COURT FILE NO.: FD1667/14

DATE: December 4, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Brian Lawrance

Applicant

• and -

Diane Lawrance

Respondent

HEARD: October 21, 22, 23, 27, 28, 29, 30 of 2015

COUNSEL: Brian Lawrance in person Diane Lawrance in person

MITROW J.

INTRODUCTION

[1] The contested issues in this trial are the following: custody and access; spousal support; and child support. The applicant, Brian Lawrance (“Mr. Lawrance”), and the respondent, Diane Lawrance (“Ms. Lawrance”), were married in London, Ontario on June 5, 2004; they separated April 11, 2014; they had a relationship of approximately 13 years as they had cohabited prior to marriage for about 3 years.

[2] There are two children of the marriage, Julia, born August 14, 2007, and Emily, born February 24, 2009, who were ages 8 and 6, respectively, at the time of trial.

[3] Each party sought a divorce. I am satisfied that a divorce should be granted on the basis of the parties having lived separate and apart for at least one year; the order below incorporates the granting of a divorce.

[4] The parties signed a comprehensive separation agreement on October 2, 2014. They were both represented at that time by experienced family law counsel. There were no property issues at trial as those matters were dealt with in the separation agreement. The separation agreement provided for joint custody, and required Mr. Lawrance to pay spousal support and child support.

[5] Mr. Lawrance commenced this proceeding in early December 2014; he was prompted to do so, in his view, by the events that had unfolded subsequent to the execution of the separation agreement. It was Mr. Lawrance’s position that the provisions of the separation agreement in relation to custody/access, child support and spousal support needed to be revisited as a result of the events subsequent to the execution of the separation agreement. Mr. Lawrance sought an order that Ms. Lawrance have supervised access, and an order eliminating spousal support and child support.

EVIDENCE – IN RELATION TO CUSTODY / ACCESS ISSUES

A. Overview

[6] The central issue in this trial revolved around Ms. Lawrance’s alcohol addiction. This issue, sadly, infiltrated all aspects of the parties’ lives and contributed, ultimately, to the end of their relationship.

[7] Both parties, although self-represented, presented their cases with clarity and, where necessary, assisted the court by providing various documents requested by the court throughout the trial.

[8] Despite differing views as to what the outcome should be in relation to both custody/access and support issues, both parties conducted themselves in a dignified manner; each party generally was respectful towards the other during the trial.

[9] Each party testified in a straightforward manner, without embellishment, doing his or her best to give the court an accurate portrayal of the facts. Generally each party was a credible and reliable witness, with the result that there was very little dispute as to relevant facts. Mr. Lawrance and Ms. Lawrance were the only witnesses. It is noteworthy that, during the entire trial, Ms. Lawrance was a resident at a rehabilitation facility for her alcohol addiction; each day for trial, Ms. Lawrance had to travel approximately two hours each way, accompanied always by a “support person,” who also was present in the courtroom throughout the trial.

[10] The ability of Ms. Lawrance to participate in a trial, self-represented, while also a resident at a treatment facility, speaks positively of her commitment towards treatment and, ultimately, maintaining relapse prevention.

B. Relevant Facts in Relation to Custody / Access – Prior to Separation Agreement

[11] The evidence is clear that, during significant portions of the marriage, Ms. Lawrance was the children’s primary caregiver. I accept Ms. Lawrance’s evidence that prior to the birth of the children, both parties worked fulltime and shared day-to-day household chores. When Julia was born, Ms. Lawrance took a maternity leave of approximately one year, returning to work around August 2008; Ms. Lawrance described Mr. Lawrance as taking a “couple of weeks” off work after the birth of Julia. Mr. Lawrance did not take paternity leave.

[12] Ms. Lawrance was pregnant with Emily when she returned to work and, after Emily was born, Ms. Lawrance took another approximate one-year maternity leave.

[13] After her second maternity leave ended, Ms. Lawrance returned to work but only on a part-time basis, about 24 hours per week, starting approximately March 2010. I accept that Ms. Lawrance had discussed with Mr. Lawrance returning to employment on a part-time basis. There was no evidence from Mr. Lawrance to suggest that this was other than a mutual decision.

[14] This arrangement allowed Ms. Lawrance to spend more time with the children and it allowed her to be more available in relation to taking the children to nursery school, and then to school.

[15] I accept Ms. Lawrance’s evidence that she was a fully engaged parent involved in all aspects of the children’s lives and their care, and that she had assumed the majority of this responsibility during her maternity leaves and while working only part-time. The foregoing is not to be taken as minimizing Mr. Lawrance’s role in the children’s upbringing. He worked fulltime as an electrician and would at times be off work during slow seasons in the construction trade.

[16] Mr. Lawrance did give substantial evidence regarding Ms. Lawrance’s alcohol addiction during the time prior to the execution of the separation agreement; this included Ms. Lawrance having some issues with alcohol consumption before the children were born.

[17] It is not necessary to review in exhaustive detail all of the testimony given by Mr. Lawrance as to Ms. Lawrance’s alcohol consumption. Ms. Lawrance’s strategy during the trial was not to question or dispute her husband’s testimony; instead Ms. Lawrance accepted responsibility for her conduct; she acknowledged the extent to which her behaviour adversely affected her husband and children; she was complimentary towards her husband, and also her mother, in acknowledging their increased involvement with the care of the children resulting from Ms. Lawrance’s inability at times to care for the children as a result of her alcohol dependency.

[18] The evidence does support a finding that Ms. Lawrance has struggled substantially from the effects of her alcohol addiction and that this escalated starting in 2011. Ms. Lawrance either agreed with, or did not dispute, Mr. Lawrance’s evidence as to numerous occasions when she was intoxicated and unable to care for the children; this included causing damage to their garage while driving her vehicle while intoxicated, with the children in the vehicle. There were various ambulance attendances at the matrimonial home owing to Ms. Lawrance’s alcohol consumption, including an occasion when she was unresponsive at home after consuming alcohol and was taken to hospital as a result of which her drivers licence was suspended for medical reasons. Mr. Lawrance, in the spring of 2013, as a result of a call from police, attended to pick up Ms. Lawrance who was intoxicated in a public place during her lunch hour at work. Ms. Lawrance acknowledged that some parents at the children’s school organized a meeting with her to discuss the ramifications of her being intoxicated. On one occasion, Ms. Lawrance was dropped off at a church “for an AA” meeting, she recalled it was 2013 or earlier, and was impaired when she was picked up after the meeting.

[19] Ms. Lawrance did not challenge Mr. Lawrance’s evidence that she was intoxicated when he picked her up from Homewood, a residential treatment facility that she had just been discharged from. Ms. Lawrance admitted to being picked up by the police and being charged with being intoxicated in a public place, this incident occurring in November 2014, being a month after the separation agreement was signed.

[20] Ms. Lawrance did acknowledge that her alcohol addiction was affecting her performance at work. In 2013, Ms. Lawrance submitted short-term disability claims on two occasions; one claim was in January and the other was in July, and both disability claim forms were signed by her family physician.

[21] The first disability claim form referred to a primary diagnosis of “substance abuse (acute intoxication)” and contained a secondary diagnosis of “mood disorder / depression”; the second form referred to a primary diagnosis of “depression (clinical)” and a secondary diagnosis of “anxiety / insomnia.”

