NEWMARKET COURT FILE NO.: FC-11-038435-00

DATE: 20140918

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

C.R.

Applicant

– and –

P.R.

Respondent

Self-represented

Self-represented

HEARD: November 13, 14, 15, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29, 2013 and February 25, 26, 27 and 28, 2014

REASONS FOR JUDGMENT

DOUGLAS J.

BACKGROUND AND OVERVIEW

[1] This application was commenced in June, 2011.

[2] The parties were married on June 18, 1994. There are two children of the marriage, namely A. born […], 1998 and N. born […], 2003.

[3] The Applicant (hereinafter referred to as the “Mother” or “Wife”) is educated as a social worker and has held many positions within that field. The Respondent (hereinafter referred to as the “Father” or “Husband”) is a lawyer and Deputy Director at the Ministry of Community Safety and Correctional Services.

[4] The parties separated on March 31, 2006. It is the Father’s position that this is the operative date for equalization purposes. The Mother’s position is that after a period of separation the parties resumed cohabitation with the objective of reconciliation in September, 2010 until their ultimate separation on March 7, 2011.

[5] At the time of separation in March, 2006 the parties were joint owners of T[…], Markham (hereinafter “T[…]”). Thereafter the Father moved into and later purchased S[…], Markham (hereinafter “S[…]”) in his name alone.

[6] The main source of conflict between the parties is their disagreement regarding the Mother’s broken relationship with their son A. Most of the trial time was consumed addressing this singular issue to the point that it virtually overtook all other issues arising from the breakdown of the parties’ marriage. This is a great tragedy given the few realistic options available to the Court when determining care and control issues in relation to this 15 year old boy.

[7] There is no dispute between the parties that the boys are close and enjoy a strong bond.

[8] The parties represented themselves throughout the trial in this application; as a consequence the evidence was often confused, confusing, poorly organized and barely relevant, particularly in relation to the Mother. The Father had the advantage of his training as a lawyer and it was the Court’s objective to give the Mother considerable latitude in presenting her evidence in an effort to correct this imbalance. The Court is grateful for the input of Mr. George Van Hoogenhuize for the Office of the Children’s Lawyer (hereinafter “the OCL”) in articulating the views and preferences of the children.

[9] In this application the parties seek the following relief:

Mother

(i) an order for immediate and unobstructed access to A.;

(ii) an order removing A. from the Father’s care until “deprogramming” is completed;

(iii) an order that A. be psychiatrically treated;

(iv) sole custody of N.;

(v) ongoing OCL involvement for the children;

(vi) access to third party information about the children;

(vii) retroactive and ongoing child support;

(viii) retroactive and ongoing spousal support at “midlevel according to actual income”;

(ix) an order sealing “all my medical records and psycho-vocational assessment documents”;

(x) an order initializing the parties’ names in these proceedings “due to the impact on my employment prospects as a social worker”;

(xi) a restraining order against the Respondent Father restricting his contact with both the Applicant Mother and her former, current and future employers or work contacts;

(xii) an assessment under s. 30 of the Children’s Law Reform Act;

(xiii) an order determining that S[…] is a matrimonial home;

(xiv) an order prohibiting future contact between the children and Howard Hurwitz;

(xv) a divorce;

(xvi) lump sum spousal support as an alternative to periodic spousal support;

(xvii) proportionate sharing of s.7 expenses on the basis that the Father bears 90 percent and the Mother bears 10 percent;

(xviii) an order that all care and control exchanges happen at 6:00 p.m. “non-negotiable”;

(xix) an order that the Father return the Mother’s “case of pictures, videos and family memorabilia” which she organized and brought to the S[…] residence;

(xx) a finding that the date of separation was March 7, 2011;

(xxi) an order restricting email communications between the parties to one per month including updates limited to N.’s health, education and extra-curricular activities;

(xxii) an order that the Father submit to psychiatric assessment;

(xxiii) an order appointing a new Children’s Lawyer and clinical investigator;

(xxiv) costs.

Father

(xxv) Judgment of divorce;

(xxvi) a declaration that the date of separation is March 31, 2006;

(xxvii) sole custody of A. with no order as to access by the Mother;

(xxviii) sole custody of N. subject to week about care and control;

(xxix) parties to utilize Our Family Wizard Program for communication;

(xxx) a detailed holiday schedule regarding N. as set out expansively in his written submissions;

(xxxi) regarding spousal support, a finding that the Father has overpaid spousal support in the amount of $13,484.32 through 2012 and an order finding there is no ongoing obligation by the Father to pay spousal support;

(xxxii) regarding child support, the Mother should be imputed income at an appropriate income based on the deemed admissions per the Request to Admit. At a minimum, her income should be over $71,000 per annum. Child support should be set based on A. residing primarily with the Father and N. equally with the parties;

(xxxiii) regarding equalization, based upon a valuation date of March 31, 2006 the Father owes the Mother $23,004.93. The Mother further owes the Father $121,747.22 representing his interest in the jointly held matrimonial home valued as of January 2012 (even though the Father submits he is entitled to a valuation as of today);

(xxxiv) regarding special and extraordinary expenses, same should be shared based on the Father’s actual income and the Mother’s imputed income;

(xxxv) occupation rent based on market rental prices in accordance with the deemed admissions commencing March 31, 2006;

(xxxvi) a “sealing order” pursuant to s.137(2) of the Courts of Justice Act by way of anonymizing the names of all parties, including the children in the title of proceedings and the body of my Judgment (both parties agree on this issue);

(xxxvii) while required to pay child support the parties, when eligible, shall maintain the children as beneficiaries of medical, extended health and dental coverage through his or her employment for as long as it is available to him/her;

(xxxviii) the parties to maintain life insurance as security for child support;

(xxxix) costs.

PROCEDURAL HISTORY

December 5, 2011 Order

[10] On December 5, 2011 the court ordered, on consent, that the OCL be requested to become involved on behalf of the children.

December 12, 2011 Order

[11] On December 12, 2011 the Father was ordered to pay spousal support to the Mother on a without prejudice basis commencing January 1, 2012 in the amount of $1,661 per month ($1,800 less grossed up payments by the Father towards the house insurance and line of credit interest, totalling $139) based on his income of $188,271 and the Mother’s imputed income of $65,000.

[12] The court further ordered that the Mother would be allowed until June 31, 2012 to offer to purchase the Father’s interest in T[…] and if such offer was not accepted by February 14, 2012 the Father was free to bring a motion for sale of the property.

[13] The court further ordered the Mother pay 33 percent of the children’s s.7 expenses including $143 per month for child care.

March 15, 2012 Order

[14] On March 15, 2012 the court ordered, inter alia, as follows:

(i) disclosure by Mother of all medical documentation in support of her alleged inability or limited ability to work, valuations of her pension as at March 2006 and March 2011;

(ii) disclosure from Father of a pension valuation as of March 2011;

(iii) on consent, the parties shall jointly appoint a mutually approved counsellor to provide counselling services for the Mother and the child A. to be jointly held. The Father shall arrange for the child to be picked up and dropped off to the joint counselling sessions between the Mother and the child. The parties shall fix a pre-set weekly time, mutually agreeable to all parties for the joint counselling sessions.

May 16, 2012 Order

[15] On May 16, 2012 the parties consented to an order including the following terms:

1. The Respondent and his father P.D. shall transfer their interests in T[…] to the Applicant within 60 days of today’s date and the Respondent will receive the following payments for the transfer:

(a) A payment of $50,000 within 60 days of today’s date and at the same time as the transfer of the Respondent and his father’s interest to the Applicant; and

(b) A payment of $30,000 which shall be paid at the rate of $1,000 per month for 30 months, with the first payment commencing on the 30^th^ day of the month following the transfer of the property and on the 30^th^ day of each month thereafter.

2. The payment of $80,000 to the Respondent is without prejudice to the Respondent’s position that he is entitled to 50% of the equity in T[…] as at September 1, 2011 and his position that he is entitled to an additional payment for his interest.

3. Both parties’ claims in relation to T[…] shall remain as set out in their Application and Answer…and this agreement is without prejudice to both parties pursuing all such claims. Both parties claims in respect of T[…] shall remain until all property and equalization claims have been resolved including both parties claims for reimbursement for joint expenses they have paid and all credits they are seeking.

4. The Applicant shall pay the cost of the preparation and registration of the transfer of T[…].

5. The Applicant will use her best efforts to obtain a release of the Respondent’s and his father’s mortgage obligations from Royal Bank of Canada registered against T[…], which release shall be obtained prior to transfer. If she cannot obtain their release, the Applicant will refinance the home and discharge the current mortgage prior to the transfer. The Applicant will agree to pay the penalties, interest and costs resulting from this refinancing. If the Applicant cannot obtain financing, the Applicant will notify the Respondent and seek an extension for a further 30 days if necessary and provide proof thereof. If the Applicant still cannot obtain financing, the parties agree that T[…] will be listed for sale forthwith, and the Applicant will receive 50% of the net proceeds of sale, and the Respondent will receive $80,000 from the net proceeds of sale, with the balance of the 50% to be held in trust until agreement of the parties or court order. The property will be listed for sale within 30 days of the Applicant being declined for refinancing.

6. The Applicant and Respondent will co-operate to ensure that the property is transferred as a spousal rollover to ensure that there are no land transfer taxes incurred by either party.

7. The Respondent shall undertake to obtain his father’s consent for the transfer of the property or obtain a power or [sic] attorney authorizing him to sign off on the transfer of T[…]. The Respondent shall undertake to obtain his father’s release for all claims in relation to his 1/3^rd^ interest, except any claim he may have against both parties for the payment of the $20,000 for the purchase of the property.

8. Each party shall bear their own costs in relation to the motions brought on May 16, 2012. All other costs are reserved.

July 16, 2012 Order

[16] On July 16, 2012 the parties consented to the following order:

1. For the remainder of the summer 2012, the child N.R. born on […], 2003 shall alternate residences one week on one week off from Sunday at 7:00 p.m. to Sunday at 7:00 p.m., with a mid-week visit on Wednesday evening with the parent who he is not with that week, for two hours. Wednesday evening shall take place from 7:00 p.m. to 9:00 p.m. Non-resident parent shall do pick up and drop off. Pick up and drop off to take place on the curb. The parties shall not approach one another at time of transfer. N. shall spend his first full week with the Respondent father commencing on July 22, 2012, although for the first week N. shall be returned back to the Applicant on Friday July 27, 2012 at 6:00 p.m. Status quo parenting continues until July 22, 2012. After the summer schedule, regular parenting schedule shall resume as of August 26, 2012 at 6:00 p.m. This schedule is without prejudice to either party’s position at trial or future court proceedings.

2. N. shall contact the parent who he is not with at 6:30 p.m. every evening. The parties to encourage this.

3. The Respondent father undertakes to enroll N. in activities during his summer time with him, and shall advise the mother of the activities once registered. Activities may include vacation time provided an itinerary for the vacation outside of the Greater Toronto Area (GTA) is provided to the Applicant mother in advance, through the Applicant’s counsel. In the event of vacation time, the Wednesday weekly visit may be cancelled, but not the phone contact. If the Applicant intends to travel with N. outside the GTA she too shall provide notice and itinerary.

4. The parties shall retain Howard Hurwitz subject to his consent to engage in re-integration therapy for the child A.R. born […], 1998. Both parties are to participate in the therapy and have the children participate as Mr. Hurwitz directs. Costs to be shared equally subject to arguments at a later date about re-apportionment. Each party to pay their 50% share directly. (The father prefers that York region Counselling performs the therapy at little or no costs.) Parties to contact Mr. Hurwitz forthwith and fulfill all intake requirements.

5. Parties shall agree within 10 days as to the professional to conduct psycho-educational assessment for A.R. Absent consent as to procedure, cost allocation or professional either party may bring a motion on short notice on an urgent basis. Assessment shall be both psychological and educational.

6. Costs reserved.

August 17, 2012 Order

[17] On August 17, 2012 the court ordered as follows:

1. On consent, Mr. Brian Lazowski shall be retained by the parties to conduct a psycho-educational assessment for the child, A.R. born […], 1998.

2. Neither the applicant, C.R. and/or the respondent, P.R. shall speak to the assessor for more than 45 minutes, unless directed to do so by the assessor. The parties shall pay half the cost.

3. The applicant shall pay the respondent his partial costs in the amount of $500.00 payable within 30 days.

January 8, 2013 Order

[18] On January 8, 2013 the court ordered significantly as follows:

3. The Applicant shall indicate to the Respondent by March 15, 2013, whether she accepts the Net Family Property values as of the two dates of separation (March 6, 2011, and March 31, 2006). If she does not accept the values as set out in the Respondent’s Net Family Property Statements (as filed at the Settlement Conference), then the Applicant shall serve her Net Family Property Statement by March 15, 2013.

4. In default of serving two Net Family Property Statements by March 15, 2013, the Applicant shall be deemed to have accepted the values in the Respondent’s Net Family Property Statements.

THE EVIDENCE

Request to Admit

[19] In April, 2013 the Father served the Mother with a Request to Admit pursuant to Rule 22 of the Family Law Rules. Service was accomplished two ways: first, by way of courier and second by way of ordinary mail. The Mother denied having received the couriered copy despite the Affidavit of Service to the contrary; however she did acknowledge having received the other copy which was included in a book of documents the Father was intending to rely upon at trial. She indicated she had not looked at any of these documents even though received months before trial. I ruled that service had been accomplished.

[20] The Request to Admit was expansive in its content and, if acted upon in its entirety, the deemed admissions arising therefrom would support the Father’s position on all the issues.

[21] However, both the Father and the OCL requested that I only consider the deemed admissions relating to the financial issues, not those relating to custody, access and date of separation.

[22] Both parties are self-representing, although the Mother is at something of a disadvantage in that the Father is a lawyer with clear experience in court procedures.

[23] Having heard ample evidence already on the issues of custody and access (clearly the most important issues to the parties) I was loathe to disregard that evidence on those issues to the extent that it was contradicted by the deemed admissions.

[24] Notwithstanding the wording of Rule 22 I am satisfied that I have discretion to determine which deemed admissions to act upon, if any.

[25] I therefore ruled that only those provisions of the Request to Admit dealing with issues other than custody and access would be treated as deemed admissions, including paragraphs 208 through to the end of the Request to Admit.

