teachers were in error. She said that the numbers of lates were nowhere near what was shown on the report cards, and that, if the children were late, it was Mr. Polak’s fault. She stated that Mr. Polak habitually dropped the children off late on Sunday and/or Monday nights and when he did, she could not get the children to bed until about 10:30 p.m. She testified that, as a result, Anthony refused to get out of bed in the morning, resulting in the late arrivals at school. She said that she showered the children every day, although she only used soap once per week because of the children’s eczema. If the clothing was dirty, it was because of the dirt and ash in the school yard. And she stated that the lunches were adequate and that there had been only one complaint, when she brought more food for Michael when called by the school. She said that she met with Mr. Tamblyn regularly, and participated in the reading log filed by her as an exhibit.

[88] Mr. Polak acknowledged that he did drop the children off about one half hour late because of the 40 minute drive from Mississauga to Thornhill. He was now attempting to get the children to Ms. Polak’s residence on time. He said that he was extremely upset by the information of the hygiene and lateness of the children. He noted that the school had never reported these concerns to him; he thought that when the children came to him dirty it was because of the school day and he immediately threw their clothes in the washer and bathed them. He was particularly upset at the way that JF&CS had dealt with the investigation; he admitted being upset at Mr. Azuelos when he interviewed him, but said this was because JF&CS had failed to ensure that the children were adequately protected.

[89] It is, however, difficult for me to conclude that Ms. Polak has valid reasons for the sporadic and late attendances at school. In my view, the truth is that Ms. Polak would do almost anything to have these children returned to JFCC or some other private religious school. One need only contrast the fact that there were few problems cited by JFCC prior to the children going to Westminster. In her interviews with Anthony’s teacher at JFCC, Rita Bradinchka, Ms. Presement noted that “[Ms. Bradinchka] has no concerns regarding Anthony.”[^18] As well, Anthony presently attends Hebrew School on Tuesdays from 4:00 to 6:00 p.m.; Michael goes there on holidays as well. Sarah Cole, the teacher at that school, testified that Anthony is always dropped off on time. His homework is always complete and a snack is always provided. This is in extreme contrast to the poor attendance and lateness record, as well as the inadequate lunches provided by Ms. Polak at Westminster Public School. I note again that Ms. Polak told Mr. Tamblyn that she would do anything that she could to get Anthony out of public school, and I believe that her actions are those of someone doing her best to make it so. It is, however, surprising, if not offensive, that Ms. Polak would not recognize the repercussions of her actions in doing so on the wellbeing of her children.

Evidence at Trial

[90] In this section, I will summarize my impression of the evidence given by the various witnesses at trial, as well as my assessment as to credibility where necessary.

Evidence of the Parties

[91] Both Mr. Polak and Ms. Polak gave evidence at trial; Ms. Polak was on the witness stand twice as she gave reply evidence after the close of the Respondent’s case.

[92] Unfortunately, this is a case where the credibility of the parties must be assessed. This is because both parties gave evidence that was sometimes diametrically opposed to the other on crucial issues regarding the children and custody and access to the children.

[93] In general, it was my determination that Mr. Polak was by far more credible than was his wife. There were a number of reasons for this.

[94] Firstly, Ms. Polak was unable, throughout, to take even a minimal amount of responsibility for her actions. As noted above, when confronted with allegations that the children were often late for school, she chose to blame either her husband or Anthony for the problem. She stated that the lates were because her husband dropped the children off late, something that Mr. Polak admitted to in testimony. That might explain the children being late either Monday or Tuesday which are the days after access visits; it does not explain the number of late arrivals cited by the teachers, which Mr. Tamblyn said was almost every day. The other explanation she gave was that Anthony refused to get out of bed in the morning. Certainly, this did not seem to be the case at JFCC; late arrivals were not complained of by Rita Bradinchka to Ms. Presement when she prepared her the first report.

