Ward v. Ward, 2015 ONSC 6221

CITATION: Ward v. Ward 2015 ONSC 6221 COURT FILE NO.: FS-15-83193 DATE: 2015-10-07

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

LESLIE ANNE WARD Applicant

• and -

DAVID PHILIP WARD Respondent

Rachel (Rae) White, for the Applicant No one appearing for the Respondent

HEARD: September 16, 2015, at Brampton, Ontario

Price J.

Reasons For Order

NATURE OF PROCEEDING

[1] Since Leslie and David Ward separated two and a half years ago, Ms. Ward has struggled to raise the parties’ daughter, Adleigh, while Mr. Ward works providing security services at concerts on many weekends and most holidays when Mr. Ward might otherwise be exercising access to Adleigh. On those occasions, Mr. Ward’s mother cares for Adleigh in his place. Mr. Ward has not responded to Ms. Ward’s application, or attended court in these proceedings, and Ms. Ward has proceeded to an uncontested hearing where she seeks a resolution of the issues that arose from the parties’ separation.

[2] Some of the remedies Ms. Ward seeks are straightforward ones to which she is entitled; others, such as police enforcement of the access schedule, and a right to care for Adleigh during Mr. Ward’s scheduled access times if he is unable to care for Adleigh himself, are not in Adleigh’s best interests and should not be granted, even though this is an uncontested hearing. The court’s refusal to grant those remedies requires some explanation, both for Ms. Ward, who is entitled to know why her application for them is being refused, and for Mr. Ward, who, though not participating in the hearing, requires deeper insight into the difficulties his conduct has caused for Ms. Ward, and the impact it is having on Adleigh.

BACKGROUND FACTS

[3] Ms. Ward is 37 years old (born October 25, 1977). Mr. Ward is 35 (born December 10, 1979). The parties began living together on September 1, 2001, and married on September 9, 2006. They have one daughter together, Adleigh Rose Ward, who was born on November 18, 2008.

[4] Mr. and Ms. Ward separated on April 15, 2013. Adleigh has lived with Ms. Ward since then, and Mr. Ward has exercised access according to a schedule that the parties agreed upon. For the past year, the schedule has contemplated Mr. Ward exercising access to Adleigh every other weekend, and on Tuesdays and Thursday evenings, from after school until 8:30 pm. Additionally, the schedule has set out special holiday access for Mr. Ward to exercise. Mr. Ward has rarely been able to exercise his access to Adleigh fully, as he is employed providing security services to Live Nation, a multi-national entertainment company that owns or operates, and owns booking rights to, entertainment venues across the U.S. and Canada, and his work keeps him occupied whenever concerts are held at those venues.

[5] Mr. Ward has been paying some child support, but failed to produce his recent tax information, which Ms. Ward required in order to calculate adjustments to the child support to which she was entitled. According to Ms. Ward, Mr. Ward is often late in his payment of support, and she therefore needs the Family Responsibility Office to enforce the court’s support order by garnishing Mr. Ward’s wages and other means.

[6] Ms. Ward began the present proceeding on April 10, 2015. The application was served on Mr. Ward on April 15, 2015, and was filed with the court on April 16, 2015. Mr. Ward never responded to the application. When Ms. Ward caused Mr. Ward to be served with a notice of case conference to take place August 4, 2015, Mr. Ward failed to attend. The court noted Mr. Ward in default, and granted Ms. Ward leave to proceed to an uncontested trial on September 16, 2015.

ISSUES

[7] The issues to be determined at the uncontested hearing are:

a) Divorce;

b) Custody of, and access to, Adleigh;

c) Terms incidental to access, such as police enforcement of the access schedule and right of “first refusal” of access by the parent other than the one scheduled to exercise access, if that parent is unable to exercise access personally;

d) Child support;

e) The contribution of each parent to Adleigh’s special and extraordinary (“section 7”) expenses, such as daycare and summer camp costs;

f) Retroactive child support and s. 7 contributions;

g) Allocation of the parties’ joint debts, and equalization of their net family property; and

h) Costs.

[8] Specifically, the court must answer the following questions:

a) Does the court have jurisdiction to grant a divorce and are there grounds for divorce?

b) What order should be made regarding the custody of Adleigh?

c) If custody is granted to one parent, what access by the other parent is in Adleigh’s best interests?

d) Is an order for police enforcement of custody and access authorized, and is it in Adleigh’s best interests?

e) Who should care for Adleigh on Mr. Ward’s designated access days if he is unable to care for her himself?

f) What is Mr. Ward's income for purposes of determining his support obligations?

g) What child support, if any, does Mr. Ward owe to Ms. Ward?

h) What contribution, if any, should Mr. Ward be required to make to the payment of Adleigh’s special and extraordinary expenses?

i) What are the parties' respective net family properties, and what equalization payment, if any, is owed by one of them to the other?

j) What contribution, if any, should Mr. Ward pay to the parties’ joint debt?

k) Is Ms. Ward entitled to be paid her costs of the proceeding by Mr. Ward and, if so, in what amount?

ANALYSIS AND EVIDENCE

a) Divorce

[9] The parties separated two years ago and there is no reasonable prospect or reconciliation. Ms. Ward has been ordinarily resident in Ontario for over one year. Ms. Ward has established that this court has jurisdiction to grant a divorce pursuant to s. 3(1) of the Divorce Act, and that there are grounds for the parties’ divorce pursuant to s. 8(2)(a) of the Act.[^1]

b) Custody

[10] Ms. Ward asserts that the parties separated as a result of Mr. Ward’s difficulties managing money. He was apparently lying about his income and leaving many debts unpaid, resulting in garnishment of his income and arguments between Mr. and Ms. Ward about money. Ms. Ward additionally asserts that Mr. Ward was controlling and intimidated her during the marriage.

[11] Adleigh has been in her mother’s primary care since birth, including the period following the parties’ separation. Ms. Ward has tried to ensure that Mr. Ward has time with Adleigh and is involved in making decisions affecting her.

[12] Adleigh is currently in Mr. Ward’s care on alternate weekends and on Tuesdays and Thursday evenings from after school until 8:30 pm. This has been the schedule for over a year. Mr. Ward also exercises special access to Adleigh on some holidays.

[13] Ms. Ward contends that when Mr. Ward takes Adleigh for access visits, he often leaves her with his parents, and does not spend time with her himself. As noted above, Mr. Ward’s employment often requires him to work on holidays, when major concerts are being held. He did not make use of his access last Christmas, or during the past summer. He also often cancelled his weekday or weekend access at the last moment. He does not book time off of work on those days, even though he knows in advance his work schedule and his access schedule.

[14] Ms. Ward’s position is that when Mr. Ward is at work on Tuesdays or Thursdays or on alternate weekends, Adleigh should not be at his parents’ home. Rather, she should be at Ms. Ward’s home doing her school homework assignments.

[15] Ms. Ward proposes a detailed schedule for special access on holidays. She argues that such a schedule is in Adleigh’s best interests, because while she needs to have an ongoing relationship with her father and loves and enjoys spending time with her father and his parents, she needs a predictable schedule when she can know when she will be spending time with her father and when she will be at her mother’s home.

[16] Ms. Ward asserts that Mr. Ward does not respond to her telephone calls, e-mails, or text messages. This makes joint decision-making in relation to Adleigh difficult or impossible. She interprets Mr. Ward’s refusal to respond to her communications, or to consent to her proposals for Adleigh’s care, as efforts to thwart her, and says that they are detrimental to Adleigh. She submits that she should have sole custody of Adleigh. She says that this would be in Adleigh’s best interest because:

a) Ms. Ward is most attentive to Adleigh’s needs. She has been Adleigh’s primary caregiver since birth, making and attending her medical appointments and parent teacher meetings.

b) She has facilitated access between Adleigh and Mr. Ward.

c) She has demonstrated her capacity to put Adleigh’s interests ahead of her own.

d) She is financially and emotionally stable, and is able to provide the stability and continuity that Adleigh needs.

e) Mr. Ward has taken no position in these proceedings.

[17] Ms. Ward asks for the following terms incidental to an order granting her custody and granting Mr. Ward access:

a) She asks for police enforcement, because Mr. Ward has periodically failed to return Adleigh to her at the end of an access visit with him. He has also authorized his parents to pick up Adleigh from daycare without prior notice to Ms. Ward, and sometimes on days when he is not entitled to exercise access. Ms. Ward states that she would not use a police enforcement clause lightly but, given Mr. Ward’s unwillingness to co-operate with her, such a term will ensure that he complies with the order the court makes.

b) Ms. Ward also asks for an order requiring each party to keep the other informed of addresses, e-mail addresses, and telephone numbers, and restricting each parent’s right to change the child’s residence. She asks for this order because Mr. Ward has moved his address from Mississauga to Hamilton without notice to Ms. Ward. He also delayed advising her of his new address and telephone number.

c) Ms. Ward asks for an order permitting her to apply for a passport for Adleigh without Mr. Ward’s signature, and permitting her to travel with Adleigh outside Canada without Mr. Ward’s consent. Mr. Ward has sometimes, in the past, refused to allow Ms. Ward to travel with Adleigh, and after giving her oral permission to travel with her, has threatened to tell the police that she left without his permission.

Applicable legislation

[18] Section 24 of the Children’s Law Reform Act states:

24.(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child;

(ii) other members of the child’s family who reside with the child; and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).[^2]

[19] I will consider the evidence in relation to each of the factors that are pertinent to the determinations to be made in relation to Adleigh.

i. Love, affection and emotional ties between Adleigh and her mother and father and grandparents

[20] Ms. Ward acknowledges that Adleigh has strong bonds of affection with both Mr. and Ms. Ward and their respective parents.

ii. Adleigh’s views and preferences, if they can reasonably be ascertained

[21] Ms. Ward states that Adleigh says that she wants to spend time with both parents.

iii. The length of time that Adleigh has lived in a stable home environment

[22] Adleigh has resided primarily with Ms. Ward in the two and a half years since the parties separated on April 15, 2013. Ms. Ward has rented the same 3-bedroom home in Mississauga where the parties lived for a year and a half before they separated. Adleigh has her own room. No one else lives in the home. Ms. Ward intends to continue living there for the foreseeable future.

[23] Mr. Ward resided with his parents in Mississauga from the time the parties separated until approximately December 12, 2014. He then moved to Hamilton, approximately a half hour drive from Mississauga. He currently rents a home there with his partner and her friend. Ms. Ward expresses uncertainty as to the stability of Mr. Ward’s household, having regard to the fact that:

a) Mr. Ward has been dating his partner “for a little while”.

b) Mr. Ward informed Ms. Ward of his move after the fact, when he told her that he had moved to Hamilton and would be taking Adleigh there the following day, and Ms. Ward has not been to that home.

c) Mr. Ward appears to have a lot of debt, as collections people call Ms. Ward about his debt, and the government is garnisheeing his wages.

d) Mr. Ward has not held long term employment in the past.

[24] It is not clear what arrangements Mr. Ward has made for Adleigh’s care in instances when he is working and his parents are not available, or when his distance from his parents’ home makes it impracticable for his parents to care for Adleigh. He had not exercised access to Adleigh at all for two weeks preceding the hearing.

[25] Ms. Ward is on good terms with her parents, who reside in Etobicoke, just east of Mississauga. Her mother is able to care for Adleigh, when necessary, but her father, by reason of age and health problems, cannot. Ms. Ward is also close to her aunt, who lives in Shelburne, approximately an hour north of Mississauga, and who has six children of her own. Adleigh sees her maternal grandparents often, but not as often as she sees Mr. Ward’s parents, who live in Mississauga. Ms. Ward is also on good terms with Mr. Ward’s parents.

iv. The ability and willingness of Mr. and Ms. Ward to provide Adleigh with guidance and education, the necessaries of life, and any special needs

[26] Adleigh has no major special needs that require specialized care. She has eczema and asthma, and both parents are able to meet her needs in relation to those conditions.

