REASONS FOR DECISION

JARVIS J.:

[1] F.K. and S.K. (respectively “the husband” and “the wife”) were married for slightly less than 11 years before they separated. Two children were born, a son and a daughter. When the parties separated, they had very modest assets. Their conflict over the parenting of their children, which occupied much of a five day trial, was infused by a history of marital unhappiness, isolation, non-communication and, not surprisingly, petty allegations of misconduct that elevated their discord to the equivalent of a parental tontine: neither the children, nor their family’s financial well-being, have been well served.

Background

[2] The husband and wife were married on July 12, 2003.

[3] The husband is 54 years of age (born […], 1961) and the wife is 44 years of age (born […], 1971).

[4] There are two children of the marriage, namely D.G.K., born […], 2008 (seven years old), and S.M.K., born […], 2009 (six years old).

[5] The husband and wife separated on June 19, 2014.

Family History

[6] The husband and wife met at a local church in a bible study group. Both parties described themselves as evangelical Christians. The husband had been previously married and had a child (“B.”) from that relationship, who was about seven years old. B. lived with his mother and, during the early years of the parties’ marriage, enjoyed alternating weekend access and mid-week dinners with his father, but the latter was dropped when B. entered his teenage years.

[7] The husband had a degree in Industrial Design but was then self-employed, pursuing a number of entrepreneurial opportunities, none of which was very successful. The wife was a French teacher for about six and a half years before the parties married, and worked (by the time of trial) at the same school where she had begun teaching. The parties had negligible assets and, after their marriage, they lived in a rented farmhouse in Queensville. Although the evidence was meagre, I infer from what each testified that before D.G.K. was born, and until the parties separated, most of the family’s income was earned from the wife’s teaching. The husband left to the wife the responsibility of managing, and paying, the family’s expenses from a joint bank account into which their earnings were deposited, a task that the wife said she found stressful in light of all her household and teaching duties (and the husband’s criticism of her when bills were not paid on time).

[8] Before S.M.K. was born, the parties purchased a residence in Mount Albert. The husband had mostly abandoned his entrepreneurial endeavours in favour of employment with an industrial design company located in Mississauga, Ontario. This provided him and the family with a more regular source of income but also required a lengthy daily commute. Even so, and as the wife testified, the family finances were so often “in the red” that she had to take shorter maternity leaves after each child’s birth to help pay the bills. Finances were tight because, to a great extent, the husband was spending considerable time and money in renovating the garage of the matrimonial home into a “Man Cave” where he spent most of his time when not working, whether with friends or alone, and where he continued to work on developing a sideline business as the “Power Tool Chef.”

[9] Also known as “Chef F.K.” or “The Manic Mechanic” the husband sought to introduce the use of power tools to ordinary food preparation so as to make cooking more appealing (or perhaps less intimidating) to men. The wife occasionally assisted him as his sous-chef and she supported his power tool/culinary efforts. DVD sales and other promotional efforts yielded little revenue though.

[10] The parties decided to start a family about three to four years after they married. Already there were some problems in their relationship. The wife testified that about a year after their marriage she began to feel isolated as the husband seemed more intent in spending his spare time on his entrepreneurial pursuits. This worsened after D.G.K., then S.M.K., were born as the husband’s job in Mississauga meant that during the week he would rarely see the children. It was the wife’s responsibility to feed the children and transport them to daycare: the husband would typically rise around the time the children were leaving, or had already left for school or daycare, and then commute to Mississauga, returning in the evening shortly before or after the children’s bedtime. He would then spend time in his Man Cave, coming to bed very late in the evening after the wife had retired, or was asleep. The children would spend time with their father on weekends, and holidays. At trial the husband acknowledged that in the period following S.M.K.’s birth in 2009 until shortly before the parties separated, the wife was the children’s primary caregiver. She was also involved in facilitating B. access with his father as B. mother, particularly in the later years of the parties’ marriage, preferred to deal with the wife. This was a result of a physical altercation between the husband and B. in late 2010 in which the York Region Children’s Aid Society became briefly involved.

[11] Both parties were involved with their local church, the wife more so than the husband as she taught Sunday School: he played musical instruments for worship. But with a young family and demanding careers, the time pressures on the parties was significant, particularly in the wife’s case. In addition to her primary responsibilities for childcare and managing the household finances, she was expected to keep the house tidy and clean, the failure for which she was also criticized.

[12] The unchallenged evidence of the wife was that as their family was growing, the strains on the parties’ relationships led them to consult five different marriage counsellors over a period of 11 years, with only temporary success. The wife would describe her isolation in the parties’ relationship, that she no longer felt loved, but when the husband would be asked about this he would leave the sessions or simply not reattend. As their faith was important to both of them, the wife would read to the husband, including books about Christian marriage: the husband told her that in their marriage it was her religious duty to “obey.” Things got so bad that, particularly after S.M.K. was born, the wife would regularly leave home with the children in her car, sit in a local parking lot and cry.

[13] Both parties were unhappy. A year or two before the parties separated the husband consulted the family doctor and was given a repeating prescription (Cipralex) for stress and situational depression. He also consulted a psychologist who suggested, but never formally diagnosed, a possible bi-polar disorder. The wife testified that the medication calmed the husband but that when he wasn’t taking it, or took less than the dosage prescribed, the family tensions resurfaced. At trial the husband was no longer taking any medication.

Separation

[14] In February 2014, the husband invited a musician friend who was between jobs, and who had just returned from Eastern Canada in an unsuccessful attempt to secure employment, to stay at the matrimonial home. At first all seemed well but, as several months passed without the friend finding employment, the husband said that he became a burden and especially less welcome after the husband observed the attention being paid to the wife. There were several discussions between the husband and friend about the spousal parties’ marital relationship, the way in which the husband treated the wife, which the husband viewed as critical of him, and interfering with the marriage. The husband suspected an affair, if not physical, then emotional.