Mother’s Evidence

[26] The Mother gave extensive testimony over 10 days, including cross examination and re-direct. She is a highly intelligent and articulate individual whose emotions were often close to the surface during her evidence. She often gave evidence through tears, and on occasion we had to interrupt proceedings due to uncontrollable sobbing. The Mother’s memory often failed her and she fairly conceded that her memory was not the best, particularly when dealing with especially upsetting issues such as her estrangement from A. and the events leading to that estrangement. She often found it difficult to answer questions directly, proceeding instead to circle around the issue, using the occasion to restate or expand upon her main themes in her dispute with the Father.

[27] The Mother is 42 years old. She holds a bachelor’s degree in sociology and a number of psychometric certifications.

[28] Following separation in March 2006 the parties eventually fell into a schedule for care of the children pursuant to which she had the care of both children each Monday and Tuesday, the Father had care each Wednesday and Thursday and they would alternate weekends. This was in effect for both boys until April 2011 and thereafter for N. only.

Communication issues

[29] The Mother indicated that she had either not received or not opened many emails from the Father. Many such emails were put to her in cross-examination. They almost invariably focused on child-related issues. She found them to be “set-ups” and efforts at “documentation” or “case-making”. She felt overwhelmed by the volume she received and so fell into the habit of not opening them. She also had “technology issues” and found that her email was often “disappearing”. She had no evidence that the Father was responsible for this.

[30] The Mother refused to use Our Family Wizard as a tool of communication and organization regarding the children because “it is a form of [the Father’s] tactics” and an opportunity for the Father to “harass” the Mother. She refused to use a parenting coordinator due to concerns regarding the Father influencing the coordinator. She has recently changed her phone number without advising the Father. She has limited communication with the Father because it has “severely affected [her] health” and caused her “anxiety”. She agreed it was logistically difficult for the Father to communicate with her. She proposed that communication be facilitated through exchange of a “log book” in which the parties could write notes back and forth to one another.

Mother’s Relationship with A.

[31] The Mother described in detail her relationship with A. from pregnancy to present. Up to March 2006 she was A.’s primary caregiver as the Father was busy with his employment, although he was a loving and attentive father when at home. Her relationship with A. was “beautiful” and she spoke in glowing terms of her time with him. The children were also always happy to see the Father when he was not at work.

[32] During the period from March to April 2011 the Mother noted that A.’s behaviour was becoming increasingly problematic upon returning from time with the Father. He required a day to “reset” and until he did he was less polite and respectful with her than usual. She attributed this to the influences at the Father’s home. A. would insist on doing things that were inconsistent with house rules. He did not want to spend time with her family or eat Guyanese food. At one point he said to her: “If you don’t let me stay up Dad and I are going to use legal tactics on you.” His aggression toward her escalated. She became frustrated and occasionally used profanity in his presence.

[33] At the same time she became aware that the Father was contacting A. more frequently, including at school. He told her, “I don’t have to listen to you.”

[34] There were two particularly significant events in the Mother’s relationship with A. on which much evidence focused during the trial. The first of these was in April 2011. On April 10, 2011 he told her: “I want to live at Dad’s fun house” and demanded: “Show me your bank accounts.” She felt intimidated by his behaviour. She decided to let him stay up and put N. to bed. She was in bed with N. who was asleep. A. came in and deliberately awakened N.. She became upset and told him to go to bed. He refused, acting as though he was in charge. She pulled him by his arms off her bed to take him to his room and in doing so it is possible that her fingernail cut his arm mildly. A. fought back and “punched” her in the stomach. She responded by pulling his hair back to pull him away from her. A. demanded to speak with his father. She was uncertain whether A. did contact his father. A. eventually went to bed. This incident resulted in a Children’s Aid Society (hereinafter “the CAS”) and police investigation, apparently initiated by the daycare worker. According to the Mother this is where “the nightmare of non-stop allegations began.” No charges were laid. The CAS worker told her she had used appropriate force in correcting A. apart from the hair-pulling.

[35] In July of 2011 there was the second major event in the Mother’s relationship with A. A. was visiting at the home of the Mother’s father, Mr. S.. A. was showing disdain for Mr. S. who corrected A. verbally in a difficult exchange between grandfather and grandson. When later driving home the Mother asked A. to call her father and apologize to him. A. “completely lost it” and grabbed her right hand and “it started to bleed”. She said: “You and your dad need to apologize to me and my dad.” A. then said: “If you make me call I’ll stab you in your sleep tonight.” The Mother was controlled in her response, reminding herself that A.’s “mindset was coming from somewhere else.” She pulled over to let A. out of the car so he could walk the rest of the way to his father’s house. She called the Father to suggest that A. stay with him that night, but he was at work. She decided to have a police officer speak with A. about his behaviour as they right near the police station anyway. She pulled into the parking lot with A. in the car. She went inside alone and explained the situation to an officer. The officer then decided to remove A. from the car, taking him by the arm, and directing him inside the station to an interview room. The Mother was “extremely traumatized for A.” as he perceived it as being put in jail. She could hear him crying inside the room. The police sergeant got involved and indicated to her that A. could be charged with assault and utter threat. They kept him in the room for about 90 minutes and then let him out. A. apologized to the Mother. The police encouraged him to obey his parents. The Mother and A. hugged and kissed and had a “very healing interaction.” They went home and “debriefed” during which she reinforced that A. had not been charged. In cross-examination she conceded this event was traumatizing to A. and that as a parent she could have taken him out of the station at any time, although she did not because she “bent to the authority of the police”. She also noted that A. was not left alone in the interview room as there were occasionally police officers with him.

[36] N. too was with the Mother during this incident.

[37] She dropped off both children to the Father the following day. A. has not been in her home since.

[38] Within 10 minutes of A. arriving at the Father’s house “a barrage of text messages started, alleging that A. was traumatized, etc.”

[39] She tried to pick up A. at school but he would run away from her, accusing her of trying to “abduct” him. She tried picking him up with her mother and this resulted in further condemnatory messages from the Father. She took him to a restaurant and he asked if she had put “poison” in his food.

[40] In the summer of 2012 A. injured his arm at school and when the Mother arrived A. did not want her in the ambulance with him. He kept saying he wanted to speak with his father. She followed the ambulance to the hospital where he continued to reject her efforts to comfort him, but eventually he softened his demeanour toward her, at least until the Father arrived. Then he seemed afraid to be nice to her in the Father’s presence.

[41] Over the course of the last two years she has sent A. “almost daily love messages” but she usually receives no reply.

[42] She indicated that she was contacted by A.’s school to express concern about his attendance and performance. While not under her care A. had missed 30 days of school.

[43] She described an incident where the Father took A. for an “unnecessary” stomach endoscopy and other physical procedures “to find a reason for him not to be in my care.” After consulting her doctor she was satisfied that the procedure was not risky and it would eliminate other possible causes for A.’s stomach problems.

[44] In September or October 2011 A. called her from the Father’s home. The Father had left for work and A. was vomiting. She went to the police to ask them what to do as she was fearful of allegations from the Father if she acted unilaterally. They recommended that she pick up A. and care for him until the Father was available to do so and to advise him what was happening. She did this, stopping at the police station with A. on the way to her house to confirm what she was doing in order to avoid allegations. Upon arrival at her home she “cuddled and had sweet, tender exchanges with him, stroked his hair and told him how much [she] missed him.” She took him back to the Father later that day and then “the paper trail from Father’s lawyer started again, alleging A. had been traumatized again.”

[45] In early November 2013, just prior to commencement of this trial, the Mother had a chance encounter with A. at the mall. She described how upset she felt as she saw someone she thought was A. but could not be certain as it had been so long since she had last seen him. It was in fact A. and when he saw her he grabbed his phone and, she assumed, “ran off to call his father.”

[46] Very recently A. initiated contact with the Mother by calling her but she ended the conversation after a brief exchange because she believed it to be part of the Father’s effort to “document” the fact that the call had happened. In cross-examination she indicated that she “understood that [A.] had been put up to it for documenting purposes so [she] told him goodbye and hung up to protect him.” And further: “my child is being used as an instrument…best to have no contact.” She conceded that A. said he wanted to see her and he had proposed meeting with her with his father present. She had called him the day prior and he’d hung up on her. She felt it was another attempt by the Father to “set her up”. She believes A. is “severely alienated” and that he sees “his job is to execute [the Father’s] agenda.”

[47] It is the Mother’s firmly held belief that A. is “suffering from parental alienation syndrome.” As an example she noted that when reintegration therapy with Mr. Hurwitz was to begin the Father “put A. on a plane to Winnipeg without [her] consent.”

[48] Mr. Hurwitz made a recommendation that the Mother “undergo assessment.” She did so with Dr. Goldstein, having attended 5 sessions with him since March 2013. She feels that Mr. Hurwitz’s recommendations are “unresponsive” to her concerns. She noted that the final report was prepared at the Father’s request.

[49] She acknowledged in cross-examination that the Father had recently proposed meetings between A. and his maternal grandparents and that those meetings had taken place and that they were positive.

[50] When confronted in cross-examination with the challenge of co-parenting with the Mother when she is refusing to open the Father’s email, she suggested another solution was for A. to be alone with her with the Father “on the moon where A. knows [the Father] cannot influence his contact with [her]…then A. would be able to reset.”

[51] She proposed that A. needed formal “deprogramming” during which he would have limited contact with the Father.

[52] In cross-examination she conceded that she would meet with A. with someone else present if that was necessary for her to have contact with him.

[53] She confirmed that A. enjoys playing the guitar and that the Father had usually been responsible for taking him to his lessons.

[54] In cross-examination the Mother revealed that on September 30, 2013 A. had emailed her three of his own personal music compositions. She acknowledged having received the emails and listening to the songs. She indicated she was not able to communicate with him “due to technology problems” and because she believed that his “sudden interest in communicating” was evidence that “he is being used” and his actions may be a part of the Father’s “case-making.”

[55] The Mother would often use her “speaker-phone” when the boys spoke on the phone with the Father. She indicated the phone was typically in speaker mode but she was also concerned about the nature of communications between the Father and the boys. She acknowledged this was not “best practices.”

[56] The Mother was adamant that “co-parenting” would not work.

[57] In August of 2011 the Mother took A.’s cell phone and refused to return it. She believed the phone was given to A. by the Father as “a method to communicate with and influence him.”

[58] The Mother viewed the Father’s efforts to encourage A. to have contact with her as a “set-up”. Offers by the Father to arrange contact were also characterized as “set-ups”. In December 2012 the Father attempted to arrange Christmas access between the Mother and A. but she did not accept his proposals as she viewed them as being “for documentation”; instead she had no contact, while acknowledging that contact would have been “positive” for A.

[59] In mid-2012 the Father proposed joint counseling for the Mother and A.. She rejected this proposal as another “set-up”.

[60] On March 15, 2012 the parties consented to an order that required the parties to “jointly appoint a mutually approved counsellor to provide counselling services for the Applicant and A.…” She did not participate in counseling as agreed and ordered. She could not recall why.

[61] In July 2012 the Father brought an urgent motion to define the summer care schedule for the children. It was resolved on consent and the resulting order included a clause that required the parties to jointly retain Howard Hurwitz to conduct reintegration therapy between the Mother and A. Once the process got underway the Mother became concerned that A. appeared “coached” in his comments. She felt he was fiercely loyal to the Father and came with an “agenda”. The Mother disagreed with many of the factual observations contained in Mr. Hurwitz’s report.

[62] Also in 2012 the Mother recalled that A. had asked for the return of his stuffed animals which remained in her possession. She did not return the toys because “it was not possible” and because she “never accepted that A. doesn’t live with [her].”

[63] The Mother preferred to communicate with the Father by way of communication book because it is “not as immediate.” She felt that rules regarding the frequency and length of email from the Father would be of assistance in making email communication less concerning to her.

[64] The Mother maintained that the police station event with A. was “healing for him in the manner the police spoke with him.” She conceded that the event was “frightening” to A. and that he was “terrified”, that he thought he was “under arrest.” She was aware A. was not under arrest but she did not understand that she could interrupt the police process. She conceded it was a mistake not to ask the police about their plans before they took A. inside the station. She indicated that A. had received numerous apologies from her.

[65] The Mother conceded that she eventually just stopped reading the Father’s email because she “stopped being able to process the stories.” She felt that “things get documented in a way that sounds perfect but the written words are not consistent with reality.” At present she sees all of the Father’s communications as “part of a scheme.”

[66] The Mother, when asked by counsel for the OCL about whether she would “cooperate” with a joint custody order, indicated she would “do [her] best to comply but it is not feasible with what is going on.” When asked if she would cooperate with a Parenting Coordinator were the court to order such involvement she avoided answering directly and stated: “I would have significant concerns with a Parenting Coordinator given what has happened with third parties over the years.” Accordingly she was “strongly opposed” to a parenting coordinator. On the subject of Our Family Wizard she indicated she would cooperate “but it will not work for our family,” and “this tool will drive me insane” because there is no way to capture the anxiety such a tool would induce in her.

Mother’s Relationship with N.

[67] The Mother described N. as “the overlooked person in this case”. He was a “bubbly” baby. Now he is “very confused”. He likes to please and “tends to go along with things.” He gets anxious at care transfers: “We have to be ready or Daddy will call the police.” N. functions well with routine. He does not like sudden changes. He plays the tavla and piano. He is doing well academically although he struggles a little with self-regulation. He is smart and caring.

[68] When with N. her “entire orbit is pure joy and so light and interactive and lovely and playful and affectionate and adventurous and fun.” She described their routine together including having a “beautiful breakfast”, cuddling, practising tavla, going to tavla class, exposure to south Asian culture, hiking, taking in artwork and to basketball with the Silver Knights recreational team.

[69] She described how she often experiences “panic attacks” when delivering N. to the Father’s care because “[she’s] afraid [she] may not see him again.” She has to structure her day so she can cope. She will pull over in her car or do deep-breathing exercises, meditate or play loud music to help the panic to pass.

[70] N. plays the piano. His lessons are typically on Thursdays and as Thursdays are usually the Father’s schedule it is the Father who usually takes N. to his lessons.

[71] The Mother arranged sitar lessons for N.

[72] The Mother would occasionally pick up N. from daycare on the Father’s scheduled day without prior consultation with the Father. She did so because she “chose to pick him up from strangers because it was way better for N. to be with his mother.” She acknowledged receipt of emails from the Father in which he asks that she not pick up N. on his days. This was the same daycare facility that the Mother used to care for N. as required. She felt she should be entitled to the first right of refusal to care for N. but this should not also extend to the Father.

[73] N. loves basketball and he is an excellent player. He plays on the Silver Knights team which is better than the school team because it is not as competitive. He was feeling pressure from the Father to play on the rep basketball team. N. did express desire to play rep basketball, but this was not his own view.

