COURT FILE NO.: 741/04 (Guelph)

DATE: 2013 10 03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ROBIN LEE SMART

Robin Lee Smart, Applicant, acting in person

Applicant

- and -

SONNY JAMES SMART

Diane J. LaRocque, for the Respondent

Respondent

HEARD: Action tried at Guelph on September 18, 19, 20, 23, 24, 25 and 26, 2013.

REASONS FOR JUDGMENT

Mossip J.

Introduction

[1] This is a challenging and sad family law file. The childhoods of Matthea and Ethan Smart have, to a large extent, been consumed by the conflict between their parents, both before and after two separations. Although intelligent people who clearly love their children, the parties have not done the necessary work on themselves to save their children from the ever present stress of their marriage, and then the relentless negative conduct of both parents following two separations. Although I despair at the impact this behaviour has had on their children, I remain hopeful that these Reasons and decision will result in the necessary changes to the parties’ behaviour that will bring some peace to their children.

Relationship Background

[2] The applicant, Robin Lee Smart (hereinafter called “Robin”), prepared a summary of the relevant dates with respect to the parties’ relationship.

[3] The lawyer for the respondent, Sonny James Smart (hereinafter called “Sonny), takes no issue with these dates.

[4] The relevant dates with respect to the relationship of the parties are as follows:

1. July 25, 1972 – Respondent birthday
2. April 29, 1975 – Applicant birthday
3. 1994 – Applicant and Respondent met at a party – started dating on and off
4. January 1, 1997 – start of long-term relationship
5. March 31, 1997 – Celine’s birthday (Sonny’s daughter from another relationship)
6. May 1997 - commence cohabitation
7. February 16, 1998 – Matthea’s birthday
8. June 27, 2000 – Date of Marriage
9. May 27, 2002 – Ethan’s birthday
10. September 17, 2004 – First separation
11. March 2005 – Reconciliation
12. May 15, 2008 – Second separation
13. April 13, 2012 – Zoe’s birthday (Robin’s daughter from relationship With David Miller)

Litigation History

[5] Sonny’s lawyer prepared a chronological history of the orders that have been made in this file, during both the first and second separations.

[6] Robin does not dispute this list of court orders and dates.

[7] A summary of those orders and dates (amended slightly by the court) is as follows:

1. Order of Justice Clarke - January 18, 2005

   • Order for production of records (FACS Wellington; FACS Huron-Perth; OPP of Mount Forest and Listowel; and School Counselling Records)

2. Order of Justice Herold - February 4, 2005

   • Temporary custody to Respondent Father
   • Access to the Applicant Mother as follows:
   • liberal and unrestricted telephone access
   • unsupervised access in her home every other weekend
   • summer access as agreed upon by the parties

3. Order of Justice Herold - May 20, 2008

   • Children to be returned to their home by 5:00 p.m. same day
   • Primary residence to be with the Respondent Father
   • OPP shall enforce Order, if necessary
   • Access to Applicant Mother in the family home every weekend
   • Each parent to ensure Matthea attends all counselling sessions

4. Order of Justice Seppi - August 24, 2009

   • Applicant to produce her medical records within 10 days

5. Order of Justice Ricchetti - March 2, 2010

   • Order of Justice Herold (May 20, 2008) varied as follows:
   • Applicant Mother’s access with Ethan shall be at her residence (NOT matrimonial home)
   • Applicant Mother’s access to Matthea shall only occur if Matthea desires and only for as long as she desires

6. Order of Justice Price - March 15, 2010

   • Applicant to pay child support for the two children to the Respondent in the amount of $322.00 per month
   • Divorce severed from the claims for corollary relief

7. Order of Justice Price - April 9, 2010 (Minutes of Settlement)

   • Respondent Father shall have custody of Matthea
   • Access by the Applicant Mother to be in accordance with Matthea’s wishes and for as long as and as often as she desires
   • The parties shall have joint custody of Ethan, with primary residence with the Respondent Father
   • Applicant mother shall have care of Ethan every other weekend and from Tuesday after school to Wednesday morning

8. Order of Justice Belleghem - August 31, 2010 (Ex-Parte)

   • Matter transferred to Owen Sound Superior Court of Justice

9. Order of Justice Herold - September 14, 2010 (Ex-Parte)

   • Order of Justice Belleghem (August 31, 2010) set aside

10. Order of Justice Price - September 20, 2010

    • Order of April 9, 2010 varied - Applicant Mother to have access with Matthea every other weekend and from Tuesday after school to Wednesday morning
    • Police enforcement clause