[15] One weekday morning, after the wife and children had left the matrimonial home for school and daycare, the husband contacted the police to arrange for the friend’s removal from the matrimonial home, which was done. When, later that day the wife became aware of what had happened, she was furious. After years of counselling and dealing (as she said) with the husband’s impulsive, unpredictable and easily-provoked temper (which she thought indicative of some form of mental illness) the wife was resolved by June 19, 2014 that the parties needed to separate, that she and the children leave the matrimonial home.

[16] She hand-wrote a list of what she thought should be agreed by the parties. Two weeks earlier, the husband had told her that he wanted a divorce. On June 19 though, the husband refused to discuss anything about separation with her and, in what both parties described as an accidental scuffle, the husband closed a backyard screen door on the wife, slightly bruising her. The wife’s visit shortly afterwards to a neighbour’s residence resulted in the Police attending the matrimonial home. No charges were laid but that day, and over the next two days, with the wife attending on the last day with a moving van, she removed her personal clothing and that of the children along with the children’s, and some family, furniture. The husband said he was shocked by the wife’s actions but, in any event, and as both parties testified, he did not obstruct the wife, even helping her and the men assisting her in removing the furniture she took.

[17] The wife and children went to the residence of the husband’s sister. The husband saw the children the next day but not long afterwards the wife moved elsewhere with the children, and refused to disclose their whereabouts. The wife testified that she was concerned about her safety.

[18] On July 4, 2014 the husband commenced an Application for access and made allegations of adultery and cruelty, the latter particularized as “abusive verbal, lying, not giving access to children, and wrongful accusation to damage my reputation.” No divorce or equalization of net family properties were claimed. The husband represented himself.

Litigation

[19] On July 18, 2014, and in an urgent motion brought by the husband to which the wife responded, Nicholson J. awarded the wife temporary custody of the children and restricted the husband’s access to a minimum of two hours per week supervised access.

[20] Paragraphs 2 and 4 of the order provided that,

“2. The Applicant Father shall have access to the children at a minimum of 2 (two) hours per weekend supervised. If the parties cannot agree on third party supervision the access shall be at a supervised access centre.

Access shall remain supervised until sufficient evidence is filed with the court regarding the mental health of the Applicant Father to satisfy the court that unsupervised access is in the best interests of the children.”

[21] Paragraph 3 of that order provided,

“3. Children’s Aid Society should be provided with copies of the pleadings herein and be invited to investigate the issues.”

[22] The reason for supervised access was explained in the court’s endorsement. The mother alleged that the husband was mentally ill and, in responding to that allegation, the husband admitted that he had consulted a psychologist due to high stress levels and problems with his temper, that he was told that his symptoms were due to stress or bi-polar disorder. He acknowledged a need for ongoing medication. While the wife had retained counsel for this motion, the husband continued to represent himself.

[23] The Children’s Aid Society became involved for the reasons that led to supervised access being ordered. The wife’s concerns about the husband were supported by affidavits from the children’s caregiver, Lorna Engel, and the neighbour (a Police Officer) to whose residence the wife had gone after the backyard screen door incident on June 19. As matters turned out, the Society’s involvement later changed.

(a) Supervised Access

[24] After the Order made by Nicholson J. the wife suggested to the husband on July 24 a local supervised access facility and she agreed to share its costs, but the husband declined, accusing the wife of being unreasonable, and he voicemailed her on July 25 what can only be described as a chilling message, which the wife transcribed and which the husband did not deny at trial sending,

“S.K. – do you remember how we originally said that we weren’t going to use lawyers – we’re gonna do this nice? Well, you’re the one that started off with a lawyer. I haven’t used a lawyer ‘till now and you haven’t given me any access to the children, except by telephone and that’s been very minor. Now what you’ve done is you have pushed me to my limit and I have no choice. I am about to do something that is going to absolutely ruin your life and you’ll probably not be allowed to have the children, so this is a last ditched effort before I pull the trigger on this, S.K.; so – call me – I’d love to talk – let’s try to sort this out in an amicable way as this is basically your last chance. After this, you are never going to see your children again. Okay? Because of what you have done to me and because of what your past has done. Please don’t make me pull the trigger, but I will, because if this is how you’re gonna behave and if this is what you call amicable, then you obviously leave me no choice and it would actually be better for the kids to be in a foster home. It really would: so, give me a phone call, leave me a text, let’s try to work this out because in about an hour, I’m pulling the trigger, if I don’t hear from you. Okay? Thank you. Bye.”

[25] The wife’s receipt of this message terrified her and she reported it to York Regional Police. While no charges were laid, the husband’s behaviour heightened her anxiety and concerns for her safety, confirming her preference to restrict the husband’s communications with her to written communications such as e-mails or texts.

[26] As for the threat made by the husband, the wife was concerned not so much by the “trigger” implication in his message but rather she perceived that as referencing an incident involving one of her former students, a minor, that pre-dated the parties’ marriage and in respect to which the wife was held blameless. That this so alarmed the wife though is consistent with her fear about the husband’s temper. As she testified, what was so predictable about the husband was his unpredictability.

[27] Further messages exchanged between the parties also dealt with the husband’s concerns about how to manage paying the household expenses, in particular the mortgage. The parties agreed that the wife would waive child support in consideration for the husband paying her share of the mortgage but, unbeknownst to the wife, the husband had advertised for a tenant. In response to this initiative, the husband met a woman (A.M.) who with her 12 year old son were looking for accommodation in the Mount Albert area. Ms. A.M.’s legal name is J.K. but she preferred to be called A.M. for professional reasons. Ms. A.M. and her son began residing at the matrimonial home on or about August 1, 2014, but not as it turned out as tenants: rather Ms. A.M. and the husband quickly developed a continuing personal relationship.

[28] The husband consulted a Doctor Min C. Yeh, a psychologist, in mid-September, 2014. Dr. Yeh was engaged to assess the husband’s mental health functioning because the husband wanted to address the mental health concern raised by Nicholson J. on July 18 when supervised access was ordered.

[29] In a report dated September 18, 2014, and shortly afterwards delivered to the wife, Dr. Yeh concluded that there was no evidence which would suggest bi-polar disorder, and that the husband’s Cipralex prescription did not, in and of itself, indicate such a disorder.