[22] Ms. Lawrance was able to obtain a leave of absence from her employer; this allowed her to attend the residential program at Homewood in early 2013. In or about April 2013, Ms. Lawrance attended at another residential facility. This was a 21-day program but Ms. Lawrance testified she was unable to complete the program as she had told her employer she was going on a vacation and she was only able to get approved for a two-week vacation. Ms. Lawrance was quite forthright in admitting that she had never told her employer that she required time off to deal with her alcohol addiction. It was Ms. Lawrance’s testimony that she was ashamed and did not wish to disclose her substance abuse to her employer.

[23] Ms. Lawrance testified she was finding it more difficult to meet the demands of her employment; her employment duties included coordinating litigation matters that resulted from customer complaints. Ms. Lawrance sought the services of a psychologist in the fall of 2013. The report from her psychologist described Ms. Lawrance as presenting for treatment in “a highly overwhelmed and distressed state.” Ms. Lawrance was described by her psychologist as an “intelligent individual who is capable of insight.” As a result of her therapy sessions with her psychologist, Ms. Lawrance made a decision not to return to her employment, and she tendered her resignation at the beginning of 2014, after having been with her employer since approximately 1999.

[24] For most of July 2014, Ms. Lawrance was at Westover, a residential treatment facility, from which she graduated near the end of that month. At that time, although living “separate and apart,” both Mr. Lawrance and Ms. Lawrance continued to reside in the matrimonial home. After completing the Westover program, it was recommended to Ms. Lawrance that she should not return to the matrimonial home and, accordingly, Ms. Lawrance instead moved in with her mother. Mr. Lawrance remained in the matrimonial home.

[25] During the first week of August 2014, Mr. Lawrance started employment out west. He saw this as an opportunity to earn a good wage. The plan was for him to return home to London for one week out of every three weeks.

C. The Separation Agreement – Custody / Access Provisions

[26] Against the backdrop of Ms. Lawrance’s issues with alcohol addiction, including her efforts at treatment (not all of which are specifically detailed above), the parties’ separation agreement provided that they would have joint custody of the children. A parenting schedule provided that while Mr. Lawrance is working two weeks out of three out west, that the children would be with Ms. Lawrance for those two weeks and that during the one week that Mr. Lawrance was back in London, the children would be with him in the matrimonial home. The separation agreement also set out many detailed provisions relating to the parenting of the children, including vacation, travel and special occasions.

[27] Also noteworthy is the provision in the separation agreement that the children would spend equal times with the parties if Mr. Lawrance returned to work in London.

[28] The separation agreement also established a set of principles by which the parties were to abide and which included exchanging information, regular consultation with each other, establishing a positive working relationship and entitlement to receive jointly all documentation regarding the children and to communicate with each other as necessary regarding any issues affecting the children.

[29] There was also a provision for dispute resolution in relation to parenting issues and a provision for changing custody and access in the event of a material change in circumstances.

[30] The parenting arrangements that were made by the parties, as reflected in the separation agreement, need to be placed in context. At that time, Ms. Lawrance had graduated from the Westover program just prior to Mr. Lawrance departing to work out west. Mr. Lawrance drew a large measure of security from the fact that Ms. Lawrance and the children would be residing with Ms. Lawrance’s mother; Mr. Lawrance placed substantial trust in Ms. Lawrance’s mother being present to oversee the childcare; in effect, Ms. Lawrance’s mother was perceived by Mr. Lawrance as being a safety net for the children should Ms. Lawrance relapse while the children were in her care.

[31] Unfortunately, and there is no dispute about this, after Mr. Lawrance started working out west, Ms. Lawrance relapsed and was not able always to maintain sobriety when the children were with her. During this time, Mr. Lawrance was in regular communication with Ms. Lawrance’s mother; although Ms. Lawrance’s mother did not testify, text messages between Mr. Lawrance and Ms. Lawrance’s mother were admitted into evidence, on consent, but with the proviso that the court would decide later the weight to be accorded to the text messages from Ms. Lawrance’s mother.

[32] It was Mr. Lawrance’s evidence that alarms were being raised regarding Ms. Lawrance’s alcohol consumption. I do consider the text message from Ms. Lawrance’s mother to Mr. Lawrance, urging him to “come home as soon as possible,” indicating that Ms. Lawrance is “worse” and telling Mr. Lawrance to “get custody.” This corroborates Mr. Lawrance’s evidence that he was asked by Ms. Lawrance’s mother to return home. Further, Ms. Lawrance freely admitted in her evidence that she had relapsed and that she was consuming alcohol.

[33] It was Mr. Lawrance’s unchallenged testimony that he quit his employment out west and returned to London during the last week in November 2014 as, in his view, Ms. Lawrance was not capable of caring for the children during all the times that they were scheduled to be in her care.

D. Relevant Facts in Relation to Custody/Access after the Separation Agreement was Signed

[34] Mr. Lawrance, after his return home, in essence assumed sole primary care of the children; access was permitted by Mr. Lawrance but only if it was supervised.

[35] Mr. Lawrance clearly did deviate from the parenting schedule set out in the separation agreement. I find that he did so as a result of a legitimate concern regarding the children’s safety. Much of the supervision was provided by Ms. Lawrance’s mother, especially while Ms. Lawrance continued to live with her mother.

[36] I do find, however, that on one occasion on December 19, 2014, that Mr. Lawrance was somewhat over-zealous in concluding that Ms. Lawrance was intoxicated. This was a rare instance during the trial where the parties’ evidence was in conflict. I do accept, and prefer, Ms. Lawrance’s evidence that she was not intoxicated on that occasion, and I find that Ms. Lawrance’s refusal to agree to Mr. Lawrance’s demand for a breathalyzer test, on a breathalyzer machine that had been purchased by Mr. Lawrance, was not unreasonable in the circumstances. In any event, on that occasion, the children were with both Ms. Lawrance and her mother and Mr. Lawrance, wisely, decided that he would not take the children home and left them with Ms. Lawrance and her mother overnight.

[37] A word needs to be said about Ms. Lawrance’s mother, a lady in her late seventies. Although Ms. Lawrance’s mother did not testify, she was like a phantom presence throughout the trial. Both Mr. Lawrance and Ms. Lawrance frequently referred to her in complimentary terms. From the evidence of the parties, the portrayal of Ms. Lawrance’s mother that emerged was that of a person who was unquestioningly supportive of her daughter’s attempts to get treatment (including paying thousands of dollars for that treatment) while at the same time always placing first and foremost the needs and best interests of her grandchildren. After Mr. Lawrance returned to work in 2015, in London, Ms. Lawrance’s mother was his “safety net” in assisting with the childcare, including taking the children to school and picking them up from school depending on Mr. Lawrance’s work schedule. Mr. Lawrance did not hesitate in acknowledging the substantial assistance that he received from Ms. Lawrance’s mother in caring for the children.

[38] Both Mr. Lawrance and Ms. Lawrance, on the evidence, do understand that they owe a significant debt of gratitude to the children’s maternal grandmother.