11. Order of Justice Herold - January 12, 2012

    • Divorce Order

12. Order of Justice Thompson - March 27, 2012

    • Respondent Father to have sole custody of both children
    • Applicant Mother to have no access to the said children pending further Order of the Court

13. Order of Justice Gray - August 13, 2012

    • Applicant Mother’s Motion to vary the Order of Justice Thompson of March 27, 2012 is dismissed
    • Other corollary requests by both parties dismissed
    • No order as to costs

14. Order of Justice Conlan - November 13, 2012

    • Applicant found to be in contempt of clause 3 of Order of Justice Thompson (March 27, 2012) - Costs to Respondent of $3,836.81

15. Order of Justice Price - February 12, 2013

    • Respondent’s counsel given leave to make copies of medical records which were set aside by Justice Price for the purpose of preparing a medical brief

Issues for Trial

[8] The main issue before the court, and upon which the majority of the evidence was focussed, related to the custody and access of the two children of the marriage, namely:

Matthea Caylea Smart, born February 16, 1998

Ethan James Smart, born May 27, 2002

[9] The other outstanding issues are:

1. Validity of the Marriage Contract made between the parties, dated February 24, 1998, specifically with reference to the issue of the spousal support release in the contract;
2. Equalization of the parties’ net family property;
3. Quantum of ongoing child support;
4. Retroactive child support claimed by Sonny based on Robin’s actual income back to 2008;
5. Two sums of money Sonny claims reimbursement for from Robin, which I will set out below.

Evidence at Trial

1. Documentary:

[10] The major third party documentary evidence presented at the trial, with respect to the custody issue, was:

• Report of Dr. Polak dated November 22, 2011
• Letter from Dr. Polak dated April 18, 2012
• Report from Dr. Polak dated July 18, 2013
• OPP Police records from September 2004 to May 2011
• Bruce Grey Child and Family Services records 1998 to 2011
• Family and Children’s Services Guelph/Wellington records – 2004 to 2010
• Trellis Mental Health and Developmental Services clinical file re: Matthea Smart
• School counselling records from Mount Forest Public School re: Matthea Smart
• E-mail and letter from Dr. Gerard Kimnons re: Ethan James Smart
• Report cards of Matthea and Ethan - 2012 to 2013
• Records from Guelph General Hospital dated March 2, 2012, re: Matthea
• Bruce Grey Children and Family Services records from 2011 to 2013
• Report of the Children's Lawyer - November 20, 2008
• Report of the Children's Lawyer - March 3, 2011

2. Oral:

[11] The oral evidence was given by the following witnesses:

• Robin Smart
• Dr. Polak
• Faye Miller
• Kenneth Poon
• Sonny Smart
• David Miller.

Position of the Parties

Robin

[12] When she made her oral submissions at the completion of the trial, Robin handed the court her proposed parenting plan. The plan was very detailed with respect to the times the children were to be with each parent. The thrust of Robin’s plan was that sole custody of both children would revert to her and she would relocate the children to Guelph to live with her and Mr. Miller. Sonny would have reasonable access to the children which Robin set out in her proposed plan.

[13] Robin stated very positive ideals for why she was putting forward this plan. Essentially, Robin submitted that she was the parent who could ensure the children had a relationship with each parent. Robin stated in her plan that this was the “top priority” for her children and that she considered when creating her parenting plan.

[14] With respect to the issue of child support, Robin submitted that she has high day care costs for her new baby and that I should consider this when making a child support order if I leave the children with Sonny.

[15] With respect to the net family property issues, Robin submitted that she was a “bad lawyer” and had not provided any of her evidence on this issue nor provided a net family property statement of her own.

Sonny

[16] Sonny’s counsel provided a list of the alleged “arrears” of child support dating back to 2008, based on Robin’s actual income as disclosed by her tax returns, and crediting Robin with any payments she has made. The total of those arrears is $32,994.00. Counsel submitted that the Child Support Guidelines are for the benefit of children and there should be an order that Robin pay these child support arrears.