[95] The late arrivals at Westminster were not the only example of misplaced responsibility by Ms. Polak. She also blamed Mr. Polak for the children’s lack of dental care for the past two years; he could hardly be blamed for this when the OCL investigation only suggested that he deal with medical issues in May, 2012, and once that occurred, he did take the children to the dentist. She also blamed the teachers at JFCC when she was rushed at the end of the day. She blamed Mr. Polak for the fall that Anthony took from the kitchen counter; she stated that had he purchased a change table, the fall would not have occurred. She blamed her former lawyer, who had been suspended administratively, for the breaches of the court orders and for the negative findings against her at several of the interim motions. At no times, during her testimony, did I hear Ms. Polak accept any personal responsibility for anything occurring regarding the children or in this litigation.

[96] Contrast this to the evidence of Mr. Polak. Although he denied physical abuse during the marriage, he did state that he explored his control issues in therapy and acknowledged that he “would have done it differently” had he the opportunity to do it over again. He acknowledged his responsibility for the scarring that occurred when Anthony fell into the fireplace prior to separation. He said during testimony that he may be responsible in part for the children “clamming up” when religious issues are raised; he implied that his reaction to the circumcision and the religious choices made by Ms. Polak may be one reason why the children find themselves in the middle. The point of all of this is that, while Mr. Polak is willing to look at his role in the dynamic presently at work, Ms. Polak takes absolutely no responsibility. Her evidence as to her role in the separation and the events that occurred becomes less believable as a result.

[97] Another major issue that I have with Ms. Polak is the fact that she has, in the past, shown herself capable of deception and dishonesty in the conduct of her affairs. She admits that she submitted a false travel consent to Mr. Polak in order to obtain his signature on it. She acknowledged that she had always intended to keep the children in Florida until April 18, 2012, even when the consent stated that the children were to be returned March 8. She was, in my view, disingenuous about her interpretation of the first OCL report; she stated that it was ambiguous and this was the reason that she enrolled the children in JRCC after the report was issued. As found by Salmers J., the report was unambiguous both as to its intent and its recommendations. If Ms. Polak is willing to deceive Mr. Polak and the court about these matters, how can she expect to be believed regarding the numerous issues that she testified to?

[98] Accordingly, it is my finding that of the two parties, Mr. Polak’s evidence is by far more credible than that of Ms. Polak. Where their evidence conflicts, I generally prefer the evidence of the Respondent.

Evidence of Alana Presement

[99] Ms. Presement gave evidence about the two reports prepared by her in May of 2012 and 2013 respectively. Her evidence is important, not only because of the fact that her reports are crucial in the determination of custody and access matters in this proceeding, but also because she is a major source of information about the educational issues spoken of above; the teachers of the boys were not called as witnesses by either counsel, and both counsel stated that they were content that the evidence about the schooling issues be given through the other witnesses including Ms. Presement.

[100] I can easily state that I found the evidence of Ms. Presement to be compelling and credible. This is partly based upon the reports produced by her. She showed herself to be balanced in expressing her concerns about Ms. Polak, but recommending that the children remain in her care pending trial, as set out in her first report. She also showed the ability to admit where her recommendations may be wrong, by changing them in her second report, and to take into account new information received in that report.

[101] More importantly, however, she was a credible witness insofar as she directly answered the questions she was asked in cross-examination, and admitted to not knowing the answers at times during her testimony. For example, when asked where the statements made by the boys about religion came from, she refused to be drawn into blaming one party or the other for those statements. When asked about Anthony’s statements to Ms. Propper about his love (or as he put it, hate) for his father, she showed balance in her answer that the child may have been trying things on, but in refusing to attribute the statement to one parent or the other. She focussed on the children in her evidence about them and about what they said.

[102] In short, I find Ms. Presement’s evidence to be believable and her report to be balanced and persuasive. She presented well and was not evasive during cross examination. She did her best to prepare several investigations and to demonstrate flexibility in dealing with the various matters as they arose in this litigation. I find her evidence to be of assistance in coming to a determination in this matter as to the best interests of the children.

Evidence of JF&CS Workers

[103] There were two workers involved in this proceeding, Sarah Propper and David Azuelos. Both gave evidence to the court in this proceeding. The reason that there were two workers was because Ms. Propper went on maternity leave in January, 2013, soon after this file was opened. Mr. Azuelos was the worker who took the file over from her.