[39] In late 2014, both parties’ lawyers were still involved dealing primarily with access issues. Ms. Lawrance testified that she was willing to do whatever was necessary to see her children. This included consenting to undergoing alcohol testing every 72 hours. According to Ms. Lawrance, the tests were facilitated by Ms. Lawrance’s physician, who provided a requisition for ongoing testing. Ms. Lawrance would attend for a blood test at the testing lab and arrangements were made to give the test results to Mr. Lawrance.

[40] Although there was no expert evidence called at trial regarding the “window” of detection for alcohol, the evidence does show that this “72 hour window” was accepted by counsel for the parties based on correspondence filed as an exhibit.

[41] The toxicology reports were filed on consent. These reports were primarily for the period November 28, 2014 to January 15, 2015; there were some tests in April 2015.

[42] Some, but not all of the samples were taken 72 hours apart. Ms. Lawrance testified that the lab she was using was not open on weekends. Although there was a lengthy gap of 11 days after the test on December 18, 2014, Ms. Lawrance did agree that she consumed alcohol on December 23, 2014 and was ill the next day from the effects of drinking.

[43] All the test results show that ethyl alcohol was “non-detected”; however, the report for the sample collected January 27, 2015 showed “10.4” followed by “non-detected.” Ms. Lawrance did not know how to interpret this test result. In the absence of any expert evidence, it is not possible to make any finding as to that particular test result.

[44] Throughout 2015, Ms. Lawrance focused her attention on treatment. She completed the “Stage Two Recovery and Relapse Prevention Program” at Westover during February 2015.

[45] It was Ms. Lawrance’s evidence that she pleaded guilty to impaired driving in April 2015, for which she received a $1,000 fine plus one year licence suspension. However, she also testified that she was eligible for a reduced suspension by agreeing to have an “interlock” device placed on her vehicle. She testified that she did take advantage of that program and that the interlock device had been installed on her vehicle. Ms. Lawrance did not file a copy of her criminal record or any other evidence confirming the sentence imposed on the impaired driving conviction, nor did she file any documentation confirming the presence of the interlock device. However, Mr. Lawrance did not challenge Ms. Lawrance’s evidence on that issue during cross-examination.

[46] By the beginning of April 2015, Ms. Lawrance was living alone in a residence that she had purchased. She was able to purchase a residence by using money that included money received as a result of Mr. Lawrance buying out her interest in the matrimonial home.

[47] From May 27, 2015 until August 29, 2015, Ms. Lawrance was at the residential treatment program at Brentwood. The letter from Brentwood, filed as an exhibit, confirmed that Ms. Lawrance completed the requirements of her program.

[48] Ms. Lawrance agreed that soon after her discharge from Brentwood that she relapsed and, as a consequence, Ms. Lawrance returned to the Brentwood residential program on or about September 28, 2015. She remained at this program during the trial as previously noted. No specific discharge date had been set while the trial was ongoing, but it was Ms. Lawrance’s evidence that she anticipated being discharged by approximately December 19, 2015.

E. Discussion – Custody / Access Issues

[49] In listening to Ms. Lawrance’s evidence, I am satisfied that she understands the nature of her alcohol addiction and what she needs to do to maintain relapse prevention.

[50] Although Ms. Lawrance has suffered a number of setbacks in her relapse prevention, Ms. Lawrance has had the resolve to continue, and I would say with admirable tenacity, in attending at residential treatment programs.

[51] Ms. Lawrance’s evidence as to what she has learned from her treatment programs demonstrates insight in understanding her alcohol addiction. I agree with the assessment of Ms. Lawrance’s psychologist that Ms. Lawrance “is an intelligent person who is capable of insight.”

[52] Ms. Lawrance explained in detail the philosophy and teachings of the programs at Westover and Brentwood. In particular, she spoke of her high regard for the Brentwood program and the support that she has received while at Brentwood. It was Ms. Lawrance’s evidence that on graduation from Brentwood that she had “an incredible awareness as to [her] core issues.”

[53] On returning to Brentwood in September 2015, Ms. Lawrance stated that she was welcomed with “open arms.”

[54] Ms. Lawrance is a person who has been, and can be, an excellent mother. Ms. Lawrance has the capability to do what is necessary to achieve abstinence and to utilize what she has learned to maintain relapse prevention. Ms. Lawrance’s evidence as to her struggles, and her attempts to overcome her addiction, was compelling. She was an impressive witness.

[55] It was Ms. Lawrance’s submission that she is in recovery – that she is “strong, sober and humble.”

[56] Both parties were complimentary of each other as to the other’s parenting abilities, although Mr. Lawrance testified that his positive comments applied to those times when Ms. Lawrance was not under the influence of alcohol.

[57] In relation to custody, it was Mr. Lawrance’s submission that he should have sole custody and that access should be supervised by any one of the persons listed on the exhibit he filed at trial. The proposed supervisors are Ms. Lawrance’s mother, with the other persons being Mr. Lawrance’s father, his father’s fiancée, Mr. Lawrance’s three brothers and a sister-in-law.

[58] Mr. Lawrance proposes that Ms. Lawrance should drive her vehicle, equipped with the interlock, to an agreed location and then the supervised access could begin on the basis that Ms. Lawrance has passed a sobriety test by blowing into the interlock device. Mr. Lawrance then submits that after one year, the children would have access at an agreeable location, but that if the supervising person suspected “inebriation,” then Ms. Lawrance would have to blow into a breathalyzer. If Ms. Lawrance failed the test, then the visit would not go ahead and, further, the breathalyzer would be used before every visit for the next year. When Ms. Lawrance passes a breathalyzer test, then the supervising person would have the right to “drop in” during the access visit.

[59] It was Ms. Lawrance’s submission that joint custody should continue and that the parenting of the children should revert to what is set out in the separation agreement, with the children spending equal time with both parents. However, it was Ms. Lawrance’s position that the “primary residence” should be with her. Ms. Lawrance did agree that before this happens, there should be supervised visits for two months after she returns from Brentwood. Ms. Lawrance submitted that she should have unsupervised visits for one month and that the equal parenting time should commence by the beginning of April 2016.

[60] Ms. Lawrance left it up to the court to order any “safeguards” as the court deems fit. Ms. Lawrance would comply with an order for breathalyzer testing if she had to, although it was her position that she finds this demeaning.

[61] The applicable legislation is the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1]. The sole criterion in making an order for custody or access is the best interests of the child. Section 16(8) of the Divorce Act states:

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

[62] Dealing first with custody, I reject Mr. Lawrance’s submission that he should have sole custody. It is noteworthy that the parties did agree to joint custody in the separation agreement, notwithstanding Ms. Lawrance’s lengthy history of alcohol dependency, including her various treatments and subsequent relapses to that point in time.

[63] Mr. Lawrance urged the court to award sole custody to him because, in his view, it was necessary for him to have that authority to properly parent the children. However, when pressed during closing argument, Mr. Lawrance could not point to any evidence where his ability to parent the children was compromised in any way by the joint custody provisions of the separation agreement; in my view, there was no such evidence.