[17] Sonny is claiming two additional amounts, namely:

(1) $13,000.00 which was paid to Robin’s lawyer, upon the sale of a property after the parties reconciled following their first separation, for her legal fees incurred during the first separation. Sonny’s legal fees were paid by his parents, and that amount remains an outstanding debt of Sonny’s to his parents.

(2) One-half of the increase in the mortgage on the Main Street, Mount Forest, property. This increase in the mortgage was completed just prior to the parties’ second separation and was used to pay off family debts. Counsel for Sonny submits that the debts were incurred directly and indirectly because Robin was not working and not earning any income. As well, there were school costs paid by the family, not covered by the bursaries/grants she received.

[18] Sonny’s counsel submitted that because Sonny had significant assets on the date of marriage, consisting of assets protected by the marriage contract and assets deductible pursuant to the provisions of the Family Law Act, he is in a negative position at the date of separation. Therefore, he does not get the actual benefit of the debts he has had to absorb at the end of the marriage. Counsel for Sonny submits that the Family Law Act is meant to be fair and equitable, and this result is neither.

[19] With respect to the issue of custody and access, counsel for Sonny went through the trial evidence to support her submissions as to why Matthea and Ethan should remain in their father’s sole custody. With respect to access to the children by the mother, counsel submitted that prior to their being any access the mother should participate in a full psychiatric assessment to ensure she is mentally well enough to have healthy access to the children. Whatever access the court orders should initially be supervised to ensure Robin does not negatively engage the children as she has in the past. Provided such supervised access goes well, Robin’s access should eventually be normalized and include regular, specified, unsupervised access.

DECISION AND REASONS ON EACH ISSUE

1. Marriage Contract/Spousal Support Claim

[20] Neither Robin nor Sonny’s counsel actually made closing submissions with respect to this issue. In her opening, Robin submitted that she was claiming spousal support from May 2008 until March 2010, at the rate of $500.00 per month.

[21] Robin’s claim for this spousal support is based on her evidence that during this time, while the parties were still married, she went back to school and she was not earning any income outside of bursaries from the university. In addition, Robin testified that Sonny had asked her not to work as a realtor in 2005 and she left that profession. As a result, she had to re-educate herself in order to find employment that would pay her a decent income. During the time she was at school, Robin testified she had to do all the driving for the access visits, which was costly. She also had to rely on credit cards to supplement the income she received from the university. Robin seeks compensation by way of spousal support for these years that she struggled financially and incurred debts, some of which debts she still has today.

[22] Sonny’s evidence at trial was that he never asked Robin to quit working. His evidence was that he did not want Robin to go to school because they could not afford for her to do that. Robin’s income was needed as well as his to support the family. Sonny stated that he should not have to pay spousal support because of a choice that was made solely by Robin and that he resisted. Any economic disadvantage she suffered when she went back to school was not a result of the role she assumed in the marriage.

[23] A waiver of the right to spousal support in a domestic contract may be set aside pursuant to s. 33(4) of the Family Law Act in specific circumstances. The only circumstance applicable in this case is pursuant to s. 33(4)(a) which specifies that the waiver may be set aside “if the provision for support or the waiver of the right to support results in unconscionable circumstances.”

[24] There is no evidence that the waiver of spousal support by Robin in the marriage contract dated February 24, 1998, has resulted in unconscionable circumstances for Robin.

[25] The choice Robin made to go back to school and re-educate herself was an excellent one. I find she made this choice on her own and it was not a choice supported by Sonny. But it was a good decision. When Robin met Sonny, she worked in a factory on a press machine. She did obtain during the marriage some qualifications related to real estate, including selling real estate and doing appraisals.

[26] But her greatest achievement, for which she should be very proud, was to go to the University of Guelph and obtain her Master’s degree in Economics.

[27] Robin is now an Economist with the Ministry of Food and Agriculture and Ministry of Rural Affairs. She earns over $70,000.00 per year; she has benefits and is accruing a pension. Robin has done very well since her separation from Sonny.

[28] I find on the evidence, that the waiver of spousal support does not result in unconscionable circumstances. Robin made an important decision to go to university, complete her degree, and secure stable employment. The period of time she was unemployed while pursuing her degree had little to nothing to do with Sonny or the roles each of the parties assumed in the marriage. This was not a traditional marriage in that both parties worked outside the home. Robin was not a dependent spouse because of her role in the marriage. There is no viable compensatory support claim based on the circumstances of this marriage. In fact, given Robin’s current employment, the opposite could be said to be true. In other words, even without the waiver of spousal support in the marriage contract, Robin would not be entitled to spousal support.