[74] N. has also been involved in Tae Kwon Do, piano and swimming lessons.

[75] Currently the parties share care of N. on a week-about basis. During the Father’s weeks the Mother has a visit with N. on the Tuesday and during the Mother’s weeks the Father has a visit with N. on the Wednesday (and Thursdays would work for her too).

Mother’s Employment History and Financial Circumstances

[76] The Mother’s employment history includes several positions in the social service field. For example she has worked for:

(i) the J.1[…] as a Caring Village Project Facilitator (from 1995 to 1996),

(ii) the E[…] (a 3 month research contract),

(iii) the W[…] (1 year contract as an intake worker),

(iv) C[…] (3 months as a job search facilitator for immigrants),

(v) Y.1[…] attached to the T[…] (1 year as a J.2[…] case manager),

(vi) Y.2[…] as a full-time family service worker in approximately 2000 to 2001.

(vii) J.2[…] as a case manager from 2001 to 2002

(viii) T[…] (hereinafter “the TDSB”) (starting 2003 as an employment counsellor until, following a leave of absence, she resigned in December, 2011 as a term of resolution of a grievance she brought against the TDSB).

(ix) C.1[…] as a full-time individual and group counselor from 2005 to 2011

[77] Her employment was interrupted for two years after A.’s birth and also for the period 2003 to 2005 following N.’s birth.

[78] When the parties separated in March of 2011 she was still on leave from the TDSB. The arbitration was postponed from February 2011 to December 2011 for medical reasons. When she agreed to the terms of resolution of the grievance her “state of mind was not conducive to making the best decision.”

[79] After she left the TDSB in December 2011 she immediately started looking for alternate employment. She contacted S[…] College and started teaching on a per semester basis in January 2012, earning approximately $40 per hour. Her student evaluations were very positive.

[80] Her teaching income was nominal, being paid for about 3 hours per week, or $1600 to $1700 per term to teach one class.

[81] She testified her involvement with the “child welfare system” put her at a disadvantage in trying to secure employment with social service agencies. She did not provide particulars of this disadvantage.

[82] A Vocational Assessment (completed March 2013) regarding the Mother’s employability was received in evidence. The report confirms viable employment options for her would include social worker and employment counselor. The salary range for these positions is $35,381 to $39,544. Other options were identified (including licenced practical nurse and operating room technician, with salary expectation of approximately $31,218) but pursuit of these options would require further education.

[83] She testified that her troubles with her memory have made it difficult to find employment. Again, she did not provide particulars, although the Vocational Assessment did objectively confirm this observation.

[84] In September 2012 she took a 3 month contract with Centennial College teaching in the Social Service worker but this was interrupted by jury duty and she has not been offered any further opportunities in this regard.

[85] In July 2013 she secured a position as a job search facilitator with Polycultural Immigrant and Community Services; unfortunately she was terminated before her probationary period was complete. She testified she discussed with this employer the need for some accommodation of her circumstances and had provided a letter from her doctor in this regard. She sent an email to her employer in this regard and shortly thereafter her employment was terminated.

[86] She tendered copies of her Income Tax Returns and Notices of Assessment confirming income as follows:

1. 2006 $59800

2. 2007 $59994

3. 2008 $65548

4. 2009 $27278

5. 2010 $20656

6. 2011 $23108 (mostly from RRSPs)

[87] On November 23, 2013 she had a job interview with the Canadian Mental Health Association as a Youth Wellness Educator.

[88] She indicated: “We are living at the poverty line.”

[89] She contacted the Ontario Disability Support Program and applied for a position there.

[90] In 2008 she started a private business, in effect a spiritual retreat for the South Asian community. She found it too draining and it was not profitable. She felt it might be an option “in the future.”

[91] She did not seek employment insurance benefits because she did not expect to be off work long enough. She did not believe she would have qualified for long-term disability benefits.

Date of Separation

[92] The Mother testified that while the parties separated initially on March 31, 2006 they regularly vacationed together as a family and attended extended family events. Ultimately the parties resumed cohabitation at S[…] in early September of 2010 following a trip together to Lake Placid, New York and cohabited there until their final date of separation on March 7, 2011.

[93] For the period 2006 to 2010 she was represented by counsel in the context of negotiations addressing issues arising from the breakdown of the parties’ marriage.

Mother’s Pension

[94] Despite the order of March 15, 2012 the Mother has not secured a valuation of her pension.

Section 7 Expenses

[95] The Mother indicated she is content that N.’s Silver Knights activity continue.

Concerns re Applicant’s evidence

[96] There are many reasons to receive the Mother’s evidence with caution. My assessment of her presentation while testifying is that she was endeavouring for the most part to communicate how she actually and honestly perceived matters; unfortunately her perceptions often varied from what the preponderance of evidence would actually support; for example:

1. She would often advance serious allegations about the Father’s conduct and, when challenged, fail to produce any factual basis for her belief in the allegations. This problem occurred in relation to her allegations that:

(i) the Father has a gambling addiction;

(ii) the Father was “setting up” the Mother through his actions and particularly his email communications;

(iii) the Father was “documenting” and “case-making” with his overwhelming barrage of emails pertaining to the children;

(iv) the Father was “coaching” the boys and particularly A. to behave poorly toward the Mother or speak disrespectfully toward her;

(v) the Father was actively “alienating” A. from the Mother;

(vi) A. has frequently gone hungry or been left unsupervised by the Father;

(vii) the Father had actively prevented contact between A. and the Mother’s parents;

(viii) the Father had left her no money at separation (in cross-examination she conceded she had withdrawn about $13,000 from the parties’ joint account);

(ix) the Father was interfering in the Mother’s efforts to pursue counseling with A.; and,

(x) the Father was “hacking” the Mother’s emails, an allegation she repeated to the OCL.

[97] The Mother would often stray from directly answering questions clearly put to her in order to emphasize these and other allegations against the Father. She occasionally answered fair questions with the words: “No comment”.

[98] The Mother frequently referred to her memory problems in giving her evidence. She occasionally described her memory as “blanked out”, particularly in reference to areas which she apparently found upsetting to recall.

[99] The Mother occasionally responded to appropriate questions with sarcasm.

[100] The Mother accused not only the Father but also counsel for the OCL of ”case-making”, which occurs in her view when a party communicates with her with a view to “documenting” or bolstering the other party’s position on an issue in dispute.

Expert Evidence of Howard Hurwitz

[101] Over the objection of the Mother Mr. Howard Hurwitz, MSW, was qualified as an expert to express opinions in 3 defined areas:

1. High conflict family disputes

2. Parent/child contact problems

3. Alienation

[102] Mr. Hurwitz became involved initially at the request of the Mother to assist in her relationship with A.

[103] By consent order dated March 15, 2012 the parties were to “jointly appoint a mutually approved counselor to provide counseling services for the Mother and A. to be jointly held.” The Father was to be responsible for delivering A. to these sessions which were to be weekly in frequency.

[104] The parties executed a retainer agreement and agreed to be equally responsible for his fees.

[105] The Mother wanted Mr. Hurwitz to also assess for alienation. He indicated he was not prepared to do that as it presumed alienation was the reason for the absence of contact between the Mother and A. Ultimately both parties agreed to the terms of his retainer in the form of a Therapeutic Reunification Agreement. His role according to this agreement was to “restore and/or facilitate contact between A. and his mother…”

[106] Mr. Hurwitz described the process he undertook to meet the requirements of his retainer. He interviewed both parties and A., both individually and together. At each interview he found the parents wanted to work toward repairing the Mother’s relationship with A. The Mother was very clear in her concern about the Father’s efforts to thwart the Mother’s relationship with A. The Father on the other hand was adamant that this was not happening. A. had his own perspective as well. It was clear to Mr. Hurwitz that clinical work needed to be done. He agreed to become involved.

[107] There was a delay in moving forward due to the interruption of a trip to Winnipeg for A. This was a source of tension between the parties.

[108] During his initial meeting with A., Mr. Hurwitz noted:

1. The Mother was always blaming the Father;

2. A. was an independent thinker who wanted his own voice;

3. The Mother had embarrassed A. with members of her family; and

4. A. did not feel safe with the Mother.

[109] During his joint meetings with the Mother and A. he noted:

1. A. had difficulty expressing his perspective;

2. A. was uncomfortable, his body stiffened;

3. The Mother was trying to be nurturing, warm and caring with him but A. cowered. He was very anxious in her presence;

4. There was no contact happening initially, including phone contact;

5. A. said he did not feel comfortable with phone contact but Mr. Hurwitz indicated to A. and the Mother that he felt it was important;

6. An agreement was developed that some phone contact would happen as part of a process by which A. would re-engage with his mother;

7. The second joint session commenced similarly to the first, with the Mother demonstrating love and caring toward A. but with A. refusing to reciprocate. He was not willing to engage with her;

8. There was discussion of arranging phone contact several times a week;

9. At the next session about three weeks later the Mother reported she’d had only one phone call with A., but she’d been sending him positive text messages;

10. A. described some of the Mother’s concerning behaviours including hitting him. He wanted the Mother to apologize and accept responsibility for her actions;

11. The Mother either denied or minimized the behaviour attributed to her by A., resulting in A. feeling as though she was calling him a liar. Honesty was very important to A. Mr. Hurwitz did not feel A. was being unreasonable or exaggerating;

12. The Mother denied hitting A. She blamed the Father for coaching and indoctrinating A.;

13. A. seemed traumatized by the police station incident. He did not understand why it had to happen. He understood that he had misbehaved in the car but he could not understand why the police were necessary. A. indicated he was in a police cell for 3 hours. He was isolated. He was eventually allowed to leave;

14. A. wanted some acceptance by his mother that this event had caused him pain and that the punishment did not fit the crime. At one point the Mother gave him that validation, saying: “I regret that it happened and that you’re upset about it.” She did not apologize. A. listened but he was not in a forgiving frame of mind;

15. The session ended with a plan for three phone contacts per week but A. was fearful of negative things being addressed;

16. Mr. Hurwitz informed the Father of the plan for phone contact and he was supportive;

17. During the next joint session it was revealed that only one phone call had taken place between A. and the Mother. She had been earnest in trying to discuss positive, neutral things but A. had too much distrust. He wanted her to acknowledge having “beaten” him. She told A. his memory was inaccurate. A. withdrew and became stiff in his body. She was characterizing A. as a liar;

18. A. became rude to the Mother and then she said: “I don’t think things will change so long as you’re living with your father.” She was in essence accusing him of being under his father’s control. Mr. Hurwitz spoke privately with A. who expressed fear about speaking on the phone with the Mother because she would blame the Father;

19. The Mother felt the session was not helpful and again requested an assessment of the issue of alienation. Mr. Hurwitz told her he felt this was a case of “realistic estrangement”;

20. The Father was content that the sessions continue;

21. At the next session the Mother reported that things had not gone well. There had only been one phone call. It was Thanksgiving and she put A. on speaker phone so her family could communicate with him. She felt the sessions were not working and she again blamed the Father. She noted that N. was mimicking A.’s behaviour and she wanted Mr. Hurwitz’s mandate to broaden to include N.;

22. The Father told A. that he wanted him to be more forthcoming with the Mother on the phone;

23. At the session on October 17, 2012 he met first with the Mother who advised things had not gone well regarding phone contact. One call did not happen and she was late for the other. She described A. as “rude and abrupt.” This was when she put him on speaker phone so he could interact with her family at Thanksgiving. A. indicated to Mr. Hurwitz that he was troubled by the speaker phone as he was uncomfortable speaking to a large group of people with them asking him questions;

24. The Mother talked about her concerns that N. was showing similar behaviour to A. She wanted him to be included in the process;

25. Mr. Hurwitz asked the Father to consider a joint session with the Mother, and the Father was “reluctant”;

26. During the session on November 7, 2012 the Mother expressed concerns regarding A. traveling without her consent and N.’s deteriorating behaviour. She felt A. was “alienated” and she wanted a therapist for him. She wanted a “closure meeting” with A. to let him know she would not be forcing her contact upon him. Mr. Hurwitz felt there was some merit to this idea;

27. During the November 24, 2012 session he met with the Mother and A. A. mentioned the speaker-phone incident. He was adamant that he would not speak with her on speaker-phone. He felt she was “accusatory” toward him. The Mother attempted to hug A. but he “cowered” when she did so. She did not want to talk about the speaker-phone. She said she did not want to discuss negative things about the Father in A.’s presence but she then proceeded to do so, alleging that the Father was influencing A. against her. A. said he did not trust her. She accused him of “not thinking independently.” A. said that not only was the Father not preventing contact, in fact he was encouraging it. The meeting became more combative;

[110] Mr. Hurwitz spoke with the Father regarding phone contact. The Father explained A.’s perspective to Mr. Hurwitz but provided no resistance to the contact. There was nothing inappropriate with the Father’s position regarding phone contact.

[111] When the Mother asked A. about his life he “rolled his eyes” and she challenged him about being disrespectful. She began crying and became quite emotional. A. asked her not to come to his school. The session ended with a plan for a phone call the following week.

[112] Mr. Hurwitz advised both parents that he did not feel the sessions should continue as the sessions were not helpful.

[113] Mr. Hurwitz advised the Mother that it was not helpful for her to be critical of the Father to A., but she could not help herself. As she did so A. became more critical and questioning of her, more aggressive and angry. A. was feeling disrespected and unsafe and was “lashing out” at the Mother.

[114] On November 28, 2012 Mr. Hurwitz spoke with the Father and expressed the view the sessions should end. He spoke with A. who indicated he did not like when the Mother gets upset, accuses him of lying and interrogates him. He wanted the Mother to take responsibility for her actions. Mr. Hurwitz felt A. was “very expressive, able to formulate his own views and opinions.” His positions and reasons for his positions were congruent. He was not irrational or unreasonable.

[115] A. wanted some acknowledgment from the Mother that she had hit him. She was almost mocking in response and dismissed that it had happened in any way. This tended to distance A. even more because he felt she was not being honest. Mr. Hurwitz told her A. needed some validation and that this was critical in establishing a relationship going forward. She did offer some validation regarding the police station incident but would not acknowledge A.’s perspective on the earlier incident in July.

[116] During the sessions there were one or two incidents of A. being disrespectful of the Mother, but overall he was appropriate with her.

[117] Mr. Hurwitz’s impression was that the Mother was projecting her anger with the Father onto A.

