COURT FILE NO.: 752/11

DATE: 20140825

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

James Andrew Fisher

Steven Leitman, for the Applicant

Applicant

• and -

Hollie Anne Fisher

G. Edward Lloyd, for the Respondent

Respondent

Constance Baran-Gerez, Office of the Children’s Lawyer, for the children

Heard: February 24 to 28, April 28 to 30, May 1 and 2, July 28 to 31, August 1 and

5 to 7, 2014.

Trousdale J.

REASONS FOR JUDGMENT

[1] This was primarily a custody /access trial between the Applicant father, Mr. Fisher and the Respondent mother, Ms. Fisher, regarding their two sons who have now just turned 13 and 7. Unfortunately, these brothers have been caught in the cross-fire between their parents in a high conflict dispute for the last three and a half years. The situation has become even more complicated by the posting of Mr. Fisher to Petawawa, Ontario in November, 2011. The major issue became whether the children should reside primarily with their mother in Kingston or with their father in Petawawa. The children were represented by the Office of the Children’s Lawyer. In addition, there were issues of child and spousal support, and equalization of net family property.

BACKGROUND

[2] Ms. Fisher was born in Kingston, Ontario of parents who were born in England, married there and immigrated to Canada. Ms. Fisher is now 34 years of age.

[3] Mr. Fisher was born in England. He is now 35 years of age.

[4] At age 19, upon completion of high school and not having at that time finalized on a further educational or career path, Ms. Fisher went to England to be a nanny for her maternal aunt who had just had triplets.

[5] While she was in England, Ms. Fisher met Mr. Fisher. They developed a relationship and Ms. Fisher became pregnant.

[6] Ms. Fisher wanted to move back to Canada, and after a visit to Canada, Mr. Fisher wanted to move to Canada as well.

[7] The parties were married in Wakefield, West Yorkshire, England on April 7, 2001. They moved to Canada shortly thereafter.

[8] Upon arriving in Kingston, Ontario the parties resided with Ms. Fisher’s parents.

[9] The parties’ first child, a son, J. was born on July 27, 2001.

[10] After the birth of J., Ms. Fisher worked as a nanny where she was able to take J. with her to work. Mr. Fisher was not allowed to work for the first year that he was in Canada.

[11] In or about 2002, the parties moved out of the home of Ms. Fisher’s parents into an apartment. In or about 2008, the parties purchased a home in Kingston in the same neighbourhood where Ms. Fisher’s parents reside.

[12] Mr. Fisher had various jobs in security, as a mechanic, and then as an agricultural mechanic, which is what he had been training to be in England.

[13] Ms. Fisher had several miscarriages during the ensuing years. Subsequently, the parties’ second son, A, was born on July 31, 2007.

[14] Ms. Fisher worked three jobs at once, as a bank teller, at a video store, and as a nanny.

[15] In January / February, 2009, Mr. Fisher joined the Canadian Forces as a mechanic. He completed basic training in St. Jean, Quebec and then was sent to Borden, Ontario for training in his trade.

[16] In June, 2009, Ms. Fisher and the two children went to Borden, Ontario to visit Mr. Fisher. While returning to Kingston, Ms. Fisher was involved in a motor vehicle accident.

[17] Neither of the two children was injured. Ms. Fisher, however, suffered serious injuries as a result of the accident.

[18] Mr. Fisher was given some short-term compassionate leave to come to Kingston to assist Ms. Fisher with her recovery and in caring for the children. He was subsequently given a compassionate posting to Kingston so he could work in Kingston to be with Ms. Fisher and the children.

[19] Ms. Fisher’s parents (“the maternal grandparents”) have always been very involved in the lives of their grandchildren, J. and A. The maternal grandparents were of great assistance to Ms. Fisher after her motor vehicle accident with her own care as well as the care of the two children. Ms. Fisher’s father took early retirement to become Ms. Fisher’s personal caregiver.

[20] The parties’ marriage started to deteriorate. On February 10, 2011, the parties started living separate and apart in the matrimonial home. Mr. Fisher moved out of the matrimonial home at the end of April, 2011.

[21] Initially, Mr. Fisher was permitted by Ms. Fisher to come to the matrimonial home some evenings during the week to be with the children, as well as to have the children with him every second weekend.

[22] However, the relationship between the parties further deteriorated with the police and child welfare authorities becoming involved at times.

[23] In November, 2011, Mr. Fisher was posted to Petawawa, Ontario which is approximately three and a half hours from Kingston, Ontario.

[24] Mr. Fisher commenced this Application in December, 2011.

[25] Ms. Fisher responded with an Answer and Claim in February, 2012.

[26] The Office of the Children’s Lawyer began representing the two children in January, 2013.

[27] Mr. Fisher and his partner, Ms. Kristan Fisher co-habit in Petawawa, Ontario. They have a daughter, O. who was born in September, 2013.

[28] Ms. Fisher continues to reside in the matrimonial home in Kingston. She has a partner, Mr. Orrin Spearman who is a high school teacher in Ottawa, Ontario. Mr. Spearman has resided with Ms. Fisher in the summer school vacation in 2013 and 2014. Since in or about September, 2013, he has also resided with Ms. Fisher every weekend, from Friday evening to Monday morning, during the school year.

[29] The two children of the marriage are now ages 13 and 7. The elder child is in Grade 8 and the younger child is in Grade 2.

ISSUES

(1) Divorce;

(2) Custody and access of the two children of the marriage;

(3) Spousal support;

(4) Child support;

(5) Section 7 Expenses;

(6) Arrears of child support;

(7) Arrears of Section 7 expenses;

(8) Life Insurance and medical coverage;

(9) Equalization of net family property; and

(10) Costs.

Divorce

[30] Both parties are seeking a divorce. The parties separated on February 10, 2011 and have lived separate and apart since that time. There shall be an order that the parties are divorced effective the date of release of these Reasons for Judgment, with the usual thirty day waiting period for the divorce to become final.

Custody and Access

[31] Mr. Fisher’s position is that he should have custody of the two children, with the children to reside with him and his partner and their half-sister in Petawawa, and visit their mother in Kingston every second weekend and for a share of holiday periods.

[32] Ms. Fisher submits that she should have custody of the two children, with the two children to continue to reside with her in Kingston, and visit their father in Petawawa every second weekend and for a share of holiday periods.

[33] The position of the Office of the Children’s Lawyer, who represents the two children, is that this Court should order that the two children be in the sole custody of Mr. Fisher in Petawawa, with visits with their mother every second weekend and for a share of holiday periods.

[34] Mr. Fisher and the Office of the Children’s Lawyer both took the position that Ms. Fisher’s capacity to parent the children as a result of her motor vehicle accident was not in issue at this point of time, and it was acknowledged by both of them that Ms. Fisher has the capacity to parent the children.

[35] It is Ms. Fisher’s position that although she and Mr. Fisher were initially able to co-operate with each other regarding the children after separation, the situation changed dramatically after Ms. Kristan Fisher got involved. She alleges that Mr. Fisher and his partner, Ms. Kristan Fisher, have waged an unrelenting war on Ms. Fisher since shortly after separation, with the goal to obtain custody of the two children. Ms. Fisher claims that Mr. Fisher and Ms. Kristan Fisher have done everything possible to make Ms. Fisher’s life as difficult and upsetting as possible, in order to shake the stability of her home and to attempt to put Ms. Fisher in as poor a light as possible, both in the eyes of the children and in the eyes of others including the authorities.

[36] Ms. Fisher alleges that this has included them calling the police to her home on eleven or twelve occasions from July, 2011 to August, 2012, which also resulted in child welfare authorities getting involved in the case, as well as interfering with her ability to earn some income by having foreign students stay in her home. In addition, Ms. Fisher alleges that Mr. Fisher and Ms. Kristan Fisher have engaged the elder child in that pursuit by encouraging him to run away from her home, to call the police regarding his mother, to make false allegations regarding his mother, and at age 11 to keep a journal where everything about his mother is negative and everything about his father and his father’s partner is positive.

[37] Although the older child, J. has told Ms. Fisher, the maternal grandparents, and others of his desire to live with his father, Ms. Fisher’s position is that J’s wishes are not independent and have been influenced by Mr. Fisher and Ms. Kristan Fisher. She alleges serious attempts at parental alienation on the part of Mr. Fisher and Ms. Kristan Fisher. She does not believe that J. truly wishes to live with his father, although she acknowledges that J. wishes to have regular visits with his father and that it is important for J. to maintain that relationship.