[29] Further, in a way the family supported Robin’s decision financially because she paid nothing toward the support of the children while she was at school and Sonny was fully supporting the children. Both parties suffered financially as a result of Robin’s decision to go back to school. As I said above, Robin made a good financial decision for her long-term security.

[30] There is no legal basis to claim financial compensation, by way of spousal support, for the years Robin was at school to obtain her degree and this claim is dismissed because firstly, the marriage contract is valid and enforceable. Secondly, the waiver of spousal support contained therein does not result in unconscionable circumstances which would compel the court to order spousal support in the face of this waiver.

2. Net Family Property

[31] The only net family property statement that was provided to the court was prepared by Sonny and filed as an exhibit by him during his testimony. In addition, Sonny had documentary evidence to back up most of the figures that were contained in this statement.

[32] Robin cross-examined Sonny with respect to some of the figures in his statement but there was no evidence from this cross-examination which undermined his figures. Robin did not present any evidence of her own assets and debts as of the date of marriage or the date of separation. The financial statement of Robin, sworn September 20, 2013, includes assets solely owned by Sonny that he had included in his statement. Robin set out in this financial statement an overdraft in a chequing account but provided no proof of same at this trial.

[33] I am satisfied, based on the evidence at this trial, that the net family property statement filed by Sonny accurately reflects his property and debts as of the date of marriage and the date of separation. Based on what I heard at trial, I do not expect Robin had any significant assets and/or debts for either of those dates. I note Robin testified that she filed a proposal in bankruptcy to get rid of her debts, though I was not provided any details with respect to same.

[34] I am satisfied, therefore, that there is an equalization payment owing from Robin to Sonny as set out in his net family property statement of $7,356.82. As set out in that statement as well, each party has been assigned one-half of the remaining net proceeds of the sale of the matrimonial home.

3. Sums Claimed by Sonny

[35] As set out above, Sonny claimed the sum of $16,000.00 which was the amount paid out of the sale of a property to clear the amount owing for Robin’s legal fees. He also claims the approximate $68,000.00 that the mortgage on the home was increased by, just prior to the separation, in order to pay off debts. Sonny may have only been claiming reimbursement for one-half of this debt, but based on my reasons, it does not matter.

[36] Sonny’s counsel argues that the result of the equalization of the parties’ net family property is unfair or inequitable because of the above two issues, and that he is entitled to compensation because of that.

[37] Sonny’s claim on this issue is dismissed for two reasons. Firstly, these debts were paid off while the family was still living together, and as such are presumed to be mutual decisions made by both parties at the time. The court, except in extraordinary situations, which there is no evidence of in this case, does not go back and change those decisions, when it turns out in hindsight to be a bad bargain for one of the parties.

[38] Secondly, the Family Law Act does not redress “unfairness or inequity” as a result of how the numbers work out when the equalization formula in the Act is applied. Again, if properly pleaded, and in extraordinary circumstances giving rise to an “unconscionable” result, the court might divide the parties’ net family property in unequal shares. Section 5(6) of the Family Law Act was not pleaded, and even if it was, it is highly unlikely the evidence in this case would support such a claim.

[39] Accordingly, the claim of Sonny with respect to this issue is dismissed.

4. Custody and Access

[40] The Smart family has had contact with the following professionals, agencies, and law enforcement departments prior to and after two separations:

• Bruce Grey Child and Family Services, and Family &Children’s Services of Guelph and Wellington County
• Trellis Mental Health and Developmental Services
• Ontario Provincial Police detachments in various locations
• Office of the Children's Lawyer on two separate occasions, one in 2008 and one in 2011
• Guelph General Hospital
• Parenting Coordinator
• School Counsellors and Administrators
• Psychiatrists
• Psychologists

[41] The Office of the Children's Lawyer completed two section 112 of the Courts of Justice Act reports. Both of these reports were lengthy and involved numerous interviews with all of the people who had contact with the parties and the children. I have read both of these reports in detail along with many of the reports from the agencies and professionals who had contact with the parties and the children.