[30] I will comment about Dr. Yeh’s testimony later in these reasons: suffice it that there were three developments around the date of Dr. Yeh’s report. The first is that the wife contacted the husband in an effort to reconcile only to learn that he wasn’t interested, that he was involved with someone else (Ms. A.M.) and, secondly, that the husband’s dissatisfaction with the irregularity and inconsistency of the children’s access with him led him to engaging the local supervised access facility which the wife had earlier suggested. Thirdly, the husband retained counsel.

[31] A settlement meeting between the parties and counsel on November 4, 2014 resulted in interim Minutes of Settlement that, on a temporary, and without prejudice, basis suspended the supervision restriction on the children’s access with their father and provided for regular weekly, although time limited, access at pre-determined locations. Regular telephone access, twice weekly at a specified time, was also agreed. These Minutes, however, only dealt with access to January 3, 2015.

[32] The unsupervised access proceeded uneventfully until shortly after Christmas 2014. After an earlier brief, and accidental, encounter with the wife and children when he was accompanied by Ms. A.M. at a local mall, and she and the wife met, the husband brought Ms. A.M. and her son to the next scheduled access. This resulted in an exchange of letters in early January 2015 between counsel that focused on reports that the children were confused about the husband’s “new family” and their new “brother” (referring to Ms. A.M.’s son). Not surprisingly, access reverted to supervision, mostly by the supervised access facility previously used by the husband, and by several of his friends known to the wife. Ms. A.M. and her son were not to be present. These arrangements continued to trial.

(b) Society Involvement

[33] In accordance with the Order made by Nicholson J., the Society initiated an investigation. The wife’s concerns about the husband’s mental health were, so it seems, countered by a complaint or complaints by the husband about the wife’s care of the children. In the same exchange of letters between counsel just noted, the husband’s failure to facilitate an in-home visitation of his residence by the Society was also given as a reason why future access needed to be supervised. The Society was, apparently, maintaining an open file on the family for reasons never fully explained at trial but which involved monthly home visits.

(c) Sale of Home

[34] On or about March 16, 2015, a sale of the matrimonial home was completed. Shortly before the completion date the husband, Ms. A.M. and her son, abandoned the residence for reasons never convincingly explained by the husband apart from some events which the husband described as “bizarre” and which do not merit further comment in these reasons. After the sale transaction closed, the new owners incurred significant expense in junk removal and clean-up of the property for which they demanded reimbursement of their out-of-pocket expenses ($4,446.60) and compensation for the time, effort and aggravation to which they had been unnecessarily put ($1,000). There may have also been an unpaid mortgage installment and trailing utility charges. As of the date of trial, there remained about $33,000 held in trust by the solicitor who had acted for the parties on the sale.

Trial Evidence

[35] In addition to each party’s testimony, several of their friends and Dr. Yeh testified. While financial disclosure was made, the husband’s disclosure was deficient in material respects: for example, and despite the requirements of the Family Law Rules and Trial Management Conference Endorsement to deliver an updated Financial Statement, none was provided until mid-way through the husband’s testimony and, even then, the statement produced was merely a handwritten revision of the only statement he had previously sworn, itself barely adequate.

(a) Husband’s Evidence

[36] The husband acknowledged that after the birth of the children, the wife was their primary caregiver. He was prepared to “concede” primary residence of the children to their mother but admitted that there were communication problems between the parties. While his evidence and that of his witnesses pictured him a loving parent, he demonstrated little insight into the reasons for the marriage breakdown, and never satisfactorily explained inconsistencies in his evidence. For example, if he was so concerned about the wife’s parenting skills as he alleged, including her failure to clean a “dirty and disgusting” house because she let the children run around, and didn’t set boundaries for them, he never explained why he didn’t do anything to remedy the situation. Or, why, when it was so important to telephone D.G.K.’s school to obtain an update about his progress, it was not important to make an effort to physically attend the school when there was no response to two telephone messages he had left.

[37] The husband claimed joint custody and wanted an equal sharing of the children’s time between him and the wife not because he challenged the wife’s decision-making (except for her insistence on supervised access) but because he thought that arrangement better to “supervise the children.” He testified that he had been able to rearrange his work commitments to permit him to work three days a week from the home. The husband added that he thought consultation between the parents “healthy and important” but never answered the wife’s evidence that he avoided discussing matters that made him feel uncomfortable. He was estranged from B., his son from his previous marriage, because B. was no longer attending school and the husband suspected drug use. He was also estranged from his sister and her family for reasons never made clear.

[38] Even after the wife discovered that A.M. and her son were residing at the matrimonial home, and a demand was made that he pay child support in accordance with the Child Support Guidelines (“CSG”), none was paid.

[39] The husband’s witnesses (Brown, Sprangers, Schoenrock), all of whom were mutual friends of the parties and two of them (Brown, Sprangers) had acted as designated supervisors on several access occasions, described the relationship between the children and their father as loving, caring and playful. None of them had any concerns about the husband’s behaviour or his care of the children.

[40] A.M., the husband’s partner, described herself as an “Intuitive,” a psychic and sometime medium, with an alternative healing arts practice that involved local radio and television appearances. Her work involves “spiritualism”, the ability to communicate with the spirits of the living and the dead. She is also a motivational speaker. Ms. A.M. testified that the husband had a positive influence on her son and that, in the very limited time that her son and D.G.K. and S.M.K. had interacted, they enjoyed each other’s company. She thought the children all deserved more time together and, while she was supportive of the mother, she acknowledged that there was little trust between the parties, and virtually no communication. This could be remedied, she maintained, if joint custody was awarded and the children’s time with each parent shared equally.

[41] Dr. Yeh is a psychologist licenced to practice in Ontario. In his 30 years of practice he has held a number of positions in various treatment facilities and educational settings across Canada. He was tendered as an expert to report to the court on the husband’s current mental health status. In response to a challenge to his qualifications, Dr. Yeh testified that he had been qualified as an expert in other Ontario Courts but, surprisingly, he was unfamiliar with the procedural certification requirements for expert evidence and acknowledged (as his report stated) that the husband’s self-referral to Dr. Yeh’s clinic was also to “assist in his case planning.”