[27] Adleigh is thriving under her mother’s primary care. She attends grade 1 at Rene Lamoureux primary school, an all-French elementary school that is a 5 minute walk from Ms. Ward’s home in Mississauga. Adleigh has been attending a daycare facility at that school since she was 2 years old.

[28] Adleigh is doing very well in school. She is given grades, and receives A’s and B’s in every subject. The comments from her teachers are very positive. Ms. Ward attends parent-teacher nights at Adleigh’s school. Mr. Ward does not.

[29] Ms. Ward works with Adleigh to help her complete her homework. Mr. Ward does not appear to help her with her homework on Tuesdays and Thursday nights, although Mr. Ward’s mother will help Adleigh if Ms. Ward texts her and asks her to do so. If Ms. Ward asks Mr. Ward, he will not ask his mother to give Adleigh help. In order to compensate for the fact that homework is not done on the evenings that Adleigh spends with her father, Ms. Ward helps her do make-up homework on Mondays and Wednesdays, which Adleigh’s school accommodates.

[30] Ms. Ward is concerned about the disappointment Adleigh feels when her father misses scheduled access visits with her. Ms. Ward says that if she knew that Mr. Ward was going to be spending time with Adleigh, she would be happy for him to exercise access to her. Mr. Ward’s employer gives him his work schedule at least two weeks in advance, which would enable Mr. Ward to notify Ms. Ward in advance of when he is able to exercise access to Adleigh. With even two days advance notice, Ms. Ward could accommodate Mr. Ward’s exercise of access.

[31] Ms. Ward states that Mr. Ward has not co-operated with her in making joint decisions about Adleigh’s care. She offers two instances in the past year where he has either refused to respond to her or refused to give his consent to medical care that Adleigh required. Particulars of those are described below. She states that his lack of co-operation is ongoing, and that he tries to impose his will on her in relation to Adleigh by intimidating her, even when the decision he is trying to impose is against Adleigh’s doctor’s advice.

[32] Ms. Ward has tried to include Mr. Ward in decision-making regarding Adleigh’s care, but says that her efforts to do so have resulted in dysfunctional decision-making. If the need arises in the future for decisions to be made in relation to Adleigh’s care, a requirement that they be made by agreement between Mr. and Ms. Ward will create a risk that they cannot be made in a timely manner, or in a way that puts Adleigh’s interests above those of her parents. Ms. Ward submits that, given Mr. Ward’s unwillingness to communicate with her and, at times, his withholding his consent to needed medical care, Ms. Ward is best able to care for Adleigh and to make decisions independently about her religion, education, and health needs.

v. The plan proposed by each of Mr. and Ms. Ward for Adleigh’s care and upbringing

[33] Ms. Ward plans to have Adleigh continue attending her present elementary school until she completes grade 6. She will then enroll Adleigh in a French-speaking middle school in Meadowvale, in northern Mississauga.

[34] Mr. Ward’s employment with Live Nation entails long hours during the summer months and on holidays, which does not give Mr. Ward a lot of time to spend with Adleigh. When Mr. Ward was living with his parents and exercised access to Adleigh, he often left her with his parents. Often, when he exercised access, he was not, in fact, with Adleigh. In recent weeks, he has sometimes not exercised his access at all.

vi. The permanence and stability of the family unit in which it is proposed that Adleigh will live

[35] Ms. Ward resides alone with Adleigh at the home that she rents in Mississauga. They have resided there for 4 years, since before Mr. and Ms. Ward separated. Ms. Ward intends to remain there for the foreseeable future. Ms. Ward has been in a committed relationship with a partner for the past two years. He attended the hearing, and Ms. Ward says that he attends Adleigh’s dance class and other events with Ms. Ward.

[36] Mr. Ward moved from his parents’ home in Mississauga in December 2014, and is currently residing in Hamilton with his partner and her friend. Ms. Ward does not know how long Mr. Ward’s relationship with his partner has existed or how permanent it is.

[37] Owing to the lack of information about Mr. Ward’s circumstances, I find that Ms. Ward’s family unit, in which it is proposed that Adleigh live, is more permanent and stable than Mr. Ward’s.

vii. The respective ability of Mr. and Ms. Ward to act as a parent

[38] Mr. Ward still often picks Adleigh up and drops her off at his parent’s home, and Adleigh spends the rest of the visit with his parents. Ms. Ward has no objection to Adleigh spending time with her paternal grandparents, but believes that Adleigh is being deprived of maximum contact with both parents by Mr. Ward’s excessive reliance on his parents to provide care for Adleigh when he is scheduled to exercise access himself but unable to do so by reason of his work commitments.

[39] Ms. Ward asserts that Adleigh is now of school age, and needs structure and certainty in her life and in the parenting schedule. She believes that Adleigh would benefit from seeing her father on alternate weekends and every Tuesday and Thursday evening, but when Mr. Ward does not assume direct care of Adleigh on those occasions, or misses or cancels an access visit, it is disappointing to Adleigh and disruptive to Ms. Ward’s own schedule.

[40] Ms. Ward would prefer that if Mr. Ward is working on Tuesdays or Thursday evenings, Adleigh remain with her so that Adleigh can do her school work. This would still allow Adleigh access to her father on a regular basis, and maintain her relationship with her paternal grandparents when Mr. Ward is exercising access to Adleigh on alternate weekends, but it would spare her from the disappointment of not seeing her father when she expects to, and of having her homework time interrupted unnecessarily.

[41] Adleigh is dependent on her mother for her day-to-day care. Adleigh and her mother are closely bonded. Ms. Ward has provided stability and continuity for Adleigh for the past two years, and is willing to continue doing so. She has been highly involved in Adleigh’s upbringing and care. Mr. Ward has not been actively involved in attending Adleigh’s medical and school appointments, and has chosen not to participate in this court proceeding.

[42] Ms. Ward has encouraged and facilitated a relationship between Mr. Ward and Adleigh. She proposes that Mr. Ward’s current access schedule continue, but subject to a “first right of refusal” to Ms. Ward when Mr. Ward is unable to exercise access himself. There is no reason to doubt that Ms. Ward will continue to facilitate Adleigh’s relationship with her father. However, she seeks modifications of the access schedule to address the difficulties she has experienced when implementing it.

Inconsistency in Mr. Ward’s exercise of access

[43] The agreement between Mr. and Ms. Ward contemplated his bringing Adleigh to his parents’ house. Ms. Ward believes that Adleigh has been to Mr. Ward’s home in Hamilton only twice.

[44] Adleigh attends school from 8:10 a.m. to 2:45 p.m. She can remain at the daycare facility at the school as late as 6 p.m. Mr. Ward or, more often, his parents, pick up Adleigh from school. Their pick-up “window” is from 3:30 p.m. to 6 p.m. On week days and weekends, Mr. Ward or, more often, his parents, bring Adleigh back to Ms. Ward’s home.

[45] Recently, Mr. Ward has not attended when he was scheduled to exercise access, and Adleigh spent the weekend with Mr. Ward’s parents. On some occasions in the recent past when Mr. Ward was entitled to exercise access, neither Mr. Ward nor his parents did so. Adleigh has told Ms. Ward that Mr. Ward is with her on only one day most weekends when he is to exercise access to her. In the past, he has gone as long as two weeks without seeing Adleigh.

[46] Ms. Ward states, and I accept, that Mr. Ward is consistently not present when his parents return Adleigh to her on Tuesdays and Thursdays. He is also often not present on at least one of the days during most weekends when he is scheduled to exercise access. He does not inform Ms. Ward of this, but Adleigh tells Ms. Ward that her father has not been with her.

[47] Mr. Ward missed the last few access visits completely. He often does not notify Ms. Ward in advance and, at other times, he notifies her at the last minute. For example, he may notify her at 2:30 p.m. that he is not coming at 3:30 p.m. At least once per week, he either makes changes to the schedule or does not attend at all. Mr. Ward’s parents normally exercise access if he does not, but for two weeks preceding the hearing, he cancelled his access altogether.

Mr. Ward’s inaccessibility

[48] Ms. Ward additionally has difficulty with Mr. Ward’s exercise of access owing to his failure to communicate with her. When she has texted him at times when Adleigh has been in his care, he has not replied. Recently, when he returned Adleigh on Sunday, she inquired about his failure to answer the phone, and he said he had changed his telephone number. Ms. Ward asked him for his new telephone number several times. Eventually, a week later, he provided it to her, but told her that it was a work number, which he could use only in an emergency. This lack of accessibility is dangerous to Adleigh and unfair to Ms. Ward.

[49] Ms. Ward has used e-mail to contact Mr. Ward only when necessary and only with regard to Adleigh’s care. Most of the time, she says, Mr. Ward does not reply. In a given week, she might send an e-mail to him about Adleigh’s camp, or about a school activity or meeting or medical appointment, and he does not respond. When she is unable to contact him with e-mail, she sends a text, and he does not respond to the text messages.

[50] For the most part, it is only when Mr. Ward drops Adleigh off at Ms. Ward’s home that she has an opportunity to have a face to face conversation with him about Adleigh. Normally, such exchanges are emotionally volatile. Soon after the parties separated, Mr. Ward came to the house and blocked her way as she descended the stairs, to prevent her from passing. Since then, Ms. Ward does not allow him in the house. Since then, he has sometimes thrown Adleigh’s backpack on the ground in anger. On other occasions, he turns and leaves, telling her that he will get back to her later. He is larger than Ms. Ward, and she feels intimidated by him when he is angry.

Obstruction of Ms. Ward’s effort to get medical attention for Adleigh

[51] Mr. Ward has at times been inaccessible, and at times obstructive, when Adleigh requires medical attention. In November 2014, Ms. Ward was in a motor vehicle with her long-term partner and Adleigh. While travelling at 40 km/h down a residential street, another car, travelling 100 km/h, disobeyed a stop sign, and struck the side of the vehicle in which Ms. Ward and Adleigh were travelling, on the side where Ms. Ward was seated. The other motorist flipped over their car. Ms. Ward tried to reach Mr. Ward, and his parents attended at the scene and took them to the hospital. While there did not immediately appear to be injuries, the doctor at the hospital advised them that their injuries could take several days to become evident. The doctor advised Ms. Ward to have herself and Adleigh seen by their family doctor. Their insurance company also advised Ms. Ward to have Adleigh seen by their family doctor.

[52] Mr. Ward saw them in the evening on the day of the collision. Ms. Ward related to him the advice the doctor and insurer had given her. Mr. Ward did not consider that a visit to the doctor was necessary, and later sent an e-mail to Ms. Ward, which was entered as an exhibit at the hearing. The e-mail stated that the decision to have Adleigh seen by their family doctor was not a decision she was entitled to make by herself. When they discussed the issue at Ms. Ward’s home later that evening, Mr. Ward yelled at her, saying that she was being stupid and ridiculous and to stop making a “big deal” of it. Ms. Ward eventually had to end the conversation by closing the door. Mr. Ward continued to yell at her for a short time and then left.

[53] Within a few days after the collision, Adleigh began complaining that her neck and back were hurting. She was also fearful, anxious, and clingy in the car. When Ms. Ward related these symptoms to Mr. Ward, he said that he thought Adleigh was saying her neck was hurting because Ms. Ward’s neck was hurting. Ms. Ward reported the symptoms to their doctor, who referred Adleigh for therapy for post-traumatic stress, which she continued to attend on a weekly basis for approximately nine months, until August 2015.

[54] Ms. Ward explains that if she has concerns about Adleigh’s physical welfare in the future, she wants to be able to take Adleigh to the doctor and not get into an argument with Mr. Ward about Adleigh’s care.

Obstruction of other decision-making regarding Adleigh

[55] Ms. Ward describes another instance when Mr. Ward obstructed her decision-making with regard to Adleigh. Ms. Ward planned to make a road trip with her long-term partner and Adleigh to Halifax in July 2014. She informed Mr. Ward in advance that she would be driving to Nova Scotia to visit mutual friends of theirs there and to visit a friend of Ms. Ward’s in Halifax. She offered to leave Adleigh with Mr. Ward when she went on the trip, but he declined this offer.