[104] The evidence from the Society was not particularly helpful, other than the fact that it corroborated the concerns from the teachers at the school about the chronic lateness of these children to school as well as the hygiene and lunch issues later canvassed by Mr. Azuelos. The opinions of the workers, and specifically Mr. Azuelos, about the child protection concerns were, however, not relevant to the best interests of the children, or for that matter, credible under the circumstances.

[105] Firstly, the workers from JF&CS, or any child protection agency for that matter, especially in the initial stages of an investigation, are not as concerned with best interests as much as protection of the children. Generally, in comparison to the issues usually dealt with by child protection workers, the issues raised in the present case may have seemed minor in nature. As stated by Mr. Azuelos, the educational issues did not “cross the line” to become protection issues of importance to the JF&CS. Even the issues of emotional harm were seen by him as unimportant; he said those issues were of moderate importance, which would result in some follow up. The society was only concerned about protection of the children, and not which household could best meet the needs of the children. In fact, that was not part of the mandate of JF&CS, which was only reviewing whether there were protection issues in the home in which the children had their primary residence; as such Mr. Polak played a small role in that investigation as he did not have, at any relevant time, primary residence of the children.

[106] Secondly, what I did not find helpful were Mr. Azuelos’ remarks that the concerns expressed by Ms. Presement in her report were “overblown.” There is no issue with this worker stating that those concerns do not, in his view, cross the line to become protection issues; however, where he had little to do with the file until contacted by Ms. Presement, it does not, in my view, lie in his mouth to make a value judgment about the report of the OCL investigator. Compared to the investigations conducted by the OCL, which had as its intent to determine the best interests of the children, the investigation of the JF&CS workers can only be described as cursory. I understand completely that the standard is different, and if what Mr. Azuelos was stating was that the report of Ms. Presement did not raise protection issues within the meaning of child protection legislation, that is fair enough. But it is not valid for Mr. Azuelos to say that, overall, the schooling issues raised by the investigator and the teachers are overblown; I find these concerns as being serious, and it certainly appears that the teachers at the boys’ school were similarly troubled.

[107] This is especially so where Mr. Azuelos failed to disclose to Ms. Presement the extremely concerning statements made by Anthony to Ms. Propper in her original meeting with Anthony. It will be recalled that the parties had provided a direction that the JF&CS provide disclosure to the OCL investigator. The statements by Anthony, that he “hated” his father and appeared to be aware of details of the litigation, had been one of the grounds for the society worker determining that there were protection concerns arising from emotional harm to the children because of the conflict between the parties. In light of the consent to disclosure provided to Ms. Presement, I find the failure to advise Ms. Presement of those statements to be negligent under the circumstances, as they were a major reason why the protection file remains open today. There is obviously a positive obligation on JF&CS to disclose the details of protection concerns to the OCL, a government agency having as its mandate to investigate the best interests of the children. The JF&CS failed to live up to this obligation.

[108] The workers at the JF&CS are concerned with protection issues only, and had no opportunity or interest in comparing the households of the Applicant with that of the Respondent. The most recent worker was dismissive of the protection concerns raised by Ms. Propper and failed to make proper disclosure to the OCL investigator. As such, I did not find the evidence provided on behalf of the JF&CS to be particularly helpful or relevant to the issues before the court under the circumstances.

Educational Evidence

[109] The only educator who gave evidence at trial was the boys’ Hebrew teacher, Sarah Cole. Surprisingly, counsel agreed that it was unnecessary to call the evidence of either Mr. Tamblyn or Ms. MacDougall, who are the children’s teachers at Westminster Public School. The fact that these individuals were not made available for cross examination is surprising because the evidence provided by those individuals, all third hand, was so prejudicial to the Applicant. There was no reason why they could not have been subpoenaed for trial, and the endorsement of Kaufman J. from May 15, 2013 indicated that Ms. Adams wished to add certain individuals to the witness list, presumably the teachers in question. She certainly called other witnesses not on the original witness list, being the JF&CS workers and Sarah Cole.