[38] Ms. Fisher submits that the younger child, A. wishes to continue to live with her. Her evidence is that A. is afraid of Ms. Kristan Fisher and that he does not want to live at his father’s home. In fact, she states that he has told her and his doctor, on a couple of occasions, that he does not wish to go on visits to his father’s home. Her evidence is that A. has nightmares and has been wetting the bed about going to his father’s home.

[39] Ms. Fisher maintains that she has been the primary caregiver of the children since their birth and that Mr. Fisher was a very uninvolved father for both boys from the time of their birth until the separation. It is Ms. Fisher’s contention that it is in the best interest of both children to continue to reside with her as they have done since separation over three years ago. She underlines that the children have always lived and attended school in Kingston, and that they have many friends and relatives here. In particular, throughout their lives, the children have had an extremely close relationship with the maternal grandparents who reside in the same neighbourhood where the children reside. Ms. Fisher points to the fact that the children are well-mannered pleasant boys who are doing well where they are in the primary care of Ms. Fisher.

[40] Ms. Fisher submits that the Office of the Children’s Lawyer and the social worker assist are biased and that they utilized a partisan approach. It was argued by Ms. Fisher that the evidence of Ms. Rodé, the social worker assist, was an exercise in cherry-picking the evidence that supported the position of the Office of the Children’s Lawyer.

[41] Ms. Fisher submits that Ms. Rodé failed to carry out a complete and adequate investigation. Ms. Fisher states that Ms. Rodé pre-judged the matter and that she only interviewed most of Ms. Fisher’s doctors and helping professionals after the Office of the Children’s Lawyer had already taken the position that the children should reside with Mr. Fisher.

[42] Ms. Fisher objects that Ms. Rodé did not give Ms. Fisher an opportunity to respond to concerns or incidents raised by the elder child, or by Mr. Fisher and Ms. Kristan Fisher as Ms. Rodé did not raise these matters with Ms. Fisher.

[43] Mr. Fisher’s evidence is that Ms. Fisher, her partner Mr. Spearman, and the maternal grandparents have been very outspoken about their very negative opinion of Mr. Fisher as a husband and as a father, both to the children and in the hearing of the children.

[44] Mr. Fisher argues that Ms. Fisher’s initial co-operation after separation has dissipated, and that she has caused the children to lose time and opportunities with him by cancelling visits, not responding to emails regarding holiday or vacation planning in a timely manner, and preventing or interfering in telephone communication between Mr. Fisher and the children.

[45] The evidence of Ms. Fisher is that Mr. Fisher was emotionally abusive, physically abusive, sexually abusive, manipulative, violent, and lazy. She alleges that he was only interested in himself and his own activities, and was little involved in the care of the children. Mr. Fisher denies these allegations and submits that they are unfounded.

[46] Mr. Fisher’s evidence is that Ms. Fisher’s extreme dislike of him has caused her to not always act in the best interests of the children, such as the incident at the office of J’s counsellor when Ms. Fisher yelled at Mr. Fisher in front of J. Mr. Fisher alleges that Ms. Fisher has difficulty controlling her emotions about Mr. Fisher and/or Ms. Kristan Fisher and that she erupts with anger over her perception that Mr. Fisher abandoned her and the children when they needed him most.

[47] Mr. Fisher called evidence from a Tim Horton’s employee who did not personally know either party. This witness testified that on July 31, 2014 she witnessed Ms. Fisher blowing up and losing her self-control about Mr. Fisher in public in a Tim Horton’s store at a lunch break during the trial.

[48] Mr. Fisher is concerned about the children’s significant late attendances and absences from school, and Ms. Fisher’s apparent inability to motivate and direct the children to get to school on time each day.

[49] The position of the Office of the Children’s Lawyer is that because of geography there is no perfect solution in this case. Mr. Fisher, Ms. Fisher, and the maternal grandparents have all testified that it is very important for the two children to continue to reside together, and that they should not be split up. This is also the position of the Office of the Children’s Lawyer. The Office of the Children’s Lawyer takes the position on behalf of the children that both J. and A. should reside with Mr. Fisher in Petawawa.

[50] Ms. Rodé testified that J. who is now 13 years old has clearly and consistently expressed the wish to his Counsel and to her that he wishes to reside with his father. Counsel for the Office of the Children’s Lawyer and Ms. Rodé have interviewed J. separately on six occasions from September 4, 2013 to April 16, 2014. In addition, Ms. Rodé has made two observation visits with both children present at Ms. Fisher’s home, and one visit with both children present at Mr. Fisher’s home in Petawawa, and one observation visit with Mr. Fisher and the children at a restaurant in Kingston.

[51] The evidence is that J. has been expressing this wish for at least two years or more. In addition to expressing this wish to Counsel for the Office of the Children’s Lawyer and the social worker assist, Ms. Rodé, J. has expressed this wish to Ms. Fisher, Mr. Fisher, the maternal grandparents, the paternal grandparents, his counsellor at school, and the counsellor provided through his doctor’s office.

[52] J. has expressed that wish and continues to express that wish even though he knows that his mother and her partner, and his maternal grandparents with whom he has a very close relationship, do not approve of his wish and do not want to hear that from him.

[53] The reasons that J. gave to his Counsel and to Ms. Rodé as to why he wishes to reside with his father are as follows:

(1) He feels safe at his father’s home, but does not always feel safe at his mother’s home. He trusts his father to make decisions on his behalf.

(2) The rules at his father’s home are clear and fair. The rules are not as clear at his mother’s home.

(3) He feels he can rely on his father to do what he says he will do, but with his mother, he just never knows for sure what will happen. In particular, he never knows for sure whether access will take place with his father when he is residing with his mother. His mother also makes telephone communication with his father difficult.

(4) He feels that moving to his father’s home would be a fresh start for him. He is not worried about leaving his friends, his school, his extracurricular activities or his maternal grandparents in Kingston. He is also very fond of his half- sister, O. who resides in his father’s home. He has a very long-term friend who resides in Petawawa.

(5) He believes that if he lives with his father, his father will foster a relationship between himself and his mother and her extended family. However, if he lives with his mother, he does not believe that she will foster his relationship with his father and his father’s extended family.

[54] Ms. Rodé testified that J. actively attempts to overhear what the various adults are saying about the situation as he wants to know what is going on. J. says he has big ears and that the walls are thin. This has led to J. overhearing some things he shouldn’t have heard, mishearing certain things, and misinterpreting what he has heard, such as the discussion about the family dog. J.’s Counsel and Ms. Rodé have asked him not to attempt to overhear what the adults are saying.

[55] Counsel for the Office of the Children’s Lawyer and Ms. Rodé interviewed A. on five occasions separately, as well as making the observation visits to which I have previously noted herein. A. has been clear and consistent in his wishes that he wishes to see his mother on a regular basis and that he wishes to see his father on a regular basis. A. told his Counsel and Ms. Rodé that he misses his mother when he is with his father, and that he misses his father when he is with his mother. When asked whom he misses most when he is not with him or her, A. told his Counsel and Ms. Rodé that he misses his father most.

Analysis

[56] Although it was acknowledged that neither Mr. Fisher nor the Office of the Children’s Lawyer contest that Ms. Fisher has the capacity to parent the children at this time, there was extensive medical evidence called regarding Ms. Fisher’s condition, particularly during the couple of years after the accident, and then regarding her current condition. I do not find it necessary to review that evidence in detail in these Reasons for Judgment.

[57] The evidence is that Ms. Fisher initially, and for some period of time, was very significantly and detrimentally affected as a consequence of her motor vehicle accident. She had physical difficulty getting herself out of bed in the morning, needed assistance with showering and her own physical care, and needed substantial assistance in taking care of the daily needs of the children. Ms. Fisher also suffered from post-traumatic stress disorder as a result of the accident.

[58] During this period, Ms. Fisher’s parents were of enormous assistance to her in assisting her with her self-care, and in providing a great deal of physical and emotional care for the children. Mr. Fisher was involved in assisting Ms. Fisher personally and in caring for the children, although there is a dispute between them as to the extent of his involvement, with Ms. Fisher alleging very little assistance being provided by Mr. Fisher.