[42] In White, Burgess, Langille, Inman v. Abbott and Haliburton Co. (2015), 2015 S.C.C. 23, 2015 CSC 23, 2015 CarswellNS 313, 2015 CarswellNS 314, 383 D.L.R. (4th) 429, 18 C.R. (7th) 308, (sub nom. Abbott and Haliburton Co. v. WBLI Chartered Accountants), 470 N.R. 324, 67 C.P.C. (7th) 73 (S.C.C.), the Supreme Court of Canada examined the relationship between admissibility on the one hand and independence and impartiality of a proposed expert’s evidence on the other, emphasizing the expert’s special duty “to provide fair, objective and non-partisan assistance.” Noting the lack of authoritative guidance in Canadian law where, not uncommonly, critical scrutiny of admissibility would default to weight in matters involving expert impartiality, the court expressly linked the expert’s lack of independence or impartiality to admissibility of that evidence, in addition to weight, if the evidence was admitted. A two fold inquiry is needed:

(a) A “threshold” inquiry focusing on the proposed expert’s willingness and capacity to discharge his or her primary duty to the court to provide (as already noted above) fair, non-partisan and objective assistance; and

(b) Notwithstanding the threshold being met, a sliding scale of competing considerations combining relevance, necessity, reliability and absence of bias in which the potential helpfulness of the evidence is weighed against the spectrum of possible risk in its admission.

[43] Despite what the court views as an unfortunate turn of phrase by Dr. Yeh in describing the reason for his engagement, neither his report nor the challenge to his impartiality convincingly demonstrated that he was unable to discharge his duty to be fair, non-partisan and objective. Moreover, especially in light of the interpersonal circumstances that led to the parties’ separation, the wife’s insistence that the husband’s medication, coupled with his unpredictable behaviour, indicated some kind of undiagnosed mental disorder and the not uncommon, often situational, impact of marriage breakdown on individual behaviours, Dr. Yeh’s assistance would be helpful to the court. While the wife demanded an assessment by CAMH to investigate, or at least rule out, her concerns about the husband’s mental health, neither party was prepared to fund that nor, in reality, could either afford that expense. There was no agreement about an assessment pursuant to Section 30 of the Children’s Law Reform Act, certainly no motion to the court by either. Accordingly, Dr. Yeh was qualified as an expert to express an opinion on the current state of the husband’s mental health.

[44] In undertaking his assessment Dr. Yeh interviewed the husband, requiring him to complete a Personality Assessment Inventory (“PAI”) and Dr. Yeh reviewed the allegations contained in the affidavits and evidence before Nicholson J., as well as the wife’s Answer.

[45] The PAI is a self-reporting 344-item personality test that assesses a person’s personality and psychopathology. It is a widely accepted diagnostic tool. There are number of overlapping scales which are reviewed, interpreted and reported out. Without the court repeating all of the clinically significant findings made by Dr. Yeh, subscale results that the husband was a generally optimistic person with a focus on success and achievement but somewhat rigid in attitudes and behaviours accorded with the court’s observations of the husband and the evidence. As for the Cipralex medication, Dr. Yeh testified that its prescription is indicated for treatment of depression or obsessive-compulsive symptoms or disorders. Cipralex is not approved for bi-polar treatment but can be used in combination with mood stabilizers or anti-psychotic drugs. It made no sense, according to Dr. Yeh, to label the husband as bi-polar because he was prescribed this medication.

[46] Dr. Yeh concluded that there was no evidence from the PAI “which would suggest bi-polar disorder.” He also commented, based upon his interview of the husband and the allegations made in the affidavits of the wife and a friend with which he had been provided, that

“…based upon Mr. F.K.’s life history, employment record, and PAI results, there is no suggestion or indication of Borderline Personality Disorder or Antisocial Personality Disorder.

Based upon results from this assessment, there is no sufficient evidence to suggest that Mr. F.K. is currently suffering from depression, bi-polar disorder, Schizophrenia or Personality Disorder. Findings from this assessment also suggest Mr. F.K.’s likelihood to engage in aggressive act (sic) to be very low…

In summary, based on this assessment, Mr. F.K. is not seen as currently experiencing mental illness, Personality Disorder, or symptoms which would interfere with his ability to care for his two young children. Like others, he may be susceptible to anxiety, irritability, and worries. Also like others, he is susceptible to stress, frustration and unhappiness.”

(b) Wife’s Evidence

[47] The wife described herself as an evangelical Christian, her faith being fundamental to her lifestyle. In addition to child care, household management and teaching, she often taught Sunday School and attended church with the children on almost a weekly basis. She had had to change her place of worship after the parties separated because of rumors that she said the husband had spread. In any event, the husband had rarely, if ever, accompanied her to church for several years before the separation.

[48] The wife supported the husband’s access with B. after the parties married and before their separation. Afterwards she maintained a cordial relationship with B. mother and, in light of the children’s relationship with B., the wife arranged with the husband’s sister time once a month for B., D.G.K. and S.M.K. to get together at the sister’s residence.

[49] The wife felt that she had been verbally, emotionally, spiritually and even sometimes physically abused but apart from those occasions when the husband lost his temper and threw things, and the back door incident on the separation date, there was no evidence of actual physical harm tendered at trial. The wife was fearful of the husband though. That anxiety was obvious from her evidence and was manifested by her insistence on supervised access, even though it may have appeared that she was relying on Nicholson J.’s Order to control the husband’s time with the children and to better her claim for sole custody of the children. Viewed though in the context of the parties’ personal and family history and their faith, the wife’s behaviour was more indicative of her uncertainty about the decision to separate, and a genuine concern about the husband’s temperamental disposition. It is understandable, however, why the husband would have thought the wife’s actions tactical and manipulative.

[50] The wife testified that her husband had many wonderful qualities as a father but (as already noted) was unpredictable, had a volatile temper and, while fun-loving, was authoritarian. She wanted the children to feel they were safe, in a loving environment and one that was predictable or consistent in terms of parenting style. She appreciated that Ms. A.M seemed “kind and generous” but the wife was concerned that Ms. A.M.’s different faith system could confuse the children and impact their emotional well-being. The wife said that she would do all that she could to facilitate access between the children and their father, and to foster that relationship.