[118] There was no evidence that the Father was undermining the mother/son relationship. A. was not using very adult words.

[119] This was not a case of alienation but rather of realistic estrangement, where a child has a justifiable reason for the interruption in contact, there is no coaching and the child is thinking independently of the preferred parent.

[120] Mr. Hurwitz made the following observations and recommendations:

(a) Continued sessions between A. and the Mother to discontinue. Future consideration should be given to restarting the sessions if the Mother is willing to accept responsibility for some of the concerns raised by A. without criticism of A. or the Father during sessions.

(b) Supportive counselling for A. (subject to his consent) to assist him in understanding the disruption in his relationship with the Mother.

(c) The Mother to obtain a psychological or psychiatric assessment to determine if there are current mental health issues that require treatment that are affecting her relationship with A.

(d) The Father to obtain supportive counselling on an as-needed basis, to assist him with his frustration in trying to co-parent with the Mother.

(e) Both parents to consider a Parenting Coordinator to assist them with problem-solving, making parenting decisions and insulating the children from parental conflict.

[121] A. needs assistance in resolving and understanding his relationship with his mother. He wants to be respectful of both parents. Mr. Hurwitz felt he was not the only person who could do this. The therapist needs the trust of both parents. Further joint sessions would not be productive so long as the Mother steadfastly maintains her position regarding alienation.

[122] Mr. Hurwitz saw many examples of the Mother struggling emotionally. She was having difficulty eating and sleeping. She had no capacity to consider other perspectives on the reasons for her estrangement from A.

[123] A parenting coordinator might be of assistance but usually the cooperation of the parties is required.

[124] A. is of an age where he needs to be a part of establishing what is right for him now.

[125] For therapeutic intervention to work both parents must be committed to the process.

[126] It would be useful for the Mother to pursue individual therapy to assist her in accepting the possibility of realistic estrangement.

[127] The longer a child goes without contact the more difficult it is to repatriate the relationship.

[128] The delay in commencing the sessions occasioned by A.’s trip to Winnipeg was not significant given the history.

[129] Mr. Hurwitz did not discuss matters with the CAS as part of his investigation because he needed the consent of both parents. Only the Father provided his consent. In any event, gathering information from collateral sources was more appropriate to an investigation pursuant to s. 112 of the Courts of Justice Act and this was not the purpose of Mr. Hurwitz’s retainer.

[130] At the end of his involvement, Mr. Hurwitz felt an assessment under s. 30 of the Children’s Law Reform Act would be useful.

[131] The Mother admitted having hit the Father, behaving poorly to the Father in the presence of the children and spitting on the Father.

[132] Mr. Hurwitz observed the Mother behaving in nurturing ways. She was always warm and sincere in trying to reach out to A.

[133] The Father alone paid for the final report. Either party was at liberty to request the report.

[134] Mr. Hurwitz felt that A. was “very truthful” in his interactions with him.

[135] The Mother did partially accept responsibility for her actions regarding A., but A. still needed validation of his allegations of physical abuse by his mother and her criticisms of the Father in his presence. These issues needed to be addressed therapeutically.

[136] It was the Mother who sought Mr. Hurwitz’s assistance but once she started hearing feedback with which she disagreed, she started offering resistance.

[137] Assessment of the Father’s mental health was not warranted by the evidence. He was not seeing concerning behaviour from the Father.

[138] The Mother was sophisticated in her knowledge of counseling. She raised her concerns freely. She only asked him to pursue collateral interviews after he released his report.

[139] Had the Mother provided her consent he would have contacted the CAS regarding allegations of abuse.

Evidence of S.R.

[140] The Mother called her former neighbour to testify. She described the Mother as a very loving, caring mother with whom she had play dates with their respective children and discussed child-rearing issues such as nutrition.

Evidence of A.V.B.

[141] The Mother called her friend to testify as to her observed parenting skills. Her observations were consistently positive in relation to the Mother’s interactions with both boys.

[142] She had not seen the Father parenting the children. She had not seen A. for some time but she had recent experience with N. who she described as “well-adjusted” and “a pleasure to be with.”

Evidence of N.P.

[143] N.P. testified that she met the Mother in 1998 when she and the Father moved in across the street from her residence on T[…] in Markham. She described the parties’ home as having “builder’s white on the walls”, it had “dents and scratches”, the stove needed repair, the carpet was worn and dirty and the yard was “knee-high in weeds.” Her perception was that the parties lived a simple lifestyle.

[144] In July 2011 Ms. N.P. moved to a new home eight minutes away.

[145] She recalled A. being “well-adjusted” and “respectful to adults”.

Evidence of M.S.

[146] The Mother is the daughter of M.S.’s brother-in-law. She described the Mother as “loving, caring, very respectful, very attentive to the needs of her children, very organized.” She had last seen N. a couple of months prior to testifying, and A. a couple of years or more ago. She described having the Mother at her home for Christmas 2012 and quoted the Mother as saying: “How can I eat when I don’t know if A. has had his dinner?”

[147] She had last seen the Father at Christmas 2010.

[148] She understood that the Mother was not seeing A. because he had been “influenced to not see his mom”. She believed the object of the trial proceeding was “to deprive [the Mother] of seeing A.”.

[149] She indicated she had observed both parents interacting with the children and felt both were “fantastic parents”.

[150] The boys were both “happy, well-behaved, well-adjusted” according to her observations.

[151] She was not aware of any allegations of violence between the Mother and A..

Evidence of A.G.

[152] A.G. testified that she and the Mother had been “friends since childhood – forty years.” She described the Mother as a parent in the following terms: “loving, caring, involved, above average.” The Mother would leave notes around her home for the boys and put their clothing out for them at the start of the day. She observed no physical abuse of the boys by the Mother. She sees the Mother two to three times a month.

[153] She recalled a Christmas gathering at the S[…] home in 2010 and observing “chandeliers in every room, construction downstairs and the in-laws staying there.”

[154] She was aware of the parties’ earlier separation and believed the parties had both decided to reconcile.

[155] She last saw A. about two years ago. She was under the impression that the Father was keeping A. from the Mother.

[156] She observed the Father interacting with the children and described a very positive relationship. He was “engaged and involved as a parent.”

[157] The Mother was “very smart and capable.”

[158] After the Mother left S[…] this witness observed the Mother with N. regularly. He appeared to be “very happy and well-adjusted.”

Evidence of S.F.

[159] S.F. testified that the Mother has been a friend of his wife for about ten years. N. is a friend of his son and they have participated in Silver Knights basketball together. He described the Mother as “loving and attentive” to her children. N. was the best player on the team. He had no concerns regarding her parenting skills. N. was also happy to have the Father at his games.

Evidence of Mary Machkovsky

[160] This witness was called by the Father. She has been a service director for the YMCA for seventeen years. She was at Central Park YMCA when both A. and N. attended there. When she started as Director at that location in 2005 both boys were already there for before and after school care. She described A. as “a wonderful boy with no behaviour problems.” A. left the program when he was twelve years old as he no longer qualified.

[161] When she arrived at work on April 11, 2011 she understood one of her staff, Katie O’Malley, had received information that she felt merited CAS contact. This witness left Ms. O’Malley to make the contact. The CAS and police later attended and spoke with A. A. was extremely nervous and pacing. N. was much more relaxed and easy-going.

[162] A. said he was afraid, saying, “Please don’t let me go home with my mother.” The Mother came into the room and consoled N. warmly with a hug. She turned coldly to A. and said, “See what your lies have done…you’ve made Mary late.” A. denied lying.

[163] The witness reported this exchange to the CAS worker. The Mother denied saying the words this witness had just heard.

[164] Eventually it was determined that the Mother would leave with N. and the Father with A.. N. was upset that A. got to go with the Father and he did not, so the Mother agreed that N. could go with the Father too.

[165] The Father made no negative comments in her presence about the Mother.

[166] The CAS worker asked A. to give the Mother a hug and he reluctantly did so. The Mother hugged A. coldly and briefly. This contrasted again with the hug goodbye offered N. by the Mother.

[167] This witness thereafter sought clarification from the parties as to who would be picking up the children. The Father responded promptly with a plan. The Mother responded three weeks later indicating she could not respond for legal reasons. Any confusion regarding daycare pickups of the children always arose with the Mother and not the Father.

[168] Initially the daycare workers were directed by the CAS not to allow the children to leave unsupervised with the Mother.

Father’s Evidence

[169] The Father was permitted to incorporate the content of his Request to Admit into his evidence in chief. He was called to the Ontario Bar in 1996. In 1998 he secured a position with the Province of Ontario as an investigator for the Ontario Human Rights Commission. He has held a number of positions with the Province. Currently he is employed within the Ministry of Community Safety and Correctional Services as Deputy Director. His employment allowed him flexibility and balance to discharge his responsibilities as a parent.

[170] He was always a hands-on parent. He would often rush home to spend time with A. He taught the boys sports, he toilet-trained them, he took them to almost all of their extra-curricular activities.

[171] He does not dispute that Mother loves the children or that she wants what is best for them.

[172] He denied all of Mother’s allegations of alienation, coaching and manipulating the children.

[173] He gets into regular disputes with A. as he tries to encourage A. to rebuild his relationship with the Mother. He tells A. to call the Mother on the phone.

[174] While he has his weaknesses he considers himself a very good parent. He attends parent/teacher meetings and appointments with doctors and dentists.

[175] The parties used Mary Wachkovsky’s daycare starting in 2000 when A. started there. The Mother had no issues with the daycare until April 2011. He needs the daycare service as he does not have a parent to assist when he is still at work.

[176] The parties separated on March 31, 2006 when he left the matrimonial home following an escalation in aggressive behaviour by the Mother in the presence of the children. The Father moved to S[…]. Thereafter and until August 2010 the parties “re-connected” for a week here and there but they never fully reconciled and never lived together again for longer than 2 to 3 weeks. The parties maintained the same schedule of Mondays and Tuesdays with the Mother, Wednesdays and Thursdays with the Father and alternating weekends.

[177] The Father made regular payments to the Mother per the Request to Admit.

[178] In July or August 2010 the parties decided to attempt reconciliation. The Mother moved into S[…] in September 2010. Within a few weeks the parties’ relationship again deteriorated. The Mother scratched the Father’s arm in the presence of the children on two separate occasions. They tried to attend a family gathering together with unhappy results. They travelled to Mexico together as a family in January, 2011 but they did not share a bed. She slapped him in the face.

[179] While at home they maintained the same care schedule for the children.

[180] Upon returning from Mexico Mother started locking herself in the bedroom on the days it was the Father’s turn to care for the children.

[181] In March 2011 he resigned himself to ending things. He told the Mother she should move out. An argument ensued. In the children’s presence she spat at him, punched him in the chest and kicked him. She moved out and took both children with her. She arranged for a mover and attendance of the police. The police contacted the CAS after learning of the assault in the children’s presence.

[182] On April 10, 2011 he received a call from A. He was frantic. He and his mother had been in some kind of altercation. When he met privately with A. he was told the Mother had pulled his hair. There was a scratch on his thumb. The police and CAS investigated but concluded the children could go home with the Mother.

[183] In June 2011 there were several incidents between A. and the Mother, none of which the Father witnessed.

[184] Regarding the July 5, 2011 incident, the Father went to the police station when he learned of it. He understood that A. had been in an argument with his maternal grandfather, followed by an altercation in the car between A. and the Mother. He believes A. said something about stabbing the Mother in her sleep. He has told A. that this is wrong and unacceptable. The Father saw the room in which A. had been detained by the police. It was small with no windows. It was not until the next day that he saw the children when they came into his care. A. broke down in tears about what had happened at the police station. N. too was upset about what had happened to his brother.

[185] The next day the Father took A. to the doctor to address discomfort he was experiencing in his jaw which he understood to be from the Mother striking A.

[186] A. has been residing with the Father full-time since this incident.

[187] In August A. went for a visit with his mother for his birthday. He was feeling hopeful. After A. returned to the Father’s care he cried for an hour. He felt embarrassed by the Mother’s family.

[188] During the 2011 and 2012 school years A. would often start the day being sick to his stomach. Medical tests were negative.

[189] Mr. Hurwitz became involved with the parties. The Father cooperated fully and supported Mr. Hurwitz’s conclusions. The Father believes it is best for A. to have a good relationship with the Mother.

[190] The Father actively encourages A. to speak with the Mother on the phone when she calls. He encouraged A. to do something special for the Mother for her birthday in September 2013. A. decided to compose three songs. He sent them to her but he was upset with her reception of this gesture.

[191] Regarding N., he is a “pleaser”. He is also talented in music and very bright. He is very attached to the Father. While he adores his mother, the bond between N. and the Father is stronger.

[192] He is seeking custody of both children. He does not believe joint custody would work given the poor communication between the parties. Use of a parenting coordinator or Our Family Wizard would not suffice due to the Mother’s distrust of the Father. The cost of the parenting coordinator would be substantial given the parties’ inability to agree on issues pertaining to the children. The Mother has a history of rejecting professionals if they happen to disagree with her perspective on various issues.

[193] He is content that the current time-sharing arrangement continue but with sole decision making authority to the Father.

[194] A major issue for the Father is who should pick up N. from school. Since 2011 the parties have used daycare but the Mother routinely picks up N. without notifying the Father. He would like to coordinate these attendances to avoid inconvenience. He has tried to resolve the issue with the Mother without success. The Mother refuses to communicate with him.

[195] N. had been started in piano classes by the Father. He had always taken him to the classes. This worked well until the parties implemented the week-about schedule and the Mother refused to take N. on her days with him. The classes require weekly attendance so the Father was forced to cancel the lessons.

[196] The Father has since arranged other music lessons for N. The Mother takes N. for tavla lessons. He would be happy to take N. to his tavla classes during his weeks of care.

[197] N. is thriving in many ways but there are some concerns. He wanted to go for rep basketball but he could not because the Mother would not take him during her time. The Mother did take N. for junior basketball a number of times.

[198] The Father has been the party almost exclusively organizing and transporting for N.’s piano lessons and A.’s guitar lessons and babysitting course. Typically he has paid for the school trips, school photos and summer camps.

[199] He denies the allegation that he has “hacked” any of the Mother’s Our Family Wizard email.

[200] Regarding financial issues the parties had joint accounts and thus the Mother had full access to this information.

[201] As to the children’s current circumstances, A. is doing much better in school. He is no longer getting sick in the mornings. He has developed a mature attitude regarding his relationship with the Mother. He is mostly a happy, interesting and funny kid. N. has been deprived of his brother’s company half the time. They fight like any brothers but they love each other and do things together. N. is doing well in school. He is sad about what is happening.