[59] On the evidence before me, I find that from the time of Ms. Fisher’s motor vehicle accident in June, 2009 to at least some time in 2011, Ms. Fisher’s ability to care for the children was greatly affected by her physical and emotional challenges resulting from the motor vehicle incident.

[60] The evidence is that Ms. Fisher has made significant progress in her recovery, with great determination and follow-through on her part to work on her challenges with numerous helping professionals, a number of whom gave evidence at this trial. At one time, Ms. Fisher was going to three to five appointments for herself per week.

[61] Ms. Fisher continues to have some residual difficulties such as spasms, which come upon her, although much less frequently than before. In addition to the evidence of the professionals who testified on behalf of Ms. Fisher that she has made substantial progress in her recovery from the motor vehicle accident, Dr. Gowthorpe who did a parenting capacity assessment of Ms. Fisher testified at the trial and gave the opinion that Ms. Fisher has the capacity to parent the two children full time in a loving, child-focused manner. I accept Dr. Gowthorpe’s opinion regarding Ms. Fisher’s parenting capacity.

[62] I find that Ms. Fisher has the capacity to parent the two children full time at this time. I find that this is not an issue. I note that the capacity of Ms. Fisher to parent the children is also not contested by either Mr. Fisher or by Counsel for the Office of the Children’s Lawyer.

[63] I have considered the issue of bias alleged by Ms. Fisher on the part of the Counsel for the Office of the Children’s Lawyer and the social worker assist, Ms. Rodé, as well as the allegation that Ms. Rodé’s investigation was inadequate. Black’s dictionary defines “bias” as “inclination; prejudice.” I found no evidence that Counsel for the Office of the Children’s Lawyer or Ms. Rodé demonstrated inclination or prejudice in the investigation or formulation of their position on behalf of the children. I find their investigation was adequate and their conclusions and position on behalf of the children were supported by the evidence. I accept Ms. Rodé’s evidence as being accurate and reflective of what the children told her. Counsel for the Office of the Children’s Lawyer was very firm in her position on behalf of the children, and conducted well-prepared cross-examinations, but that was within her role. I find no bias on the part of Counsel for the Office of the Children’s Lawyer or Ms. Rodé.

[64] From all accounts, the children are well-behaved, inquisitive, pleasant children. On the evidence I find that both Mr. Fisher and Ms. Fisher are capable of providing for the care of the children, although each of the parents has their strengths and weaknesses. If the parties resided in the same city, I would be inclined to find that the parties should share the children’s time between them in some manner. However, that is not possible in these circumstances where the parents live three and a half hours apart.

[65] On the evidence, I find that both of the children love both of their parents. I also find that the children are very fond of the respective partners of each of their parents which is a positive development.

[66] I find that Mr. Fisher and Ms. Fisher both love these two children and want the best for their children. Nevertheless, both Mr. Fisher and Ms. Fisher have each made poor parental decisions and acted badly towards each other and regarding the children at various times since Mr. Fisher moved out of the matrimonial home at the end of April, 2011. Their respective current partners have also significantly and detrimentally involved themselves in the conflict, which has exacerbated the situation.

[67] Unfortunately, this has resulted in the two children, and particularly J., being put into a very difficult situation between his parents. This was heart-breakingly expressed by J. to his counsellor after fleeing to the washroom to hide himself away from the conflict between his parents at the counsellor’s office when he said to the counsellor “Welcome to my life.”

[68] Both parents and their partners have contributed to scenes being made at exchanges in the presence of the children. Both parties and their partners need to consider the devastating impact on the children of these toxic exchanges, and do their utmost as parents and parental figures for these children to protect these children from emotional damage by ensuring that all exchanges are civil and respectful by all the adults involved.

[69] I find that Mr. Fisher and Ms. Kristan Fisher repeatedly involved the police in the custody/access situation over the period from July, 2011 to August, 2012 which resulted in child welfare authorities becoming involved in the situation as a result of concerns that the high parental conflict was negatively affecting the well-being of the children. Mr. Fisher may have initially got the police involved as he felt that parenting time with the children was being denied to him by Ms. Fisher. However, the number and frequency of calls to the police by Mr. Fisher and Ms. Kristan Fisher and/or their neighbour became excessive and undermining of Ms. Fisher, and were not in the best interests of the children.

[70] I do not have a problem with Mr. Fisher moving into a residence relatively close to the matrimonial home. This is often desirable so that the children will have the same friends and neighbourhood whether they are at their mother’s home or their father’s home. However, I find that Mr. Fisher and Ms. Kristan Fisher at times used this situation to foster discontent in Ms. Fisher’s home. They may not have actively encouraged J. to run away from his mother’s home to their home, but I find they did not actively discourage it, which they should have done in the best interests of J.’s safety and well-being.

[71] I find that prior to J. switching from a French immersion school near the end of Grade 6 in May 2013, J. was failing and was being bullied and socially isolated at school. I find that although Ms. Fisher attempted to get Mr. Fisher’s consent to a change of school for J. as strongly recommended by J’s principal, Mr. Fisher refused to consent unless the switch was to a school in Petawawa. This response, or lack thereof, was not reasonable in the circumstances.

[72] I find that in the first year or so after separation, Ms. Kristan Fisher, whether with or without Mr. Fisher’s knowledge, became overly involved in the situation such as by writing and signing Mr. Fisher’s child support cheques, calling police and other persons of authority, and including the enlisting of neighbours to complain about Ms. Fisher to authorities.

[73] I find, however, that Mr. Fisher and Ms. Kristan Fisher have not been in contact with the police or child welfare authorities regarding this matter for the last two years. They appear also to have accepted the advice of Counsel for the Office of the Children’s Lawyer in August, 2013 not to discuss these court proceedings with the children any further. There is no evidence that Mr. Fisher and Ms. Kristan Fisher say derogatory things about Ms. Fisher or her extended family at their home. Ms. Rodé testified about both children expressing to her about being excited and looking forward to seeing their father, his partner and their half-sister. Overall, the behaviour of Mr. Fisher and Ms. Kristan Fisher seems to have improved for the better. I would recommend, however, that they reconsider some of their unorthodox discipline practices.

[74] Ms. Fisher has also contributed to the conflict between herself and Mr. Fisher. After the initial spirit of co-operation between the parents broke down in the spring/summer of 2011, I find that Mr. Fisher had much more difficulty in arranging parenting time for himself with the children, particularly at holiday and summer vacation times. Although Mr. Fisher put forward proposals for holiday and summer vacation time in plenty of time, sometimes months ahead, Ms. Fisher did not provide timely responses, which I find resulted in the children losing time and opportunities with Mr. Fisher. For example, during the last two summer vacations, the schedule did not get agreed upon until the summer had already started. This has made it very difficult for Mr. Fisher to make summer vacation plans for the children to spend time with friends and other family members. Further, the children were left in uncertainty as to when or if they would actually be seeing their father during the summer. In 2013, Mr. Fisher held Christmas celebrations with the children on Dec. 8 as he still did not know at that date whether he would see the children at Christmas or not.

[75] I find that Ms. Fisher has difficulty controlling her emotions regarding Mr. Fisher, both in public and in private. This was also evident at the trial of this matter. This has resulted in several concerning incidents, including the incident in the waiting room of J.’s counsellor, Ms. Fisher slamming a door at the police station so hard that she broke the door, and Ms. Fisher exploding regarding Mr. Fisher in a very embarrassing manner at a local restaurant during a lunch break at the trial in July, 2014. Ms. Fisher has been heard to make negative comments about Mr. Fisher in the presence of the children.

[76] J.’s report card this year shows a much improved academic performance after switching from French immersion to a regular English elementary school. A.’s report card for this school year is adequate, but I note that the evidence was that it was strongly recommended that A. attend summer school for three weeks this summer. A. did attend summer school but this resulted in Mr. Fisher’s summer vacation requests having to be re-adjusted. The fairly consistent pattern of both children having a substantial number of late arrival and absences from school over the last few years is of particular concern to me. For example, in the 2013 to 2014 school year, J. was late 21 times and was absent 25.5 days, which is an effective loss of five weeks of school, not counting the late arrivals. J. did miss school for a concussion in January, 2014, which it appears accounted for eight days of absence. In the 2013 to 2014 school year, A. was absent for 21 days and was late on 14 days. There was also evidence that the children did not always have their homework completed. On the evidence, I find that Ms. Fisher has some difficulty in maintaining the children’s regular and timely attendance at school, which could negatively affect their development and prospects.