[64] Mr. Lawrance testified that the children miss their mother and that they constantly ask for her. Further, it was Mr. Lawrance’s evidence that the children were exhibiting anxiety about not seeing their mother and also from worrying about her. As a consequence, Mr. Lawrance retained a therapist to assist the children and Mr. Lawrance had arranged for appointments in November 2015 for the children to see the therapist. Importantly, Mr. Lawrance testified that Ms. Lawrance gave her consent to this treatment as requested by the therapist. This is evidence that the joint custody arrangement did not prevent Mr. Lawrance from seeking therapeutic assistance for the children – in fact he had Ms. Lawrance’s cooperation.

[65] The fact that Ms. Lawrance has an illness does not displace her as an appropriate joint custodial parent. I accept Ms. Lawrance’s evidence during cross-examination that the various treatment centres she had attended were stepping-stones in her treatment and made her stronger.

[66] I do find that after Mr. Lawrance returned to London, that the children did not have sufficient contact with Ms. Lawrance, even accounting for the periods of time that Ms. Lawrance was in residential treatment. For example, Ms. Lawrance can have regular visits with the children at Brentwood. I take into account that this lack of sufficient contact between Ms. Lawrance and the children occurred while Mr. Lawrance was “in charge” of the children’s primary care after he returned to London.

[67] I find that it is in the children’s best interests that Mr. Lawrance and Ms. Lawrance have joint custody of the children. The evidence amply supports the conclusion that the parties can cooperate with each other and that they can parent the children together as joint custodial parents.

[68] The significant challenge in this case is to craft a parenting order that adequately addresses any risk to the children that may be posed by Ms. Lawrance’s alcohol addiction.

[69] Both parties were clear that they wanted closure.

[70] I do take into account that Ms. Lawrance was also struggling with other issues, including depression, for which medication was prescribed, and that mixing alcohol with her prescriptions added to the severity of her symptoms. The evidence also shows that Mr. Lawrance had little, if any, knowledge or understanding as to Ms. Lawrance’s other issues. The evidence supports a finding that Ms. Lawrance now understands the danger of mixing alcohol with prescription medication.

[71] I agree with Ms. Lawrance that it is in the best interests of the children, ultimately, to spend equal time with each parent. There is no basis, I find, to depart from that principle currently contained in the separation agreement.

[72] Both parties agreed to a transition period where there would be supervised access. I agree that this approach is in the children’s best interests. Ms. Lawrance agrees with the list of proposed access supervisors named by Mr. Lawrance. However, the transition period suggested by Ms. Lawrance is insufficient, while the transition period proposed by Mr. Lawrance is too long.

[73] I accept Ms. Lawrance’s evidence that she has reached a stage where she can be abstinent and maintain relapse prevention.

[74] The order below, however, reflects a necessary period of time for Ms. Lawrance to prove that she can remain abstinent.

[75] I find that the process developed by the lawyers, using blood tests, every 72 hours is an effective tool. I am not prepared to order breathalyzer testing of Ms. Lawrance, as there was no evidence before the court as to the type of breathalyzer to be used, how effective it is, and what training, if any, was required to properly administer the breathalyzer test. However, the order below does allow the parties, if they both agree, to use a breathalyzer as an additional tool.

[76] I am not prepared to agree to the suggestion proposed by Mr. Lawrance to use the interlock device on Ms. Lawrance’s vehicle as a method of testing sobriety. Firstly, Ms. Lawrance testified that at the present time she was not driving. Then, also in her closing argument, Ms. Lawrance advised the court that she is unable to drive because of medical reasons. However, Ms. Lawrance did not give evidence to that effect. In all the circumstances, I find that using Ms. Lawrance’s vehicle and the interlock device as some type of tool for measuring sobriety is not appropriate in the present case.

[77] I have considered, but rejected, building into the order automatic consequences that should follow if Ms. Lawrance fails to attend for testing or if Ms. Lawrance uses alcohol. Should those circumstances occur, it is not possible, now, to fashion an effective remedy or consequence without knowing all the relevant facts surrounding any failure to attend for testing or use of alcohol.

[78] Accordingly, the order set out below allows this matter to be brought back to court should Ms. Lawrance fail to comply with the order.

[79] Although it may be trite, the following must be said: consuming alcohol at any time is not an option for Ms. Lawrance. Further, Ms. Lawrance needs to understand that a relapse may undermine the foundation of the order being made below; if a relapse triggers a court proceeding, then Ms. Lawrance should be prepared for the prospect of an order that is restrictive in relation to her time with the children.

[80] As discussed earlier, the parties had agreed to detailed provisions in their separation agreement in relation to custody and access. Neither party made any specific submissions, at trial, in relation to those provisions. Accordingly, the order below does not include all the other relevant provisions contained in the separation agreement in relation to custody and access, but the order does mention those provisions that are not affected by the order and that continue in force.

SPOUSAL SUPPORT AND CHILD SUPPORT

A. Separation Agreement Provisions in Relation to Child Support

[81] The separation agreement dated October 2, 2014 included the following in relation to child support and spousal support:

a) Ms. Lawrance’s income is nil for the purpose of child support;

b) It was acknowledged that Mr. Lawrance’s income from the date of separation to July 1, 2015 would be $75,000; and that as of July 1, 2015, his income would be determined on his expected income, having regard to his earnings for the first six months of 2015;

c) Mr. Lawrance’s child support obligation was set at $1,105 per month, based on an income of $75,000;

d) Mr. Lawrance was obligated to pay spousal support in the amount of $1,053 per month, starting October 1, 2014, indexed annually, starting January 1, 2016. The quantum and duration of spousal support was “subject to review and material change.” In the separation agreement, Ms. Lawrance acknowledged her obligation to be “self-supporting” and that “she shall make her best efforts to return to work.”

e) The child support shall be reviewed and adjusted annually, once the notices of assessment have been received, and this includes adjusting the proportionate sharing of the children’s “extra expenses” in accordance with the current incomes of the parties; and

f) There were also provisions for sharing of s. 7 expenses, maintaining a current RESP in joint names, Mr. Lawrance maintaining Ms. Lawrance and the children on his employer’s health and benefit plans, and Mr. Lawrance’s obligation to maintain life insurance.

B. Incomes of the Parties – Mr. Lawrance’s Income

[82] Mr. Lawrance testified in-chief that he has been a licensed electrician since approximately 2003. I accept his evidence that from time-to-time he is unemployed given work slowdowns in the construction industry.

[83] Since about 2006 or 2007, it was Mr. Lawrance’s evidence that his income ranged from $80,000 to $85,000 annually on average. During closing argument, Mr. Lawrance submitted that he would be “comfortable” in having his income assessed in the range of $75,000 to $80,000.

[84] While I do accept that Mr. Lawrance has some element of unpredictability as to his income, including the time that he is off work and receives Employment Insurance, the fact is that Mr. Lawrance has been able to generate income historically that is higher than the range of income that he suggests he has been earning. This is apparent from the following summary based on his tax information filed at trial:

Year	Employment Income	Other Income	EI	Income RRSP	Total Income Line 150	RRSP Contribution
2009	$75,218	$12,169	0	0	$87,387	$11,309
2010	$77,554	$11,931	0	0	$89,485	$11,397
2011	$106,798	$6,429	$936	0	$114,163	$5,587
2012	$87,389	$14,411	0	0	$101,800	$10,902
2013	$48,192	$6,399	$7,684	$15,000	*$77,275	$6,884
2014	$106,454	$7,812	$514	0	$114,640	$7,493

• For 2013 if RRSP income not included: line 150 income is $62,275

[85] It is noteworthy that Mr. Lawrance’s five year tax summary appended to his 2011 tax return shows line 150 total income of $138,923 and $98,406, respectively, for 2008 and 2007.