[51] David Engel was called as a witness by the wife. He was a Senior Compliance Officer with a federal agency. His late wife (who had died shortly before trial) had provided daycare services for D.G.K. and S.M.K. since shortly after each was born. Mr. Engel and his late wife had two adult children of their own, but no grandchildren. There were a few social occasions between the families.

[52] Mr. Engel’s work allowed him to be often present at home when the children were there. He testified that it was the wife who most commonly dropped off and picked up the children. He observed that it was the wife who seemed more engaged with knowing about the children’s daily activities, that the wife was more demonstrably affectionate with the children and the husband stricter, easily frustrated. On one occasion, during the winter and after the wife had dropped off the children to get to school, the husband had called the Engel residence looking for the wife. The call was on a speaker phone: the husband was uncontrollably angry. Apparently his car would not start and he could not reach the wife on her cell phone. The manner in which the husband addressed the late Mrs. Engel was, to put it mildly, unacceptable.

[53] Mr. Engel also testified that whereas S.M.K. was very expressive, D.G.K. was shy, lacking confidence, and that there were occasions when D.G.K. became aware that it was his father who would be picking up him and his sister, D.G.K. would get agitated, sometimes soiling himself. Mr. Engel had no doubt though that both parents loved their children, and their children them.

Analysis

(a) Divorce

[54] A Divorce Order shall issue.

(b) Custody

[55] However desirable may be joint custody, or even parallel parenting, the fact is that rarely will either be ordered over a parent’s objection, particularly where evidence of meaningful communication is unconvincing. While each case must turn on its own facts, a useful compendium of guiding principles was summarized by Sherr J. in JVM v. FDP., 2011 ONCJ 615, [2011] O.J. No. 5437, 211 A.C.W.S. (3d) 122 as follows,

[40]…The Ontario Court of Appeal in Kaplanis v. Kaplanis, 194 O.A.C. 106, 249 D.L.R. (4th) 620, 10 R.F.L. (6th) 373 [2005] O.J. No. 275, 2005 CarswellOnt 266, set out the following principles in determining whether a joint custody order is appropriate:

There must be evidence of historical communication between the parents and appropriate communication between them.
It cannot be ordered in the hope that it will improve their communication.
Just because both parents are fit does not mean that joint custody should be ordered.
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
The younger the child, the more important communication is.

[41]…Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests. See Graham v. Bruto, 2008 ONCA 260, 165 A.C.W.S. (3d) 103, [2008] O.J. No. 1306, 2008 CarswellOnt 1906 (Ont. C.A.); Roy v. Roy, 27 R.F.L. (6th) 44, [2006] O.J. No. 1872, 2006 CarswellOnt 2898 (Ont. C.A.).

[42]…Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See Griffiths v. Griffiths, 2005 ONCJ 235, 141 A.C.W.S. (3d) 265, [2005] O.J. No. 3090, 2005 CarswellOnt 3209 (Ont. C.J.). The issue is whether a reasonable measure of communication and cooperation is in place and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See Warcop v. Warcop, 66 R.F.L. (6th) 438, [2009] O.J. NO. 638, 2009 CarswellOnt 782 (Ont. S.C.).

[43]…Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour. However, where the conflict is extreme and there is substantial blame to be levelled against both parents, a joint or shared custody approach is not appropriate. See Geremia v. Harb (No. 5), 90 O.R. (3d) 185, 54 R.F.L. (6th) 274, [2008] O.J. No. 1716, 2008 CarswellOnt 2483 (Ont. Fam. Ct.).

[56] To these may be added the following considerations:

(a) Expert evidence about a child’s psychological or emotional needs, particularly in the case of younger children, or input from the Childrens’ Lawyer, may be beneficial and, in appropriate cases, necessary: Kaplanis v. Kaplanis, 249 D.L.R. (4th) 620, 60 10 R.F.L. (6th) 373, 194 O.A.C. 106 (C.A.);

(b) Even though parenting and child support should not be conflated, a parental history of preferring the children’s financial needs to personal needs is a relevant consideration: Ladisa v. Ladisa (2005), 11 R.F.L. (6th) 50, 193 O.A.C. 336 (C.A.);

(c) The comparative merits of detailed parenting plans that are sufficiently flexible to handle unexpected situations, changing developmental needs of children, and accommodating both parents’ living circumstances.

[57] Section 16 of the Divorce Act deals with custody of children of a marriage and subsections (1), (6), (8) and (10) provide as follows,

(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

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

(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.

[58] What constitutes the “best interests” of a child is nowhere defined in the Divorce Act but section 24(2) of the Children’s Law Reform Act identifies those considerations relevant to determining custody of, or access to, a child. That checklist is helpful.

(a) Love, Affection and Emotional Ties

[59] It was clear from the evidence that both parties had loving relationships with their children but, unlike the wife’s evidence, the husband seemed less focused on the children. His narrative about the family, the children and their relationship with him did not reveal very much about the children, and the evidence that for most of the children’s lives he was, essentially, a weekend father who spent much of his spare time on his own Man Cave and power tools/culinary pursuits was not seriously controverted. That the children may have enjoyed seeing him after the parties separated and he enjoyed, and made time for, them does not dispel the impression left that he was significantly less involved in the children’s lives than their mother.

[60] In many custody cases, a parent believes (however foolishly and erroneously) that by denigrating the parenting skills of the other parent that somehow, possibly by default, their own skills are to be preferred. The wife, in this case, though, acknowledged that her husband had many wonderful parenting qualities, and she described each child to the court in terms of their personalities, how their parents’ separation impacted them, and their emotional needs. David Engel testified that the wife, when picking up the children after work, would often sit with his late wife and discuss the children’s day.

(b) Views and Preferences of the Children

[61] The children are too young to express views and preferences and, in any event, neither side tendered any expert evidence.