[202] In July 2012 the Father sent an email to the Mother seeking return of A.’s personal belongings. She refuses to do so.

[203] Regarding Mr. Hurwitz’s final report, the cost was $802. It was to be equally paid by the parties. The Father has paid all of it. He seeks contribution of $401 from the Mother.

[204] As to his income history, same is summarized as follows based on this tax information:

(i) 2006 $131,994

(ii) 2007 $138,827

(iii) 2008 $155,475

(iv) 2009 $165,824

(v) 2010 $172,345

(vi) 2011 $186,614

(vii) 2012 $187,895

[205] The Father has complied with all orders of the court. The Mother has complied with most. Her non-compliance relates to disclosure issues.

[206] All communication is cut off between the parties. The Mother refuses all forms of communication with the Father. Based on what he has heard from the Mother’s testimony the OCL’s recommendations regarding communication between the parties will not work.

[207] While he is not against it, he does not believe A. needs regular therapy, but counseling would assist from time to time. A. is tired of meeting with so many people over the years.

[208] He often has difficulty speaking with N. on the phone when he is in the Mother’s care. At the Mother’s residence N. is usually on speaker phone.

[209] The Father did not take N. to any play therapy appointments. The Mother did occasionally share information with the Father regarding N. The Mother was not always angry and uncooperative in her communications with the Father.

[210] Regarding T[…], ownership was transferred to the Mother on July 9, 2012 per court order. He was paid $52,000 for his interest. He believes the value of this property at March 31, 2006 to have been approximately $308,000. He did not contribute to hardwood flooring, basement, landscaping and roofing improvements and he was not asked to do so. Appliances were replaced after separation.

[211] A. has had a fantastic relationship with his maternal grandmother and a good relationship with his maternal grandfather, but with some challenges.

[212] Regarding separation, the first separation was March 31, 2006. There were no attempts at reconciliation in 2007 or 2008. Reconciliation was attempted in 2009 while the parties maintained separate residences. In mid-September 2010 the Mother moved into the Father’s S[…] residence.

[213] The children are not at risk in the care of the Mother’s family.

[214] He has never taken N. to his tavla, chess or Tae Kwon Do classes.

[215] He has never refused contact between A. and the Mother’s family.

Evidence of Gail Millar

[216] Ms. Millar is an OCL clinical investigator. She has been so employed for fifteen years. In January 2012 she was assigned to assist OCL counsel. She attended all interviews between OCL counsel and the children. She contacted collateral sources to confirm and enhance the OCL’s understanding of the children’s circumstances. She interviewed the parties. She interviewed the children.

[217] She recommended reunification therapy for A. and the Mother. She also recommended that communication between the parties be facilitated by email (such as Our Family Wizard) and that a parenting coordinator be engaged to assist in resolution of parenting disputes in a shared custodial regime.

[218] N. appeared to be making a reasonable transition. He expressed comfort in both households. He was positive about his relationships with both parties. He feels loved by both parents and he loves both parents. The current schedule is working for him. He does not like it when his mother picks him up from daycare unexpectedly. He felt that summer holidays of two weeks with each parents with one week in between would work for him.

[219] N. is close with the Mother’s family and enjoys time with them. He has the same feelings regarding the Father’s family.

[220] In the early stages of her involvement N. reported a close relationship with A., but more recently there has been some “slippage” in this relationship due to the different schedules.

[221] A. was much more anxious and nervous initially. He had mixed feelings in his relationships with both parents at times. He described issues one would anticipate but also some that crossed into clinical areas.

[222] Regarding A.’s relationship with the Father, he described same in mostly positive terms. They work things out.

[223] A. described N. in terms one might expect in describing one’s younger brother at such ages: “sort of a pain”, “complaining” and “whiny.”

[224] A. described his mother as loving but also noted times when he was compared unfavourably by her to his brother, saying, “He’ll be successful and you won’t”. She pulled his hair when he put a pillow out of place. She would swear at him. She struck him when she thought he had awakened N. The July 4, 2011 incident was deeply troubling for him. He indicated he’d had an argument with his maternal grandfather and thereafter in the car his mother was scolding him. She took him to the police station and the police came out and took him inside. They put him in a small room for three hours. He thought he’d been arrested. He was scared. Eventually the police interviewed him and he apologised for threatening his mother. N. had been in the car and was upset the Mother had done this.

[225] A. found the sessions with his mother and Mr. Hurwitz very difficult. He was expressing himself to his mother but she would not apologise and accused him of being “a lawyer”. She had remained fixed in her position.

[226] He had called her several times in an effort to negotiate a solution. The Mother was not open to it because she felt he was being influenced.

[227] A. loves his mother but he wants some acknowledgement by her of her mistakes.

[228] A. describes his father as supporting his relationship with his mother and her family. The Father tells him to go and see her and her family.

[229] Prior to commencement of trial in November 2013 A. had an opportunity to spend time with the Mother’s extended family and he quite enjoyed the opportunity to reconnect; unfortunately that contact stopped after the trial commenced.

[230] A. wants this contact to resume and continue but he is concerned about his mother’s reaction.

[231] A. is doing well in school. His stomach problems have subsided. His guitar playing is therapeutic.

[232] A. felt anxious following unexpected near encounters with his mother at the mall and outside school in November 2013. Nevertheless he feels hopeful things will improve with his mother. He is agreeable to email and telephone contact with her at this time.

[233] Both parents were agreeable to A. and the Mother engaging in reunification therapy.

[234] The Mother was not in agreement with Our Family Wizard due to a history of distrust. She felt the Father would use the program “to document false facts.”

[235] The Mother was also concerned that the Father would use a parenting coordinator “for case-making.”

[236] The Mother expressed fear of the Father’s ability to influence people.

[237] For a parenting coordinator to work both parties need to be committed.

[238] Regarding the songs A. had recorded for his mother’s birthday, A. was upset that she did not acknowledge his efforts. When she called the house she wanted to speak with N. and A. answered. She said, “How’s it going not having a mother?” He made suggestions for meetings but the Mother did not find his proposals agreeable.

Evidence of Dr. Sol Goldstein

[239] Dr. Sol Goldstein was qualified as an expert in the field of adult psychiatry regarding the impact of this litigation upon the Mother. He was called by the Mother as a witness.

[240] Dr. Goldstein was consulted by the Mother to assess her mental health and as such it was not necessary for him to contact Mr. Hurwitz.

[241] He is aware that in her presentation to Mr. Hurwitz the Mother’s main theme was alienation. He would have to examine this issue in a section 30 assessment. A parent in fear of losing a child does not behave rationally.

[242] In alienation the favoured parent’s behaviour may be unconscious and may focus on one child and then the next.

[243] His opinions are based upon the statements of the Mother. Assuming her perceptions are credible, “much of her behaviour can be accounted for as a result of the external factors in her current life.” The Mother presented herself as well-functioning, sensitive and sensible; however, when faced with the legal process she decompensates, becomes panicky and unable to function. Mental status examination confirms she functions well as long as she is not dealing with the estrangement from her A. and the potential estrangement from N.. She can be overwhelmed with anxiety, finding herself unable to function effectively.

[244] The Mother felt that A. was being alienated from her and that N. would soon follow. It is a question of Realistic Estrangement versus Alienation and this should be addressed via s. 30 assessment.

[245] The police station incident with the Mother and A. is an example of what a parent does in desperation. If a child threatens with a knife, that child is desperate.

[246] If a s. 30 assessment is not done and alienation goes undetected this is very dangerous to the mental health of the children.

[247] Regarding the Hurwitz report this witness was concerned Mr. Hurwitz was “missing a lot of features.”

[248] He understood A. was not seeing his maternal grandparents due to estrangement. If the Father was encouraging contact, that might change his opinion.

[249] He did not recall the CAS being involved.

[250] It would be traumatic for a child to witness a parent being assaulted by another parent. He was unaware of the allegation that the Mother had assaulted the Father.

[251] In cross-examination by the Father this witness said, “I can see from what I’m hearing why a s. 30 assessment didn’t happen.”

[252] The Mother did not tell him she had not been working consistently for over two years.

CUSTODY ISSUES

The Law

[253] Pursuant to s.16(a) of the Divorce Act:

In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child.

[254] Pursuant to s.16(9):

In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the authority of that person to act as a parent of the child.

[255] Pursuant to 16(10):

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[256] The best interests of the child test is the only test under the Act, and paternal preferences and “rights” play no role in issues of custody and access. It is a legal test, albeit a flexible one, and is to be applied according to the evidence of the case, viewed objectively. There is no room for the judge’s personal predilections and prejudices. Despite the maximum contact principle, contact is to be restricted if it conflicts with the child’s best interests (see Young v. Young 1993 34 (SCC), [1993] SCJ No. 112 per McLachlin J.).

[257] The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. But there must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. (See Kaplanis v. Kaplanis 2005 1625 (ON CA), [2005] O.J. No. 275 (Ont.C.A.) and Ladisa v. Ladisa 2005 1627 (ON CA), [2005] O.J. No. 276 (Ont.C.A.))

OCL’s Position

[258] The position of the OCL may be summarized as follows:

(i) The Respondent Father should have custody of A. with no order for access to the Applicant Mother;

(ii) the parties should have joint custody of N. subject to a week-about care and control regime;

(iii) the parties to communicate through the Our Family Wizard Program with possible assistance of a parenting co-ordinator.

[259] I agree with the submission of the OCL that a review of cases subsequent to Kaplanis and Ladisa makes it clear that every high conflict case is unique and the fact that one parent professes an inability to communicate with the other does not in and of itself mean that a joint custody order cannot be considered where there is evidence of historical co-operation and reasonably appropriate communication between the parents. Joint custody may nevertheless be appropriate.

[260] The Mother advances a request for an order pursuant to s. 30 of the Children’s Law Reform Act for an assessment of the needs of the children and the ability and willingness of the parties to satisfy the needs of the children.

[261] She further submits that until reintegration occurs in her relationship with A. the parties should have joint custody with final decision making authority on reintegration and health issues to the Mother exclusively.

[262] She further submits that she should have sole custody of N. subject to access to access by Father on Thursdays and alternating weekends.

Section 30 Assessment

[263] Section 30 of the CLRA entitles the court to appoint a person who has technical or professional skill to assess and report to the court on the needs of a child and the ability and willingness of the parties or any of them to satisfy the needs of a child.

[264] There is no restriction in the Act regarding when such an order may be made.

[265] I do not consider myself limited in making such an order to cases presenting “clinical issues” as described in Linton v. Clarke 1994 8894 (ON SCDC), [1994] O.J. No. 2999 (Ont. Gen. Div.). In my view the law has progressed such that s. 30 assessments are appropriate in a much broader range of cases and the case before me may very well have been one of those.

[266] However, the Mother’s request in this regard must fail for the following reasons:

(a) This request is advanced far too late in these proceedings. The children and parties have been living with uncertainty for too long. A resolution is in the best interests of the children.

(b) The court has the benefit of evidence from Mr. Hurwitz and Gail Millar to assist in understanding the children’s best interests and their views and preferences.

(c) I am not satisfied that a s. 30 assessment would be materially helpful given the other extensive evidence available to me.

(d) I am not satisfied that the Mother could not have brought a motion seeking this relief months, if not years, ago. She explained during her testimony that she did not understand how to advance such a request, yet she has found the ability to advocate for herself at trial, a much more complex undertaking.

(e) Her apparent proposed assessor, Dr. Goldstein, did not strike me as an appropriate nominee for the task of a s. 30 assessment. I say this because during cross-examination by the Father and after a fair question was put to him, he commented that he “could see why this proceeding has taken so long”, his meaning in the context being that he saw the Father’s attitude as being the cause of these protracted proceedings, a conclusion at which he has arrived without having met with the Father outside the courtroom. This is not the level of objectivity expected of an assessor.

A.

[267] In my view the Mother’s position regarding A. is completely unsupported by the evidence before me. Apart from her own assertions there is little, if anything, in the evidence outlined above, to support her position that the Father has “alienated” A. from the Mother.

[268] The Father’s position that he should retain primary care of A. is supported by the following:

(i) this reflects the status quo in effect since July 2011;

(ii) there is no compelling reason to disturb the status quo;

(iii) this is consistent with A.’s views and preferences. He is now 15 years of age and his views and preferences are entitled to considerable weight;

(iv) this is consistent with the evidence of Howard Hurwitz and the position of the OCL on behalf of A.;

(v) A. is performing well at school and his stomach problems appear to be subsiding if they are not altogether resolved, suggesting the status quo is positive for him.

[269] The evidence supports the conclusion that the Mother has long struggled in her relationship with A., both before and after the parties’ separation. The evidence on balance supports the conclusion that the Mother has applied inappropriate physical discipline to A., has spoken to him in unnecessarily harsh and inappropriate terms and has sought to be critical of him by comparing him to his father.

[270] In particular the Mother’s failure to accept responsibility for her error in judgment in the “police station incident” in July 2011 and to communicate her sincere remorse to A. represents, in my view, the tipping point in the Mother’s relationship with A.. A. believed, because he had been so told by the Mother, that they were going to the Mother’s parents’ residence so that A. could apologize to his grandfather for an earlier verbal dispute. Instead, the Mother took A. to the police station and essentially abdicated her role as parent in favour of the police who, through their indelicate approach ended up traumatizing A.. A., understandably, felt betrayed by his mother and thereafter unsafe in her company.

[271] Notwithstanding some imperfections in process, Mr. Hurwitz’s recommendations are entitled to considerable weight. He has extensive experience in his field and there is no reason to disregard his opinions which are consonant with the facts and evidence. I am satisfied on the strength of the evidence that the Father has not attempted to alienate A. from the Mother; rather, the evidence more strongly supports the conclusion that he has actively encouraged A. to renew his relationship with her. Unfortunately, the Mother has received all efforts by both the Father and A. himself to re-establish a relationship as “case making”. She does a disservice both to herself and, more importantly, to A. in adopting this approach.

[272] The reality of this situation is that A., at fifteen years of age, has decided, in the unhappy circumstances of this separation, that he does not feel comfortable or safe being with his mother. His perspective is certainly understandable given what he has experienced and given the Mother’s refusal to accept her contributions to the situation. There is no point in ordering this fifteen year old boy to have access against his wishes.