[86] Each year, Mr. Lawrance’s line 150 total income includes “other income” as shown on his T4A slip from the IBEW Benefit Trusts. This income appears to be primarily “RRSP” as appears, for example, on his 2013 T4A slip; that slip also shows that in 2013 there were some taxable employer-paid benefits. It appears from the evidence that there are some modest employer-paid benefits included in the income shown on Mr. Lawrance’s T4A slips for other years.

[87] The income shown in the T4A slips is clearly part of Mr. Lawrance’s line 150 income for the purpose of the Federal Child Support Guidelines (“the Guidelines”); there was no evidence at trial from Mr. Lawrance as to any reason to exclude this income for child support purposes or for spousal support purposes.

[88] Mr. Lawrance’s income up to the end of 2014 is known. Therefore, it becomes necessary to make a finding as to his income for 2015, and his expected income for 2016 onwards.

[89] In 2015, Mr. Lawrance collected Employment Insurance during the first part of the year; he commenced employment with his current employer on May 1, 2015 and he continued to be employed by that employer during the trial.

[90] The best evidence of Mr. Lawrance’s Employment Insurance income is Ex. #18, which shows a total net amount of $9,840 received by Mr. Lawrance (20 weeks at $492 per week net). The tax deducted was $22 per week; therefore, $440 (20 weeks x $22) should be added to this total and the gross Employment Insurance income for 2015 is $10,280.

[91] Mr. Lawrance earned gross employment income, inclusive of vacation pay, in the amount of $51,171 from May 1, 2014 to the pay period of October 24, 2015, as verified by his last pay statement.

[92] The evidence confirms that Mr. Lawrance’s current hourly rate is $43.62; that his regular work week is 37.5 hours. However, despite Mr. Lawrance’s evidence that he had to devote more time to childcare during 2015 (given the limited time that Ms. Lawrance spent with the children), Mr. Lawrance’s overtime income at $87.24 per hour still totalled close to $16,500, which is almost one-third of his gross employment income to October 24, 2015.

[93] The employment income earned by Mr. Lawrance for 2015 is for a period of approximately 5.75 months; prorated, this translates to $71,194 (rounded) employment income to be earned in 2015 for the eight months that Mr. Lawrance will be employed starting May 1, 2015 ($51,171 ÷ 5.75 x 8 months).

[94] When added to his Employment Insurance income, this results in an income of $81,474 ($71,194 + $10,280).

[95] However, this does not include the “other income” that Mr. Lawrance has received annually. There was no evidence as to what this amount would be in 2015 but I find it is not unreasonable to look at Mr. Lawrance’s “other employment income” for 2013 and 2014 and average those two years as an approximation of what he will receive in 2015. The average of those two years is $6,791 (average of $6,399 and $7,182), which I round to $6,800.

[96] Mr. Lawrance is entitled to a Guideline Schedule III deduction for his union dues. There was no evidence of his total anticipated union dues for 2015 but, in 2014, Mr. Lawrance’s union dues were $1,399. I find it is reasonable to use that amount, which I round to $1,400.

[97] Accordingly, for 2015, this results in an income of $86,874 ($81,474 + “other income” of $6,800 - $1,400 union dues), which I round to $87,000.

[98] For 2016, given Mr. Lawrance’s historical fluctuation in income, it is appropriate to consider s. 17(1) of the Guidelines:

17. (1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

[99] Although Mr. Lawrance’s income for 2014 was high, at $114,640, and this was in part due to spending a portion of the year out west to earn more income, it is also apparent that, in previous years, for example 2011, that his income was at a similar level and in 2012 it was a little over $100,000.

[100] Accordingly, I am not prepared to discount the income earned in 2014 just because Mr. Lawrance was out west for a portion of the year. I find that a fair and reasonable approach in arriving at an income for 2016 is to consider the average of his income for the preceding three years (2013 to 2015 inclusive); for 2013, I am not including the one-time RRSP withdrawal of $15,000. Accordingly, $62,275 is used for that year. The average of those three years is $87,972; using an estimate of $1,400 for union dues, this results in an average income of $86,572, which I round to $87,000. I find that for the period commencing January 1, 2016, onwards, it is appropriate to use $87,000 for Mr. Lawrance’s income for child support and spousal support purposes. The evidence satisfies me that Mr. Lawrance is capable of earning that level of income.

C. Incomes of the Parties – Ms. Lawrance’s Income

[101] Ms. Lawrance’s tax information disclosed the following main sources of income (all amounts rounded):

Year	Employment Income	UCC Benefit	EI	Spousal Support or Disability or RRSP	Total Income* Line 150
2009	$8,955	$2,200	$18,327	0	$29,538
2010	$23,386	$2,400	$4,023	$6,040 (RRSP)	$35,916
2011	$30,947	$2,400	0	$643 (RRSP)	$34,078
2012	$32,118	$2,400	0	0	$34,574
2013	$15,399	$2,000	$2,499	$4,076 (disability)	$24,120
2014	0	$1,200	$2,856	$4,866 (spousal support)	$9,754

• Included in line 150 income, but not shown separately, are minor amounts of investment or capital gains income, as reported from time-to-time.

[102] The above income summary, as discussed earlier, reflects that Ms. Lawrance took maternity leaves after each child was born, and that Ms. Lawrance started working part-time when she returned to work in 2010.

[103] The last full year that Ms. Lawrance worked fulltime was 2006. Her employment income in that year was $50,138; this represented her highest income earned.

[104] Ms. Lawrance’s entitlement to spousal support, including compensatory spousal support, is discussed in more detail later. At this point, it is necessary to determine Ms. Lawrance’s income for 2015 and 2016. I accept Ms. Lawrance’s explanation for leaving her employment at the beginning of 2014. Ms. Lawrance was struggling with her alcohol addiction and she was also dealing with other symptoms, including depression. Ms. Lawrance’s decision to leave her employment and focus on her health was reasonable in the circumstances. This was recognized, to some degree, in the separation agreement that included spousal support for Ms. Lawrance.

[105] Ms. Lawrance’s treatment journey proved challenging, with relapses; I accept that Ms. Lawrance was not in a position to earn income after the date of separation in 2014 and during all of 2015. Ms. Lawrance did not dispute during closing argument that she should have income imputed to her, at least for a portion of time during 2016. It has been some years since Ms. Lawrance has worked fulltime. She will need a period of time to re-establish and maintain an employment career. At the same time, Ms. Lawrance will have to focus continuously on relapse prevention. It is not realistic to impute an income to Ms. Lawrance at the level she earned in 2006.

[106] On the basis of Ms. Lawrance’s evidence as to her treatment progress, I find that Ms. Lawrance is capable of employment by July 1, 2016 and I impute to her an annualized income of $30,000 as of that date. I impute no income to Ms. Lawrance for the first half of 2016.

D. Child Support – Discussion

[107] Given the child care schedule as discussed earlier, together with the findings as to the parties’ incomes, Ms. Lawrance has no obligation to pay child support until the equal child care schedule takes effect on July 1, 2016.