[110] That being said, the evidence from both teachers appears to have been consistent throughout. Certainly, Mr. Tamblyn was complaining about numerous late arrivals to Ms. Propper in December, 2012; he continued to speak about these issues to Mr. Azuelos and to Ms. Presement or to anyone else who would listen. Both teachers gave information to the investigator which was consistent with each other. The evidence given about Ms. Polak’s views of her husband, and about public school as told to Mr. Tamblyn were echoed in testimony by her. Counsel made it clear from the very beginning of trial that Ms. Polak was not interested in placing the children in public school, and wished the right to return the children to a private Jewish school with the financial assistance of Mr. Polak. The evidence of late arrivals were confirmed by the children’s report cards.

[111] I find that the evidence from the school to be consistent and corroborative of other evidence provided in these proceedings. This evidence goes to the attitude of Ms. Polak toward her husband and public schooling which was confirmed by Ms. Polak’s own testimony both in chief and in cross-examination. It was also in sharp contrast to the evidence of Ms. Polak’s prompt arrivals at the Tuesday Hebrew classes and the lack of complaints from JRCC as reflected in the first OCL investigative report.

Analysis

[112] I will first deal with the custody and access issues; support will follow that result.

Custody and Access

[113] Ms. Polak requests full custody of the children. In her closing submissions, Ms. Adams stated that, “[w]hile she would like the children to attend a private Jewish school, she is agreeable to public schooling for them with supplementary education in the Jewish faith.” She is agreeable to the access suggested in the first OCL investigation; she suggests that the abuse suffered by her during marriage is a cogent factor in the awarding of custody to her.

[114] Mr. Polak also requests custody. He is content to provide his wife with access as received by him in the order of Kaufman J. made November 20, 2013 other than that he does not agree that access be three weekends out of four; he suggests that weekend time be equally split.

[115] This is a claim for custody made under the Divorce Act[^19] and under that statute, the criteria for determining custody are set out in s. 16(8), (9) and (10) of the Act:

(8) In making an order under this section, 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.

(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.

(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.

[116] Both parties’ claims changed during this litigation. The Respondent’s Answer was amended in October, 2012 to make a claim for custody of the children whereas he originally claimed joint custody with primary residence to the Applicant. The Applicant’s position has also changed substantially throughout these proceedings. When Ms. Presement was originally requested to conduct an investigation, Ms. Polak stated that she wished custody, subject to Mr. Polak only having day access on Sundays. She wished the children to attend at an orthodox Jewish school. Although Ms. Polak had become somewhat more generous regarding access when the second report was being prepared, she still wanted the children to be educated at a private Jewish school. As late as the commencement of the trial, Ms. Polak’s lawyer advised that she wished the children to attend at a Jewish school and that her husband pay a proportionate share of the costs. It is only with the final submissions that Ms. Polak has amended her position to permit public schooling as originally recommended by Ms. Presement.

[117] It must be apparent by now to Ms. Polak that the courts have taken a dim view to her attempts to limit Mr. Polak’s contact with the children. There is a reason for this; as noted above, one of the most important principles in custody and access proceedings under the Divorce Act is the maximization of contact between the non-custodial parent and child as set out in s. 16(10) above. And it appears to me that Ms. Polak’s shift in position regarding access to her husband and schooling is insincere and self serving at this late date. Ms. Polak’s view has shifted, in my view, because Ms. Polak knows that without making allowances, she will lose this case, and will lose custody of her children.

[118] I do not believe, as suggested by Mr. Brown and the teachers at Westminster, that Ms. Polak is neglectful in the care of her children. It is my view that the late arrivals in school, the neglect in the children’s appearance and cleanliness, the poor lunches and the numerous absences, are all related to the fact that Ms. Polak was forced to place the children in a public school and Ms. Polak is vehemently opposed to this placement. That opposition was evident from the presence of Ms. Polak’s mother and stepfather showing up at the school on the first day of school and removing Anthony and Michael from school because they needed “sleep.” They confirmed to Mr. Polak that they had the mother’s consent to pick up the children. Mr. Polak was forced to follow them to their home and recover the children and return them to the school. I can only imagine the embarrassment that caused to the children; it certainly affected their first day of school and may be a memory that remains with them for some time. Although Ms. Polak denies having been involved, and was not present at the time, it certainly appeared to be an attempt to sabotage that first day of school for the boys.