[42] I do not think it would be useful, in fact, I think it would be unhelpful, if I attempt to summarize and list all of the findings of the various people that have been involved with the Smart family over the past 13 years. I say this for a couple of reasons. One of the reasons is that no matter what I put in this judgment by way of a summary, one or both of the parties will say I did not include this fact, or I put too much emphasis on that fact. The parties will focus on what they think I misunderstood in the documents or did not include from the documents, as opposed to what I did find and did include. Further, I do not think it would be helpful to my overall goal in writing this decision, which is to try to help the parties leave their past troubles behind them, and move forward in a positive co-operative manner with respect to their children, to repeat in detail the findings in these reports. I am aware of them and I have considered the information in the various exhibits filed by Robin and Sonny in reaching my decision.

[43] I therefore have summarized, based on the evidence in the exhibits and the oral evidence, the factual basis for my custody and access decision. The following are the factual findings I have made from the evidence, and which I rely on for my decision:

1. Robin and Sonny love their children.
2. Robin suffered postpartum depression at the time of Matthea’s birth, and may or may not have experienced a psychotic episode at that time. There is no evidence that Robin’s mental health currently presents any danger to the children.
3. Both parties have at various times displayed inadequate or inappropriate parenting skills. Neither party has abused the children to any extent that professionals have felt compelled to remove the children from either party. Both parties have been cautioned by professional agencies when their behaviour has been deemed to be inappropriate and/or harmful to the children.
4. Both parties have looked to the children to meet their own emotional needs at various times.
5. There is a deep distrust of the parties toward the other. This distrust displays itself in their relationship with each other and their lack of generosity with each other in sharing the children.
6. Both parties have used the children as a weapon against the other when they have felt threatened that they might lose the children.
7. Neither party has wholeheartedly fostered the relationship of the other with the children.
8. Both parties are intelligent and show signs of insight into the issues that have plagued this family for so long.
9. Both parties have the capacity to change their behaviour so that their children will be able to have a relationship with each of them.
10. The children have been in the primary care and control of Sonny for over 5 years. Robin had reasonable access in the past, but by court order dated March 27, 2012, has not had access to the children. The children are currently doing well at school and involved in extracurricular activities.
11. The children have a relationship with both parties and love both their parents.

[44] On reading the reports of the Children's Lawyer, it is clear that no one sees Robin or Sonny as unable to properly parent Matthea and Ethan. They are both seen as loving parents who the children also love and want to have a relationship with. The children understandably have been very distressed and adversely affected by the conflict between their parents. They yearn for a stress-free relationship with both parents.

[45] The parties are both seen, by the professionals who have dealt with them, as having some personal issues that interfere with their ability to be the best parent they can be and, with their ability to get along with each other. The Children's Lawyer reports make it clear that both of the parties have acted inappropriately at various times, particularly around the separations. The reports also make it clear that the children align themselves with a different parent at different times.

[46] In the first report dated November 20, 2008, the Children’s Lawyer social worker, Tara Boyce, wrote at page 18:

“It is most concerning that the children are being placed in a position to choose between their parents. All the while, Ethan is of the mindset that he can have a relationship with both of his parents when he asserts to Matthea, “see we can live with both mom and dad." In order to support and rebuild Matthea and her mother's strained relationship, reconciliation counseling would be recommended.”

[47] In the second Children's Lawyer report dated March 3, 2011, Tara Boyce wrote at page 25:

“Matthea and Ethan have been living in conflict throughout most of their life. The collateral information was consistent in pointing to the fact that services cannot be provided to these children effectively if their parents’ dispute does not end. Furthermore, Dr. Vanderkoy reported that interventions specific to Matthea “may facilitate her being seen as a scapegoat." During a meeting with F & CS both Mr. and Mrs. Smart were observed to shift the blame to the other and not consider how their behaviours have impacted the children. Collateral information suggests that these children are conflicted and are torn between their loyalties for their parents. They have both identified having a preferred parent at different times during the custody dispute. While Ms. Smart is to be commended for her diligence in working on her relationship with Matthea, there was also undue pressure placed on Matthea when Ms. Smart repeatedly called the police and involved the CAS if Matthea did not wish to visit with her. She indicated to the police and CAS that Matthea was being alienated from her by Mr. Smart. There is little evidence to suggest that Mr. Smart is alienating Matthea from Ms. Smart, however, there are many ways he could be supporting their relationship but fails to do so. For example, when he was so reluctant to allow Matthea to meet with Ms. Smart alone for reconciliation counselling, he may have given Matthea the impression that her mother is not to be trusted.”