[108] Given the shared parenting arrangement, s. 9 of the Guidelines applies:

9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[109] There was no evidence at trial directed towards s. 9(b). I find that the table offset amounts are appropriate after applying the criteria in s. 9. The order below reflects the table offset amounts.

[110] There was insufficient evidence at trial to make any order with respect to any s. 7 expenses. While there was some evidence that the children were involved in extracurricular activities, and that Mr. Lawrance was paying some money to Ms. Lawrance’s mother for assisting in child care, in both of Mr. Lawrance’s financial statements, Schedule “C”, which requires disclosure of all s. 7 expenses, was left blank.

[111] The order below does address, in a general way, the sharing of s. 7 expenses.

E. Spousal Support – Discussion

[112] Mr. Lawrance had an obligation pursuant to the separation agreement to pay spousal support. He thought that once he had the primary care of the children, that not only could he stop paying child support, but he also could stop paying spousal support.

[113] There was no dispute between the parties that Mr. Lawrance paid child support and spousal support as required by the separation agreement only to the end of November 2014. No payments for child support or spousal support were made by Mr. Lawrance subsequently.

[114] For the reasons set out below, Mr. Lawrance was mistaken in thinking that he had no spousal support obligation. His failure to make any spousal support payments subsequent to November 2014 increased the financial pressure on Ms. Lawrance, forcing her to live off capital.

[115] The court is required to consider the factors in s. 15.2(4), and the objectives of a spousal support order in s. 15.2(6) of the Divorce Act:

Factors

15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

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

Objectives of spousal support order

15.2(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

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

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

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

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

[116] In relation to the factors, the 13 year relationship was of moderate length. In considering the functions performed during cohabitation, a notable factor is the primary care of the children assumed by Ms. Lawrance during her two maternity leaves and then reducing her employment to part-time thereafter. Also important is Mr. Lawrance’s role in assuming more responsibility for the children’s day-to-day care during cohabitation while Ms. Lawrance was struggling with her alcohol addiction, and then assuming primary care of the children effective late November 2014.

[117] The separation agreement that the parties signed is a significant factor as it provided for spousal support for Ms. Lawrance on the basis of Ms. Lawrance having no income. In considering the objectives, the economic disadvantage from the marital breakdown was much greater for Ms. Lawrance than Mr. Lawrance. Ms. Lawrance was unemployed after the date of separation and found herself with no income after November 2014.

[118] The financial circumstances arising from childcare had a more significant impact on Ms. Lawrance than Mr. Lawrance. Ms. Lawrance was unable to pursue her career, to the extent that she could have, as a consequence of her maternity leaves and subsequent part-time employment. I find that Ms. Lawrance is entitled to compensatory support that is attributable to her child-care role during the marriage. However, the fact that Ms. Lawrance left her employment is attributable primarily to her alcohol addiction.

[119] Ms. Lawrance understands her obligation to find employment. The separation agreement speaks to that obligation. Income has been imputed to Ms. Lawrance. These are all factors that will assist in promoting Ms. Lawrance’s self-sufficiency.

[120] I have considered the parties’ financial statements. In his most recent financial statement, under savings plans and RRSPs, Mr. Lawrance shows $165,000 in assets. His annual expenses are shown at just over $75,700, an amount that is below his income earning ability. Both parties each own their own home. Ms. Lawrance, in her financial statement sworn October 21, 2015, filed during the trial, discloses “$100,000+” in investments, although no details were provided. In relation to her net worth, as shown in her financial statement, that amount is unreliable as Ms. Lawrance has failed to show the amount owing on her mortgage. I find Ms. Lawrance’s expenses, at a little over $5,000 per month, to be somewhat overstated; she does not have the children in her primary care and a number of her expenses are in relation to the children.

[121] In addition to compensatory support, Ms. Lawrance is also entitled to needs based support.

F. Amount and Duration of Spousal Support

[122] As indicated earlier, in the separation agreement, the parties had chosen July 31, 2015 as the date to which Mr. Lawrance’s income would be assessed at $75,000, with his 2015 income to be determined as of July 1, 2015.

[123] I see no reason to depart from the contractual provision that until July 1, 2015, Mr. Lawrance’s income will be $75,000. It follows that Mr. Lawrance should pay spousal support at the amount specified in the separation agreement, $1,053 per month, until July 1, 2015. This amount, also, is very close to the midpoint of the Spousal Support Advisory Guidelines (“SSAG”), assuming an income of $75,000 for Mr. Lawrance, no income for Ms. Lawrance and both children living with Mr. Lawrance[^1].

[124] For the second half of 2015, it is appropriate to calculate spousal support using $87,000 for Mr. Lawrance’s income. I find that monthly spousal support of $1,200 is appropriate. This falls between the mid and high range of the SSAGs[^2]. I find this range appropriate for the same reasons, discussed below, in relation to spousal support for the period starting July 1, 2016.

[125] For the first six months of 2016, the spousal support should also be $1,200 per month, the same as for the second half of 2015 because the incomes are the same and Mr. Lawrance will still have primary care of both children.

[126] From July 1, 2016 onwards, there are two changes: Ms. Lawrance’s income is imputed to $30,000; and the parties have equal parenting time with the children. I assess Mr. Lawrance’s spousal support obligation at $950 per month, starting July 1, 2016, an amount which is between the mid and high ranges[^3], which I find is appropriate as Ms. Lawrance’s entitlement to spousal support is both compensatory based and needs based.

[127] In Gray v. Gray, 2014 ONCA 659, the Court of Appeal for Ontario stated: “Typically, an entitlement to compensatory and needs based support would result in an award at the high end of the SSAG ranges.” (para. 50) Although, in Gray, spousal support was ordered at the lowest end of the SSAG range, for reasons specific to that case, I find that the present case is an appropriate case for spousal support to be in the upper SSAG range.

[128] This is not an appropriate case to time limit spousal support. Firstly, there is a compensatory element to Ms. Lawrance’s spousal support. Secondly, it is not appropriate to speculate on the reasonable length of time that Ms. Lawrance will require to maximize her full potential in the workplace. Thirdly, Ms. Lawrance’s reintegration into the workplace will need to occur at a pace where Ms. Lawrance also can focus necessary attention directed at maintaining relapse prevention. Fourthly, no spousal support termination date was specified in the separation agreement.

[129] I consider also the issue as to whether to order that spousal support be reviewed, given that a review of the quantum and duration of spousal support is contained in the separation agreement. The issue of spousal support has been submitted to this court by the parties for adjudication. The court must make its final order for spousal support pursuant to s. 15.2 of the Divorce Act. In Leskun v. Leskun, 2006 SCC 25 (S.C.C.), the Supreme Court of Canada made clear that a court, in making a final order under s. 15.2 of the Divorce Act, should insofar as possible resolve the conflict between the parties and make a permanent order subject only to change under s. 17 and should resist making a review order unless it is essential to make such an order: para. 39.

[130] This is not a proper case to order a review of spousal support. Any future change in spousal support will be governed by s. 17 of the Divorce Act.