(c) Length of Time in a Stable Home Environment

[62] The children have lived with their mother since the parties separated on June 19, 2014. Recognizing, perhaps, the benefits to the children of the stability of the home environment offered by the wife, the husband acknowledged that her home should be the children’s primary residence. Even so, there is no doubt that the outward stability of the home environment in which the children were raised was largely due to the wife, despite the parties’ interpersonal challenges. The children were reported to be happy and healthy. It was the mother who identified that D.G.K. might have some reading issues, possibly dyslexia; otherwise the children were developing normally.

[63] The husband’s recent “new family” with Ms. A.M. and her son, the unconvincing, and rather odd, explanation given by the husband for abandoning the matrimonial home so shortly before its sale, and the condition in which it was left, suggests comparatively less stability.

(d) The Ability and Willingness to Provide Guidance and Education

[64] For almost the entirety of the children’s lives, the wife has managed the guidance and education of the children. Notwithstanding the husband’s displeasure with his access limitations, he could have, but did not, proactively take steps to learn more about the children’s care or schooling. As already noted, not following up with the school about D.G.K. is one example: another is his complaint about not being informed about the identity of the children’s new caregiver after Lorna Engel died – there was no evidence that he even asked! It was the wife who, about two weeks afterward, volunteered the information. In addition, D.G.K. was attending a school in which French was the language of instruction until grade four when English would be introduced. S.M.K. would begin attending that school in September 2015. As a French teacher for almost two decades, the wife testified that she, rather than the husband, whose French language skills were poor, was the parent better able to assist the children with their school work.

[65] The husband’s evidence left the court with the impression that he was “able and willing” but his actions were inconsistent with his words, and the absence of a family history of involvement with the children in their daily lives supported that impression. That the husband, months after the fact, disclosed to the wife that Ms. A.M. and her son were living at the matrimonial home, and then refused the wife’s request to pay child support, reflect poorly on the husband’s view of his parenting responsibilities.

(e) Proposed Care and Upbringing Plans

[66] The husband proposed a parenting plan in which the children resided primarily with the wife but spent equal time with each parent. His rental residence was approximately 1,800 square feet and had four bedrooms, one each for D.G.K., S.M.K., Ms. A.M.’s son and the husband and Ms. A.M.. He had also reorganized his work hours to enable him to work three days a week from home but was looking for other job opportunities. He would need to negotiate with any prospective employer flexible work hours, and a pay package at least equal to what he had previously earned.

[67] The wife claimed sole custody. She was prepared to facilitate the children’s access with their father but had no confidence in his ability to recognize and appropriately deal with the children’s developmental needs. She resided not far from the children’s school: there was no evidence that she intended to further relocate. After Lorna Engel had died, the wife engaged another caregiver and provided those details to the husband.

(f) Permanence and Stability

[68] Within a short period of time after the parties separated, the wife acquired rental accommodation near the children’s care and school. The wife has maintained contact with the husband’s extended, and estranged, family and continued her and the children’s church involvement. Notwithstanding the assertions of the husband and Ms. A.M. about the strength of their relationship, the stability of that relationship after ten months is an unknown.

(g) Parental Ability

[69] Parenting involves care, love and guidance of a child. In this case, the comparative ability of each of the parties to discharge this responsibility weighs heavily in favour of the wife. She demonstrated an involvement with, and insight into, D.G.K. and S.M.K. that the husband did not. Nothing in the husband’s evidence about the wife’s past or present care of the children caused the court any concern. More doubtful, given the husband’s delegation of most of the responsibility for the children’s care to the wife, is his ability. Confronted too with, as already noted, what he viewed were unreasonable restrictions on the children’s time with him he could have, but did not, undertake any kind of parenting course that would have anticipated, and possibly addressed, the wife’s concerns about his parenting abilities.

(h) Familial Relationship

[70] This is not a factor.

Conclusions on Custody

[71] This is not a joint custody case. While there were many commonalities in the parties’ evidence, and each party was understandably anxious, the wife’s evidence was more child focused, consistent and insightful about the children’s well-being and where, in the evidence, there was conflict in the parties’ testimony, hers is preferred. The husband was often vague in his recollections and, on many occasions, gave the impression that he was tailoring his evidence to what he thought would impress the court.

[72] The interests of D.G.K. and S.M.K. will be best served by awarding their custody to the wife. She will make all decisions involving the children’s schooling, health and religious upbringing but only after consultation with the husband. In the event of a dispute, she will be the final arbiter. A more detailed disposition setting out the children’s time with each parent is contained in Schedule “A” to these reasons.

(c) Equalization

[73] Apart from their matrimonial home and the wife’s pension, the family’s financial circumstances were very modest. There remained in a solicitor’s trust account about $33,000 in net proceeds from the sale of the jointly-owned matrimonial home, and the parties had agreed before trial to the transfer to the husband of a 50% share of the Family Law Value of the wife’s interest in her Ontario Teachers’ Pension calculated in accordance with the regulations.

[74] The most contentious asset was the value of the tools, musical equipment, electronics and mechanical devices acquired by the husband during the two and a half year period before trial, which the husband estimated were only worth $1,000 on the valuation date, and the wife estimated a $30,000 value. No inventory was provided, no records of purchases were produced and little, if anything, was done by either party to otherwise document their respective estimates. The husband testified that many of the chattels were sold after the parties separated but, again, the evidence about what may have been sold and the value received was, at best, insufficient for the court to draw any conclusions. While the court does suspect that the value of the chattels was greater than acknowledged by the husband, and that he may have sold many to help fund the matrimonial home expenses, that suspicion is not enough to attribute to his side of the ledger the value advanced by the wife. She testified that she was the family bookkeeper, and so she would have been in the better position to document her estimate. Moreover, while the wife had served a Request for Information about two and a half months before trial, to which the husband never responded, there was no evidence, certainly no Order, that demonstrated any follow-up by the wife. In the circumstances then, and despite some misgivings, the value to be attributed to these assets is $1,000.