[56] Mr. Ward initially gave his consent to the trip, but when Ms. Ward was on the road, on the way to Nova Scotia, Mr. Ward learned that her long-term partner was travelling with her. He then tried to withdraw his consent, and threatened to call the police if Ms. Ward did not return Adleigh. He became irate and sent text messages and e-mails. Ms. Ward tried to re-assure him and offered to have him speak with Adleigh, but he refused. He threatened to tell police that she had taken Adleigh without his consent.

Over-holding of Adleigh, unauthorized access, and late arrival

[57] There have been times when Mr. Ward has refused to return Adleigh at the end of an access visit. He has said, “I’m not bringing her home tonight.” They would argue, but Mr. Ward knew she would not call the police. Eventually, after some arguing, Mr. Ward brought her home. The longest he ever kept Adleigh beyond her scheduled return time was one hour. The last time this happened was in the winter of 2014-15. He has not done it recently, she says, but he also has not been with Adleigh recently.

[58] Mr. Ward has sometimes failed to pick up Adleigh on time. Ms. Ward acknowledges that this has not been frequent. He has authorized his parents to pick up Adleigh when he is unable to come himself, and has sometimes authorized them to pick up Adleigh from daycare, even when it was not his day for exercising access. It has happened about 20 times since they separated, and used to happen more frequently. Ms. Ward had to argue with Mr. Ward before he would return her. The last time this happened was six months ago.

[59] Ms. Ward acknowledges that Adleigh wants to see both her parents. She wants to know that she’s seeing her father on Tuesdays and Thursdays and on alternate weekends. The longest period that she has gone without seeing her father is two weeks. That was two weeks ago. It did not happen much at the beginning, but has happened three times in the past two months. Before that, Mr. Ward missed the odd day.

[60] Mr. Ward has never used his week of summer vacation. He asked for an extra day to be added to his regular access once, during the summer. Unfortunately, he did not ask Ms. Ward until the day before, and by then, she already had plans to spend time with Adleigh that day. Mr. Ward works every concert that his employer organizes during the summer and at the end of the year. He does not have a full week available to spend with Adleigh during the summer. Ms. Ward has offered him access but he has never accepted.

[61] Ms. Ward’s work is flexible, and she can take her vacation when she wants, including Christmas and March break from school. She is given three weeks of vacation and is therefore able to take extended vacations with Adleigh. When she does so, she gives Mr. Ward her schedule ahead of time. She also gives him the proposed access schedule every month, and asks him if he needs her to make any changes. When she takes Adleigh on vacation, and it encroaches on his access, she offers him make-up time, but he has never used it, that she can recall.

[62] Ms. Ward would like to be given one fixed week vacation of one to two weeks in each of the two summer months (July and August). The choice of weeks would change from year to year. She could let Mr. Ward know the schedule a month in advance.

[63] Ms. Ward asks that she be allowed to spend Christmas Eve, Christmas Day, and Boxing Day with Adleigh every year. She says that Mr. Ward is regularly unavailable over Christmas. Ms. Ward says that she knows how much Adleigh wants a schedule and to know where she will be. Ms. Ward does not know when Mr. Ward is available, but knows, from past experience, that he is not available during Christmas and New Year’s because of work commitments.

[64] Ms. Ward’s parents spent Christmas Eve with Ms. Ward and Adleigh at Ms. Ward’s home in 2013 in order to be with Adleigh on Christmas morning. Adleigh then spent the evening of Christmas Day with Mr. Ward and his parents, as Mr. Ward resided with his parents at that time.

[65] In 2014, Adleigh spent Christmas Eve and Christmas Day with Ms. Ward, who spent Christmas with her parents in Etobicoke. Mr. Ward exercised access to Adleigh on Christmas Day at night, and had her overnight and on Boxing Day. Ms. Ward says that it seemed very rushed to her and her parents, and that they felt that they were unable to enjoy their time together because of the access schedule.

[66] Ms. Ward notes that Mr. Ward is no longer residing with his parents and that he works through the Christmas holidays, because there are many concerts which he must attend. He generally works on Christmas Eve, Christmas Day, Boxing Day, and New Year’s Eve. He would likely be with Adleigh at some point if he were exercising access on those days, but most of the time, Adleigh would be with his parents. Ms. Ward believes that if the access days alternated between them based on whether it was an even or odd numbered year, with the proviso that Mr. Ward would have access only if he did not have work commitments, he would not inform her if he were not available to exercise access, and his parents would not inform her if he were not with them.

[67] I find it likely that Adleigh will continue to thrive in her mother’s primary care. It is in her best interests to continue to have her primary residence with Ms. Ward, and to be in her primary care. It is also in her interests that she continue to have access to Mr. Ward. As I advised Ms. Ward at the hearing, it is my view that granting a blanket “right of first refusal” to her whenever Mr. Ward is unable to spend time with Adleigh for the entire duration of an access visit would conscript Adleigh into the role of informant, align Mr. Ward’s parents with him in a battle to assert their own access to Adleigh, and create unnecessary conflict between Mr. and Ms. Ward that would give rise to undesirable fallout on Adleigh.

[68] It is reasonable to require Mr. Ward himself to pick-up Adleigh when he is exercising access to her, as it is a parent’s responsibility to transport his or her child, and because the purpose of access is to maximize a child’s contact with her parents. Requiring him to perform this task himself, rather than delegating it to his parents, will help ensure that he does not rely excessively on his parents to act as his proxies during an entire weekend when he is scheduled to exercise access to Adleigh.

[69] It is equally Ms. Ward’s responsibility to transport Adleigh when Adleigh is in her care. It is fair, and in Adleigh’s best interests, having regard to the “maximum contact” principle, that the parents share the responsibility of transporting Adleigh when she is being transferred from one parent’s care to the other’s. It will ensure promptness if the parent who is assuming care of Adleigh is given the responsibility of travelling to the other parent’s home to do the pick-up, as each parent naturally wants to assume care of Adleigh as early as possible, and to part with her as late as possible.

[70] It will be the responsibility of the parent who has the care of Adleigh to ensure that her homework assignments are completed and that she is taken to all scheduled school or extra-curricular activities.

[71] It is in Adleigh’s interest that Mr. Ward’s obligation to pick up Adleigh himself not deprive Adleigh of her contact with Mr. Ward’s parents. In order to protect Adleigh’s relationship with them, Mr. Ward’s parents will have their own right to exercise access to Adleigh on Sundays from 1 p.m. to 6 p.m. on those weekends when Mr. Ward is entitled to access to Adleigh. This will enable them to continue exercising access to Adleigh by picking up Adleigh on the Sunday of Mr. Ward’s access weekend even if Mr. Ward has been unable to do so himself due to his work commitments.

c) Police enforcement of custody and access

[72] Ms. Ward has requested an order for police enforcement of any custody and access order that the court makes. Section 28 of the Children’s Law Reform Act allows the court to make orders incidental to orders respecting custody and access. Subsections 16(6) and (7) of the Divorce Act allow the court to make orders about changes of the residences and other terms and conditions of custody and access. Section 36 of the Children’s Law Reform Act gives specific authority for the court to make an order for police enforcement of its orders.

[73] Ms. Ward has stated that there have been a number of times when Mr. Ward has refused to return Adleigh to her at the end of an agreed upon access visit. There have also been a number of occasions when Mr. Ward has authorized other parties to remove Adleigh from her daycare at times when the parties had agreed that she would be in her mother’s care. Ms. Ward believes, on this basis, that Mr. Ward will not honour the terms of the custody/access order that the court makes following this hearing unless there is a term allowing police enforcement. She believes that if there is a term allowing for police enforcement, Mr. Ward will be more likely to comply with the order.

[74] Section 36 of the Children’s Law Reform Act (“CLRA”) provides:

36. (1) Where a court is satisfied upon application by a person in whose favour an order has been made for custody of or access to a child that there are reasonable and probable grounds for believing that any person is unlawfully withholding the child from the applicant, the court by order may authorize the applicant or someone on his or her behalf to apprehend the child for the purpose of giving effect to the rights of the applicant to custody or access, as the case may be.

(2) Where a court is satisfied upon application that there are reasonable and probable grounds for believing,

(a) that any person is unlawfully withholding a child from a person entitled to custody of or access to the child;

(b) that a person who is prohibited by court order or separation agreement from removing a child from Ontario proposes to remove the child or have the child removed from Ontario; or

(c) that a person who is entitled to access to a child proposes to remove the child or to have the child removed from Ontario and that the child is not likely to return,

the court by order may direct a police force having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend, and deliver the child to the person named in the order.

(7) An order made under subsection (2) shall name a date on which it expires, which shall be a date not later than six months after it is made unless the court is satisfied that a longer period of time is necessary in the circumstances.

(8) An application under subsection (1) or (2) may be made in an application for custody or access or at any other time.

[75] Justice Pazaratz discussed s. 36 of the CLRA in Patterson v. Powell, in 2014.[^3] He sets out what the court should be worried about before it sends a uniform, a gun, and a squad car out to grab a screaming child and take the child to the opposite parent. He stated:

There are two basic – and quite distinct – scenarios in which a police enforcement clause is requested to be included in a family court order:

The first deals with the present: An existing situation. It usually involves some urgency (for example, an abduction) where a child needs to be retrieved from one party and transferred to the care of another. The objective may be to enforce immediate compliance with an existing order, or to quickly remove the child from potential harm or threat of abduction.

The second scenario deals with the future: a more general concern that on some unspecified date a party may not comply with a custody or access order, and that police assistance may be required to ensure the scheduled exchange of a child from one party to another. Typically, the extent and frequency of such police involvement cannot be determined ahead of time.[^4]

[76] Justice Pazaratz noted that throughout section 36, the problem is described in the present tense. He interprets the words “there are reasonable and probable grounds for believing that any person is unlawfully withholding” in ss. 36(1) and 36(2)(a) to mean that in order to exercise its discretion under the section, the court should be satisfied that one of the parents is unlawfully withholding the child at the present time, rather than that the parent is, from time to time, withholding the child. He stated, “Nothing in s. 36 suggests police enforcement is appropriate – or even available – as a long-term, multiple-use, open-ended, on-demand, enforcement tool. To the contrary, the language is more consistent with temporal powers to deal with a current or known situation.” Justice Pazaratz cautions courts against employing police enforcement to deter anticipated future non-compliance:

In that context, the police enforcement clause takes on the nature of an instant remedy for anticipated future contempt of court. A fail-safe precautionary measure “just in case” somebody misbehaves. As Mr. Kerr put it, the parties in this case want to know that there will be “immediate consequences by calling police.”

All of which raises a number of fundamental questions:

a. Why do we issue court orders – especially court orders involving children – if we have so little confidence they will be obeyed?

b. Why would we entrust a parent with either custody or access if we have reason to believe they will abuse that privilege?

c. If we know in advance that timesharing exchanges are likely to be problematic, shouldn’t we consider better options at the very outset – intermediaries; parenting co-ordinators; institutional exchange facilities; pick-ups and drop-offs at school or daycare; fewer exchanges; etc. – rather than delegate crisis management responsibilities to over-burdened and ill-equipped police services?

d. And - remembering again that we’re dealing with children – how do we ensure that the benefit of enforcing an order is not outweighed by the emotional and psychological trauma to the child, when police are urgently summoned to highly volatile family disputes?

e. How do we punish parental non-compliance without punishing the child?

Requests for ongoing police enforcement clauses typically arise in high conflict families. Inevitably, children in such families have already been through enough – and often seen enough of police in their home – long before the first court order is issued. These are likely damaged, frightened, emotionally vulnerable children, already sensitized to the presence of police as signifying that one or both parents are out of control again.

Young children in particular – the ones most likely to be the subject of bitter timesharing disputes – have very immature, unsophisticated and highly emotional perceptions of police:

a. The uniforms, cruisers and crackling police radios are both fascinating and frightening.

b. Police officers have guns and sometimes shoot people.

c. They have handcuffs and sometimes take people to jail.

d. They deal with “bad people”.

e. Is mommy or daddy going to be in trouble?

f. It’s a lot for a young child to digest during an emotionally charged timesharing exchange.