[48] Later on that same page, Ms. Boyce writes that:

“It is evident that neither parent trusts the other to make decisions for the children.”

“Collateral evidence suggests that the children's needs are being met in Mr. Smart's care and that the new school is assessing the needs of the children by preparing to find the necessary supports. There is no evidence to suggest that Matthea and Ethan are not adjusting to their new school. Moving the children to Guelph would cause further disruption for Matthea and Ethan rather than the required stability. Additionally, moving the children will not end the conflict.”

[49] Both of the Children's Lawyer reports recommended that Sonny have custody of the children. The second report recommended that Sonny and Robin have joint custody of Ethan but his primary residence would be with Sonny. Robin was to have regular access to the children in both reports.

[50] The children have lived primarily with Sonny for about five and half years. Robin has not had physical access with the children pursuant to the order of Justice Thompson dated March 27, 2012. Robin has had contact with the children through various forms of social media and cell phones; she may also have met directly with Matthea on at least one occasion.

[51] The children appear to be thriving at the moment in their schools and in the extracurricular activities that they are involved in. They appear to have a strong social network of friends. Their circumstances are not that different than when the last Children’s Lawyer’s report was prepared except that Matthea did start to see her mother after counselling, and that Robin presently has no access.

[52] These children are resilient and have managed to come through a very conflicted childhood relatively unscathed. Robin testified before me that she has changed, and that she has left the issue of her allegations of abuse against Sonny, both with respect to herself and the children, behind her. Certainly in all the evidence at this trial there was no confirmation of abuse by Sonny against the children despite several investigations completed by the police and the Child and Family Service agencies. As they say “talk is cheap". Time will tell if Robin has learned anything from this extended period of not having physical contact with the children which no doubt has been very difficult for her.

[53] I am satisfied on the evidence that Robin was less than supportive and helpful with respect to the children being in Sonny’s primary care. Although Sonny was by no means perfect as the custodial parent, Robin’s constant involvement of third parties in the life of Sonny, and more importantly, her children’s lives, caused stress and upheaval in everyone’s life. The involvement by either parent in the life of the other, especially when the children are with that parent, must stop.

[54] There was absolutely no evidence at this trial which demonstrated that it would be in the best interests of the children to move them from their present home and change custody of the children to Robin. I am satisfied that, as I said above, although not perfect, Sonny has done his best to seek professional help, and foster a relationship between the children and Robin. I cannot be assured based on the evidence the same would be true if the children lived primarily with Robin.

[55] I do not think that it is in the best interests of the children to continue to be kept away from their mother. The children love their mother and want to spend time with her according to the professionals involved with them. Sonny is going to start to look like the “villain” in this family if regular and consistent access does not resume immediately. Having said that, I am only prepared to resume access if it is in the children's best interest. Access is not for the benefit of Robin, it is for the benefit of Matthea and Ethan. I do not think that supervised access is necessary, nor in the children’s best interests.

[56] As I just set out, there was absolutely no evidence at this trial to suggest that it would be in the best interests of the children to change custody from Sonny to Robin. In fact, I find it is not in their best interests to change custody to Robin for several reasons including the fact that the children would be moved from their present home to a new home in Guelph. The children are doing well with Sonny by all the evidence and there is no reason why the existing status quo should be altered with respect to custody. Robin should start to have access, however, only as long as the children continue to thrive with such an access order.

[57] The statutory provisions for custody are set out in s. 16 of the Divorce Act, which is the relevant statute for me to consider. The only factor to consider in making a custody order is what is in the best interests of the children. The past conduct of a person is not relevant unless the conduct is relevant to the ability of that person to act as a parent to a child. Further, pursuant to s. 16(10), the court is to give effect to the maximum contact principle and take into consideration the willingness of the person seeking custody to facilitate such contact.

[58] Based on the above factors, I am satisfied that it is in the best interests of these children to be in the sole custody of Sonny. There is no point in ordering joint custody of the children as these parties cannot communicate with each other about anything. These parties cannot even properly use a parenting coordinator to assist them with difficulties. There is no point in trying to involve such a professional again.

[59] The order I make for access will be on an interim basis. The parties will attend before me at a date set out in this judgment. If the access is going fine, and the children are continuing to thrive, the access order will be made into a final order. I am not going to sit in appeal of my own access order, and I will not entertain requests for changes to the access herein, unless such changes are written out and on consent of the parties.