[77] I find that Ms. Fisher’s partner, Mr. Orrin Spearman, has been a generally positive addition to Ms. Fisher’s home. However, Ms. Fisher’s partner, Mr. Orrin Spearman, injected himself into the conflict between the parties by writing an anonymous scathing letter about Mr. Fisher to Mr. Fisher’s Commanding Officer in or about October, 2013, without thinking through the possible negative repercussions to Mr. Fisher’s employment and /or his career. Ms. Fisher testified that she did not know that Mr. Spearman was going to write this letter, nor that he had done so until January, 2014. However, it was not disclosed to Mr. Fisher nor the Office of the Children’s Lawyer that Mr. Spearman was the author of this letter until Ms. Fisher’s testimony in July, 2014. Mr. Spearman also conveyed his negative opinions of Mr. Fisher by correspondence to the Office of the Children’s Lawyer. It is Mr. Spearman’s opinion that Mr. Fisher should have only supervised access to the children, which view I find to be unwarranted.

[78] Ms. Fisher argues that the children are doing very well in her care and that it is not in the best interests of the children to disrupt what she calls “the status quo”. She further argues that it is incumbent on Mr. Fisher to show that there has been a material change in circumstances to disrupt the status quo.

[79] I note that there has never been any order for custody of the children and that this matter has been before the Courts since Mr. Fisher commenced his application in December, 2011. I find that where there has never been a prior custody order and where the issue of custody has been before this court since shortly after the separation, there is no requirement that Mr. Fisher must show a material change in circumstances.

[80] I accept the evidence that the child, J. has clearly and consistently over a period of at least two years or more, expressed the wish to live with his father. J. is old enough to express his views and to have some consideration given to his views. His wishes are one of the factors to be taken into account in determining with which parent J. should reside.

[81] J. has been described as a mature child. On the evidence, I find that J.’s views are independent. J. has not shown any reluctance to make it well known to his parents, their respective partners, all his close family members and to professionals working with him that he wishes to reside with his father, and visit with his mother, even when he knows that this wish is upsetting to his mother and his maternal grandparents, and their friends and supports. I find that J. has expressed frustration to his counsellor and to the Office of the Children’s Lawyer that no one is listening to him. I find that J.’s reasons for wanting to live with his father are valid.

[82] J. has a lot of interests in common with his father, and they do a lot of activities together.

[83] I find that J.’s wish to have a fresh start is also reasonable as the evidence is that J. did have at least a couple of very difficult years at French immersion school in Kingston where he was not doing well academically, socially, or emotionally and he was being bullied. J. has had to deal with the traumatic effects on his family of his mother’s car accident. He has also had to endure the high conflict separation of his parents for the last three and a half years.

[84] I also find reasonable on the evidence before me, J.’s concern that he cannot count on his mother to ensure that he will have regular access to his father, whereas if he lives with his father, he can count on his father to ensure a continuation of his relationships with his mother and his maternal grandparents, all of whom have been extremely involved with J.’s care and development since his birth, and who are very important people to J. There is evidence on occasion of last minute cancellation of Mr. Fisher’s visits with the children, as well as great uncertainty and difficulty regarding visits with Mr. Fisher during holiday and summer vacation periods.

[85] It is quite clear from the evidence of Ms. Fisher, her father, and Mr. Spearman, that Mr. Fisher is perceived by them as being a very inadequate husband and father. The maternal grandmother is a little more balanced in her evidence. The maternal grandparents have put negative pressure on J. regarding his wishes and the maternal grandmother requested J. to reconsider his wish to live with his father, and attempted to make J. feel guilty that his wish may impact on where A. may end up living. A respected family friend similarly managed to get J. alone and proceeded to say very mean things to J. about his father, which was upsetting to J. This has put an enormous burden on J. which he should not have had to bear.

[86] I accept that Ms. Fisher, her family, and her supports are very displeased that Mr. Fisher left Ms. Fisher at a time when they felt that she and the children needed his assistance the most. However, Ms. Fisher and her family need to understand that the poor relationship between Ms. Fisher and Mr. Fisher needs to be kept separate from the relationship between Mr. Fisher and the children. Mr. Fisher left the marriage, but he did not abandon the children.

[87] Although I find that both parents are capable of parenting J., on weighing the importance of maintaining regular school attendance, the importance of the child having maximum contact with each parent with such contact being supported by the other parent, and the consistent wishes of J. over a sustained period of time to live with his father, I find that it is in the best interests of J. at this time that he reside with his father in Petawawa, with regular time to be spent with his mother every second weekend and for one half of holiday periods.

[88] In coming to this decision, I have taken into account the factors previously set out herein as well as the provisions of Section 15(10) of the Divorce Act, which provides that 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. I find that Ms. Fisher has not always facilitated contact between Mr. Fisher and the children, and that she has delayed in making summer and holiday arrangements for the children to see Mr. Fisher, which has resulted in a loss of time and opportunity for the children with their father.

[89] I find that A. has expressed the wish to have regular time with each of his parents. In my view, A. would be happy residing with either his mother or his father, provided that he had regular time with the parent with whom he is not residing. All of the parties and the Office of the Children’s Lawyer on behalf of the children take the position that A. should reside where his brother J. resides, no matter whether that is with Ms. Fisher or Mr. Fisher, and that the children should not be separated. A. did corroborate J.’s information that Ms. Fisher often would not permit the children to make phone calls to their father.

[90] I find on the evidence that it is in the best interest of A. to reside with J. in Petawawa with their father, with the children to see their mother every second weekend and for one half of all holiday periods. A. and J. have always resided together and all of the parties believe that it is in the best interests of both children that they not be separated. I find that A. depends on J. as his big brother, perhaps even more so than in some other families, as they have been through some particularly traumatic experiences together, such as the catastrophic motor vehicle accident of their mother and the significant effects resulting therefrom, as well as the very high conflict separation of their parents.

[91] Although this will necessarily involve a move of the children away from Kingston, and a change of their schools, it appears that this likely would have been in the offing in the not too distant future in any event, as Ms. Fisher’s evidence is that she has considered the possibility of moving at some time in the next year or so with the children to live with her partner, Mr. Spearman who resides in the Ottawa area. She originally, in her evidence, contemplated the possibility of such a move as early as September, 2014 but subsequently changed her evidence to indicate she did not plan to move this year. The evidence of the children’s teachers is that the children will be able to adapt to a change of school.

[92] I do not know exactly what the schedule has been this summer, nor where the children will be when this decision is released. The children shall be picked up by Mr. Fisher for the move to Mr. Fisher’s residence on Friday August 29, 2014 at 4:00 p.m. in order to prepare for school starting in Petawawa on Tuesday September 2, 2014, unless the parties agree otherwise in writing. Ms. Fisher’s first regular alternate weekend with the children shall take place on the weekend commencing Friday, September 5, 2014 and each alternate weekend thereafter.

[93] Ms. Fisher does not drive at this time. She has not driven since shortly after her motor vehicle accident. To my knowledge she does not own a motor vehicle. If Ms. Fisher were required to be responsible for some of the transportation for the times that she has the children, she would have to rely on others to assist her and there is no guarantee that they would be available or able to do so. Accordingly, I find that at this time, Mr. Fisher shall be responsible for the transportation of the children for Ms. Fisher’s time with the children, unless the parties mutually agree otherwise in writing. I would hope, however, that if Ms. Fisher, with the assistance of relatives or friends, is able on occasion to do, or to share, the transportation of the children, she will do so. This issue shall be subject to review in the event of a material change in circumstances.

[94] If Ms. Fisher moves closer to the Petawawa area where a more shared residential regime for the children would be feasible, she shall be entitled to bring the issue back before the Court if the parties are unable to agree on an adjustment of the children’s time with each party.

[95] If Ms. Fisher is able to be in Petawawa in between alternate weekend visits, she shall be entitled to request reasonable visits with the children in Petawawa, including overnight visits.

[96] The parties may mutually agree that either party shall have the children with him or her at other times than as set out herein to allow the children to take advantage of special family events or other events significant to the children.

