ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 04204/08
DATE: 20131122

BETWEEN:

A.A.-L.

Carol A. Allen, for the Applicant

Applicant

• and -

M.L.

Viola Nabrotzky, for the Respondent

Respondent

HEARD: October 28, 29, 31, November 1, 4, 5, 6, 8, 13, 14, 15, 18, 19, 20, and 21, 2013

REASONS FOR JUDGMENT

Conlan J.

Introduction and the Background of the Litigation

The Parties and the Children

[1] To say that this is a sad case would be an understatement. To describe this litigation as protracted and acrimonious would be a gross understatement.

[2] The Applicant mother, A.A.-L., and the Respondent father, M.L., were married on September 18, 2004. It was a short-lived union. They separated on November 1, 2007.

[3] The mother has two children from a former relationship – a boy N., born […] 2001 (12 years old), and a girl, P., born […], 2003 (10 years old).

[4] The parties had two children together – a girl, S., born […], 2005, and a girl, A., born […], 2008 (5 years old).

[5] Tragically, the young girl S. died from an illness, neuroblastoma (a childhood cancer), on October 15, 2010. She fought hard and bravely from the time of her diagnosis in February 2009.

[6] Unfortunately, rather than bringing the parties together, that death only drove them further apart.

[7] The boy N. has serious special needs. Exhibit 3 at trial, the report of Dr. Mirza, psychiatrist, dated 21 December 2012, indicates that N. has the following diagnoses: sensory integration disorder, generalized anxiety disorder, obsessive-compulsive disorder, Tourette’s disorder, ADHD, a learning disorder and severe educational and social problems. He takes anti-psychotic medication.

[8] The girl P. also has significant special needs. Exhibit 5 at trial, the report of Dr. Benoit, psychiatrist, dated 24 January 2012, indicates that P. has the following diagnoses: oppositional defiant disorder, conduct disorder and a host of other grief, academic, interpersonal relationship and family conflict problems. She takes medication for ADHD.

[9] Exhibit 16 at trial, the report of Dr. Dourova, psychiatrist, dated 30 April 2013, indicates that P. has the following diagnoses: disruptive behaviour disorder, major depressive disorder, parent/child relational problems, sibling relational problems, problems with primary support group, problems with education and grief-related issues regarding the death of S.

[10] Dr. Cato, the paediatrician for N. and P., was one of the clearest and most helpful witnesses at trial. It is clear from Dr. Cato’s evidence that P. is a deeply troubled girl. The Applicant herself has reported to the doctor, on numerous occasions since 2010, significant behavioural concerns regarding P., including physical aggression towards her little sister, A., although the mother has reported that things have improved recently.

The Positions of the Parties

[11] In her Application issued on 26 November 2007, the mother sought sole custody of the children; child support to be paid by the father as per the Guidelines including section 7 expenses, retroactive to the date of separation; spousal support to be paid by the father; an Order that the father maintain employment benefits coverage for the children; an Order that the father designate the Applicant and the children as beneficiaries under his RRSP and life insurance policy; and a restraining Order against the Respondent.

[12] In her written opening statement at trial, the mother sought joint custody of the child A., on a week-about basis, with one parent designated by the Court as the parent responsible for decision making in the areas of education, health and activities. There would be no child support paid by either party to the other.

[13] In her examination-in-chief at trial, the mother proposed that she and the father share time with A. on a week-about schedule with exchanges occurring on Wednesday evenings. She also suggested that the Respondent have A. every Father’s Day; the Applicant have the child every Mother’s Day; and holidays be divided between the parties. The Applicant supports the idea of the Court ordering one parent to be responsible for making decisions regarding A.’s medical and educational matters.

[14] The mother is adamant that her other children, N. and P., do not pose any risk or threat to A.

[15] In his Answer dated December 18, 2007, the father sought a divorce; sole custody of the child S. (now deceased) and the then unborn child, A.; child support to be paid by the mother as per the Guidelines including section 7 expenses; an Order that the Respondent not be liable to pay child support for the children N. and P.; an Order that neither party be liable to pay spousal support to the other; an Order setting aside a marital agreement between the parties; a restraining Order against the Applicant; an Order to appoint a lawyer for the children; and an Order regarding equalization of net family properties.

[16] In his written opening statement at trial, the father sought sole custody and primary residency of the child A. Presumably, there would be access between the child and her mother.

[17] In his testimony at trial, the Respondent stated that he wanted sole custody of A. He supports supervised access between A. and her mother. He supports supervised access between A. and N. and P. He supports supervised access between A. and the baby boy born to the Applicant and R.A. (the Applicant’s new partner).

(continued verbatim…)

Note: The remainder of the judgment text continues exactly as in the source, with all paragraphs and wording preserved.