Older children may have a more complex set of socially ingrained perceptions about police:

a. They may be embarrassed having uniformed officers come to their home, perhaps repeatedly. Officers invariably respond to “family trouble” calls in pairs, often arriving in separate cruisers. This very public neighbourhood spectacle makes a sham of our often stated goal to protect the privacy of children.

b. Children may feel guilt or pressure to verbalize certain preferences, corroborate parental allegations, or resolve the dispute themselves.

c. They may resent one or both parents for having allowed simple things to get out of hand.

d. They may feel helpless and afraid for the most important people in their lives.

e. For many reasons, they may feel despair.

f. The stress of the original parental dispute may become greatly amplified by the stress of having police come to the home.[^5]

As stated, when emergency police enforcement is ordered pursuant to s. 36(2) of the CLRA, the existing danger or risk of harm or abduction is usually sufficiently clear that immediate safety concerns must be given priority. Police enforcement may be absolutely essential for a one-time retrieval of a child from a dangerous or inappropriate situation, where time is of the essence.

But when ongoing police enforcement clauses are requested as a long-term compliance strategy in temporary or final orders, courts should insist that parties take available time to fully canvass less destructive and more creative (perhaps even therapeutic) alternatives. Before considering a long-term or permanent police enforcement clause (presuming the latter is even available as an option) courts should require evidence of the potential positive and negative impact of police intervention on each member of the family unit – most particularly, the children themselves:

a. Has the child already experienced police involvement in family disputes?

b. How is the child likely to perceive or react to future police involvement?

c. Will police presence during access exchanges increase pressure on children to ally themselves with one parent or the other?

d. Does the child have any special needs or vulnerabilities?

e. Have any members of the family had involvement with the criminal justice system or child protection authorities?

f. Have there been previous police calls to the home relating to other complaints, such as domestic violence? Will this impact on dynamics if police attend for a more benign peacekeeper role during access exchanges?

g. How are these particular parties likely to respond to interaction with police? Could any of the parties be regarded as being “anti-police” -- such that police intervention might inflame, rather than defuse the situation?

h. Are there mental health issues the police may have difficulty recognizing or responding to?

i. Is there any history of either party making unfounded complaints to police or other community agencies, for malicious or strategic purposes?

j. Will police involvement facilitate or compound parental alienation? Will calls to police be used to manipulate children, instill fear, or garner sympathy?

Other questions need to be addressed:

a. How often and how long is the police enforcement clause to be invoked? For a specified period of time, or indefinitely? Once or on an unlimited basis? Monthly? Weekly? Daily? Every visit?

b. Should a party invoking a police enforcement clause be required to return the matter to court, or at least initiate a request for some alternative dispute resolution?

Some embattled parents might be quite content to call the police for every timesharing exchange. They may perceive dialling 911 as being faster, cheaper, and more emotionally satisfying than returning to court. Is that potential abuse of community resources – not to mention abuse of the children themselves – something we want to leave to the discretion of relentless litigators? Surely s. 36(2) of the CLRA is intended to be a protection for children, not a weapon for disgruntled parents.[^6]

[77] Justice Pazaratz additionally questions whether the court should make a police enforcement order, other than in emergency situations, without giving the police services who may be affected notice and an opportunity to be heard. He refers, in this regard, to the 1997 case of Allen v. Grenier, in which Justice Mazza granted standing to the local police service which sought to change a police enforcement provision previously ordered without any input from the police.[^7] He quotes Justice Mazza in support of this further basis for exercising caution before making such orders:

It is clear that an order under subsection 36(2) is an order of last resort. Courts must make such orders sparingly and in the most exceptional circumstances. It is an order that can only be made once a court is satisfied that a party is unlawfully withholding a child from a person entitled to custody of or access to the child. It is a finding that can be based on either a single incident of withholding or on a pattern of withholding even where that pattern has been interrupted by some resumed access. Subsection 36(7) provides for a period of time within which the police may be called upon to assist an aggrieved party in enforcing access. The purpose of that subsection is to enable the aggrieved party to avoid the expensive process of returning to court for a finding of unlawful withholding on each and every occasion that the party is being denied access. Ideally, the making of the order should be effective enough to persuade the wrongdoer to co-operate. However, that is not always the case and the aggrieved party must call upon the police.[^8] [Emphasis added.]

[78] Justice Pazaratz further cites decisions in a number of cases in which the Office of the Children’s Lawyer recommended against employing police enforcement orders in anticipation of future non-compliance. He cites, for example, Peer v. Poupore, in 2011, in which Justice Curtis, in the Ontario Court of Justice summarized the OCL concerns:

The problem with police involvement regarding conflict or access is that the child learns that conflict only gets resolved through state intervention. There is concern regarding the degree of conflict the child was exposed to. The risk here, if no steps are taken regarding counselling, and if no steps are taken regarding conflict resolution, is that the conflict would continue and the child would be exposed to the conflict.

The impact on the child may be that the child will take responsibility for the conflict: "what is it about me that I'm creating this conflict?"

Exposure to on-going conflict can be very detrimental and can interfere with how the child does in other aspects of his life because the child is overwhelmed by what is happening at home.

These are the most important people in the child's life. So this becomes the model for how to resolve conflict.[^9]

[79] In Peer, the court placed priority on reducing ongoing conflict and stress in relation to access. Declining to treat access denials as merely a police enforcement issue, Justice Curtis commented:

The literature indicates that parental conflict is a major source of harm to children. High levels of parental conflict in separated families can have a devastating impact on children and their development: Jackson v. Jackson, 2008 3222, 50 R.F.L. (6th) 149,[2008] O.J. No. 342, 2008 CarswellOnt 654 (Ont. S.C.), at paragraph 20.

Conflict between parents at this level, sustained with this intensity, and sustained over such a prolonged period of time, is unusual. It is unhealthy for the adults involved, and it presents a clear risk of harm for the children who are cared for by those adults: that means all of the mother's children, including Rafael, and clearly most significantly Rafael.

A court should not award custody to reward good conduct or punish misconduct But the court cannot ignore the parents' behaviour when that behaviour, as in this case, so strongly impacts on the child's best interests and his life.

It is fundamental to the identity of a child to be able to love and accept love from each available parent. The mother refuses to accept the underlying principal for a child from separated parents, which is that in most cases, it is the job of the custodial parent to support the child's relationship with the access parent.[^10]

[80] Justice Pazaratz, in Patterson v. Powell, cites Zanewycz v. Manryk, a 2010 case, in which an OCL social worker expressed similar concerns about children being “unnecessarily ... exposed to the drama of police enforcement of access.” The court agreed the objective should be to shield children from inappropriate parental behaviour, rather than have police oversee it. Ultimately the highly problematic father lost all access because he was incapable of “providing the children with a positive, ‘no strings attached’ access experience.”[^11]

[81] In De Melo v. Gooding, in 2010, Justice Corbett declined a request for a police enforcement clause, stating:

Ms. Gooding asks for police assistance enforcing the Schedule. This request is denied. Non-compliance can be raised with the parenting coordinator or on motion to this court. Given the nature of the conflict between the parties, which is largely psychological (on both sides), police involvement is more likely to lead to an escalation in conflict than a diminution of it. Further, incidents of alleged non-compliance, while arguably frequent, are of a relatively minor nature, and do not require immediate response from police.[^12] [Emphasis added.]

[82] In Klinkhammer v. Dolan, in 2009, also cited by Justice Pazaratz, Justice Sherr refused to order police enforcement, stating, “It is an order of last resort to be made sparingly and in exceptional circumstances. It can frighten children and polarize a difficult situation.”[^13] In Lucas v. Nash, in 2010, Matheson J. refused to grant a police enforcement clause, explaining that police intervention would be “regressive in the circumstances”, and expressing concern that “the children are under enough emotional strain as it is.”[^14]

[83] I have excerpted passages from the jurisprudence that Justice Pazaratz cited in Peer at some length for the following two purposes:

a) To explain to Ms. Ward and her counsel why I have concluded that a police enforcement order would not be appropriate in the present case. The evidence filed demonstrates that Ms. Ward is a competent and conscientious parent who is doing her best to ease Adleigh through her transition to her parents’ two households, notwithstanding Mr. Ward’s anger and his unwillingness to participate in the court proceeding. Mr. Ward’s unwillingness to participate has made Ms. Ward’s task more challenging because attendance at the mandatory information session and conferences that the Family Law Rules require all litigants to attend can engender greater insight on the part of parents about the dynamics of conflict and the impact it has, or threatens to have, on their children.

b) To communicate to Mr. Ward, by the only means available to the court at the moment, the impact that continued non-compliance with the parenting schedule may have on Adleigh and on Mr. Ward’s future relationship with her.

[84] Ms. Ward is entitled to move on with her life without the constant stress of conflict with Mr. Ward, and Adleigh must be protected from the harmful impact of such conflict. There is an array of tools available to Ms. Ward and to the court for achieving these objectives. For the reasons referred to above, a police enforcement order is a tool that, by its nature, is dangerous and unpredictable. For the following reasons, such an order would be especially dangerous in the circumstances of this case:

a) Adleigh was involved in a serious motor vehicle collision in November 2014. Fortunately, she was spared serious physical injury, but she suffered psychological trauma for which, at her doctor’s recommendation, she underwent therapy for the next nine months, up until a month ago. She is vulnerable to trauma, and can be expected to be affected more by police involvement than children who have not suffered previously from post-traumatic stress. Mr. Ward was dismissive of the effects of the collision on Adleigh and was opposed to Ms. Ward seeking medical attention for her, and was opposed to therapy for her, even when it was recommended by Adleigh’s doctor. These events disclose that Mr. Ward may be less knowledgeable of, and less sensitive to, the potential consequences of stress on Adleigh.

b) Mr. Ward remains angry toward Ms. Ward two and a half years after their separation, and has demonstrated difficulty in managing his anger in a way that spares Adleigh from the emotional fallout from it. In July 2014, Ms. Ward obtained Mr. Ward’s consent to her travelling by car to Nova Scotia with Adleigh to visit mutual friends. He gave his consent after Ms. Ward offered him the alternative of caring for Adleigh himself in her absence. Then, when Ms. Ward was on the road, and Mr. Ward learned that her long-term partner was accompanying her and Adleigh on the trip, he sought to withdraw his consent and threatened to call the police and falsely report to them that she had abducted Adleigh from Ontario without his consent, an action that could have had serious consequences for both Ms. Ward and Adleigh. Mr. Ward’s anger apparently caused him to think he was justified in involving the police, without regard to the emotional impact that police intervention could have had on Adleigh.

c) The combination of Mr. Ward’s unmanaged anger and his limited insight into Adleigh’s emotional needs and the potential impact of a crisis on her, raise a serious risk that he might abuse a police enforcement order himself, with harmful and unintended consequences for Adleigh, who is especially vulnerable to the stress that police intervention would entail.

[85] The fact that Mr. Ward has chosen not to respond to Ms. Ward’s application, and not to participate in the process she has undertaken in an effort to resolve the issues between them, deprives the court of an opportunity to facilitate discussions between Mr. and Ms. Ward, informed by insights or options derived from other litigants’ experiences. The court must therefore employ these reasons in an effort to encourage Mr. Ward to acquire a deeper understanding of the dilemmas that Ms. Ward and the court face, without his participation, in developing a strategy that offers a constructive alternative to police involvement.