[60] To be clear then, the order will be that Sonny has custody of the children of the marriage. Robin will have access as I am about to set out on an interim basis. This specified access will be made final when the parties appear before me if I am advised that there are no difficulties. If there are difficulties for the children because of the access, I will decide how this matter will proceed. I will consider the conduct of both parties in deciding what further steps should be taken.

[61] It is in both these parties’ interest to do the right thing at this time and ensure that the access to the children by Robin is stress-free for them. Custody has been given to Sonny because I find he will facilitate the children’s relationship with Robin. He needs to ensure he does that. If the parties are unable to set aside their own needs with respect to the parenting issues, then I suggest they get their own help. When I said at the beginning of this judgment that I was hopeful, that means I am hopeful that these parents will do the right thing and get whatever help they need to ensure that their children at least spend the remainder of their childhood with some peace. It is the choice of the parents at this point to look to themselves to make their children's lives better and stop looking at the other person as the problem. There are a lot of professionals out there who could assist each of the parties if they are having difficulty with this issue of supporting the relationship of the children with the other party, but that is what needs to happen.

[62] The parents need to support each other because their children know full well how to “play the game” after all these years of conflict. Either of them could be the target of the children’s dissatisfaction at any time as has happened in the past. The parents have to develop parenting skills with their children that show the children as parents they are allies not enemies, and that they support each other, not undermine each other. Particularly with respect to Matthea who will be 16 next February, she would be well served if the parents do not let her “walk with her feet” every time there is a disagreement with the parent she is with. On the other hand, the police ought not to be called every time Matthea expresses a preference one way or the other. At some point Mathea must be left alone to figure this all out, knowing both her parents love her and both support each other as a parent. The parties are different and their relationship with their children will always be different. As I said above, the parents must stop being concerned with how the other is parenting, and what is going on in the other parent’s home. They need to solely focus on their own relationship with the children and what is happening in their own home.

[63] If the parties commit fully to the above principles, and learn to support each other, this family might have some happy years ahead.

5. Retroactive Child Support

[64] I am not prepared to order retroactive support for the years 2008 and 2009. In May 2010, an order was made for support and there was no reference to preserving the rights to claim retroactive support for 2008 and 2009, and the months in 2010 prior to the order. Although it is arbitrary on my behalf, I believe that this issue should have been discussed at that time. Moreover, Robin was in school for this period of time and no doubt had expenses that would have made paying child support very challenging.

[65] In August 2012, by way of a court order, the issue of retroactive support to the date of the order was reserved to the trial judge. I find that the proper amount of child support should have been paid in the years 2011 to 2013 based on Robin’s actual income. She is obliged by the Child Support Guidelines to increase the support based on her increased income. Failing to do so means the children have not benefited from the increase in the standard of living of the parent who is paying support. I, therefore, accept the numbers set out in the calculation of child support arrears provided by Sonny's counsel. These are based on the actual income of Robin as set out in her income tax returns and the revised Child Support Guidelines. They were not challenged by Robin at this trial. Those amounts are as follows:

1. 2011 - $11,472.00
2. 2012 - $11,016.00
3. 2013 to September - $6,653.00

[66] The total arrears of child support, therefore, to September 30, 2013, are $29,141.00.

6. Ongoing Child Support

[67] Robin’s annual income is, according to her testimony, currently $70,457.00. The Child Support Guidelines provide that the monthly support for two children based on that income is $1,049.00. This is the amount Robin is to pay commencing October 1, 2013.

[68] Robin’s submitted that she has high day care costs and that I should consider these costs in reducing her child support payment. The Guidelines do not work like that. If Robin sought to make an “undue hardship” claim, she would have had to requested that in her court documents and completed the proper form to do so. The formula as set out in the form claiming undue hardship would include Mr. Miller’s income. Based on what I am aware of from the evidence at trial, it is highly unlikely the household standard of living in Robin’s family with 2 incomes and a total number of 3 people would be lower than Sonny’s family with 2 incomes and a total number of 5 people. In any event, I have no evidence on that issue and the Child Support Guidelines apply.

7. Outstanding Costs Order

[69] Robin owes Sonny outstanding costs order in the total sum of $4,816.81. These costs have been outstanding for a considerable time. Sonny’s counsel asks for an order that these costs be paid first from Robin’s one-half of the net proceeds, in trust, and I so order.