[119] Ms. Polak’s position regarding schooling was made clear to Mr. Tamblyn when she made the telling statement to him that she would do almost anything to remove Anthony from public school. She was consistent in this position at the commencement of trial. And, as noted, the schooling issue is not an issue of neglect; I do not believe Ms. Polak to be an inattentive parent. She never was when the children were attending JFCC. Rather, it is indicative in my view as to whether Ms. Polak will adhere to the directions of the court or to an agreement between the parties where she does not agree with the disposition. This in turn goes to the question of whether she is someone who will make a time sharing arrangement work which maximizes contact with Mr. Polak and balances her own religious views with the needs of the children and of her husband. In my view, the circumstances show that she cannot.

[120] This is not the first time that Ms. Polak has not cooperated with a direction of the court or the rules which govern custody and access issues. She showed her dishonesty and willingness to breach court orders when she arranged for a misleading travel consent and then refused to return the children contrary to the order of Gilmore J. She did exactly what she wanted to do. She also took advantage of a perceived ambiguity in the first OCL investigation (which was not, in my view, ambiguous at all) in placing the children with JFCC, thereby inviting a further contested motion to the court. And the past record shows that if she is given control of the situation, Ms. Polak will do exactly what she wants to do without regard to the children’s best interests or the interest of maximizing contact between her husband and the children. To grant Ms. Polak custody will, in my view, invite future contempt motions as she has not shown her willingness in the past to adhere to court orders.

[121] And although Ms. Polak now professes that she is willing to maximize contact between the children and Mr. Polak, again, I do not believe that she has shifted her view. The e-mail sent to Mr. Polak last Thanksgiving shows that she was not willing to provide the children to Mr. Polak during a holiday of obvious importance to him. The excuse given was that she would only adhere to court orders and she said that the suggestions set out in the OCL report were not binding on her whatsoever. That incident, however, also shows exactly what Ms. Polak feels about the importance of the children’s relationship with their father: the relationship between the children and Mr. Polak takes second place to her strict adherence with her religion and, as suspected by Mr. Polak, Ms. Polak will use any ambiguity in an order or agreement to her advantage. She is, in my view, ungovernable, and to give her primary residence will inevitably result in the marginalization of Mr. Polak as expressed in the first report of Ms. Presement.

[122] Ms. Polak responds by noting that whenever the children have been with her for a Jewish holiday, she has ensured that Mr. Polak has make up access. She excused the lengthy stay in Florida by stating that Mr. Polak had make up access and the children enjoyed the Florida visit. She claims to have given make up access last Thanksgiving, albeit not during Thanksgiving weekend. However, make up access appears to be a control issue for Ms. Polak; compensatory access is no justification to breach orders or agreements continually, and then excuse that by giving alternate time with the children at her discretion. To offer make up access does not excuse deliberate breaches of agreements or unreasonable conduct in time sharing your children. And it is to be noted that Mr. Polak denies that make up access was always granted; in 2011, he states that he lost at least 8 weekends with the children.

[123] In contrast, Mr. Polak will, in my view, adhere to the court orders made in this matter, and will, in my view, maximize contact between the children and their mother. There is no history of him breaching the court orders since this matter began; he is the individual who has sought assistance of the court where the Applicant has failed to comply with court orders or suggestions in the investigation process. He has stated that he will respect the children’s religion in their mother’s home and I believe that he will.

[124] Ms. Polak argues that the abuse that she suffered at the hands of Mr. Polak should be taken into account in an award of custody. I do not find that there was physical abuse between the parties; Mr. Polak denied physical abuse, and Ms. Polak did not raise the incidents of either choking or kicking in her pleadings leading up to trial. I have, however, made a finding that Ms. Polak found herself in a controlling and economically abusive situation during marriage.