[273] I further reject the Mother’s request that A. be ordered to participate in “deprogramming” and to be removed from the Father’s care in order to facilitate same. In my view this would be damaging in the extreme to A. and there is no expert evidence before me to suggest a basis for this request. Therefore, I have little hesitation in concluding that an order that A. reside under the Father’s primary care and control is appropriate, subject to access by A. with the Mother in accordance with A.’s wishes.

Decision-Making Regarding A.

[274] A more difficult issue relates to the issue of decision-making with respect to A.

[275] The OCL, on A.’s behalf, submits that custody of A. to the Father would be appropriate.

[276] In my view, given the Mother’s steadfast refusal to communicate meaningfully with the Father and instead to interpret all of his efforts at communication as “case making” confirms that the only viable solution is for the Father to have sole decision making authority with respect to A. after consultation with the Mother.

[277] Notwithstanding the Mother’s refusal to communicate meaningfully, there will be occasions that require the parties to do so, or at least attempt to do so, or where it might be reasonably expected that parents would want to communicate with one another. Such communication shall be facilitated through the Our Family Wizard Program, but such shall not be limited to one communication per month as urged by the Mother. In my view this is a restriction not supported by the evidence given the extensive email history I have reviewed and the absence of any inappropriate communications from the Father. The communication shall occur as often as is reasonably necessary for the parties to address issues arising with respect to the best interests of the children.

N.

[278] The Mother seeks sole custody of N. subject to access by the Father on Thursdays and alternating week-ends.

[279] In my view, care and control of N. should continue to be shared on a week-about schedule for the following reasons:

(i) this has been the status quo since 2006 and there is no compelling reason to disturb it;

(ii) according to the OCL this is consistent with N.’s views and preferences. While I appreciate that N. is younger than A. and that his views and preferences do not carry the same weight, nevertheless I do accord significant weight to this component of the evidence due to the consistency in his position and his level of maturity according to the evidence;

(iii) N. is performing well academically and socially. There is no basis on which to conclude that the status quo is inconsistent with his best interests;

(iv) there is no evidence to support the Mother’s assertion that the Father will attempt to “alienate” N. from the Mother.

Decision-Making Regarding N.

[280] As with A., the more challenging question is the form of custody, that is, decision making, that will most effectively address N.’s best interests.

[281] For the same reasons expressed above regarding A., I conclude that the Father must be awarded sole decision-making authority regarding N., subject to consultation with the Mother.

Order

[282] Accordingly, for all of the foregoing reasons, there shall be orders as set out in detail at the conclusion of these Reasons for Judgment.

SUPPORT ISSUES

[283] Child support is governed by s. 15.1 of the Divorce Act and the Federal Child Support Guidelines. Spousal support is governed by s. 15.2 of the Divorce Act which sets out the factors to be considered and the objectives of an award of spousal support.

[284] The primary support issues relate to quantification of the Mother’s income and spousal support entitlement.

The Parties’ Incomes

[285] There is no issue before me regarding determination of the Father’s income. He is employed and has no other sources of income. His income tax returns speak for themselves.

[286] The Mother’s income is more challenging.

[287] As indicated above, I ruled that the deemed admissions contained in the Request to Admit of the Father dated April 24, 2013 in respect of financial issues would be operative in this trial. As the Father is entitled to rely upon these deemed admissions, to the extent that the Applicant Mother’s evidence contradicts the deemed admissions, I will prefer the deemed admissions.

[288] According to the deemed admissions:

(i) The Mother worked throughout the parties’ marriage other than two one-year maternity leaves that she took after the birth of each child.

(ii) She was able to advance in her career during the marriage as the Respondent financially assisted the Mother to complete her Bachelor of Social Work degree.

(iii) From 1996 to 1998 the Mother was employed as a full time intake officer for the Workplace Safety and Insurance Appeals Tribunal.

(iv) From 1995 to 1996 she was a Caring Village Project Facilitator for the J.1[…] and the South Asian Women’s Representative for the E[…].

(v) In 1999 she was employed as a full-time New Immigrant Job Search Facilitator with C[…].

(vi) From 2000 to 2001 she was employed as a full-time Family Services Worker with Y.2[…].

(vii) From 2001 to 2002 she was employed as a full-time Case Manager/Employment Facilitator with J.2[…].

(viii) From 2003 to the end of 2011 she was employed as a full-time individual/group employment counsellor (Y.1[…]) for C.1[…] (employer was the TDSB Division of Training and Development).

(ix) At separation on March 31, 2006 she was earning approximately $60,000 per annum as a career counsellor for the TDSB.

(x) Her reported income is summarized as follows:

(a) 2006 $59,887

(b) 2007 $59,994

(c) 2008 $63,459

(d) 2009 $27,279

(e) 2010 $20,655

(f) 2011 $23,108

(xi) The Mother went on leave from the TDSB in early 2010 following which she focused on trying to build a personal career counselling business. She maintained and updated a business website that advertised the services she offered.

(xii) In late 2010 the TDSB offered alternate work to the Mother at a different location, for the same remuneration. The Mother refused this offer of alternate work for reasons not related to a medical issue.

(xiii) There were no impediments to the Mother working on a full-time basis for the TDSB. The Mother resigned from the TDSB in late 2011.

(xiv) The Mother has the ability to earn at least $65,000 per annum.

(xv) The Mother has two degrees, a Bachelor of Arts and a Bachelor of Social Work both from York University.

(xvi) The Mother would have earned the following annual income had she chosen to continue with the TDSB full-time:

(a) 2009 $65,153

(b) 2010 $66,578

(c) 2011 $68,052

(d) 2012 $69,801

(e) 2013 $71,336

(xvii) The average annual income of education counsellors with a BA working full-time in Ontario with the average adjusted annual income for someone of the Mother’s age is as follows:

(a) 2009 $63,793

(b) 2010 $67,236

(c) 2011 $70,681

(d) 2012 $74,384

(e) 2013 $77,806

[289] For child support purposes Section 19(1) of the Federal Child Support Guidelines permits the court to impute such amount of income to a spouse as it considers appropriate in the circumstances including such where the spouse is intentionally underemployed or unemployed.

[290] Regarding the meaning of “intentional” underemployment, the Ontario Court of Appeal in Drygala v. Pauli (2002) 2002 41868 (ON CA), 61 O.R. (3d) 711 stated:

… there is no need to find a specific intent to evade child support obligations before income can be imputed.”

[291] Furthermore:

The parent required to pay is intentionally underemployed where that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income. The word “intentionally” makes it clear that the section does not apply to situations in which, through no fault of their own, spouses are laid off, terminated or given reduced hours of work. … There is no requirement of bad faith … imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning.

[292] The Father highlights the following:

(i) the Mother was only 34 years old at the date of separation on March 31, 2006;

(ii) she is well educated and worked throughout the marriage subject to the maternity leaves only;

(iii) the court previously made an interim order for spousal support, imputing income to the Mother at $65,000 per annum;

(iv) the Mother chose to resign from her employment with the TDSB;

(v) the Mother chose not to pursue her ongoing grievance with the TDSB and to lead no evidence to suggest that she would not have remained a full-time employee of the TDSB had she not resigned;

(vi) based on the evidence and deemed admissions she has not taken all reasonable steps and efforts to secure fulltime employment.

[293] I find that annual income of $63,000 ought to be imputed to the Applicant Mother for the following reasons:

(a) According to the deemed admissions the Mother is capable of earning $65,000 annually, but the Father is reducing his request for imputed income to $63,000, a figure consistent with her demonstrated ability to earn based on her 2008 reported income.

(b) There are no physical impediments to her continuing to earn income at the same pace she did prior to separation in 2006 and thereafter.

(c) The Mother’s evidence taken as a whole suggests that her employment challenges are rooted in this litigation. Hopefully, with this judgment, the litigation will end and with it the primary source of the Mother’s anxiety and sense of being overwhelmed by her circumstances.

(d) The Mother has demonstrated an ability to earn at the rate of $63,000 per year (although this level of income was in one year only, being 2008)

(e) The Mother is highly intelligent and well-educated and thus capable of earning at this level.

(f) The Vocational Assessment confirms viable employment options for her including social worker and employment counselor, although admittedly these occupations attract a lower level of income than that I am imputing to her.

(g) The Mother’s evidence by way of explanation of her current employment circumstances was vague; for example, although she asserted that her involvement with the “child welfare system” put her at a disadvantage in trying to secure employment with social service agencies, she did not provide particulars.

(h) While I appreciate the Mother’s position that she is not earning at the $63,000 level, has not for several years, and cannot now due to the reasons outlined in her evidence and that of Dr. Goldstein, she has herself authored this result as a consequence of her failure to respond to both Requests to Admit served upon her.

Child Support

Ongoing

[294] For the purpose of ongoing child support I find the Mother’s annual income to be $63,000 and the Father’s annual income to be $187,895 (based on his 2012 tax return as I have not been provided a copy of his 2013 Income Tax Return).

[295] The evidence at trial did not give me sufficient information on which to base a Contino analysis and accordingly I approach child support on a strict “setoff” basis with respect to N. So proceeding I calculate the Father would owe base child support to the Mother in the amount of $1543 per month while the Mother would owe base child support to the Father in the amount of $936 per month, the difference being $607 per month.

[296] Accordingly, commencing October 1, 2014 the Father shall pay the Mother set-off child support for the children A. and N. in the amount of $607 per month.

Child Support Retroactivity

[297] The Mother seeks “arrears in child support” according to her written submissions. She does not set out any calculations in this regard.

[298] The parties separated March 31, 2006.

[299] N. has resided in the parties’ equal care and control from the outset.

[300] A. was in the parties’ equal care and control from March 31, 2006 to mid-July 2011 and primarily in the Father’s care from mid-July 2011 to present.

[301] This proceeding was commenced June 1, 2011. I have no evidence of requests for support prior to the Application being commenced.

[302] There has never been an order for child support in this proceeding although spousal support was ordered on December 12, 2011 payable by the Father to the Mother commencing January 1, 2012 in the amount of $1,661 per month on a without prejudice basis (being $1,800 less grossed up payments by the Father toward the house insurance and line of credit totalling $139 per month) based on his income of $188,271 and the Mother’s imputed income of $65,000.

[303] The Mother was ordered at the same time to pay $143 per month commencing January 1, 2012 representing her one-third share of the children’s s.7 expenses.

[304] The following findings of fact result from the deemed admissions:

(i) The Father paid to the Mother $1,000 per month in child support for April through December 2006. Based on the parties’ shared parenting arrangement and their respective incomes, $883 per month was payable pursuant to the Child Support Guidelines in 2006 resulting in an overpayment of $17 per month for 9 months or $153 total.

(ii) The Father paid to the Mother $1,000 per month in child support for 2007. Based on the parties’ shared parenting arrangement and their respective incomes, $960 per month was payable pursuant to the Child Support Guidelines in 2007, resulting in an overpayment of $40 per month for 12 months or $480 total.

(iii) The Father paid to the Mother $1,100 per month for 2008. Based on the parties’ shared parenting arrangement and their respective incomes, $1,077 per month was payable pursuant to the Child Support Guidelines in 2008, resulting in an overpayment of $23 per month for 12 months or $276 total.

(iv) The Father paid to the Mother $1,300 per month for 2009. Based on the parties’ shared parenting arrangement and the Father’s income and the Mother’s imputed income at $65,000, $1,226 per month was payable pursuant to the Child Support Guidelines in 2009, resulting in an overpayment of $4 per month for 12 months or $48 total.

(v) The Father paid to the Mother $1,300 per month for January through August 2010 and $1,500 per month for September through December 2010. Child support was not payable for the months that the Mother lived in the Father’s residence, namely, September through December 2010. Based on the parties’ shared parenting arrangement and the Father’s income and the Mother’s imputed income of $65,000, $1,301 per month was payable pursuant to the Child Support Guidelines for January through August 2010, resulting in an overpayment of $5992.

(vi) The Father paid to the Mother $1,500 per month for January through March 2011 and $1,000 per month for April through December 2011. Child support was not payable for the months that the Mother lived in the Father’s home, namely January through March, 2011. Based on the parties’ shared parenting arrangement and the Father’s income and the Mother’s imputed income of $65,000, $1,428 per month was payable pursuant to the Child Support Guidelines for April through July 2011, resulting in an overpayment of $7788.

(vii) Based on A. residing full-time with the Father and the parties’ shared parenting arrangement for N., the Father’s income and the Mother’s imputed income at $65,000, $544 per month was payable pursuant to the Child Support Guidelines for August through December 2011; thus, $2,720 was payable (that is, $544 per month for 5 months). No payments were made resulting in an underpayment of $2,720.

(viii) The total net overpayment by Father based on the foregoing is $12,017 up to the December 2011 order.

Analysis

Child Support

[305] The case of S.(D.B.) v. G.(S.R.) 2006 SCC 37, [2006] S.C.J. No. 37 (SCC) addresses the issue of retroactive child support. In determining whether to award retroactive child support the court must consider:

(a) Any reasonable excuse for why support was not sought earlier

(b) The conduct of the support payor

(c) The circumstances of the children

(d) Any hardship occasioned by a retroactive award

[306] None of the above factors is determinative alone. Generally a retroactive award will not reach back in time more than three years.

[307] In the case before me the Mother seeks retroactivity to an unspecified date, in an unspecified amount.

[308] While I have no evidence of any request for child support before the Application was commenced, as child support is the entitlement of the children this component of the analysis does not concern me.

[309] I have no evidence that the pre-separation lifestyle of the children has not been maintained post-separation.

[310] I have evidence as outlined above that the Father has made voluntary payments of child support for years before this proceeding was commenced, often in amounts exceeding that required of him under the Child Support Guidelines.

[311] I have evidence that the Father has consistently paid child support in accordance with the temporary order of the court after commencement of this proceeding.

[312] For these reasons I conclude that the Mother has not made out a basis for her claim for retroactive child support. If anything, it appears the Father may be entitled to compensation for overpayment; however, he does not seek same and I therefore make no such order. The Mother’s claim in this regard is dismissed.

Section 7 Expenses

[313] The Father stipulated during the trial that he is not seeking section 7 expenses from the Mother; however, the Mother did not similarly stipulate.

[314] Accordingly, pursuant to s. 7 of the Guidelines, the parties shall share the children’s reasonable and necessary special or extraordinary expenses in proportion to their respective incomes, such proportions at present being 75% to the Father and 25% to the Mother. The parties shall consent in advance to such expenditures with such consent not to be unreasonably withheld.

Spousal Support Entitlement

[315] The Mother must establish entitlement to spousal support. Her claim is based upon s. 15.2 of the Divorce Act. In making such an order “…the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including:

(i) the length of time the spouses cohabited;

(ii) the functions performed by each spouse during cohabitation, and

(iii) any order, agreement or arrangement relating to support of either spouse.”