[86] While the court granted leave to Ms. Ward, as a matter of necessity, to proceed to an unopposed hearing, this course, by depriving the court of Mr. Ward’s direct input, imposes a higher onus on the court to think through the potential consequences of the courses available to it. The court has this duty even where the litigants agree on a course that may have unintended consequences. Some courts have refused to accept a police enforcement clause even when set out in Minutes of Settlement, without specific evidence explaining its rationale and its potential impact on the children.[^15]

[87] In Bhandari v. Bhandari, in 2004, the Court of Appeal [McMurtry C.J.O. in Chambers], stayed an order directing police assistance with access, pending an appeal, and instead ordered the Children’s Lawyer to investigate and represent the children's interests, presumably, as Justice Pazaratz observed, “to facilitate access less eventfully.”[^16]

[88] The court must consider what options will remain if Mr. Ward makes the custody/access arrangement and parenting schedule that the court orders un-workable or intolerable to Ms. Ward. In McMaster v. McMaster, in 1993, a Master of the British Columbia Supreme Court, reluctant to make an ongoing police enforcement order, expressed concern about delegating critical and highly sensitive decisions in children’s lives to unknown police officers, in unknown future circumstances. He stated:

Even if I had the authority to make the order sought, I would not do so in this case. The safety of the children is not threatened. No breach of the peace is threatened. Nor do I think that a peace officer should be charged with determining on a future occasion whether access is being denied with or without just cause, and whether assistance is needed, and what form such assistance should take, and whether other police duties should be set aside while such assistance is rendered.

The petitioner has a solution. He can proceed with his contempt application or he can lay criminal charges.[^17]

[89] Justice Pazaratz stated, in Patterson v. Powell:

It is important to note that all of the aforementioned cases recognize the obvious starting point: Court orders have to be obeyed. There is no suggestion that non-compliance by a parent is to be tolerated. The issue is whether we as a family court system continue to assume responsibility for protecting the interests of children – or whether we delegate parental compliance to the police, the way we delegate collection of support payments in Ontario to the Family Responsibility Office.[^18] [Emphasis added.]

[90] Ms. Ward has expressed concern as to whether Mr. Ward, after occasionally not co-operating with the parenting arrangement the parties made with the help of their respective lawyers, may not comply with the court’s order. In that event, the court would seek to fashion consequences that would remedy the non-compliance while avoiding harm to Adleigh. The civil consequences of contempt of court are set out in Rule 31 of the Family Law Rules. It provides, in part:

31.(1) On order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.

(5) If the court finds a person in contempt of the court, it may order that the person,

(a) Be imprisoned for any period and on any conditions that are just;

(b) Pay a fine in any amount that is appropriate;

(c) Pay an amount to a party as a penalty;

(d) Do anything else that the court decides is appropriate;

(e) Not do what the court forbids;

(f) Pay costs in an amount decided by the court; and

(g) Obey any other order. [^19]

[91] In Szyngiel v. Rintoul, in 2014, the court noted that, “There are situations where the reasons for the breaches provide a legitimate excuse. In order to make out a defence, however, the party asserting it needs to have a reasonably held belief that there was a good reason to disobey the order.”[^20] A reasonably held belief is one that is both sincere and has an objective basis in fact.[^21]

[92] Penalties for contempt of a custody/access order can include curtailing access.[^22] Because such a sanction affects the child, such a response must be based on a finding that it is in the child’s best interests.[^23] The B.C. Supreme Court noted in Hagen v. Muir, in 2000, “The right of access is a child’s right and it seems to me to be inappropriate to punish an offender by removing an innocent party’s right.”[^24]

[93] Access is not awarded or withheld to punish or reward parental behaviour.[^25] Justice Kane, in Kagan v. Kagan, in 2010, stated:

A parent’s conduct is only relevant insofar as it affects a person’s ability to meet a child’s needs while they are together: see McGrath v. Thomsen, [[2000] BCSC 668 (S.C), affirmed (2000), 2000 640, 11 R.F.L. (5th) 174 (B.C.C.A.)]. [Citation added.]

A parent’s conduct may pose a sufficient physical or emotional risk to a child that access should be limited, or, in an extreme case, denied: see AA. v. S.NA., 2007 363, [2007] B.C.J. No. 1474 (B.C.C.A.) and No. 1475.

A court may restrict access if a non-custodial parent uses access as an opportunity to denigrate the custodial parent to the children: see M.M. v. M.M., 2000 28621 (ON CJ), [2000] O.J. No. 142 (Ont. C.J.).

A parental relationship does not guarantee custody or access. Increasing stress on a child as a result of unsupervised access is a material change of circumstances, warranting termination even in the absence of proof of the child abuse. Supervised access is a temporary measure, not a long-term remedy: see M. (B.P.) v. M. (B.L.D.E.) (1992), 1992 8642 (ON CA), 42 R.F.L. (3d) 349 (Ont. C.A.)

In order to sustain the inchoate right to maintain a connection with his or her children, a parent must have affirmatively demonstrated a commitment to being a parent. Even if there is no immediate risk to the child, a court should not be reluctant to terminate access rather than order supervised access where it is not satisfied that the child will receive some benefit from the visits. The possibility of subtle non-physical threats or psychological abuse that can occur during even supervised access is a basis for rejecting this option: see Dixon v. Hinsley (2001), 2001 38986 (ON CJ), 22 R.F.L (5th) 55 (Ont. C.J.)[^26]

[94] Incarceration is sometimes employed where necessary to ensure that a child’s right to two parents is respected by litigants, and to protect the integrity of the judicial system. In R. v. Petropoulos, in 1990, the British Colombia Court of Appeal upheld a sentence of eighteen months incarceration imposed on a father convicted of removing his seven year old child from B.C. and taking him to Ontario contrary to s. 282 of the Criminal Code, thereby depriving the mother of her custodial right.[^27] The seriousness of the charge was reviewed by the Supreme Court of Canada in R. v. Dawson, in 1996.[^28] The court in K. (M.M.) v. M. (P.R.), referring to R. v. Dawson, stated, “The first principle is clear. A breach of access rights is serious; it is punishable by a prison term if the custodial parent is in contempt of Court. However, the serious effects of denial of access must be balanced against the effect that incarcerating the offending parent will have upon the child in question.”[^29]

[95] The English Law Commission noted in 1986 that “The enforcement of access is known to cause grave difficulties in some cases: the usual remedies for non‑compliance with the court’s orders may harm the very person in whose interests the access order has been made.”[^30] Similarly, the Supreme Court of Canada, in Frame v. Smith, in 1987, noted that resorting to fining or imprisoning the custodial parent can have serious consequences for the day-to-day care of a child, and a fine may have negative impact on the child’s material well-being, and can therefore be inconsistent with the child’s best interests.[^31]

[96] In Young v. Young, in 1993, the Supreme Court of Canada set out a list of factors that the court should take into account in making decisions regarding custody and access.[^32] In T.K. v. K.F., in 2008, Justice Giardini of the Provincial Court of B.C. gave a helpful summary of the factors relevant to the case before her:

The first is that the power of a custodial parent is not a right granted by the courts for the benefit of the parent. Instead, the child has a right to a parent who will look after his or her best interests. The custodial parent has a duty to ensure, protect and promote the child's best interests.

The right to access is limited in scope and is shaped and governed by the best interests of the child. The role of the party exercising access, in this case it would be the dad, is that of a very interested observer, giving love and support to the child in the background.

The right to access, and the circumstances in which access takes place, must be looked at from the vantage point of the child. Whenever the relationship of the non-custodial parent conflicts with the best interests of the child, the furtherance and protection of the child's best interests must take priority over the desires and interests of the non-custodial parent.

The ultimate goal of access is the continuation of a relationship which is of significance and support to the child. Accordingly, access must be crafted to preserve and promote that which is healthy and helpful in the relationship, so that the relationship may survive and achieve its purpose. Sources of ongoing conflict which threaten to damage or prevent continuation of a meaningful relationship should be removed or mitigated.

The Court said that caution has to be exercised about the vulnerability of access rights by abuse of authority by a vengeful custodial parent, so that is something the courts ought to take into account. However, the Court also said, this is the Supreme Court, that judges should not be too quick to presume that the access concerns of the custodial parent are not related to the best interests of the child.

Lastly, the Court said that when disagreements between parents do reach the courts the judge must always draw the line in favour of the best interests of the child, from the perspective of the child. The best interests of the child cannot merely be equated with the absence of harm. Courts must attempt to balance such considerations as age, physical and emotional constitution, and psychology of both the child and his or her parents, and the particular environment in which a child will live.[^33] [Emphasis added.]

[97] Justice Pazaratz critically considered the assumptions underlying a police enforcement order and recommended a restraint based on the assumptions that the parents share the goal of maintaining a healthy relationship between both of them and their child, and that the occasional lapses may be the result of circumstances rather than intentional non-compliance. He stated:

But ongoing police enforcement clauses are also predicated on certain questionable presumptions:

a. That custody/access dynamics won’t change.

b. That parent/child dynamics won’t change.

c. That circumstances, schedules and commitments won’t change.

d. That if changes do arise, the parties will have the inclination and resources to immediately return to court to change orders.

e. That our court system will be able to respond to contempt motions and motions to change in an expedient and straightforward manner.

f. That every single deviation from a court order is to be instantly deemed an act of bad faith, deserving of immediate sanction.

If the non-compliance is isolated or rare, perhaps we should afford an opportunity for explanation and review before presuming the worst:

a. Children really do sometimes become sick, uncooperative or headstrong.

b. Scheduling problems, traffic, weather, and overlapping commitments can affect custodial and access parents alike.

c. Sometimes parents are selective about enforcing court orders. What of the access parent who sometimes shows up and sometimes doesn’t? What of the custodial parent who sometimes consents to changes or even initiates them – and then sometimes requires strict compliance?

And if the non-compliance is chronic, we’re likely dealing with a problem police can’t fix anyway. At best, police enforcement amounts to a band-aid solution. If a parent is consistently defying a court order, there’s a good chance the order itself needs to be changed to deprive the offending parent of the opportunity for more unilateral action or defiance.

a. If access is being denied, perhaps custody needs to be changed.

b. If access is being abused, perhaps it should be reviewed, supervised or suspended.

c. If neither party can behave themselves during access exchanges, perhaps both parties should have to attend a supervised exchange facility. It might be inconvenient for the parents, but it would be a lot less traumatic for the child.

d. If we don’t have confidence the parties will comply with final orders, perhaps we shouldn’t be making final orders. Sometimes parents are motivated to behave if they know they’ll be coming back to court – especially if they know they will be returning to see the same Judge.

Increasingly, courts seem to recognize that – especially when dealing with children – judges have an obligation to craft comprehensive, holistic and durable court orders which have a likelihood of success and compliance. High conflict files need to be identified and given special attention. While disputes may inevitably arise, courts have a responsibility to anticipate problems and build-in dispute resolution mechanisms – rather than hand the mess over to police to sort it out.

If a judge anticipates future disputes or non-compliance, the court may wish to remain seized of the matter, and establish a framework to quickly deal with disputes – including contempt proceedings – to ensure that the parties clearly understand expectations and consequences.[^34]

[98] For the foregoing reasons, I decline to make an order for police enforcement, as it is not authorized by s. 36 of the Children’s Law Reform Act in the circumstances of the present case, and would not be in Adleigh’s best interests.

d) Child Support

[99] Adleigh is a child who is dependent on her parents and is therefore a child of the marriage as defined by the Divorce Act.[^35]

[100] Mr. Ward’s known T4 income for 2014 was $60,425.84: He earned $43,906.35 of this amount working at Live Nation and $16,519.49 working at Paragon Security. His line 150 income in the past has been:

a) $56,989.25 in 2012;

b) $52,506.57 in 2011;

c) $43,891.66 in 2010;

d) $46,213.20 in 2009.

[101] Mr. Ward’s new employment contract with Live Nation entitles him to a base income of $60,000 per year plus the possibility of a bonus. He no longer works for Paragon Security. Ms. Ward asks the court to impute income to Mr. Ward in the amount of $64,000. This amount is based on the following:

a) The base salary of $60,000 provided for in Mr. Ward’s employment contract with Live Nation;

b) The fact that Mr. Ward is capable of earning a bonus of $4,500;

c) The fact that Mr. Ward has, in the past, worked at more than one job at a time, and has earned cash that he did not declare for income tax purposes. Ms. Ward asserts that he has always earned undeclared cash providing security for various clubs and other events.

[102] Ms. Ward submits that, from August 1, 2015, onward, Mr. Ward should be required to pay child support in the amount of $584.00 per month, being the table amount payable by a parent earning $64,000 for the support of one child.