[97] I wish to make it clear to Mr. Fisher that he has the responsibility as the primary caregiver of the children to ensure that the provisions set out hereafter for the children to spend regular time with their mother are complied with. Mr. Fisher shall facilitate daily communication between the children and Ms. Fisher by telephone calls, or Skype, or Face Time, if available.

[98] When the children are away from Mr. Fisher for more than 4 days, Ms. Fisher shall facilitate contact between Mr. Fisher and the children by telephone calls, or Skype, or Face Time, if available.

[99] Unless otherwise mutually agreed upon by the parties, when the exchanges take place, the person dropping off the children shall remain in the vehicle and the person receiving the children shall remain in the home, except where the children need help such as with the things they are bringing with them. All persons at the exchange shall behave in a civil manner.

[100] Ms. Fisher and Mr. Fisher shall communicate matters regarding the children through email except where the timing, importance and urgency of the situation requires another method of communication such as text message or telephone. The parties shall not communicate with each other through the children. The parties may mutually agree to use Our Family Wizard or Joint Parents for communication.

[101] Written communication between the parents shall be brief, informative, respectful and child-focused and shall not contain demeaning, derogatory or admonishing remarks of any kind. The parties shall read his and her email at least once per day unless not possible because of travel. Each party shall respond promptly to the other within 24 hours even if it is to advise that a response will be provided at a later specified date. Neither party shall delete the emails.

[102] Neither party shall speak in a derogatory manner regarding the other, nor the other’s partner, or extended family to the children or in the hearing of the children, nor shall they allow anyone else to do so.

[103] Mr. Fisher shall also ensure that the children have at least once weekly contact by telephone, Skype, or Face Time, if available, with the maternal grandparents who are also very important persons in the lives of the children. However, during such communications and other contacts and visits with the children, I expect Ms. Fisher and the maternal grandparents to refrain from undermining the children’s placement in the home of their father.

[104] No phone calls between the children and either of the parents, or their partners, or extended family members shall be taped by either party or anyone on their behalf.

[105] Unless the parties mutually agree that the pick-up and drop-off times should be adjusted because of school ending times or driving times involved, the children shall be with Ms. Fisher every second weekend from Friday at approximately 7:00 p.m. to 3:30 p.m. on Sunday, with any P.A. or statutory holidays attached thereto to be added onto Ms. Fisher’s weekends with the children. If Ms. Fisher or someone on her behalf does the return drive, the children shall be returned to Mr. Fisher at 7:00 p.m. All homework of the children due on the first school day after the weekend shall be completed during the time the children are with Ms. Fisher and shall be returned with the children. Mr Fisher shall not, however, save up homework for Ms. Fisher’s weekend.

[106] Ms. Fisher shall have the children with her for Easter weekend in every year from Thursday after school to Monday at 3:30 p.m. whether it is her weekend with the children or not.

[107] Ms. Fisher shall have the children with her on Thanksgiving weekend in every odd numbered year from Friday after school to Monday at 3:30 p.m. whether it is her weekend or not, and Mr. Fisher shall have the children with him on Thanksgiving weekend in every even-numbered year whether it is his weekend or not.

[108] Ms. Fisher shall have the children with her for the whole of Mother’s Day weekend in every year from Friday after school to Sunday at 3:30 p.m. whether it is her regular weekend or not.

[109] Mr. Fisher shall have the children with him for the whole of Father’s Day weekend in every year whether it is his regular weekend or not.

[110] Ms. Fisher shall have the children with her for March Break in every odd- numbered year from Friday after school at the beginning of March Break to the Sunday at 3:30 p.m. at the end of the March Break. Mr. Fisher shall have the children for March Break in every even- numbered year from Friday after school at the beginning of the March Break to the Sunday at the end of the March Break provided that Mr. Fisher takes holidays from employment during the March Break period. If Mr. Fisher does not take holidays from employment during the whole of the March Break period, then the children shall spend the whole March Break period with Ms. Fisher. Mr. Fisher shall advise Ms. Fisher of whether he is taking holidays from employment or not during the whole March Break period by February 1st in each even-numbered year. During the March Break vacation, the regular alternate weekend schedule shall be suspended.

[111] The summer school holiday in each year shall commence after school on the last day of school and shall finish on Labour Day Monday. Ms. Fisher shall have the children with her for two non-consecutive blocks of two weeks each in every summer with Mr. Fisher to have the same. Any additional holiday days over and above the aforesaid eight weeks shall be evenly divided between the parties, and may be added to one or more of each party’s blocks of time as the parties mutually agree, although as part of his share, Mr. Fisher shall have the children with him on the Labour Day weekend in each year to prepare the children for school unless otherwise mutually agreed upon by the parties. Ms. Fisher shall request the time which she wishes to have by May 1 in each year. Mr. Fisher shall respond to Ms. Fisher by May 15 in each year regarding her request. During the summer school vacation, the regular alternate weekend schedule shall be suspended, and it shall resume on the first weekend after the Labour Day weekend. As the children get older, the parties may consider the children residing one month with each party at a time.

[112] The Christmas school holiday in each year shall commence after school on the last school day before Christmas and terminate on the evening before school starts in the beginning of January in each year. Ms. Fisher shall have the children with her for one half of the Christmas holiday vacation in each year, which half shall include Christmas Day in each year. Mr. Fisher shall have the other one half of the Christmas school vacation in each year. Ms. Fisher shall advise Mr. Fisher of the dates she requests on the Christmas school vacation by November 1 in each year and Mr. Fisher shall respond to Ms. Fisher’s request by November 15 in each year. During the Christmas school vacation, the regular alternate weekend schedule shall be suspended and the regular alternate weekend schedule shall resume on the first weekend in January at the end of the week in which the children start back to school after the Christmas school vacation.

[113] By December 1 in each year, the parties shall exchange a calendar of the regular scheduled weekends for the following year, excluding the two March Break weekends, the summer school holiday weekends, and the Christmas school holiday weekends, but including the specially scheduled weekends such as Easter, Thanksgiving, Mother’s Day and Father’s Day, so that the weekend schedule for the following year shall hopefully be determined and agreed upon prior to that year commencing.

[114] I now turn to the issue of custody. This has been a high conflict custody situation for over three years now. The parties have had difficulty in agreeing on issues regarding the schooling, health, or activities of the children. The evidence is that communication between the parties has at times been poor. I am hopeful that once the litigation is completed, the parties will improve their communication.

[115] Although I have found that it is in the best interests of the children that they reside with Mr. Fisher at this time, I do not find that it is in the best interests of the children that Mr. Fisher have sole custody of the children. Ms. Fisher has played a very important role in the upbringing of the children throughout their lives and I find that she should continue to have input into major decisions regarding the children. I find that it is in the best interests of the children that Mr. Fisher and Ms. Fisher have joint custody of the two children of the marriage with the principal residence of the children to be with Mr. Fisher.

[116] I find that it is important that Ms. Fisher should be kept fully informed by Mr. Fisher in a timely manner in writing if at all possible, regarding any major issues concerning the health, education, religion, extra-curricular activities, and any other major matters affecting the general well-being of the children. If the parties are unable to come to a joint decision, Mr. Fisher shall have the final say in any such decisions, subject to the right of Ms. Fisher to request the court to review the decision. I would recommend that if feasible, the parties attend at mediation to attempt to resolve any dispute regarding major decisions.

[117] Each party shall forthwith notify the other in the event of an accident or serious illness of either of the children when the children are in that party’s care.

[118] Mr. Fisher shall sign all authorizations necessary to allow Ms. Fisher to obtain information directly from all collaterals involved with the children, including and not limited to, the children’s schools, doctors, dentist, counsellors, coaches, etc. Mr. Fisher shall ensure that all such authorizations remain current and up to date.

[119] Ms. Fisher shall be entitled to attend the children’s medical or dental appointments if she is able to do so, or meetings with the children’s teachers. Mr. Fisher shall keep Ms. Fisher advised in a timely manner of such appointments and meetings.

[120] Both Mr. Fisher and Ms. Fisher shall be entitled to attend any public events or school events in which the children are involved or any extracurricular events in which either of the children are involved, and each party shall keep the other informed of the date and time of such events in a timely manner.