[75] There were at least two RESPs on the valuation date having a combined value of about $4,500, the balances of which had been funded by periodic deposits from the parties’ joint bank account. One Plan identified B. as its beneficiary and the other identified D.G.K. and S.M.K. as its beneficiaries. The evidence was that the wife was the owner of the Plans. In mid-August 2014 she redeemed one Plan and, after the mandatory CESG repayment, she received $2,000. The wife’s evidence was unclear as to which Plan was redeemed, her documentary disclosure was contradictory, and the husband knew little about either. What the wife did with the funds was never explained, although it does appear that she opened another RESP for D.G.K. and S.M.K. after the valuation date. In the circumstances, it is not practical to attribute the value of the RESPs to either party’s NFP nor can the court make an Order about the RESPs in an evidentiary vacuum, so none will be made.

[76] Only the wife delivered a Net Family Property (“NFP”) Statement. Adjusting for trial admissions, and backing out of the wife’s column the RESP accounts she managed for the children, the husband had $4,500 in assets on the valuation date and liabilities of $21,131.54: the wife had assets of $8,550 and liabilities of $17,547.70. Excepting the value of the wife’s interest in her Teacher’s Pension on the marriage date (and which was taken into account when the Family Law Value of her interest was calculated) the net worth of each party when they married was “nil.”

[77] Attributing to each party an equal share of the net sale proceeds of the matrimonial home in the amount of approximately $16,500, and taking into account the asset values and debts set out above, the wife owes the husband an equalization payment of $3,317.

[78] In dealing with the disposition of the matrimonial home net sale proceeds, there was some evidence that when the husband abruptly vacated the home there were unpaid utility expenses and at least one mortgage payment. These expenses should be paid from his share of the proceeds as should the out-of-pocket expenses for junk removal and property clean-up of $4,446.60 claimed by the purchasers of the matrimonial home and which the husband, in his evidence, acknowledged were his responsibility.

[79] Accordingly, the following formula shall apply to the disposition of the net sale proceeds of the matrimonial home:

(a) The funds in trust shall be equally divided between the parties;

(b) There shall be paid from the husband’s share of the funds held in trust any unpaid utility and mortgage expenses as of the completion date of the sale transaction, and the amount of $4,446.60, (which latter amount shall be paid to the purchasers of the parties’ former matrimonial home);

(c) The balance of the husband’s share of the net proceeds then remaining shall be paid to the wife and credited to the husband as and for partial payment of his unpaid child support obligation as determined below;

(d) The wife’s share of the funds held in trust, together with the balance of the funds referenced in (c) above shall be paid to the wife.

[80] An order will issue transferring 50% of the wife’s share of the calculated Family Law Value of her Ontario Teacher’s Pension, which transferable amount is determined to be $149,769.15, to the husband, together with interest earned between the family law valuation date and the date of transfer.

(d) Child Support

[81] The husband’s Line 150 income in 2014 was $71,882 which results in a Child Support Guideline table payment obligation of $1,064 monthly for two children. Unlike the wife, the husband did not produce his 2014 Notice of Assessment. He did provide a 2015 Statement of Earnings and Deductions for a June 11, 2015, pay end date that disclosed a total gross 2015 income of $32,200.01. This total included a year-to-date balance of $6,500 for commissions.

[82] The husband testified that he had enjoyed a seven percent commission on new business that he brought to his employer but that, recently, his employer had unilaterally reduced that to three percent and, equally as ominous, had just been retained by a major company on a project in which the husband had no involvement, earned him no commission income, and which limited the employer’s ability to take on new projects. There was no evidence how these developments had already impacted the husband’s 2015 earnings or what future commission the husband was expected to receive for business written. How and when commission was earned and structured (apart from a percentage) was similarly opaque. The husband testified that he was exploring other job opportunities.

[83] As of August 1, 2014, Ms. A.M. and her son began residing with the husband at the matrimonial home. Neither she nor the husband satisfactorily explained what contribution she was making for her tenancy before it was sold in March 2015, but both did testify that they equally shared the expenses for their current rental accommodation. There is no reason why the husband should have expected the wife to be responsible for one-half of the mortgage payments he made after the valuation date, or that Ms. A.M. should not have contributed to her tenancy before the matrimonial home was sold. In the circumstances, therefore, the husband shall pay child support effective August 1, 2014 in the amount of $1,064 monthly to and including December 31, 2014. This amount is based on his 2014 assessed income: Vanos v. Vanos, 2010 ONCA 876.

[84] There was evidence, however tenuous, that the husband’s 2015 income would be lower than his 2014 income. Based on his June 11, 2015 YTD Earning Statement, it is not unreasonable to attribute a 2015 income of $67,000 to the husband, thus resulting in a monthly Guideline payment of $996. This amount shall be payable effective January 1, 2015 and be in effect until the payment due June 1, 2016 when, based on his 2015 Income Tax Return and Notice of Assessment, the amount of child support shall be varied in accordance with the Guidelines.

[85] The wife also claimed section 7 expenses. These were not quantified in Schedule B to her Financial Statement, nor at trial. There was no evidence that she had claimed childcare expense deductions in calculating her total income in 2014. However, her most recent Financial Statement did disclose that she was paying $400 monthly for childcare. The wife also testified that she had enrolled D.G.K. after separation in a mixed martial arts activity costing about $383 monthly upon which the parties had agreed before separation. Given the parties’ overall financial circumstances, the wife’s claim for the childcare expenses is proper, and is allowed, but the additional martial arts claim is not reasonable, and is denied.

[86] Based on estimated 2015 incomes attributed to the husband ($67,000) and the wife ($100,000 averaged over a three year period, 2012 – 2014) the parties’ proportionate section 7 ratio for childcare is 40% (husband)/60% (wife), effective the beginning of the 2015/2016 academic year in September 2015. In light of the court’s disposition of the net proceeds of sale of the matrimonial home, there shall be no adjustment for section 7 expenses pre-dating September 1, 2015.