[103] Ms. Ward additionally asks this court to award her retroactive child support from April 2014 to July 2015. She began, in April 2014, to try to work with Mr. Ward to sign a separation agreement with mutually agreeable terms. She began the present proceeding by application issued on April 16, 2015. She has tendered a chart with the retroactive child support she is owed. She acknowledges, and the chart reflects, the payments Mr. Ward has made each month in the amount of $372.40. She seeks payment of the balance of $3,385.60.

[104] Ms. Ward also seeks an order requiring Mr. Ward to designate her, as trustee for Adleigh, as irrevocable beneficiary of his group life insurance policies available to him through his employment, currently with Great West Life Insurance. She seeks this order to secure his child support obligations, and says the order should require him to obtain such other life insurance as is sufficient to secure his child support obligations, including his future obligations to contribute to the payment of special and extraordinary expenses, including post-secondary school costs, pursuant to section 7 of the Federal Child Support Guidelines.

[105] The Family Law Act contains the following provisions regarding a parent's obligation to support a child of the marriage:

31.(1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.[^36]

[106] In determining what amount of child support is appropriate in the present case, I have considered s. 3 of the Guidelines, which states:

3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.[^37]

Mr. Ward's income

[107] Section 2 of the Guidelines defines a payor spouse's income to mean his annual income by applying sections 15 to 20.[^38] Those sections provide that a spouse's annual income can be determined in one of three ways:

1. Where both spouses agree in writing on the amount, the court may consider that amount to be the spouse's income, if it thinks it reasonable, having regard to the tax information provided under section 21.

2. If the spouses do not agree, the court must determine the amount using the sources of income set out under "Total income" (line 150) in the spouse's Income Tax Return, as adjusted in accordance with Schedule III. The court must use the spouse's most current information. If that would not be the fairest way of determining his income, the court may determine a fair and reasonable amount, having regard to his average income over the last three years.

[108] In appropriate circumstances, the court may impute an amount of income to the payor spouse. Appropriate circumstances, under s. 19 of the Guidelines, include where the spouse:

a) is intentionally under-employed or unemployed (other than where it is required by the needs of a child);

b) is exempt from paying federal or provincial income tax;

c) lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

d) has diverted income that would affect the level of child support payable under the Guidelines;

e) is not reasonably using his property to generate income;

f) has failed to provide income information;

g) has unreasonably deducted expenses from his income (and here, the reasonableness is not governed solely by whether the expenses can be deducted under the Income Tax Act);

h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax;

i) is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[109] Pursuant to my Order dated August 4, 2015, Ms. Ward has received financial information from Mr. Ward’s employers. Paragon Security has advised that Mr. Ward no longer works for them. Paragon did not disclose the reason for this. I infer that Mr. Ward’s ongoing income is derived exclusively from his employment at Live Nation, apart from unreported cash income that he earns providing security at clubs and parties.

[110] Live Nation has disclosed that Mr. Ward $60,000 per year with an opportunity to earn additional amounts as bonuses. Ms. Ward argues that additional income should be imputed to Mr. Ward, pursuant to s. 19(f) of the Guidelines, based on his unreported cash earnings as a private security guard at clubs and parties. Ms. Ward states that when they were together, Mr. Ward worked part-time providing security at clubs. It is also undisputed that he has held other employment, including his position at Paragon Security, where he earned $16,519.49 per year in addition to his annual salary at Live Nation.

[111] Given Ms. Ward’s evidence about Mr. Ward’s unreported income in the past, and Mr. Ward’s income last year, and our inability to know what, if any bonus, he will earn this year, it is reasonable to award child support based on an income of $64,000.

e) Retroactive support

[112] Child support may be ordered retroactively to cover the period of time from the filing of the application to the date of judgment. In the present case, Ms. Ward caused her application to be issued on April 10, 2015.

[113] In 1999, the British Columbia Court of Appeal held, in S. (L.) v. P. (E.), that the court may, where appropriate, order the payment of child support for a period predating the commencement of the proceedings.[^39] The Court of Appeal provided a helpful outline of factors to be considered in determining whether or not to order retroactive child support. These include, but are not limited to, the following:

a) Whether the payor was incomplete or misleading about his financial disclosure when the original order was made;

b) What the needs of the child are;

c) The payor’s ability to pay without having to encroach on his capital;

d) Whether there was delay in bringing the application for support;

e) What excuse there was for the delay;

f) Whether there was notice to the other party that arrears would be sought;

g) Whether an arrears order would impose an unfair burden on the payor to an extent that would prevent him from paying ongoing support.

[114] Mr. Ward has been earning income in an amount that was greater than the amount used as a basis for determining the support he paid to Ms. Ward. I find that he knew that Ms. Ward was pursuing child support at a higher amount then he was paying earlier than April 2014, when Ms. Ward retained counsel. Since producing his income tax returns for 2009 to 2012, Mr. Ward has refused to provide Ms. Ward ongoing evidence of his income. Ms. Ward’s only delay in bringing this matter before the court in April 2014 resulted from her hope that the parties would be able to resolve the issues between them without involving the court and from the fact that Mr. Ward’s refusal to pay support in the proper amount made it financially difficult for her to bring matters to court. In consideration of these factors, I find that Mr. Ward should have paid child support in the sum of $584 per month beginning April 1, 2014.

[115] Ms. Ward does not dispute that Mr. Ward has paid some support to her for Adleigh’s welfare. She has prepared a calculation of amount of support payable, amount of support paid, and amount of support outstanding. I find that Ms. Ward’s calculations are proper. Based on them, I order retroactive child support in the table amount, which I calculate at $3,385.60, to be paid by Mr. Ward.

f) Special and Extraordinary Expenses

[116] The contribution that parents are required to make to their children's education costs is governed by s. 7 of the Guidelines:

7. (1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation:

(a) Child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) That portion of the medical and dental insurance premiums attributable to the child;

(c) Health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) Extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) Expenses for post-secondary education; and

(f) Extraordinary expenses for extracurricular activities.

(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.[^40]

[117] The well-established test for whether an expense is extraordinary is whether it is "reasonable and necessary", having regard to the parents' individual and collective means. The court must assess whether the expense is objectively sensible for this particular separated family. It considers a number of factors, including the parties' historic spending patterns.

[118] Once having determined that an expense is extraordinary, having regard to the parties' joint income, and that it is reasonable and necessary, having regard to the means and circumstances of the parents and child, the court must, pursuant to s. 7, apportion responsibility for the expense in proportion to the parties' incomes.

[119] Ms. Ward is employed by Molson Coors Canada as a Talent Acquisitions Manager. Her income in 2014 was $100,644.08. In her financial statement sworn September 4, 2015, she reports that her current income is $103,494, which roughly corresponds to her Line 150 total income in her Notice of Assessment for 2014. Her income in three preceding years was $50,100 in 2011, $54,678 in 2010, and $57,105 in 2009.

[120] Ms. Ward has incurred the following expenses for 2013-2014, which she submits are special and extraordinary expenses, based on the fact that they were reasonable, having regard to the expectations that the parties had for the children's activities before they separated, the need for daycare for the parties to work, and their collective income:

$ 5,428.60 Daycare costs in 2013;

$ 142.00 Gymnastics in 2013;

$ 280.00 Swimming in 2013;

$ 180.85 Food at school in 2013;

$ 5,907.80 Daycare costs in 2014;

$ 152.00 Swimming in 2014;

$ 214.50 Gymnastics in 2014;

$ 42.70 Mini Cheer in 2014;

$ 268.58 Dance in 2014; and

$ 180.85 Food at school in 2014

$12,797.88 Total

[121] Ms. Ward is entitled to a tax write off of $5,850.60 in 2013, $6,428.48 in 2014 towards these expenses. There was $518.80 not covered by the tax benefits. Mr. Ward’s share is $198.23 being 38.21%

[122] The total anticipated and actual expenses for 2015 are as follows: $6,387 for the daycare, $260.76 per year for dance, $228 per year for swimming, $2,060.76 for camp and food costs for the school, in the sum of $180.85, (approximately $5 per week of school), for a total of $9,117.37 in section 7 expenses. The total anticipated and actual expenses for 2015 are as follows: $6,387 for the daycare, $260.76 per year for dance, $228 per year for swimming, and $2,060.76 for camp and food costs for the school in the sum of $180.85, ($5 per week of school), for a total of $9,117.37 in section 7 expenses for which Ms. Ward is asking Mr. Ward to contribute.

[123] Ms. Ward is entitled to a maximum tax write off of $7,054.10 towards the foregoing expenses. $2,063.28 is not covered by tax benefits. Mr. Ward’s share of this net amount of s. 7 expenses, based on Ms. Ward’s current income of $103,494 and Mr. Ward’s current income of $64,000 is 38.21%, or $788.38. On a monthly basis, this amounts to a payment of $65.70 beginning January 1, 2015.

[124] Ideally, parties discuss extraordinary expenses before committing to them to ensure that they are reasonable and necessary, considering the parties' financial means and the pattern of spending prior to the separation. It is clear from the evidence that Mr. Ward refuses to have any communication with respect to activities for Adleigh or with respect to her daycare and other expenses. It would be unfair to hold Ms. Ward to the requirement that Mr. Ward consent to such s.7 expenses, when it is clear that he will not consent to them.

[125] In Titova v. Titov, in 2012, the Court of Appeal for Ontario set out the procedure courts must apply when determining whether to award special and extraordinary expenses pursuant to s. 7 of the Federal Child Support Guidelines, as follows:[^41]

1. Calculate each party’s income for child support purposes

2. Determine whether the claimed expenses fall within one of the enumerated categories of s. 7

3. Determine whether the claimed expenses are necessary “in relation to the child’s best interests”

4. Determine whether the claimed expenses are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation”

5. If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”.

6. Consider what amount, if any, the child should reasonably contribute to the payment of these expenses

7. Apply any tax deductions or credits.[^42] [Emphasis added.]

[126] Having completed this exercise, the court must then determine how the balance of the expenses should be apportioned between the parties.[^43]

Factors Relevant to “Reasonableness”

[127] In Terry v. Moyo, in 2013, Justice O`Connell of the Ontario Court of Justice adopted six factors relevant to determining the reasonableness of a s.7 expense, as enunciated by the Manitoba Court of Appeal in 2002. They include:

1. The combined income of the parties;

2. The fact that two households must be maintained;

3. The extent of the expense in relation to the parties' combined level of income;

4. The debt position of the parties;

5. Any prospects for a decline or increase in the parties' means in the near future; and

6. Whether the non-custodial parent was consulted regarding the expenditure prior to the expense being incurred.[^44]

The Test for “Extraordinary”

[128] Before 2006, when the Federal Child Support Guidelines were amended to add s.7 (1.1), there was disagreement among Canadian courts of appeal about whether the test was a subjective one – where the income of the parents was a relevant factor – and an objective one, which simply looked at whether the expense was “ordinary” or “extraordinary”. The 2006 amendment resolved this dispute in favour of a subjective test.

[129] Section 7(1.1) of the Federal Child Support Guidelines now provides a definition of “Extraordinary Expenses”:

DEFINITION OF “EXTRAORDINARY EXPENSES”

(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

[130] The test set out in section 7(1.1) takes account of the spouse’s income and the amount of child support to be received. In MacNeil v. MacNeil, in 2013, Gauthier J. succinctly sets out the jurisprudence interpreting “extraordinary”:

The real issue is whether the expenses are “extraordinary.”

The question of how to determine whether expenses are “extraordinary” was specifically addressed at paragraph 28 of Titova, based on a British Columbia Court of Appeal decision from 1998:

It also does not appear that the trial judge turned her mind to the question of whether the expense for items such as school books and school registration qualified as “extraordinary”. As set out in McLaughlin v. McLaughlin (1998), 1998 5558 (BC CA), 167 D.L.R. (4th) 39 (B.C.C.A.) at para. 64, the use of the word “extraordinary” in s. 7 implies that ordinary expenses are intended to be covered by the basic table amounts.