[121] If either parent plans a vacation with the children, that parent will give the other a detailed itinerary at least 30 days before it begins, with full travel details including the destination, detailed itinerary setting out method of travel, travel dates and expected travel items, the name of any flight carrier and flight times, or licence plate of vehicle or other similar information, and information about accommodation, including address and telephone numbers, and details as to how to contact the children during the trip.

[122] Mr. Fisher shall not move the children’s residence away from Petawawa without the prior written consent of Ms. Fisher or the prior order of the court.

[123] Mr. Fisher shall forthwith give notice to Ms. Fisher if he is to be deployed or posted elsewhere. Depending on the nature and the terms of the deployment or posting, it may constitute a material change in circumstances. Mr. Fisher shall sign an authorization to allow Ms. Fisher to have access to his career manager with the military for the purpose of her discussing with Mr. Fisher’s career manager any deployments or postings in relation to Mr. Fisher.

[124] I would urge both parents and their partners, as well as both sets of grandparents to end the ongoing conflict between the two sides of these children’s family. The children want to love both their parents and to be encouraged and supported in that love by the other parent. It is in the best interest of these children that they have a strong and loving relationship with both their parents. The parties and the children may require some counselling to assist them in appreciating how important that is for the children now and in the future.

Spousal Support

[125] Ms. Fisher claims spousal support from Mr. Fisher if the children are residing with Mr. Fisher.

[126] The parties have agreed that if spousal support is ordered, without affecting any other terms with regard to termination of spousal support or review of spousal support, the spousal support shall be reviewable upon the following changes in circumstances which shall be deemed to be material changes in circumstances once either (or both) of the following occurs:

(1) Ms. Fisher’s civil litigation claim is resolved.

(2) Ms. Fisher commences cohabiting with Mr. Orrin Spearman or with someone else.

[127] Mr. Fisher’s position is that Ms. Fisher has not proven her claim for spousal support. He argues that Ms. Fisher gave minimal information regarding her financial circumstances and her budget. He submits that Ms. Fisher has not been disadvantaged by the marriage as she had no settled career plans prior to the marriage. If spousal support is awarded, Mr. Fisher argues that it should be based on his level of income at the date of separation in the sum of $48,518.63 in 2011 rather than his level of income at the date of trial in the sum of $60,158.00.

[128] Ms. Fisher’s position is that proof of her income has been provided and that it is clear that Ms. Fisher is in need of spousal support from Mr. Fisher if the children are residing with Mr. Fisher. She points to the great disparity between her income of $7,316.00 per year from CPP disability, and Mr. Fisher’s income of $60,158.00 per year.

[129] Ms. Fisher also takes the position that she is entitled to compensatory support as she was supportive of Mr. Fisher pursuing a career in the military and she took on the responsibility for providing for the full-time care of the children when Mr. Fisher was away for three months at basic training and away again for mechanics’ training in Borden, Ontario.

[130] I find that Ms. Fisher’s only income for 2013, not including child tax benefit is $7,316.00 as per her 2013 Tax Return Summary filed. I have not included any homestay income as Ms. Fisher does not have any homestay students with her and there is no guarantee she will have some with her in the future. I have also not included any income from the Trillium Foundation as it is my understanding that is to assist with medication expenses, which are a considerable monthly expense for Ms. Fisher. I find that Mr. Fisher’s income is $60,158.00, although that is an estimate by him as Mr. Fisher was on paternity leave for a period of time and has just returned to work.

[131] I find that Ms. Fisher has need for spousal support and that Mr. Fisher has some ability to pay spousal support, although that ability is affected by his responsibility to support the children of the marriage without any child support from Ms. Fisher. Mr. Fisher also has in his home a child from his relationship with Ms. Kristan Fisher to support.

[132] Prior to Ms. Fisher’s motor vehicle accident, Ms. Fisher was very involved during the marriage in looking after the children even while she was employed outside the home. When J. was an infant, she took him to work with her to her job as a nanny. During a number of years of marriage, she carried on two or three part time jobs at the same time, some of which were in the evenings so that she could provide some of the care for the children during the day.

[133] Ms. Fisher was very supportive of Mr. Fisher entering the military. She looked after the children on her own for the three months Mr. Fisher was in basic training in Quebec, and she brought the children to visit Mr. Fisher at least once during that time, plus at his graduation, as well as visiting Mr. Fisher on her own on occasion.

[134] When Mr. Fisher went to Borden, Ontario for mechanic’s training with the military, Ms. Fisher again cared for the children while he was away, and she brought the children to visit Mr. Fisher. In fact, it was on the way home from a visit with the children to see Mr. Fisher in Borden that Ms. Fisher had her motor vehicle accident which had such catastrophic and traumatic results for the whole family, and particularly for Ms. Fisher.

[135] I find that it is reasonable that Mr. Fisher’s current income be considered for the purpose of calculation of spousal support rather than his income at the date of separation. Mr. Fisher continues in the same employment with the Canadian Forces and has been able to increase his salary as a result of an automatic promotion. I find that Ms. Fisher was an integral part of the decision that Mr. Fisher would enter the military, and she supported and assisted Mr. Fisher in getting started in the military, which has led to his increase in annual income.

[136] Based on Ms. Fisher’s income of $7,382.00, and Mr. Fisher’s income of $60,168.00, and on reviewing the calculations of spousal support pursuant to the Spousal Support Advisory Guidelines provided to me by Counsel during submissions, I find that Mr. Fisher shall pay spousal support to Ms. Fisher in the sum of $480.00 per month commencing September 1, 2014 and on the 1st day of each and every month thereafter. On consent of the parties, this order for spousal support shall be reviewable upon a material change of circumstances, which material change in circumstances shall be deemed to include either or both of Ms. Fisher’s civil litigation claim being resolved, or Ms. Fisher cohabiting with Mr. Orrin Spearman or with someone else.

Child Support

[137] As the children will now be primarily residing with Mr. Fisher, he shall no longer be required to pay base monthly child support to Ms. Fisher effective August 31, 2014.

[138] As Ms. Fisher’s income is $7,316.00 per year, there would be no base monthly child support payable by Ms. Fisher to Mr. Fisher for the two children of the marriage.

[139] At this point, it seems very unlikely that Ms. Fisher, as a result of her motor vehicle accident, will be capable of working outside the home. However, there shall be an order that Ms. Fisher shall advise Mr. Fisher of any employment that she obtains within 15 days of her commencing such employment, including the name and address of her employer and the details of her salary and benefits.

[140] Ms. Fisher shall also forthwith advise Mr. Fisher of the details of any Judgment or settlement regarding her motor vehicle accident claim.

Section 7 Expenses

[141] As previously determined, Mr. Fisher’s gross annual income is $60,158.00 less deductible spousal support of $5,760.00 per year for a total of $54,398.00. Ms. Fisher’s annual income is $7,382.00 plus spousal support of $5,760.00 per year for a total of $13,142.00 per year. I find that Mr. Fisher and Ms. Fisher shall each be responsible for his and her proportionate share of the Section 7 special and extraordinary expenses of the children to which the parties have both agreed in writing prior to the expense being incurred, with such consent not to be unreasonably withheld. Based on the current incomes of the parties, Mr. Fisher shall be responsible for 80 percent of the Section 7 expenses and Ms. Fisher shall be responsible for 20 percent of the Section 7 expenses.

[142] The current RESP for the children shall be maintained without either party adding or removing funds, and these shall be the first funds used towards the child’s post-secondary expenses. Any future contributions by either of the parties shall be to separate RESP’s, and each party shall be entitled to contribute and obtain the benefit of half of the government grant to RESP’s each year, including the ability to carry it forward for future years.

Arrears of Child Support

[143] I accept the evidence and submissions of Mr. Fisher that based on his income for 2011, 2012, and 2013, and using Mr. Fisher’s gross income for 2013 for 2014 support, Mr. Fisher should have paid child support to Ms. Fisher for 2 children in the sum of $35,504.00 from February 1, 2011 to and including August 1, 2014. I find that Mr. Fisher did pay to Ms. Fisher the approximate sum of $35,547.15, although that sum may have included some money for soccer. In coming to that calculation, I gave credit to Mr. Fisher for payment of child support for the month of February, 2011 in the sum of $732.00. I did not give full credit to Mr. Fisher for the full amount of both of his pay cheques in February, 2011 as Mr. Fisher was continuing to live in the matrimonial home separate and apart under the same roof.