[125] In this matter, however, the parties separated in early 2009, more than four years ago. There is no recent evidence of abuse. Ms. Polak confirmed that she is not afraid of her husband at this time, and certainly led no evidence of recent abuse or fear of her husband. In fact, even on her own evidence, there have been no incidents of abuse raised since 2009. Ms. Polak said that her husband invades her personal space on pickups and drop offs of the children, but she deals with this by avoiding her husband or arranging for exchanges to take place at the school. It is not a present factor in custody of the children at this time.

[126] Ms. Polak states that Mr. Polak is unable to properly care for the children based upon his work commitments. She states that he has not properly researched day care that is available. She notes that she works part time and is much more available for the children.

[127] That is not borne out by the evidence. Mr. Polak has found a day care centre and has researched the school in his neighbourhood. His parents will help with day care. Certainly, considering the distance between Westminster Public School and Mr. Polak’s residence, he has been getting the children to school on a timely basis, and he has assisted the children in the preparation of their homework and in Anthony’s reading recovery. Considering Ms. Polak’s difficulties in ensuring attendance at Westminster Public School, and considering the reading difficulties suffered by Anthony, Ms. Polak does not appear to be handling matters well while working part time; it would not take a lot for Mr. Polak to do better than is the present situation.

[128] And what of the issue of religion in this matter? I do believe that this is a situation where religion has taken on a toxic presence detrimental to the best interests of the children. As stated by Marshman J. in R.A. v. H.D.A., [2004] O.J. No. 1341 (S.C.J.), “the conflicting faiths of the parents must have been causing more and more conflict in the children.” She cites Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 as authority for the proposition that the “best interests of children must always prevail over the rights to freedom of religion and freedom of expression granted by the Canadian Charter of Rights and Freedoms”. Had the Applicant been more balanced in her viewpoint, or had she been able to balance her religious views with time sharing with the husband, the result today would most probably have been quite different.

[129] As it stands, it is apparent to me that Ms. Polak is unable to empathize with the children’s needs to have both parents in their lives. It is also apparent to me that the children’s best interests are not being met in the care of their mother. As late as last Thanksgiving, they were not receiving consistent time sharing with their father, and the evidence at trial indicates that the children’s educational needs are not presently being met by Ms. Polak. Ms. Polak does not view the children’s father as being important to them; in fact there is evidence that she discusses the litigation and Mr. Polak in front of the children. Were I to give custody to Ms. Polak, I have no confidence that she will adhere to any order that I make with any sort of good faith.

[130] As such, it is my determination that the children’s best interests can only be met by placing them in the custody of their father, the Respondent herein. Joint custody is inappropriate; these parties cannot communicate between themselves and this was confirmed by the conclusions of Ms. Presement in her last report. Where parties cannot communicate other than in a toxic matter, joint custody is generally not an appropriate order to make: see Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (Ont. C.A.). Accordingly, I am going to order that custody of the children shall go to the Respondent, Mr. Polak.

[131] I am going to make a fairly strict order as to access, and I am going to give the majority of the weekends to Ms. Polak. That is important to the children’s religious upbringing and to them attending synagogue on Saturdays; Mr. Polak acknowledges that he is a non-practicing Catholic. However, Easter, Christmas and Thanksgiving are either to be shared or spent with the father. Summer and other holidays are to be shared. I am going to also give Ms. Polak the right to choose four Jewish holidays to be celebrated with the children every year; she must give notice of the dates of those holidays prior to January 1 of the year. If those holidays fall during the school week, the children may be removed from school for those holidays and the time will be spent with the Applicant. If the access for a proposed Jewish holiday falls during the father’s weekend with the children, the weekend immediately after that holiday, including the Monday of a long weekend, shall be the father’s.

[132] Finally, I am putting some fairly strict restrictions on travel with the children. Travel can only be on consent, such consent not to be unreasonably withheld. The passports shall be with Mr. Polak and he need only release them for travel which he has consented to.

Support Issues

[133] Ms. Polak presently works part time, and makes just over $12,000 per annum. She stated in her submissions that, if custody of the children goes to her husband, she will return to full time work. She suggests that her income be set at $20,000 per annum.

[134] Mr. Polak states that this is not quite enough. In his own submissions, he suggests that Ms. Polak be imputed with $24,000 per annum.