[316] I am also considering the objectives of a spousal support order set out in s. 15.2(6) of the Divorce Act. Section 15.2(6) requires that an award of spousal support should:

(a) Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[317] The Mother’s position is as follows:

(i) Her income has significantly deteriorated. Her earning power is “down due to stress levels stemming from legal attacks and loss of contact” with A..

(ii) She has been very active in her efforts to find full-time employment.

(iii) She has consistently maintained part-time employment as faculty in continuing education, social service worker program at S[…] College. She consistently requests more teaching hours and makes herself to all options for enhancing her employment. She regularly attends job search programs. She accesses employment counsellors and networks for positions in her field.

(iv) Her employability has been damaged in social service agencies, having been a client of several agencies during the separation.

(v) If she is forced to return to private practice or self-employment, she would need further education to complete a University Master’s Degree.

(vi) Her functioning is “slowed down” and this “poses a difficulty” for her employability.

(vii) In the social work field, employers require disclosure of whether a candidate has been the subject of a child welfare investigation and due to the allegations she must now disclose that she has been the subject of such an investigation and this would undermine any prospects in this regard.

(viii) Social workers do not generally earn in the range suggested by the Father.

(ix) She relies upon the vocational assessment filed in evidence in this proceeding and the evidence of Dr. Goldstein outlined above.

[318] The Father disputes the Mother’s entitlement to spousal support. In so doing he relies upon the deemed admissions.

[319] There are three bases for entitlement to spousal support: compensatory, non-compensatory and contractual (see Bracklow v. Bracklow 1999 715 (SCC), [1999] SCJ No. 14). In this case only the compensatory and non-compensatory spousal support models arise on the evidence before me.

[320] In Boston v. Boston 2001 SCC 43 the Supreme Court of Canada stated that: “As far as it is reasonable, the payee spouse should attempt to generate economic self-sufficiency” while noting that “self-sufficiency is only one factor of many that is weighed” and further, “there are factors to consider such as age, education and parenting responsibilities.”

[321] Compensatory support may be appropriate where the claiming party has made economic sacrifices during the marriage and from which the non-claiming party has benefitted.

[322] Non-compensatory support may be appropriate where compensation is not indicated and self-sufficiency is not possible. Economic hardship arising from the breakdown of the marriage is capable of encompassing not only health or career disadvantages arising from the marriage breakdown properly the subject of compensation, but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it.

[323] The Respondent Father relies upon a judgment of the Ontario Superior Court of Justice in Moon v. Moon 2011 ONSC 1834 in which the court concluded that where a spousal support recipient has had ample time to become self-sufficient and has taken no steps to do so, spousal support may be terminated. Further, if support is continued, it may be appropriate for a time limited support order as a way to emphasize the positive duty each spouse has under s.17(7)(d) of the Divorce Act. Alternatively, the court may order a “step-down” in spousal support, often with a termination date at some point in the future. The test for imputing income is substantially the same regarding spousal support as under s.19 of the Federal Child Support Guidelines.

[324] The evidence before me does not assist in determining the extent of the economic loss alleged to have been experienced by the Mother. This is the sort of issue where the court often receives expert testimony. None was provided. Furthermore, the deemed admissions also undermine the Mother’s position by confirming her strong educational background and income earing history and potential. It is therefore difficult to accept her claim for spousal support in the context of the compensatory model.

[325] I note that the Mother is forty-two years of age. She is well-educated. She is highly intelligent and articulate. Prior to separation in 2006 and for some time thereafter she had a strong employment history record. She started to struggle following separation. I received no medical evidence linking the Mother’s current reduced income to any physical ailment or medical impediment. There is evidence in the form of the vocational assessment and from Dr. Goldstein as to the Mother’s mental health issues, rooted apparently in this litigation, and the impact of those issues upon her employability.

[326] The parties cohabited from 1994 until 2006 when they first separated. The evidence supports the conclusion that although the Mother took two one-year maternity leaves following the births of the children, she nevertheless was able to resume her career unabated prior to separation. The evidence taken as a whole also supports the conclusion that apart from the maternity leaves both parties were actively involved parents.

[327] In my view the Mother’s claim for spousal support must fail. There is no contractual basis for spousal support. The remaining support models are compensatory and non-compensatory spousal support; however, once again, the deemed admissions destroy any foundation for either approach to the Mother’s claim for spousal support. The deemed admissions (summarized in part above in relation to the Mother’s income) completely undermine the Mother’s claim in this regard. The admitted income levels aside, the admissions confirm that the Mother is “fully capable of financially supporting herself”, “there is no medical reason why the Wife cannot work”, the Mother “has not experienced any disadvantage because of childcare obligations”, the Mother “has not taken all reasonable steps and efforts to locate full-time employment”, and so on.

[328] Therefore I find the Mother has not made out her claim for entitlement to spousal support and same is therefore dismissed, as is her claim for retroactive spousal support.

PROPERTY CLAIMS AND EQUALIZATION

Date of Separation

[329] The Mother’s position is that the operative date of separation is March 7, 2011 and that the separation date of March 31, 2006 (the Father’s position) is not correct due to the parties’ intervening reconciliation for the period September 2010 to March 7, 2011.

[330] In support of this position the Mother gave evidence that following initial separation on March 31, 2006 the parties regularly traveled and vacationed together as a family and attended family functions. The Mother produced photos of those gatherings, including December, 2010, New Year’s Eve in Puerto Vallarta, Lake Placid NY, Cuba in 2007 as a couple without the children, a 2009 trip to Punta Cana with the children and Diwali celebrations.

[331] The Father’s evidence is that the parties separated on March 31, 2006 when he left the matrimonial home following an escalation in aggressive behaviour by the Mother in the presence of the children. The Father moved to S[…]. Thereafter and until August 2010 the parties “re-connected” for a week here and there but they never fully reconciled and never lived together again for longer than two to three weeks. The parties maintained the same schedule of Mondays and Tuesdays with the Mother, Wednesdays and Thursdays with the Father and alternating weekends. In July or August 2010 the parties decided to attempt reconciliation. The Mother moved into S[…] in September 2010. Within a few weeks the parties’ relationship again deteriorated. They tried to attend a family gathering together with unhappy results. They travelled to Mexico together as a family in January, 2011 but they did not share a bed.

[332] While at home they maintained the same care schedule for the children.

[333] Upon returning from Mexico the Mother started locking herself in the bedroom on the days it was the Father’s turn to care for the children.

[334] In March 2011 he resigned himself to ending things. He told the Mother that she should move out and she did on March 7, 2011.

Analysis

[335] For equalization purposes it is necessary to establish the valuation date. Pursuant to section 4 of the Family Law Act the valuation date is “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.”

[336] The deemed admissions resulting from the Request to Admit do not address the “valuation date” per se; rather, they address both dates that the parties advance as dates of separation, being March 30, 2006 and March 7, 2011. The deemed admissions also provide values for most of the parties’ assets and liabilities as of both of these dates

[337] The Request to Admit does contain admissions that the parties “made a short-lived unsuccessful attempt in 2010/2011 to see if they should try to attempt a reconciliation; however, at no time was there a reasonable prospect of a resumption of cohabitation.” In this regard I note that the Family Law Act does not require that there be “reconciliation” (a concept relevant under the Divorce Act in determining entitlement to divorce), but only that they have resumed cohabitation. This does not mean to say that it is not possible for the parties to be living separate and apart under the same roof; there are many examples of such situations in the case law. I have considered the criteria outlined in Oswell v. Oswell, 1990 6747 (ON SC), [1990] O.J. No. 1117 (Ont. H. C.) affd. [1992] O.J. 3563 (Ont. C. A.) and the necessity to determine the true intentions of the spouses. In the absence of the deemed admissions noted above the preponderance of the evidence may well have lead me to conclude that the parties had resumed cohabitation in September 2010 and that the valuation date should be March 7, 2011. I find however that ignoring the deemed admission in this regard would be unfair to the parties, and the Father in particular, who, it must be presumed, presented their evidence based upon the admissions.

[338] Therefore, I find that the valuation date is March 31, 2006.

Calculation of Equalization

[339] The Father has provided with his submissions a Net Family Property Statement calculating an equalizing payment owing by him to the Applicant in the amount of $23,004.93 before any post-separation accounting.

[340] As indicated above, to the extent the evidence of the Mother is inconsistent with the deemed admissions pursuant to the Request to Admit, I will prefer the deemed admissions.

[341] All of the figures in the calculation provided by the Father are consistent with the deemed admissions as of March 31, 2006 pursuant to the Request to Admit save and except as follows:

(a) Value of currently owned matrimonial home at T[…] (which remains an issue given the content of the order dated May 16, 2012 which preserves the Father’s right to pursue a “top up” in compensation for his interest in this property as of September 1, 2011 beyond the $80,000 he has already received pursuant to the order).

(b) Value of the contents of the matrimonial home retained by either party at date of separation.

(c) The balance in the parties’ joint TD Canada Trust bank account number 0521344 at date of separation.

(d) The cash surrender value of the Father’s Sun Life Insurance policy at date of separation.

(e) Value of 2005 income tax refund owing to Mother at date of separation.

[342] The Mother’s submissions on this issue are largely silent beyond confirming her position that the valuation date is March 7, 2011, and that she has paid the Father $52,000 for the transfer of his interest in T[…]. She also notes she has improved this property after the Father vacated and he should not be entitled to share in any resulting enhanced value.

[343] I will address the lingering valuation issues outlined above as follows:

(a) Regarding T[…], the Father transferred his interest in this jointly owned matrimonial home to the Mother on July 9, 2012 pursuant to the order dated May 16, 2012. That order required the Mother to pay $50,000 at the time of transfer, followed by another $30,000 in $1,000 monthly instalments. It is common ground that while the $50,000 was paid and title transferred, only $2,000 was paid thereafter. The order provided that “the payment of $80,000 to the Respondent is without prejudice to his position that he is entitled to 50% of the equity…as at September 1, 2011 and that he is entitled to an additional payment for his interest.” Further, the order preserved “…both parties’ claims for reimbursement for joint expenses they have paid and all credits they are seeking.” The Father’s position is that the Mother has admitted $435,000 as the value of this asset as of September 1, 2011 and $450,000 as of January 12, 2012. I find that the correct value for the purpose of determining the Father’s entitlement in this regard is $435,000 for the following reasons:

a. The order identified the Father’s position that he was entitled to 50% of the equity as of September 1, 2011

b. The Mother is deemed to have admitted the value of the property was $435,000 as of September 1, 2011.

I have been provided no evidence as to the outstanding mortgage balance as of date of transfer; however, the Father is prepared to accept the admitted balance for the mortgage as of March 31, 2006, being $102,505. This figure is generous to the Mother as it prevents the Father from sharing in any increased equity resulting from post-separation mortgage payments by the Mother.

Therefore, the Father is entitled to further compensation from the Mother for his interest in T[…] in the sum of $114,247 calculated as follows:

1. Value as of Sept. 1, 2011 $435,000

2. Less Mortgage (102,505)

3. Resulting equity 332,495

4. Father’s 50% share 166,247

5. Less $52,000 paid 114,247

(b) Regarding value of contents of T[…], the Mother, through her deemed admissions, acknowledges that she retained all of the contents. I have been given no value by the Mother. The Father has adopted his NFP statement which places the value at $4,000. In the absence of any contradictory evidence I find this is the value to use for equalization purposes.

(c) Regarding the joint TD Canada Trust account at separation, this asset does not appear to have been the subject of any deemed admissions; however, as it has been ascribed equally to both parties in the Father’s calculation it has no effect on the result. No finding is necessary.

(d) Regarding the cash surrender value of the Father’s life insurance at separation, again, in the absence of any contradictory evidence I accept the value of $4,647 ascribed by the Father to this asset.

(e) Regarding the value of Mother’s 2005 income tax refund owing to her as of separation, again, in the absence of contradictory evidence from the Mother, who owns this account, I accept the value of $8,667 ascribed by the Father.

[344] Therefore, the result is in accordance with the NFP statement submitted by the Father, being the Father owes an equalizing payment to the Mother in the amount of $23,004.93.

Occupation Rent

[345] The Father seeks occupation rent regarding the T[…] property from commencement of this Application to present.

[346] At the date of separation this property was jointly owned by the parties.

[347] The Mother has resided in this property since March 30, 2006, subject to the period from September 2010 to March 7, 2011 during which the parties were residing at S[…].

[348] There has never been an award of exclusive possession of this property to either party; in other words, the Father at all relevant times retained the right of possession of the matrimonial home, although he chose not to exercise that right.

[349] The Father transferred his interest in this property to the Mother on July 9, 2012 pursuant to the terms of the order dated May 2012; as a consequence his claim for occupation rent cannot extend beyond that date as thereafter he had no ownership interest in the property.

[350] In Griffiths v. Zambosco 2001 24097 (ON CA), [2001] O.J. No. 2096 (Ont. C.A.) the court determined that in addressing occupation rent in a family law context the following factors ought to be considered:

(a) The timing of the claim

(b) The duration of the occupancy

(c) The inability of the non-resident spouse to access his/her equity

(d) Any reasonable credits to be set off against the claim

(e) Any other competing claims in the litigation.

[351] The weight to be given these and other relevant factors is to be determined by the trial judge. Where the parties jointly own the matrimonial home it is appropriate to reduce by 50% the occupation rent obligation and credits reflecting the expenses connected with the home.

[352] I have considered the deemed admissions and they largely support the Father’s claim for occupation rent, including the definition of applicable market rents.

[353] This claim is equitable in nature and in considering it I reflect upon the full impact of my judgment upon the parties; in particular I am sensitive to the effect of my decision above to dismiss the Mother’s claim for spousal support and to impute income to her at a level she is not actually earning at this time. I also consider that my decision regarding the valuation date will generate a further financial burden for the Mother.

[354] In consideration of these factors, and considering that the Mother was never awarded exclusive possession of the matrimonial home, I decline to award occupation rent to the Father.

S[…] Property

[355] It is common ground that the Father moved into this property shortly after the parties separated on March 31, 2006. He was initially renting. A few months thereafter the Father purchased the property in his name alone.

[356] In late summer of 2010 the Mother moved into this property in furtherance of the parties’ joint intention to attempt reconciliation. They both resided there until March 7, 2011 when the Mother moved out. The Father has resided there since.