[131] The aforementioned spousal support payments will create arrears. While Mr. Lawrance created this issue by failing to make any spousal support payments after November 2014, I do take into account that he has been bearing, solely, the financial obligation to support the children. I find that it is appropriate that Mr. Lawrance pay 50 percent of the arrears by December 31, 2015, and the balance of the arrears is to be paid at the rate of $400 per month starting January 1, 2016 until paid in full.

[132] An issue was raised at trial as to Ms. Lawrance receiving the child tax benefits while the children were in Mr. Lawrance’s primary care. A schedule of child tax benefit payments received by Ms. Lawrance was prepared by Ms. Lawrance and was filed on consent. However, I am not disposed to ordering Ms. Lawrance to turn over any child tax benefits to Mr. Lawrance; rather, the preferred manner of dealing with this is to make an order that both parties are to file with the Canada Revenue Agency information confirming that the children have been in Mr. Lawrance’s primary care since late November 2014. The Canada Revenue Agency can then deal with both parties as to any overpayment to Ms. Lawrance and any underpayment to Mr. Lawrance.

[133] There are a number of provisions in the separation agreement that are ancillary to child support or spousal support, including, for example, Mr. Lawrance’s obligation to maintain life insurance and employer group health coverage. No submissions were made by the parties as to whether to include any of those provisions in the court order. There is no basis for those contractual provisions not to continue and the order below makes reference to same.

COSTS

[134] The parties are encouraged to have some discussion and make best efforts to agree on the issue of the costs of this proceeding. However, if the parties are unable to do so, then the order below provides for each party’s right to make written submissions on costs.

FINAL ORDER

[135] For reasons set out above, a final order is made as follows:

1. A decree of divorce is granted.

2. The applicant and the respondent shall have joint custody of the children.

3. Subject to paragraph 6 of this order, until March 31, 2016, the children shall be in the primary care of the applicant, and the children shall be in the care of the respondent as follows:

a) every Tuesday and every Thursday from after school, or from 3:00 p.m. if there is no school, until 7:00 p.m., and every Saturday from noon to 6:00 p.m., plus any other time mutually agreed to by the parties, except there shall be no overnight visits;

b) on December 25, 2015, for a period of six hours as agreed or, failing agreement, from 2:00 p.m. to 8:00 p.m.; and

c) the parties are at liberty, on consent, to change the schedule when the children are with the respondent, if that is necessary to accommodate the children’s schedule.

4. Subject to paragraph 6 of this order, for the period April 1, 2016 to June 30, 2016, the children shall be in the primary care of the applicant, and the children shall be in the care of the respondent as follows:

a) every Tuesday from after school overnight until Wednesday morning at school time, provided that if there is no school, then from 3:00 p.m. Tuesday to 10:00 a.m. Wednesday;

b) every Thursday from after school, or from 3:00 p.m. if there is no school, until 7:00 p.m.;

c) on alternate weekends, on Saturday from 11:00 a.m. to 2:00 p.m. Sunday;

d) such further and other times as may be mutually agreed to by the parties; and

e) the parties are at liberty, on consent, to change the schedule when the children are with the respondent, if that is necessary to accommodate the children’s schedule.

5. The time that the children spend with the respondent, as set out in paragraphs 3 and 4 of this order, is subject to the following conditions in relation to supervision:

a) all the visits shall be supervised except as follows:

i. in relation to paragraph 4, for the visit on Tuesday overnight to Wednesday, supervision is only required from the start of the visit on Tuesday until 7:00 p.m. Tuesday; and

ii. for the overnight weekend visit, the supervision is only required for the first three hours at the beginning of the visit, starting at 11:00 a.m. Saturday, and for the last two hours at the end of the visit, ending at 2:00 p.m. Sunday;

b) the persons who supervise the respondent’s visits shall be chosen by the respondent from the list of access supervisors named by the applicant, subject to their availability and subject to their consent; the signed and issued order shall contain the names of the approved access supervisors;

c) if there are no persons available to supervise any specific visit, then the visit shall be shortened to accommodate the availability of a supervisor or, if necessary, the visit shall be cancelled and, if possible, rescheduled to a date agreed to by both parties;

d) up to and including the end of February 2016, unless the applicant agrees otherwise, all visits shall occur at the respondent’s residence; thereafter, if any portion of the visit takes place elsewhere, the respondent shall advise the applicant at least 24 hours beforehand via text or email as to where the visit will take place;

e) during any part of a visit, which is not supervised, the applicant may attend at a reasonable time on a random basis, once per visit, at the respondent’s residence or at such other location where the respondent may be with the children, to satisfy himself that the respondent is compliant with the alcohol prohibition contained in this order, and the respondent shall cooperate and make herself available; the applicant shall handle his attendance discreetly, without embarrassment to the respondent and without involving or alerting the children as to the reason for the applicant’s presence; and

f) the applicant shall provide each access supervisor with a copy of this order, as signed and issued.

6. During any period of time that the respondent continues to remain in the residential program at Brentwood following the date of this order, all visits between the respondent and the children, as set out in this order, shall not occur and, instead, the respondent shall have visits with the children at Brentwood at least on alternate weekends, on a Saturday or Sunday, for a minimum of two hours each, and the applicant is responsible for transporting the children to and from this visit, or arranging for someone else known to the children, and agreed to by the respondent, to transport the children; while exercising access at Brentwood, the respondent shall ensure that at least one adult is always present, as chosen by the respondent.

7. Subject to paragraph 6 of this order, effective July 1, 2016, the children shall spend equal time in the care of each party as follows:

a) the children shall spend alternating weeks with each party, with the exchange time occurring at 6:00 p.m. every Friday, or such other time as may be mutually agreed to by the parties;

b) during each week, there shall be one mid-week visit with the other party as agreed by both parties and, failing agreement, the mid-week visit shall be from Tuesday at 6:00 p.m. overnight until Wednesday at school time, or to 10:00 a.m. Wednesday if there is no school;

c) until December 1, 2016, the applicant, during the week that the children are with the respondent, is at liberty to make two random attendances at reasonable times to the respondent’s residence on the same terms and conditions and for the same reasons as set out in subparagraph 5(e) of this order, and the applicant may terminate the visit in accordance with the procedure in paragraphs 13(a), (b) and (c) of this order.

8. Effective on the respondent’s completion of the residential program at Brentwood, and until April 30, 2016, the respondent shall make arrangements, through her physician, to set up blood tests to detect alcohol, and the respondent shall attend every Monday, Wednesday and Friday for the tests. If the testing facility is closed, the respondent shall attend on the next day that it is open. The respondent shall provide the toxicology test results immediately to the applicant and, if permitted by the testing facility, the respondent shall sign any necessary consents to allow the immediate release of the toxicology results directly from the testing facility to the applicant. The respondent is solely responsible for any costs associated with the tests.

9. The applicant and respondent are at liberty to agree to any additional testing protocol to detect whether the respondent has consumed alcohol, including a breathalyzer. However, the testing for alcohol by blood sample shall not be replaced by any other method, unless both parties agree in writing.

10. For a period of one year starting May 1, 2016, the applicant is at liberty to request, in writing, that the respondent attend for an alcohol test. This request may be made on a random basis, not more than three times per month. On the receipt of such request, to be made prior to noon hour, the respondent shall attend no later than the following day for the alcohol test or, if the testing facility is closed on the following day, then no later than on the first day that it is open. The provisions of paragraph 8 apply to the arrangements for this test and providing the toxicology test results to the applicant.