[87] The following order is made with respect to child support:

(a) Effective August 1, 2014 and payable to and including the payment to on December 1, 2014, the husband shall pay basic child support of $1,064 monthly based on his assessed 2014 income of $71,882;

(b) Commencing January 1, 2015 and monthly thereafter on the first day of each succeeding month to and including June 1, 2016 the husband shall pay basic child support of $996 monthly based on his estimated 2015 income of $67,000;

(c) Effective September 1, 2015 the husband shall pay to the wife, in addition to the support payable pursuant to subparagraph (b) above an amount equal to 40% of the childcare expenses incurred by the wife within seven days of her providing him with proof of payment. The provisions of section 7 of the Child Support Guidelines shall apply;

(d) There shall be credited to the husband toward the child support payable from and after August 1, 2014, the sum of $3,317 representing the equalization payment owed as set out in paragraph [77] above, thereby resulting in unpaid child support of $9,971 calculated to and including the payment otherwise due on August 1, 2015. This amount shall be paid in equal monthly installments of $200 in addition to the monthly support payable pursuant to paragraphs (b) and (c) above effective September 1, 2015;

(e) The child support payable by the husband shall be varied on July 1 of each year commencing July 1, 2016 based on the husband’s assessed income for 2015 and so on in future years based on the previous year’s assessed income;

(f) In the event that the husband’s 2015 Line 150 income, as assessed, is other than $67,000, then the difference in what should have been paid for child support will be paid by, or credited to, the husband by adjusting the amount of child support otherwise payable in accordance with the Guidelines in equal monthly payments over a period of the following six months, effective with the revised (or as varied) payment due July 1, 2016. This retroactive adjustment for 2015 shall only apply in 2016.

[88] A Support Deduction Order shall issue.

Costs

[89] The parties are encouraged, given the court’s disposition of their financial issues, to try to settle the issue of costs of these proceedings between them. If they are unable to do so, then each shall, within 45 days of the date of release of these reasons, make submissions in writing no longer than five double-spaced lined pages, together with Offers to Settle (if any), draft Bills of Costs and Authorities upon which they are relying.

Justice D.A. Jarvis

Released: July 28, 2015

Schedule “A”

The wife shall be granted sole custody of the children of the marriage, namely D.G.K., born […], 2008, and S.M.K., born […], 2009.
Except for vacation or special occasions, the children will reside with the husband as follows:

(a) On alternating weekends, commencing the second weekend following the release of these reasons, from Fridays after school or daycare until Sunday evenings at 5:00 p.m. If the Friday is a P.D. day or the Monday a statutory holiday, then from after school or daycare on the Thursday or until 5:00 p.m. on the Monday, as the situation indicates;

(b) Those weeks preceeding the children’s weekend with the husband, mid-week access on Tuesday evenings from after school or daycare until 7:30 p.m.;

(c) On those weeks immediately following the children’s weekend with the husband, mid-week access on Thursday from after school or daycare to 7:30 p.m.;

(d) The husband shall be responsible for the travel arrangements for the children’s return to the respondent’s residence.

The following provisions shall apply to vacations and special occasions:

(a) Commencing in 2016, the husband shall have two weeks of non-consecutive vacation time during the summer vacation months with the children. The husband shall have first choice of vacation time in even-numbered years and the wife shall have first choice of vacation time in odd-numbered years. The party with first choice shall advise the other, in writing, by April 1 of the chosen weeks, and the party with second choice shall advise the other, in writing by May 1 of the chosen weeks;

(b) The parties will share equally the children’s school Christmas break. Commencing in 2015, the children shall reside with the wife the first half of Christmas break in even-numbered years and the last half of Christmas break in odd-numbered years, and with the husband for the first half of Christmas break in odd-numbered years, and the last half of Christmas break in even-numbered years. The first half will begin at 6:00 p.m. on the children’s last day of school in December and end at Noontime on the date that is the half-way point of the Christmas break. The second half will begin at Noontime on the date that is the half-way point of the Christmas break and end at 6:00 p.m. on the evening prior to the children’s return to school;

(c) Regardless of the Christmas break schedule set out above, the children will reside with the husband from December 24 at 6:00 p.m. to December 26 at 10:00 a.m. in odd-numbered years, and the wife from December 24 at 6:00 p.m. to December 26 at 10:00 a.m. in even-numbered years;

(d) The husband shall have the children for March Break during odd-numbered years, and the wife shall have the children for even-numbered years;

(e) Every Father’s Day regardless of the weekend access schedule, the husband shall have the children from 10:00 a.m. until 6:00 p.m. on Father’s Day;

(f) Every Mother’s Day regardless of the weekend access schedule, the wife shall have the children from 10:00 a.m. until 6:00 p.m. on Mother’s Day;

(g) Each child will spend his or her birthday in accordance with the regular access schedule;

(h) The husband shall be responsible for picking up and returning the children to the wife’s residence.

Both parties shall keep each other informed about any significant issues respecting the children in a timely manner. Each party shall also be entitled to receive any and all information directly from source providers respecting the health, education and general welfare of the children.
The wife shall have the option, at her expense, of engaging Family Wizard or any other comparable service, to facilitate the parties’ communications about the children. Neither party shall use such service for any other purpose.
Both parties shall be entitled to attend all doctor, dentist, educational or other appointments or activities involving the children.
The wife shall retain the children’s Health Cards. Copies shall be provided to the husband.
Neither party shall schedule events involving the children during the other party’s time with the children.
Each party shall keep the other informed of their current address and contact numbers and shall update such information upon any change.
Neither party shall remove the children from the Province of Ontario without the other party’s written consent, which consent shall not be unreasonably withheld.
Both parties shall sign any application for a Passport, or renewal, for the children. The wife shall hold the Passports and provide them to the husband as may be needed: they shall be forthwith returned to the wife when the children are returned to her care.
In the event that either party should plan a vacation away from that party’s residence involving the children (excluding day or weekend trips in Ontario) that party shall not less than thirty (30) days before any such vacation provide to the other party all flight or other travel information, destination and contact particulars and initiate at least two (2) contacts between the children and the other parent, one of which shall be within six (6) hours of the children arriving at the destination planned. The requesting party shall be responsible (at their cost) for preparing a Consent to Travel document, if required, and the other party shall sign that document and return it within 96 hours of its receipt.

F.K. v. S.K., 2015 ONSC 4345

Case Summary