[135] Ms. Polak has never made income in that amount. Her best year of income since 2006, according to the Notices of Assessment filed, was $17,728 which she earned in 2010 while working full time for her stepfather and mother.

[136] While Ms. Polak has not filed evidence of a job search, she did testify that she is, essentially, unskilled, and requires training to obtain decent full time employment. Taking this into account, I am going to impute Ms. Polak with income of $20,000 per annum commencing January 1, 2014. This will give Ms. Polak some time to upgrade and obtain full time employment. Child support shall be payable by Ms. Polak in the amount of $306 per month commending January 1, 2014.

[137] There was some argument regarding s. 7 expenses payable for the children. I decline to order any proportionate share of expenses payable for the part time Hebrew school, should the Applicant continue to register the children in that school during her time with the children. There is no evidence that this comes within the definition of a program for school education meeting the children’s particular needs as provided for in s. 7(1)(d) of the Guidelines. Although Mr. Polak is signing the children up for soccer, that is not an “extraordinary” extracurricular expense as provided for in s. 7(1)(f) of the Guidelines.

[138] There was some talk of imputing greater income to Mr. Polak than that which he made during 2009 and 2010. His evidence was that he was in a deep depression during those years, and he was not shaken from this position in cross examination. I do not choose to make any retroactive adjustments to support based upon the evidence before me.

[139] Both parties acknowledge that Mr. Polak is liable to pay spousal support and that the spousal support be time limited based upon the length of cohabitation. His last Notice of Assessment filed for 2012 indicates that his income is $83,140 per annum, and that is the figure to be used for spousal support. The SSAG calculations set out in the Applicant’s submissions, using Mr. Polak’s 2011 income of $80,960, show that Mr. Polak should be paying spousal support in a range of between $417 per month and $556 per month. The mid range amount is $487 per month. Based upon cohabitation of eight years, the support should be payable for between 4 and 8 years; Mr. Polak has been paying interim support since the date of separation according to the interim order of Ferguson J. dated September 14, 2009 as later amended by the interim order of December 14, 2011.

[140] The within support claim is both based upon means and needs of the parties and has elements of compensatory support as well. Certainly, Ms. Polak was home with the children for the years leading up to separation, although she has worked full time since the parties separated. There is little reason to depart substantially from the SSAGs or the mid-range figure in the SSAGs.

[141] Taking into account the higher income noted in the Respondent’s 2012 T4 slips attached to his latest financial statement, I find that an appropriate amount of spousal support payable by Mr. Polak is $550 per month. That spousal support shall commence August 1, 2013. I am ordering that spousal support end seven years from the date of separation, and accordingly the spousal support shall cease as of February 28, 2016.

[142] There shall be ongoing financial disclosure by the Applicant on an annual basis pursuant to s. 21 of the Child Support Guidelines.[^20]

Order

[143] There shall therefore be a final order on the following terms:

a. The Respondent shall have custody of the children of the marriage.

b. The Applicant shall have access to the children according to the following schedule:

i. Three weekends out of four, from Friday at 5:00 p.m. to Sunday at 7:00 p.m. to be extended to the Monday of a long weekend in the event that access falls on a long weekend;

ii. Thanksgiving and Easter weekends to be divided between the parties;

iii. The children’s Christmas School breaks, March breaks and summer school holidays shall be equally divided between the parties and, unless otherwise agreed, the children shall spend the summer school holidays with each party on a week about basis;

iv. The Respondent shall have the children on Christmas Eve and Christmas Day every year.

v. The Applicant to have Mother’s Day and the Respondent to have Father’s Day irrespective of the access schedule.

vi. The Applicant shall be entitled to access during four Jewish holidays of her choice. She shall provide a schedule of the holidays that she has chosen on or before January 1 of each calendar year and if she does not, she shall not have any special access during those holidays. In the event that those holidays fall on weekends other than weekends during which she has access to the children, she shall give the Respondent at least seven days’ notice that she wishes to exchange weekends with the Respondent for this purpose, provided that the the sharing of Thanksgiving and Easter weekends shall take precedence. If she does use one of the Respondent’s weekends for access during a Jewish holiday, the Respondent shall have the next following weekend (other than Easter or Thanksgiving noted above, when it will be the weekend following such shared weekend) including the Monday if it falls on a holiday weekend;

vii. If those holidays fall during the week, the Applicant may take the children out of school for those holidays and the children shall spend those days with the Applicant;

viii. Neither party shall travel outside of Canada without the consent of the other, which consent shall not be unreasonably withheld. That consent shall only be provided based upon a detailed itinerary provided by the travelling parent to the non-travelling parent, including the names of hotels or or other accommodations and telephone numbers where the children can be reached.