[144] As best as I can determine on the evidence before me, I find that Mr. Fisher does not owe any base monthly child support to Ms. Fisher, nor is any credit owed to Mr. Fisher regarding base monthly child support.

Arrears of Section 7 Expenses

[145] The parties have previously agreed that if there are any arrears of Section 7 expenses, they shall be divided proportionately between the parties with Mr. Fisher’s share to be 75 percent of such expenses, and Ms. Fisher’s share to be 25 percent. The issue between the parties to be determined by me at trial is which Section 7 expenses should be included.

[146] In 2011, Ms. Fisher had total daycare costs which she claimed in her 2011 income tax return in the sum of $6,554.00, being $5,794.00 to one daycare provider and $760.00 to another daycare provider. She claims 75 percent of those costs in the sum of $4,915.50.

[147] Mr. Fisher disputes the necessity of some of those daycare expenses and also argues that Ms. Fisher could have had the child in daycare at CFB Kingston for less cost per day. Mr. Fisher also claims that $678.00 of that daycare relates to January, 2011 which was prior to the separation. Mr. Fisher argues that he should pay $2,938.00 towards this daycare expense based on late proof of daycare expenses, tax benefits not disclosed, deduction of January daycare expense, and lack of proof of necessity of daycare expense.

[148] For the 2011 year, I find that Ms. Fisher did require childcare for A. because of the continuing challenges she was facing as a result of her motor vehicle accident. I also find that as acknowledged by Mr. Fisher, he signed the daycare contract for A., along with Ms. Fisher, but that Mr. Fisher never paid anything towards that daycare. Subtracting the January daycare cost of $$678.00, I find that Ms. Fisher incurred daycare cost in 2011 subsequent to the separation in the sum of $5,876.00. Because Ms. Fisher’s income was so low, I find that any tax benefit would be negligible.

[149] I find that for 2011, Mr. Fisher owes to Ms. Fisher 75 percent of $5,876.00 which is $4,407.00.

[150] In 2012, Ms. Fisher claimed total childcare costs of $3,432.00 on her income tax return. I find that Ms. Fisher did require some daycare for A. and that the costs are reasonable. Ms. Fisher claims $270.00 additional childcare expenses but those expenses were not claimed on her income tax return nor were any receipts provided. Accordingly I find that Ms. Fisher’s daycare costs for 2012 were $3,432.00. I reject Mr. Fisher’s submission that he should only pay $1,716.00. Based on the agreement that Mr. Fisher shall pay 75 percent of those costs, I find that Mr. Fisher owes Ms. Fisher the sum of $2,574.00 for 2012 childcare expenses.

[151] In 2013, Ms. Fisher claimed total childcare costs of $1,518.00. She also stated that she had neighbours and friends watch the children during that year for an additional $500.00. No receipts were provided for the $500.00 expense, nor was it claimed on her income tax return. I find that Ms. Fisher had childcare expense of $1,518.00 in 2012. I reject Mr. Fisher’s submission that he should only pay $759.00. Based on the agreement that Mr. Fisher shall pay 75 percent of those costs, I find that Mr. Fisher owes Ms. Fisher the sum of $1,138.50 for 2013 childcare expenses.

[152] I now turn to Ms. Fisher’s claim for Mr. Fisher to pay 75 percent of Section 7 activity expenses in the sum of $1040.55 for the years 2011 to 2013 as set out in Exhibit 85. Some of the expenses relate to day camps or overnight camps which were incurred by Ms. Fisher in lieu of daycare expense. Given J.’s older age during the years in question, I find it was reasonable for J. to go to camps as opposed to being in a home daycare.

[153] I find that the camp and activity expenses claimed by Ms. Fisher in Exhibit 85 in the sum of $1,040.55 are reasonable and that Mr. Fisher should pay 75 percent of that amount. Accordingly, I find that Mr. Fisher owes the sum of $780.41 to Ms. Fisher for those expenses.

[154] Ms. Fisher also claims 75 percent of the day camp expenses for the two children during the two weeks of trial in July, 2014. Ms. Fisher enrolled the children in an arts camp as she wanted the children to be busy during the trial. Ms. Fisher was able to negotiate a lower rate than usual for the camp and this rate included after-camp care if she was going to be later arriving to pick up the children than the close of camp. The cost of the camp for the two children was $1,100.00 for the two weeks.

[155] Mr. Fisher submits that there were less expensive camps available for the two week period. For instance he argues that the children could have gone to the Queen’s Sports Camp for two weeks for 750.00. There is a dispute between the parties as to whether that camp was available for one of the weeks for the younger child. It is my understanding that after- camp care would be an additional cost to the regular fees.

[156] I find that in these particular circumstances it was reasonable for Ms. Fisher to register the children in this art camp for the two week trial. As we sat beyond 4:30 p.m. on a number of days during that two week period, it was fortunate that after-care was provided at this camp, and it would have increased the cost of the Queen’s camp. Although this camp was more expensive than the Queen’s camp, the children had attended this camp before so they were familiar with it. Although Mr. Fisher offered that the children could have gone to camp in Petawawa at no cost to Ms. Fisher during the two week trial, in my view this would not have been reasonable as neither of their parents would have been there with the children during the week during each of the two weeks of trial. I find that Mr. Fisher shall be responsible for 75 percent of the cost of this camp in the sum of $825.00. In coming to that conclusion, I have also taken into account that Mr. Fisher has not had any other Section 7 expenses to pay in 2014.

[157] In summary, I find that Mr. Fisher owes to Ms. Fisher for daycare costs and Section 7 expenses to July 31, 2014, and the 2014 art camp expenses, the total sum of $9,724.91, which sum shall be credited to Ms. Fisher in the accounting between the parties.

Other Arrears

[158] The parties have agreed that Mr. Fisher should be responsible for payment of one half of the monthly minimum payment from the date of separation to August, 2014 on the line of credit on which Ms. Fisher’s father and mother borrowed to loan funds to the parties prior to the separation. The monthly minimum payment is $40.00 per month, with Mr. Fisher’s share being $20.00 per month. The evidence of Ms. Fisher’s mother was that Mr. Fisher did make the monthly minimum payment for a couple of months after separation. Accordingly, after giving credit for two months of payments, I accept Mr. Fisher’s calculations of 41 months times $20.00 per month for a total of $820.00 which I find Mr. Fisher owes to Ms. Fisher as his share of the monthly minimum payments from separation to August, 2014 inclusive to be take into account on the final accounting between the parties.

[159] Ms. Fisher has claimed from Mr. Fisher a loss of income from the Homestay program of $14,400.00 for the 2011/2012 school year (2 students x 9 months x $800.00 per month), the same loss of $14,400.00 for the 2012/2013 school year, and the same loss of $14,400.00 for the 2013/2014 school year. It is Ms. Fisher’s position that Mr. Fisher prevented her from participating in the Homestay program and that she has suffered a loss as a result of his behaviour.

[160] I find that there was no guarantee that Ms. Fisher would have had homestay students assigned to her for those years. Further, if she had, Ms. Fisher would have had additional expenses in her home for the utilities used by the students, as well as food and other expenses for the students. It is also likely that Ms. Fisher would have to declare the net income received for income tax purposes, which might have affected her income taxes and benefits. If Ms. Fisher wanted to have homestay students, she could have brought a motion to permit her to have homestay students, but she did not do so.

[161] On the evidence before me, Ms. Fisher’s claim for this alleged loss of income is dismissed.

Exchange of Annual Financial Information

[162] For so long as there is any spousal support or child support or Section 7 expenses payable by either party hereunder, each party shall provide to the other by May 1 in each year, commencing May 1, 2015, a complete copy of his and her income tax return including a copy of all schedules and attachments thereto and each party shall provide to the other a copy of his and her Notice of Assessment within 15 days of receipt thereof.

Life Insurance and Medical Coverage

[163] Ms. Fisher is seeking an order that each party maintain the sum of $100,000.00 life insurance on his and her life with the other party named as beneficiary thereto in trust for the two children of the marriage.

[164] Mr. Fisher shows on his Financial Statement that he has life insurance on his life in the sum of $300,000.00 with his parents as the beneficiary thereto in trust for his children.

[165] Ms. Fisher shows in her Financial Statement that she also has life insurance on her life in the sum of $300,000.00 with Mr. Fisher shown as the beneficiary thereto.