[357] While residing at this property the Mother alleges that she improved it in various ways including the following:

1. Installing chandeliers in all the rooms

2. Renovating the basement to include a music studio

3. Renovating the basement to include sleeping quarters for the Father’s parents to enjoy when visiting

4. She participated in purchasing a Christmas tree for this property

5. She purchased a sofa for this property

[358] She maintained that she did much more than just clean this property. In cross-examination she conceded that did not do the work herself; rather she arranged for the contractors to do the work. The work took two and possibly three days.

[359] She could not recall if the Father’s parents ever actually used the bedroom for sleeping.

[360] The Father was paying her $1500 per month and she applied these funds to various expenses including the renovations and sundry others. The Father borrowed this money from his mother according to the Mother.

[361] She did not produce proof she has purchased the chandeliers. She believed it had been provided to the Father through her solicitor prior to trial.

[362] In my view the Mother’s claim for an interest in S[…] fails because the deemed admissions completely undermine her evidence in this regard and, even without considering the contradictions contained in the deemed admissions the Mother’s evidence was insufficient to establish a basis for her claim, given the paucity of specificity and detail.

RESTRAINING ORDER

[363] The Mother seeks a restraining order against the Father for the following reasons:

1. The Father “uses his body to corner [her]”

2. The Father “would punch holes in the wall next to [her] face”

3. She lives “in fear and terror”

4. The Father approached her in a room full of people , came “into [her] physical space and said ‘give me N. right now!’

5. If she is not given a restraining order “it’s just a matter of time before he is able to execute the same sort of set up”

[364] The Mother’s evidence in this regard usually lacked factual and temporal details. Apart from the email history between the parties there is little ongoing communication of any variety. The Mother was unable to direct my attention to any email or text message that contained any threatening connotation.

[365] In cross-examination the Mother’s attention was drawn to her Form 35.1 Affidavit in which she noted “N/A” regarding a question about any history of violence or abuse.

[366] She testified that the Father had given her “black and blue marks”, giving the impression that he had assaulted her and caused injury. In cross-examination it was put to her that these marks resulted from the Father defending himself against her attack upon him. Curiously, she indicated she did not recall this rather than rejecting the assertion outright as one might expect. I found her evidence wholly unconvincing and unreliable on this issue.

[367] I have no hesitation in these circumstances in concluding that the Mother’s claim for a restraining order ought to be dismissed.

COUNSELING

[368] The evidence is overwhelming that professional assistance is required in an effort to revive A.’s relationship with the Mother. Therefore I have included an order in my decision that addresses this important issue.

SEALING ORDER

[369] Both parties seek an order anonymizing these proceedings to protect the children from embarrassment and to protect the Mother in relation to her employment.

[370] I am satisfied in the circumstances of this case that there should be an order anonymizing the names of the parties and children and relatives by reducing same to their respective initials, as such an order is consistent with the best interests of the children given the sensitive nature of much of the evidence presented in this proceeding and the likelihood the children would experience discomfort were the evidence to be readily relatable to them.

[371] The Mother seeks order pursuant to s. 137(2) of the Courts of Justice Act sealing the court file in relation to all her “medical records and psycho-vocational assessment documents”. This is not opposed by the Father.

[372] In my view, given the potentially sensitive information contained in the records and report, dissemination of which could have significantly deleterious effects upon the Mother, it is appropriate to order that the Mother’s medical records and psycho-vocational assessment be sealed.

ONGOING INVOLVEMENT OF THE OCL

[373] The Mother seeks an order that the OCL continues to be involved in this matter on behalf of the children. Such an order is clearly inappropriate in that these proceedings are complete but for my ruling on costs and any incidental issues arising from my judgment and further the OCL cannot be compelled to participate in these proceedings in any event.

[374] This request is therefore dismissed.

MOTHER’S PERSONAL PROPERTY

[375] The Mother seeks an order that the Father return her “case of pictures, videos and family memorabilia” which she organized and brought to the S[…] residence.

[376] The Father denies any knowledge of these items.

[377] The evidence being equivocal I cannot find that the Father has the items sought and accordingly this request is denied.

PSYCHIATRIC ASSESSMENT OF FATHER

[378] The Mother seeks an order that the Father submit to a psychiatric assessment. There is no evidentiary foundation for this request and it comes far too late in these proceedings in any event. This request is denied.

CONCLUSION

[379] For all of the foregoing reasons there shall be judgment as follows:

(i) The Father shall have sole custody of the child A.R., born […], 1998, subject to access by the Mother in accordance with the child’s wishes.

(ii) A. shall reside with the Father.

(iii) The Father shall have sole custody of the child N.R., born […], 2003, subject to the following terms and conditions:

(i) During the school year and not during the summer school break, N. shall reside with the parties on an alternating week basis with exchanges taking place on Sundays at 8:00 p.m. The parent relinquishing N. shall drop off N. to the other parent at the other parent’s home on Sunday at 8:00 p.m. (Monday at 8:00 p.m. if it is a long weekend).

(j) Each party shall be entitled to a mid-week visit with N. on Wednesdays from 7:00 to 9:00 p.m. unless the parties otherwise agree.

(k) During one party’s period of care of N. the other party shall not pick up N. from school, daycare, camp, or any other location where N. may be that day, without consent in advance from the party with scheduled care of N..

(l) The following holiday residence schedule shall override N.’s residence schedule as set out above:

School Spring Break

(i) N. shall reside with the Father in odd-numbered years and with the Mother in even-numbered years, from N. leaving school as the school spring break starts until his return to school following the break.

Mother’s Day

(ii) If N. is not otherwise with the Mother on this weekend, N. shall reside with the Mother on Mother’s Day weekend from Saturday at 8:00 p.m. until his return to school on Monday.

Father’s Day

(iii) If N. is not otherwise with the Father on this weekend, N. shall reside with the Father on Father’s Day weekend from Saturday at 8:00 p.m. until his return to school on Monday.

Summer Vacation

(iv) N.’s residence during the summer break from school shall be shared equally between the parties on a two week alternating schedule. The summer schedule shall commence with the parent who has N. with him or her during the last week of school having N. for the first two weeks of the summer break.

Christmas

(v) N.’s Christmas school holidays shall be equally divided between the parties each year. In even-numbered years commencing in 2016 N. shall be with the Mother for the first half of the holiday period and with the Father for the second half of the holiday period. In odd numbered years commencing in 2015 N. shall be with the Father for the first half of the holiday period and with the Mother for the second half of the holiday period. In December, 2014 the Father shall be entitled to have N. in his care for three weeks including the Christmas school vacation to accommodate a trip to India. In December, 2015 the Mother shall be entitled to have N. in her care for three weeks including the Christmas school vacation.

Child’s Birthday

(vi) N. shall spend his birthday with his parent(s) in accordance with N.’s residence schedule, unless the parties otherwise agree.

(vii) For the purposes of care exchanges, the parent relinquishing N. to the other shall drop him off to the other parent at the other parent’s home and shall ensure safe delivery into the care of the other parent from the curbside or driveway. The parent relinquishing N. shall not approach the other parent or the other parent’s front door.

(viii) N.’s lunch box, school notes, and other personal items shall be delivered with N. to the other parent at the care exchange.

(ix) If a parent will be unavailable to care for N. for more than 24 consecutive hours, that parent shall offer the opportunity to the other parent to care for N. during the period of unavailability.

[380] The following additional orders shall apply to both of the children:

(m) The children shall be permitted by the parties to communicate with one another in accordance with their wishes including telephone, email and text messages.

Flexibility

(n) The Father and the Mother shall at all times maintain a reasonable and flexible position respecting the parenting schedule for the children and at all times the best interests of the children shall prevail. Accordingly, if special occasions, extracurricular activities, holidays, excursions or other opportunities become available to the children, or to the parties, neither of them shall insist that the residency arrangements set out herein shall be adhered to without exception.

(o) The parties shall encourage the children’s relationship with each other and with each parent.

(p) The parties shall encourage the children’s relationships with their extended relatives. Accordingly, if an opportunity for the children to travel to Ottawa or to Winnipeg to be with the Father’s parents arises, the Mother shall not unreasonably withhold her consent to such travel.

Day-to-Day Decisions

(q) The parent residing with A. or N. at the relevant time shall make the daily decisions affecting the child(ren)’s welfare.

Major Decisions

(r) The Father will consult with the Mother but will have final decision-making authority regarding the children’s welfare, including decisions about their:

(i) education,

(ii) major non-emergency health care,

(iii) major recreational activities, and

(iv) religious activities.

Emergency Decisions

(s) If either A. or N. need emergency medical care while with one parent, that parent shall promptly notify the other of the emergency.

Communication with the Children

(t) The parties may telephone or communicate with the children on a regular basis. The children may telephone or email the parties when they wish. Such communication shall be private between the parent exercising the communication access and the child. For clarity, the telephone discussion shall not be on speaker phone and the parent shall provide the child with private space to speak with the other parent.

Communication

(u) The parties shall keep each other informed of the health status, medical and dental appointments, educational updates, upcoming activities, travel plans and special events concerning the children.

(v) The parties shall communicate with each other regarding non-emergency and non-time sensitive issues concerning the children using the Our Family Wizard online tool. The parties shall return the other parent’s message within 24 hours, unless the party is unavailable during that 24 hour period, in which case that party will respond within 24 hours of becoming available. A party failing to respond to a question or issue within this timeframe, will be deemed to have accepted the requesting party’s position on the issue or request. The parties are each responsible for their respective annual fee for Our Family Wizard.

(w) In the event of an emergency, communication between the parties shall be by telephone or text message. The parties shall advise each other of an emergency concerning the children as soon as possible.

(x) The parties shall ensure that each has the other’s current contact information at all times (including telephone number) to facilitate communication regarding the children.

(y) The parties shall ensure that the children are able to communicate privately on the telephone with the other parent. Neither shall record the children’s conversations with the other parent. Neither shall use a speaker phone to listen to a child’s conversation with the other parent.

(z) The parties shall restrict their communications to issues pertaining to the welfare of the children.

Information from Third Parties

(aa)The parties may make inquiries and be given information by the children’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors, or others involved with the children.

Education

(bb) Both parents may attend all school functions. In the event that the Mother will be attending a school function for A. at which A. will be present, the Mother shall consider the wishes of A. and provide the Father or A. with 48 hours’ notice. The parties shall not approach each other at the children’s school events.

(cc)The parents shall attend parent-teacher meetings separately.

(dd) Each parent shall obtain his or her own school calendar and school notices.

Medical Appointments

(ee)The parties shall cooperate in facilitating the children’s medical and dental appointments during their scheduled parenting time. Such appointments shall not take place during school time unless urgent or an emergency.

Activities

(ff) The parties shall cooperate in facilitating the children’s attendance at their extracurricular activities during their scheduled parenting time. This includes, but is not limited to, piano, swimming lessons, and basketball activities. For clarity, each party shall be responsible for dropping off and picking up the children to and from their scheduled activities during his or her scheduled parenting time. The parties shall not schedule other activities conflicting with previously scheduled activities.

(gg) Both parties may attend the children’s extracurricular events. In the event that the Mother will be attending an event for A., she shall consider A.’s wishes and provide the Father or A. with 48 hours’ notice. The parties shall not approach each other at the children’s extracurricular events.

(hh) The party who has the care of a child shall ensure that the child attends any ordered or agreed-upon activities for that child that are scheduled to occur during that party’s period of care.

Travel

(ii) The parties shall cooperate to obtain and renew passports for the children. The Father shall keep A.’s and N.’s passport. In the event that the Mother requires the passports for travel with the children, the Father shall provide the Mother with the children’s passports. The Mother shall return the passports promptly.

(jj) If either parent plans a vacation with the children, that parent shall give the other a detailed itinerary at least seven days before it begins, or as soon as such information becomes available if less than seven days, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact the children during the trip.

(kk) If either parent plans a vacation without the children, that parent shall give the other a telephone number where he or she can be reached in case of emergency or if the children wish to contact that parent if their regular cell phone number will not be accessible.

(ll) If either parent plans a vacation outside Canada with the children, the travelling parent shall provide the other parent with a written travel consent authorizing the children to travel, for the other parent to execute. The consent need not be notarized. The Travel Consent shall not be unreasonably withheld or delayed.

Name Change

(mm) Neither party shall change the children’s names without the other’s written consent.

(nn) The parties shall take such steps as are reasonably necessary to ensure that each has access to the children’s school pictures. The Father shall forthwith provide to the Mother copies of A.’s school pictures for the school years 2011 to present.

(oo) The Mother shall forthwith release to the Father all of A.’s personal property in her possession.

[381] Commencing October 1, 2014 the Father shall pay the Mother set-off child support for the children A. and N. in the amount of $607 per month, based upon the Father’s income of $187,895 and the Mother’s imputed income of $63,000.

[382] The parties shall exchange copies of their complete Income Tax Returns and attachments by May 31 each year, and copies of their respective Notices of Assessment and Reassessment forthwith upon receipt each year. Child support shall be reconfigured as agreed by the parties in writing or as ordered by the court.

[383] Pursuant to section 7 of the Child Support Guidelines the parties shall share the children’s reasonable and necessary special or extraordinary expenses in proportion to their respective incomes, such proportions at present being 75% to the Father and 25% to the Mother. The parties shall consent in advance to such expenditures with such consent not to be unreasonably withheld.

[384] The parties shall forthwith engage a mutually agreeable third party to undertake reconciliation counseling/therapy in relation to the Mother’s relationship with A.. This expense shall be treated as a s. 7 expense for the purpose of cost-sharing. If the parties are unable to agree on who should be engaged in this regard either party may submit to my attention a 14B Motion with supporting affidavit including each party’s nominee and the nominee’s qualifications.

[385] There shall be an order anonymizing the names of the parties and children by reducing their names to initials throughout these Reasons for Judgment.

[386] There shall be an order that the Mother’s medical records and psycho-vocational assessment be sealed.

[387] There shall be judgment for the Mother on the issue of equalization (excluding T[…]) in the sum of $23,004.93.

[388] There shall be judgment for the Father on the issue of equalization of the T[…] property in the sum of $114,247.

[389] The issue of divorce shall proceed by way of Affidavit for Divorce which may be filed by either party.

[390] All other claims are dismissed.

COSTS

[391] The parties may make written submissions on costs as follows:

(a) The OCL, within 15 days

(b) The Mother, within 30 days

(c) The Father, within 45 days

(d) The Mother, in reply, if she wishes, within 60 days.

DOUGLAS J.

Released: September 18, 2014