ix. The parties will jointly apply for passports for the children, provided that if the Applicant will not sign the passport application, the Respondent may apply for passports without the signature of the Applicant. The passports shall remain in the possession of the Respondent provided that they will be released for approved travel as above.

x. Such further and other access as the parties may agree to.

c. The parties shall respect each other’s religious choices and shall not deprecate the other party’s religion, or permit such deprecation, in the presence of the children.

d. Based on income imputed to the Applicant in the amount of $20,000 per annum, the Applicant shall pay to the Respondent child support in the amount of $306 per month, commencing January 1, 2014. Child support payable by the Respondent under the interim order of December 4, 2011 shall cease of the date of this order;

e. The Respondent shall pay spousal support to the Applicant in the amount of $550 per month commencing August 1, 2013 to and including February 28, 2016, when spousal support shall forever cease irrespective of any change in circumstances, howsoever catastrophic.

f. The Applicant shall make annual financial disclosure pursuant to s. 21 of the Child Support Guidelines, commencing June 1, 2014 so long as she is liable to pay child support, provided that, barring a material change in circumstances, support shall continue to be payable based upon income imputed to the Applicant in the amount of $20,000 per annum.

[144] The parties may make submissions as to costs, the Applicant first and then the Respondent on a ten day turnaround. Costs submissions to be no more than five pages in length not including any offers to settle and bills of costs.

McDERMOT J.

Released: August 19, 2013

C O R R I G E N D A

1. Page 3, para. 6(b)(ix) now reads: The parties will jointly apply for passports for the children, provided that if the Applicant will not sign the passport application, the Respondent may apply for passports without the signature of the Applicant.

2. Page 17, para. 73 now reads: On November 20, 2012, the parties appeared before Kaufman J. and the matter was removed from the trial list.

3. Page 31, para. 143(b)(ix) now reads: The parties will jointly apply for passports for the children, provided that if the Applicant will not sign the passport application, the Respondent may apply for passports without the signature of the Applicant.

4. Page. 32, para. 143(d) now reads: Based on income imputed to the Applicant in the amount of $20,000 per annum, the Applicant shall pay to the Respondent child support in the amount of $306 per month, commencing January 1, 2014. Child support payable by the Respondent under the interim order of December 4, 2011 shall cease of the date of this order.

[^1]: Report of Elana Presement dated May 22, 2012 at pp. 10 and 13 [^2]: JF&CS Safety Assessment dated December 20, 2012 (Ex. 7) [^3]: Ex. 21 [^4]: Ex. 23 [^5]: Ibid. [^6]: Ex. 27 [^7]: Report of Elana Presement dated May 22, 2012 at pp. 5-6 [^8]: Ibid. at p. 13 [^9]: Ibid. at p. 13 [^10]: Ibid. at p. 13 [^11]: Ex. 22 [^12]: Sarah Propper Case Notes of Meeting with Ms. Polak on December 19, 2012 (Ex. 10) at pp. 2-3 [^13]: David Azuelos Case Notes of Conversation with Ms. Polak on May 10, 2013 (Ex. 16) [^14]: Report of Elana Presement dated May 10, 2013 at p. 13 [^15]: Ibid. at p. 15 [^16]: Ibid at p. 21 [^17]: Ibid. at pp. 21-23 [^18]: Report of Elana Presement dated May 22, 2012, Op. cit. at p. 20. Note, however, that this report did confirm that the teachers at JFCC were concerned about Ms. Polak removing the children for two months during the spring of 2012. [^19]: R.S.C. 1985, c. 3 (2nd Supp.) [^20]: SOR/97-175