[166] I find it to be reasonable that Mr. Fisher shall maintain Ms. Fisher as irrevocable beneficiary in trust for the two children of the marriage to $100,000.00 of existing life insurance on his life for so long as the children are children of the marriage within the meaning of the Divorce Act.

[167] I find it to be reasonable that Ms. Fisher shall maintain Mr. Fisher as irrevocable beneficiary in trust for the two children of the marriage to $100,000.00 of existing insurance on her life for so long as the children are children of the marriage within the meaning of the Divorce Act.

[168] Each party shall provide proof of the irrevocable beneficiary designation to the other within 30 days of the date hereof.

[169] Each party shall upon the reasonable request of the other from time to time provide proof that the life insurance is in effect and in good standing, and of the beneficiary thereof.

[170] If either party dies without this life insurance coverage in effect as provided herein, the obligation to provide $100,000.00 to the surviving party in trust for the two children of the marriage shall be a first charge and binding on the deceased party’s estate.

[171] Mr. Fisher shall continue to provide whatever, medical, dental, drug and other health benefits coverage that he has through his employment for the benefit of the two children of the marriage for so long as Mr. Fisher has this coverage available to him through his employment.

Equalization of Net Family Property

[172] The parties agree that they cannot finalize the equalization of net family property as Ms. Fisher’s motor vehicle accident litigation has not been completed.

[173] The parties have requested, however, that I determine at trial one issue regarding equalization of net family property. This relates to a civil litigation advance in the principal sum of $6,500.00 plus interest at 24 percent which Ms. Fisher took in her name on December 2, 2010 just prior to the separation of the parties on February 10, 2011, and which loan was used by the parties to pay off family debts prior to the separation.

[174] It is Ms. Fisher’s position that she should be permitted to deduct from her net family property the whole principal of the debt as well as the interest to the date that the debt is paid off.

[175] It is Mr. Fisher’s position that Ms. Fisher is entitled to deduct the amount of the loan owing as at the date of separation, but should not be entitled to deduct any interest on that loan after the date of separation. Mr. Fisher argues that this loan is akin to one party having a credit card debt in his or her name at the date of separation which may have been used for family purposes and which may well have an interest rate of 24 percent or greater.

[176] In my view, there is no difference between how this loan should be treated from how any other type of loan in a party’s name or a credit card debt which either party might have at the date of separation would be treated. I find that Ms. Fisher shall be entitled to deduct the total amount of the loan owing at the date of separation including interest owing thereon to the date of separation as a deduction on her net family property statement, but that the interest payable after the date of separation is not deductible from Ms. Fisher’s net family property.

[177] The parties have been able to come to some agreement with respect to some values of assets and debts which will be used when the parties are in a position to complete the equalization of net family property. Some of those agreements have already been incorporated into consent orders, or have been made on consent on the record during the trial. However, for convenience sake, I will repeat these orders in the order to be made by me regarding these issues so that all of the orders and agreements will be contained in one order.

[178] On consent, Order to go that the issue of equalization of net family property shall be deferred for finalization until Ms. Fisher’s civil litigation claim arising from her motor vehicle accident has been finally resolved by judgment or settlement, and neither party shall be entitled to raise the issue of a limitation period with respect to the equalization of net family property.

[179] On consent, Final Order to go that the matrimonial home located at 21 Keates Place, Kingston, Ontario shall have a deemed fair market value at the date of separation of $232,500.00, being $116,250.00 on each party’s side of the ledger, less $3,250.00 to be deducted from each party’s value, representing 50 percent of notional costs of disposition.

[180] On consent, Final Order to go that the value of general household items and vehicles owned on the date of separation shall be deemed to $16,000.00 for Mr. Fisher and $4,000.00 for Ms. Fisher.

[181] On consent, Final Order to go that the matrimonial home located at 21 Keates Place, Kingston, Ontario shall be deemed to have a current value of $252,000.00, less the mortgage of $218,602.00, less $7,000.00 representing 50 percent of notional costs of disposition.

[182] On consent, Final Order to go: (a) that the ultimate net family property number for Mr. Fisher shall be $22,200.00 and (b) that the ultimate net family property number for Ms. Fisher shall be $-17,700.00, subject to it being determined at a later date whether Ms. Fisher’s civil litigation shall be factored into her NFP to bring it to a positive number or whether her NFP shall be $0.00 as per the terms of the Family Law Act.

[183] On consent, Final Order to go that the matrimonial home shall be transferred from the parties jointly to Ms. Fisher alone, based upon Ms. Fisher concurrently obtaining a full release of Mr. Fisher on the mortgage on the matrimonial home, as follows:

(a) Mr. Fisher shall transfer all his interest in the matrimonial home to Ms. Fisher and Mr. Fisher shall release any interest in it to Ms. Fisher, including as a matrimonial home;

(b) Ms. Fisher shall assume responsibility for the following debts, and shall indemnify Mr. Fisher with respect thereto (such steps to be finalized no later than August 31, 2014):

(1) Mortgage and any secured debt related to the matrimonial home – release to be obtained for Mr. Fisher, with Ms. Fisher to arrange for other co-debtor(s) or guarantor(s) to assist her as required, or to discharge the mortgage and obtain new financing, or to sell the home if required. Ms. Fisher shall cover any costs of taking such steps.

(2) Debt with the Brick.

(3) Visa.

(4) Any debt owed by the parties to Ms. Fisher’s parents, and Ms. Fisher shall obtain from them a release of Mr. Fisher from this debt.

(c) The transfer of the house shall be registered only at the time that the debts are ready to be resolved accordingly. (escrow closing)

(d) Ms. Fisher shall indemnify Mr. Fisher regarding all costs and liability relating to the home and she shall be responsible for all costs involved in transferring the home.

[184] On consent, Final Order to go that Mr. Fisher shall be credited with half of the current equity in the matrimonial home, and this shall be credited towards any retroactive amount/arrears/accounting. However, if there is any excess to Mr. Fisher’s credit, Ms. Fisher shall not be required to pay this to Mr. Fisher, and instead it shall be deferred until equalization is finalized.

[185] On consent, Final Order to go that the following amounts shall be credited to the parties:

(a) Accounting regarding the matrimonial home – for 23 months the sum of $475.00 per month shall be credited to Ms. Fisher.

(b) Mr. Fisher shall be credited $10,000.00 towards all financial issues by virtue of $7,500.00 payment by him made as per Order of January 30, 2014 and $2,500 net costs ordered January 30, 2014.

[186] On consent, Final Order to go that Ms. Fisher shall return to Mr. Fisher his family pictures of his family (not the pictures of the parties’ family unit).

[187] On consent, Final Order to go that any costs found owing from this trial shall first be set-off against the net amounts being credited or amounts payable for any retroactive amounts/arrears/accounting and for the current value of the matrimonial home.

[188] On consent, Final Order to go that for all of the aforesaid consent Orders made, there shall be no costs ordered, although the issue of costs on all matters determined by the Trial Judge shall remain open for argument.

Costs

[189] If the parties and the Office of the Children’s Lawyer are unable to resolve the issue of costs among themselves, and one or both parties, or the Office of the Children’s Lawyer wishes to make submissions regarding costs, the Applicant and the Respondent and the Office of the Children’s Lawyer may make written submissions regarding costs of no more than five typewritten pages each plus a copy of any Offers to Settle, and a Bill of Costs, with the Applicant to serve and file such submissions within 21 days of this date, the Respondent to serve and file such submissions within 14 days thereafter, and the Office of the Children’s Lawyer to serve and file such submissions, if any, within 10 days thereafter. Any reply shall be no more than two typewritten pages, to be filed within 10 days thereafter. If no submissions regarding costs are received within the aforesaid timelines, there shall be deemed to be no order as to costs.

Order

[190] Final Order to issue accordingly.

[191] If I have made a mathematical error in this Judgment, or if I have misinterpreted the terms of the consent which the parties filed on the record on the last day of trial during submissions, I shall remain seized of this matter for the purpose of correcting any mathematical errors or the terms of such consent.

Justice A.C. Trousdale

Released: August 25, 2014

COURT FILE NO.: 752/11

DATE: 20140825

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

James Andrew Fisher

Applicant

• and -

Hollie Anne Fisher

Respondent

REASONS FOR JUDGMENT

Trousdale J.

Released: August 25, 2014