8. Final Order

[70] As a result of the above reasons and decisions, the final order of the court is as follows:

(1) Sonny to have sole custody of both of the children of the marriage, namely, Matthea Caylea Smart, born February 16, 1998, and Ethan James Smart, born May 27, 2002.

(2) Robin to have interim access to both children as follows:

1. Commencing Friday, October 18, 2013, every second weekend, from Friday after school until Monday morning. The children are to be picked up and dropped off at school unless the parties agree otherwise.
2. If the children are involved in an extracurricular activity on Robin’s access weekend, she shall take them to that activity, unless the parties agree otherwise.
3. Alternate March breaks, with the person having the March break week to have the weekend that commences at the beginning of the March break. The other parent is to have the weekend at the end of the March break. Robin to have March break in 2014, and alternate March breaks thereafter. The pickup and drop-off shall be from the children’s home.
4. The Christmas school break to be divided equally with one parent to have the children for the first week commencing from the commencement of the school break on Friday at 5:00 p.m. until one week later on Friday at 6:00 p.m., and the other parent to have the children commencing the second week from Friday at 6:00 p.m. until the end of the school break on Sunday at 6:00 p.m. This arrangement is to alternate each year. Robin to have the first half of the Christmas school break in 2013. For clarity, this will be 7 days from Friday, December 20th to Friday, December 27th, 2013, at times as above. Sonny will have the children from Friday, December 27th, 2013 to January 5th, 2014. Robin’s weekend access will commence Friday, January 10th, 2014. Each year this will alternate and the parent having the second week will have the extra weekend. Christmas will be spent with the parent who has the children the first week in alternate years.
5. The holiday long weekends during the year will fall to the person who has the children ordinarily on that weekend.
6. The children shall spend Mother's Day with the mother and Father’s Day with the father no matter who has the children for that weekend.
7. The birthday of the children shall be spent with whoever they are with, in the regular access visitation.
8. Robin shall have the children one (1) month in the summer, alternating between July and August each year, commencing with July 2014.
9. Unless otherwise specified, the pickup and drop-off for access by Robin shall be from the children’s home.

(3) Robin shall have access to all school and medical reports directly as she is entitled by statute.

(4) The proceeds of the matrimonial home shall be divided as in the attached Schedule A and with adjustments made as per these Reasons. Sonny should receive any interest that has accumulated as he is entitled to interest on the equalization payment, the costs’ awards, and the arrears. This is all the interest he will get on these amounts.

(5) Robin shall pay to Sonny the sum of $1,049.00 per month, commencing October 1, 2013, for the two children, based on an annual income of $70,457.00. Robin shall provide income information as per the Child Support Guidelines each May, commencing May 2014, and the support shall be adjusted annually, accordingly.

(6) Robin shall pay to Sonny the sum of $26,601.00 ($29,141.00 less $2,540.00) for child support arrears.

(7) The parties shall attend before The Honourable Justice Mossip on November 19th, 2013, at 9:00 a.m., in Guelph, at the courthouse. If there have been no problems with the above access, then the access terms above shall be confirmed as a final order.

[71] The parties may send brief written submissions (10 pages or less) with respect to costs. These submissions should be served and filed at the courthouse on or before October 31, 2013. The parties should include a Bill of Costs and any offers to settle.

“original signed by Mossip J.”

___________________________

Mossip J.

Released: October 3, 2013

SCHEDULE A

	SONNY	ROBIN
Balance of Funds in Trust	$14,713.64 (plus ½ Interest)	$14,713.64 (plus ½ Interest)
Less Outstanding Costs Orders	($4,816.81)
Plus Outstanding Costs Orders		$4,816.81
Equalization Payment Owed by Robin	$7,356.82	($7,356.82)
Plus Portion of Child Support Arrears Payable to Sonny by Robin	$2,540.00
Less Portion of Child Support Arrears Payable by Robin		($2,540.00)
Total Owing to Each Party	$29,427.28 plus interest accrued on funds in trust	NIL

COURT FILE NO.: 741/04 (Guelph)

DATE: 2013 10 03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ROBIN LEE SMART

Applicant

- and –

SONNY JAMES SMART

Respondent

REASONS FOR JUDGMENT

Mossip J.

Released: October 3, 2013