This interpretation of “extraordinary” is consistent with the Ontario Court of Appeal decision in Ostapchuk v. Ostapchuk, 2003 57399 (ON CA), [2003] O.J. No. 1733, 64 O.R. (3d) 496, where s. 7 expenses were described as “special or extraordinary expenses that are determined to be additional costs of raising a child that are not incorporated in the table amounts” [emphasis added] (para 13).

“Extraordinary” expenses were described as “unusual”, or “disproportionate” by the Manitoba Court of Appeal in Andries v. Andries, 1998 14093 (MB CA), [1998] M.J. No. 196, 159 D.L.R. (4th) 665:

An expense for an extra-curricular activity is extraordinary only where it is disproportionate to the usual costs associated with that particular activity. The income of the parties is irrelevant in determining whether an expense is extraordinary. It is only if the expense is otherwise found to be extraordinary, in the sense of being unusual or exceptional according to an objective standard, that one looks to the incomes of the parties to determine whether the expense is reasonable and in accord with the spending patterns of the parties prior to the separation.[^45] [Emphasis added.]

[131] Some of the cases cited predate the 2006 amendments, although Titova approved the McLaughlin decision in 2012. Thus, any interpretation must take account of the subjective considerations enumerated in the Guidelines.

[132] In Bordin v. Bordin, in 2015, Horkins J. stated the considerations as follows:

An extraordinary expense is one that given the combined income of the parties would not be incurred for the children as a matter of course (see Celotti v Celotti, [2007] O.J. No. 2538 (S.C.); Park v Thompson, 2005 14132 (ON CA), [2005] O.J. No. 1695 (C.A.)).[^46]

[133] In Boisvert v. Boisvert, in 2007, Whitten J. noted at para. 48:

Section 7(1.1)(a) appears to exclude expenses that would reasonably be expected to be covered by a combination of the custodial parent’s income and the Guideline amount received by that parent. Section 7(1.1)(b)(i) provides that if s. 7(1.1)(a) is not applicable, the court could still exclude such an expense if that expense was disproportionate and not economically justifiable given the income of and support received by the custodial parent. This section includes as factors for consideration the nature and number of extra-curricular activities, their cost, and any other factors considered relevant by the court. The overall thrust of section 7(1.1)(b) appears to be to exclude activities which would be beyond the lifestyle and economic means of the children and their parents. That cannot be said about a claim for extra-curricular activities such as Beavers, gymnastics, sport ball and day camp. These are all extra-curricular activities which are age appropriate and are modest means of developing the socialization and athleticism of young children.[^47] [Emphasis added.]

[134] Ms. Ward needs to have daycare for Adleigh so that she can go to work. When daycare is not available during the summer months, it is necessary for Ms. Ward to find additional arrangements for the care of Adleigh, which she has done by enrolling her in summer camp. The costs that Ms. Ward has incurred are in excess of those that can be expected to be covered by basic child support. They are not unreasonable, in that the parties’ combined income would have permitted them to incur these expenses before they separated, and Mr. Ward’s current income permits him to contribute to these expenses on an ongoing basis.

[135] Adleigh’s extracurricular programs, including gymnastics, swimming, and dance, and her food costs at school, are not extraordinary. In 2014, they amounted, in total, to $814 for the year. They are adequately covered by the table child support of $584 per month ($7,008 per year).

[136] Ms. Ward’s expenses for Adleigh’s daycare in 2013 and 2014 ($5,428.60 in 2013 and $5,907.80 in 2014) were covered entirely by the tax benefits she received ($11,336.40). Mr. Ward’s share of daycare and summer camp combined in 2015 amounts to $46.10 per month, calculated as follows:

Daycare: $6,387.00

Camp: $2,060.76

Total: $8,447.76

Less tax benefit: $7,000.00

Net expense: $1,447.76

Mr. Ward’s share: $1,447.76 x 38.21% = $553.19 ÷ 12 months = $ 46.10

[137] Mr. Ward will therefore be ordered to contribute 38.21% to Adleigh’s special and extraordinary expenses. This contribution currently amounts to $46.10 per month.

g) Medical and Dental Coverage

[138] In accordance with s. 6 of the Federal Child Support Guidelines Mr. Ward shall provide medical and dental insurance coverage for the child. Mr. Ward’s employer, Live Nation, confirmed that such coverage is available to him through his employment. Mr. Ward shall provide to Ms. Ward the full details of the coverage available to him through his employment. He shall forthwith submit claims for reimbursement to his group benefits provider for all payments of expenses reported to him by Ms. Ward, and he shall, within five days of receiving reimbursement of those payments, remit them to Ms. Ward. Mr. Ward shall authorize Ms. Ward to discuss and submit such claims to the benefits provider herself, provided this is permitted by the benefits provider.

h) Equalization of Net Family Property

[139] Ms. Ward submits that there is no equalization payment owing by either spouse to the other. The parties’ had few assets at date of separation other than Ms. Ward’s pension and RRSP. Ms. Ward enrolled in her pension plan and her group RRSP in April 2013, at about the time of the parties’ separation. Her pension report for the period from January 1, 2013 to December 31, 2013, (Exhibit 2 at the trial) discloses that she enrolled in her Defined Contribution Registered Pension Plan (DCRPP) on April 25, 2013, and that she enrolled in her Group RRSP on April 2, 2013.

[140] I find that Mr. Ward had more debts than assets when the parties separated. Ms. Ward has provided evidence of the debts she is aware of. She has no interest in any assets that Mr. Ward may have had at that time.

[141] Ms. Ward’s sworn financial statement shows that she had no net family property on the date of separation. I accept her position that it is unlikely that Mr. Ward has any significant net family property and that no equalization payment is owing by either party to the other.

i) Joint debt

[142] Mr. and Ms. Ward owed a joint debt of $10,405.64 on the date of separation in relation to a joint RBC VISA credit card account that Mr. and Ms. Ward operated when they were married. Each of them operated a credit card of their own, and they used the joint credit card only for family expenses. Mr. Ward’s half of the joint debt in relation to the joint VISA credit card is $5,202.82.

[143] Mr. Ward charged personal expenses of his own to the joint VISA credit card after the parties separated. None of these expenses were for purchases that benefitted Ms. Ward or Adleigh. The amount of his personal charges on this card was $635.50. Ms. Ward made no charges to this card for her own personal expenses and, in fact, ceased to operate the account after the parties’ separation.

[144] Mr. Ward made some payments, amounting to a total of $313, toward the balance owing on the joint VISA account on the date of separation. They had agreed that he would pay half of the balance owing on the card on the date of separation, and agreed to make monthly payments, but he ceased doing so and Ms. Ward ended up paying in order to protect her credit rating.

[145] Mr. Ward will be required to pay $5,838.32 for his half of the debt outstanding on the parties’ joint credit card on the date of separation and for all of the charges Mr. Ward made to the card after their separation. He will be ordered to pay this amount directly to Ms. Ward. Having regard to Mr. Ward’s history of non-payment of debts, I will order this sum to be paid as lump sum spousal support, enforceable by the Family Responsibility Office.

j) Divorce

[146] Section 8 of the Divorce Act allows the court to grant a divorce to a spouse on the grounds that they have lived separate and apart for over a year. The parties in this case have been separated for over two years now. Since I am prepared to make orders today with respect to custody, access and child support, there are no bars to stay granting the divorce. As such, I grant Ms. Ward’s request for a divorce.

k) Costs

[147] The Family Law Rules provide that:

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

(11) A person setting the amount of costs shall consider,

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.[^48]

[148] Costs rules are designed to foster three fundamental purposes:

(a) to partially indemnify successful litigants for the cost of litigation;

(b) to encourage settlement; and

(c) to discourage and sanction inappropriate behaviour by litigants.

[149] Ms. Ward has, on her evidence, tried to resolve this matter by way of separation agreement. She went to great expense through the court proceeding with Mr. Ward declining to participate in the process. She has produced a Bill of Costs in the sum of $8,017.74, consisting of fees of $6,623, HST of $860.99, and disbursements in the amount of $533.75. She is asking for $8,017.74 in costs on a full indemnity basis.

[150] Ms. Ward is entitled to her costs. Her lawyer, Rachel (Rae) White was called to the Ontario Bar in 2000. She practiced law for 15 years before representing Ms. Ward at the hearing.

[151] In determining the appropriate hourly rates to be assigned to the lawyers involved in the motion, the court follows the approach taken by Aitkin J. in Geographic Resources Integrated Data Solutions Ltd. v. Peterson.[^49] That is, the starting point is the successor of the Costs Grid, namely, the “Information for the Profession” bulletin from the Costs Sub-Committee of the Rules Committee (the “Costs Bulletin”), which can be found immediately before Rule 57 in the Carthy or Watson & McGowan editions of the Rules. The Costs Bulletin sets out maximum partial indemnity hourly rates for counsel of various levels of experience.

[152] The Costs Bulletin suggests maximum hourly rates (on a partial indemnity scale) of $80.00 for law clerks, $225.00 for lawyers of less than 10 years’ experience, $300.00 for lawyers of between 10 and 20 years’ experience, and $350.00 for lawyers with 20 years’ experience or more.[^50] The upper limits in the Costs Bulletin are generally intended for the most complex and important of cases. Having regard to the complexity of the hearing, Ms. White is entitled to the maximum hourly rate for a lawyer of between 10 and 20 years’ experience.

[153] The Costs Bulletin, published in 2005, is now dated. Aitkin J. considered adjusting the Costs Subcommittee’s hourly rates for inflation, as Smith J. did in First Capital (Canholdings) Corp. v North American Property Group,[^51] but the unadjusted rates of the lawyers in her case were only slightly less than the actual fees they charged, so she elected to use their unadjusted rates. Normally, however, it is appropriate to adjust the hourly rates in the Costs Bulletin to account for inflation since 2005.

[154] Based on the Bank of Canada Inflation Calculator, available online at http://www.bankofcanada.ca/rates/related/inflation-calculator/, the current (2014) equivalent of the hourly rates in the Costs Bulletin are $93.52 for law clerks, $263.03 for lawyers of under 10 years’ experience, $350.71 for lawyers of between 10 and 20 years’ experience, and $409.16 for lawyers of over 20 years’ experience.

[155] The court is guided by the rates in the Costs Bulletin, not the actual hourly rates charged. The actual rates charged are relevant only as a limiting factor, in preventing the costs awarded from exceeding the actual fees charged. The Costs Subcommittee’s rates apply to all lawyers and all cases, so everyone of the same level of experience starts at the same rate.

[156] The court adjusts the hourly rate, or the resulting fees, to reflect unique features of the case, including the complexity of the proceeding, the importance of the issues, and the other factors set out in Rule 57.01(1). If an excessive amount of time was spent, or too many lawyers worked on the file, the court reduces the resulting amount of fees accordingly. As long as the resulting amount does not exceed the amount actually charged to the client, the actual fee that the client agreed to pay is irrelevant.

[157] The Costs Bulletin entitled a lawyer of Ms. White’s experience to claim a maximum hourly rate in 2005 of $300 on a partial indemnity scale, which translates to $350.71 after adjusting for inflation. I round this amount to $350. Ms. White has claimed an hourly rate of $310, which I find to be reasonable.

[158] Ms. White spent 16.9 hours for the entire proceeding. The hearing alone was 2.5 hours and would have required at least twice that time in preparation. The question of what is reasonable trial preparation time, both before and during a trial, is a recurrent issue when the court assesses costs, and has been approached in different ways by the Court over the successive costs regimes that have governed the assessment of costs. I reviewed the relevant jurisprudence in Wright v. Wal-Mart et al, in 2010,[^52] and in TMS Lighting v. KJS Transport, in 2014.[^53]

[159] Courts have allowed claims for preparation time ranging from the amount of time spent at the trial to twice that amount of time.[^54] The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding. In doing so, I must stand back from the fee produced by the raw calculation of hours spent times hourly rate and assess the reasonableness of the counsel fee from the perspective of the reasonable expectations of the losing party.[^55]

[160] I noted in Wright v. Wal-Mart that the Court must approach any formula for assessing costs with due consideration of the context of the case. The context includes the following:

a) the seniority of counsel;

b) their style of preparation;

c) the resources, such as support staff, they brings to bear on the case;

d) the nature and complexity of the action, and the issues that must be addressed; and

e) the duration, and procedural and evidentiary challenges, of the trial.[^56]

[161] A judge fixing costs should not second guess the amount claimed unless it is clearly excessive or overreaching. I must consider what is reasonable in the circumstances of this trial and, after taking account of all the relevant factors, award costs in a global fashion.[^57]

[162] In the present case, there was substantial time required for preparation, which included drafting an uncontested trial affidavit, preparing a Trial Record, and drafting written submissions and a Bill of Costs. Counsel presented her case at the trial with economy and efficiency, and I find that the amount she has claimed is reasonable.

[163] The disbursements claims, amounting to $533.75, consist of photocopies, process serving, court filing charges, and courier costs. All are reasonable and will be allowed at the amount claimed.

CONCLUSION AND ORDER

[164] For the forgoing reasons it is ordered that:

1. The Applicant shall have sole custody of the child of the marriage, Adleigh Ward, born November 18, 2008.

2. Adleigh Ward, born November 18, 2008, shall reside primarily with Ms. Ward.

3. Mr. Ward shall have access to and care of Adleigh on the following schedule:

a. Every other weekend beginning October 9, 2015, from Friday after school (between 3:30 p.m. to 6:00 p.m.) until Sunday at 12:00 p.m. (noon). If Mr. Ward is not able to exercise access to Adleigh personally, by picking up Adleigh at the beginning of his access period, his parents shall have access to Adleigh on those weekends in his place, but only on Sunday from 1:00 p.m. to 6:00 p.m.;

b. Every Tuesday from after school (3:30 p.m. to 6:00 p.m.) until 8:30 p.m.;

c. Every Thursday from after school (3:30 p.m. to 6:00 p.m.) until 8:30 p.m.;

d. Such other and further times as can be agreed upon by the parties. Such agreement shall be in writing; and

e. Access in accordance with the Holiday residence schedule set out below.

4. This holiday residence schedule is in addition to the regular residence schedule above, and overrides the regular residence schedule in the event of conflict. (The regular residence schedule and the holiday residence schedule are collectively referred to as the "schedule").

a. Family Day Weekend: Adleigh will be with the parent who would exercise access to her in accordance with the regular access schedule.

b. School Spring Break: Adleigh shall reside with Mr. Ward during the school Spring Break for the half of the week which falls closest to his regular weekend access. The exchange of Adleigh shall be at 8:00 a.m. on Thursday morning. Adleigh shall reside with Ms. Ward for the portion of the week closest to her weekend.

c. Easter Weekend: If Easter falls on a weekend when Mr. Ward would normally exercise access to Adleigh in accordance with the regular access schedule, Adleigh shall reside with him until Sunday at 12:00 p.m. (noon) and with Ms. Ward from then until Adleigh’s return to school. If Easter does not fall on Mr. Ward’s access weekend, Adleigh shall reside with Mr. Ward from Sunday at 12:00 p.m. (noon) until Monday at 8:30 p.m.

d. Mother's Day: If Adleigh is not otherwise with Ms. Ward on this weekend, she shall reside with her on Mother's Day weekend.

e. Victoria Day Weekend: Adleigh will be with the parent in whose care she would be based on the regular access schedule.

f. Father's Day: If Adleigh is not otherwise with Mr. Ward on this weekend, she shall reside with him on Father's Day weekend until Sunday at 12:00 p.m. (noon).

g. Summer Vacation: Adleigh will reside with each parent for 1 week during each of two months for Adleigh's Summer Vacation. Mr. Ward shall have first choice of his access weeks in even-numbered years beginning in 2016, and on those years, he shall notify Ms. Ward of his choice by May 15th and Ms. Ward shall notify him of her choice by June 1st. Ms. Ward shall have first choice of access weeks in odd-numbered years beginning in 2017, and shall notify Mr. Ward of her choice by May 15th and Mr. Ward shall notify her of his choice by June 1st.

h. Canada Day Weekend, August Civic Holiday and Labour Day: The regular access schedule will be followed. On such of the holidays as fall on a weekend when Mr. Ward is to exercise access to Adleigh, his access to her shall end on Sunday at 12:00 noon, subject to the Summer Vacation schedule above, which shall take precedence,

i. Thanksgiving Weekend: If Thanksgiving falls on a weekend when Mr. Ward would normally exercise access to Adleigh based on the regular access schedule, Adleigh shall reside with him until Sunday at 12:00 p.m. (noon) and with Ms. Ward from then until her return to school. If Thanksgiving falls on a weekend when Mr. Ward would not normally exercise access to Adleigh based on the regular access schedule, she shall reside with him from Sunday at 12 p.m. (noon) until Monday at 8:30 p.m.

j. Halloween: Halloween will follow the regular access schedule, but the person whose day it is shall have Adleigh from her leaving school until 9:00 p.m. The parent who has access to Adleigh for Halloween will be responsible for Adleigh's costume.

k. Christmas Break: Adleigh shall reside with each parent as per the regular access schedule except for the three days surrounding Christmas as set out below.

i. On Mr. Ward’s regularly scheduled days with Adleigh, and apart from the three days surrounding Christmas set out below, she will be with him from 8 am until her regularly scheduled return time.

ii. Christmas Eve/Morning and Christmas Day: In odd-numbered years beginning in 2015, Adleigh will be in her mother’s care from Christmas Eve until Boxing Day at 9:00 am. She shall be in her father’s care from 9:00 am on Boxing Day until 8:30 pm on December 27, after which time the schedule will continue as normal. In even-numbered years beginning in 2016, Adleigh’s residence will be as above, unless Mr. Ward provides proof from his employer, at least one week before the Christmas holiday, that he will not be working on the three days enumerated above. If he will not be employed on those days, Adleigh will be in his care from Christmas Eve until Boxing Day at 9:00 a.m. She shall be in her mother’s care from 9:00 a.m. on Boxing Day until 8:30 p.m. on December 27, after which time the schedule will continue in accordance with the regular access schedule.

l. Adleigh's Birthday: Adleigh shall spend her birthday with both parents together from after school until 8:30 p.m. The parties will try to jointly host a birthday party for Adleigh.

5. It shall be the responsibility of the parent who is beginning a period when they have care of Adleigh pursuant to the terms of this order to pick-up Adleigh from daycare or from the other parent’s residence, as the case may be. Mr. Ward shall pick-up Adleigh himself and shall not delegate this task to others.

6. Whichever parent has care of Adleigh pursuant to the terms of this order shall ensure that any homework that Adleigh’s school has assigned to her is completed.

7. The parties shall keep each other informed at all times of their current telephone number, email, and address.

8. Mr. Ward shall forfeit his access on any given day or weekend when he is more than 2 hours late in picking up Adleigh.

9. Ms. Ward has leave to confirm Adleigh Ward in in the Catholic faith.

10. Neither party shall move his/her permanent residence from the Region of Peel, Region of Hamilton-Wentworth, Halton Region, or the Regional Municipality of Toronto without the other's written consent or a court order. They will give each other 60 days’ notice of any proposed move of their permanent address.

11. Ms. Ward may travel with Adleigh outside of Canada without the consent of Mr. Ward.

12. Ms. Ward may obtain a passport for Adleigh, and Mr. Ward’s signature shall not be required on the application.

13. Mr. Ward’s income is imputed to be $64,000.

14. Mr. Ward shall pay to Ms. Ward ongoing table child support in the sum of $584 per month commencing August 1, 2015, and the first of the month thereinafter for the child, Adleigh Ward, born November 18, 2008 for so long as Adleigh is a child of the marriage within the meaning of the Divorce Act.

15. Mr. Ward shall pay retroactive child support in the amount of $3,385.60 for the period of April 2014 to July 2015.

16. Mr. Ward shall pay to Ms. Ward his contribution to the payment of Adleigh’s special and extraordinary expenses, pursuant to section 7 of the Federal Child Support Guidelines. Mr. Ward’s current and ongoing proportionate share of ongoing expenses shall be 38.21% based on Ms. Ward’s current income of $103,494 and Mr. Ward’s income, imputed to be $64,000 per year.

17. Mr. Ward shall not be required to pay a retroactive contribution to the payment of Adleigh’s special and extraordinary expenses.

18. Mr. Ward shall pay to Ms. Ward, as his proportionate share of Adleigh’s ongoing special and extraordinary expenses the monthly amount of $46.10 beginning January 1, 2015, and continuing on the first of each month thereafter.

19. Each of Mr. and Ms. Ward, beginning on June 1, 2016, and continuing on June 1st of each year thereafter, shall produce to the other their respective income tax returns, with all schedules and attachments, and their Notices of Assessment and Reassessment, for the immediately preceding year.

20. Mr. Ward shall maintain Adleigh, born November 18, 2008, on his group health and medical benefits and provide proof of same to Ms. Ward upon request. He shall provide proof each year that coverage of Adleigh has been maintained on his benefits plan when he provides his tax returns. He shall forthwith submit claims to his group benefits provider for reimbursement of expenses that Ms. Ward reports that she has incurred, and shall within 5 days of receipt remit to Ms. Ward any reimbursement of such payments as he receives from his group benefits provider.

21. Ms. Ward may deal with Mr. Ward’s benefits program directly, and the benefits insurer shall provide to Ms. Ward any information she requires in connection with Mr. Ward’s coverage.

22. Mr. Ward shall forthwith purchase and maintain a life insurance policy with a minimum coverage of $200,000, naming Ms. Ward, as trustee for Adleigh, the irrevocable beneficiary to secure his obligations to pay child support and his proportional contribution to the payment of section 7 expenses, including the expenses of post-secondary education.

23. Mr. Ward shall be responsible for $5,838.32 of the debt outstanding on the parties’ joint credit card. The $5,838.32 may be enforced by the Family Responsibility Office as lump sum spousal support through the FRO.

24. There shall be no equalization of Net Family Property paid by either party to the other.

25. Mr. Ward shall by November 30, 2015, pay to Ms. Ward her costs of this proceeding, fixed in the amount of $8,017.74. This shall be enforced as child support by the Family Responsibility Office.

26. Ms. Ward’s request for a Divorce Order is granted, to take effect in 31 days. She may submit a draft order to my judicial secretary for my signature.

Price J.

Released: October 7, 2015

CITATION: Ward v. Ward 2015 ONSC 6221 COURT FILE NO.: FS-15-83193 DATE: 2015-10-07

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

LESLIE ANNE WARD Applicant

• and –

DAVID PHILIP WARD Respondent

REASONS FOR ORDER

Price J.

Released: October 7, 2015

[^1]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am.

[^2]: Children’s Law Reform Act, R.S.O. 1990, c. C.12.

[^3]: Patterson v. Powell, 2014 ONSC 1419.

[^4]: Patterson, at paras. 11-12.

[^5]: Patterson, at paras. 18-22.

[^6]: Patterson, at paras. 18-26.

[^7]: Allen v. Grenier (1997), 1997 14628 (ON SC), 145 D.L.R. (4th) 286 (Ont. Gen. Div.).

[^8]: Allen, at para. 38.

[^9]: Peer v. Poupore, 2011 ONCJ 159, at para. 24.

[^10]: Peer, at paras. 131-35.

[^11]: Zanewycz v. Manry, 2010 ONSC 2827, 87 R.F.L. (6th) 323.

[^12]: De Melo v. Gooding, 2010 ONSC 2271, 84 R.F.L. (6th) 369, at para. 78.

[^13]: Klinkhammer v. Dolan, 2009 ONCJ 630, at para. 61.

[^14]: Lucas v. Nash, 2010 ONSC 839, at para. 19.

[^15]: Hansen v. Mantei-Hansen, 2013 BCSC 876; Gilbert v. Gilbert, 2013 BCSC 769.

[^16]: Bhandari v. Bhandari, 2004 CarswellOnt 4918 (C.A.)[In Chambers].

[^17]: McMaster v McMaster [1993] W.D.F.L. 1207, paras. 9 and 10

[^18]: Patterson v. Powell, para. [67](https://www.canlii.org/en/on/onsc/doc/2014/20