11. As a condition of the respondent having the children in her care as set out in this order, the following conditions shall apply:

a) the respondent shall not consume alcohol at any time; and

b) if the respondent has consumed alcohol at any time, the respondent shall advise the applicant forthwith, in writing, to include the time, location and amount of alcohol consumed.

12. The respondent shall not operate a motor vehicle with one or both of the children in the motor vehicle, except after June 30, 2016, and on condition that the respondent has a valid drivers licence. If the respondent has consumed alcohol at any time, the applicant is at liberty to seek a court order, on notice to the respondent, to extend the driving prohibition.

13. a) It shall be the responsibility of any person acting as an access supervisor to notify the applicant and respondent immediately if the supervisor has reasonable and probable grounds at the beginning of the visit or during the visit to suspect that the respondent has consumed alcohol; and the access visit shall not proceed and the respondent shall cooperate with the access supervisor and the applicant to return the children to the applicant.

b) If there is a dispute as to whether the respondent has consumed alcohol, then this dispute may be resolved by the court and either party may bring a court proceeding on notice to the other; and

c) Subparagraphs a) and b) also apply if the applicant is present at the beginning or during a visit and has reasonable and probable grounds to suspect that the respondent has consumed alcohol at the beginning of a visit or during a visit.

14. The custody and access provision of this order are based on the premise that the respondent will complete her current residential program at Brentwood no later than on or about mid-December 2015. If there is a material delay in the respondent completing this residential program, then either party is at liberty to apply to this court, via motion to change, for directions as to whether there should be any changes made to the parenting schedule, or the various terms and conditions governing the respondent’s time with the children.

15. The occurrence of any one or more of the following shall be deemed a material change in circumstances, permitting either party to bring a motion to change and, if necessary, an emergency motion for an interim order, in relation to custody and access:

a) the respondent consumes alcohol at any time;

b) the respondent fails to attend for an alcohol test as required by this order;

c) the respondent fails to provide a copy of any toxicology test report;

d) the respondent has an unsupervised visit with one or both of the children in circumstances where this order requires the visit to be supervised; or

e) the respondent operates a motor vehicle with one or both of the children in the motor vehicle, in contravention of this order.

16. The respondent shall provide the applicant with the following:

a) when she is discharged from Brentwood, a copy of her discharge summary within 15 days;

b) any changes to the status of her drivers licence, together with all documents verifying same and, if the respondent’s drivers licence is suspended for any reason, including medical reasons, the respondent forthwith shall provide full details of same, together with supporting documents; and

c) full details forthwith as to all future treatment in relation to alcohol addiction, including copies of reports from the respondent’s treating physician or physicians and reports from all treatment facilities, including admission and discharge summaries.

17. The principal place of residence of the children shall not be changed from London, Ontario except on the written agreement of both parties or court order.

18. Each party shall have reasonable telephone and Skype access to the children while they are in the care of the other party; when the children are older, this shall include reasonable email and/or text communication.

19. Each party shall keep the other informed as to his or her residence address, name and address of employer, home telephone number, cellphone number and email, and each shall advise the other immediately as to any changes regarding same.

20. If the parties have a dispute regarding a parenting issue which they cannot resolve, then the parties shall give consideration to resolving the dispute through mediation. Except in an emergency, no court proceeding shall be commenced in relation to any parenting dispute until the parties have explored mediation, or if mediation has been agreed to, until the mediation has concluded without a resolution.

21. Effective July 1, 2016, or such other date as is noted below, the following provisions in relation to custody and access contained in the separation agreement dated October 2, 2014 and signed by the parties, are not affected by this order and shall continue in full force and effect:

a) subparagraphs 24(a) to 24(g) inclusive (dealing with parenting time on Thanksgiving, Easter, summer holidays, March break, Mother’s Day, Father’s Day and Christmas);

b) paragraph 25 (listing the responsibilities of each parent who has day-to-day care of the children) and this paragraph continues to be in effect immediately;

c) paragraph 26 in its entirety except paragraph 26i (dealing with principles governing the parties’ dealings with each other and the children) and this paragraph continues to be in effect immediately;

d) paragraph 27 (a further statement of principles in relation to custody and access) and this paragraph continues to be in effect immediately;

e) paragraph 28 (right of first refusal to care for the children when the other parent is not available); and

f) paragraphs 29 to 33 inclusive (dealing with vacations).

22. The applicant shall pay spousal support to the respondent as follows:

a) commencing December 1, 2014, the sum of $1,053 per month up to and including June 1, 2015;

b) commencing July 1, 2015, the sum of $1,200 per month up to and including June 1, 2016; and

c) commencing July 1, 2016, the sum of $950 per month and continuing thereafter on the first day of each month.

23. Arrears of spousal support arising as a result of this order, shall be paid by the applicant to the respondent as follows:

a) 50 percent of the arrears shall be paid by December 31, 2015; and

b) the balance of the arrears shall be paid at the rate of $400 per month commencing January 1, 2016 until paid in full.

24. Commencing July 1, 2016, the applicant shall pay to the respondent for the support of the children, Julia and Emily, the sum of $819 per month, said amount being paid pursuant to s. 9 of the Federal Child Support Guidelines, being the net set-off table amount, based on the applicant’s table amount of $1,257 per month and the respondent’s table amount of $438 per month, and based on the applicant’s income of $87,000 and the respondent’s imputed income of $30,000.

25. Any s. 7 expenses for the children first shall be discussed, and agreed to, by the parties, and shall be paid by the parties in proportion to their respective incomes as defined by the Federal Child Support Guidelines, including adjustments pursuant to Schedule III, s. 3.1 of the Guidelines, and shall be based on the net after-tax cost of the s. 7 expense where all or a portion of the expense is tax deductible. If there is any dispute regarding s. 7 expenses, then the parties may submit that dispute to the court for resolution after the parties have made reasonable attempts to settle the matter, including considering mediation.

26. Each party forthwith shall provide documentation to the Canada Revenue Agency to include that the children have been primarily resident with the applicant since late November 2014. The parties shall provide any further information or documentation required by Canada Revenue Agency in relation to the apportionment of child tax benefits for the 2014 and 2015 calendar years and any subsequent calendar years.

27. By July 1st of each year, commencing 2016, each party shall provide the other with a copy of his or her T1 general income tax return, together with all slips and schedules, notice of assessment (and reassessment, if any) for the preceding calendar year. This obligation shall continue for so long as the applicant is required to pay spousal support, or child support, or for so long as either child remains a child of the marriage within the meaning of the Divorce Act.

28. After the exchange of financial information as provided in paragraph 27, the parties shall make all appropriate adjustments, if any, to child support. If the parties are unable to agree to any necessary changes in child support after exchanging financial disclosure, then the parties may submit that dispute to the court for resolution after the parties have made reasonable attempts to settle the matter, including considering mediation.

29. Nothing in this order in relation to child support or spousal support affects the following obligations of the parties, as set out in their separation agreement:

a) paragraph 44 (regarding the RESPs to be in the joint names of the parties);

b) paragraphs 47 to 50 inclusive (applicant’s obligation to maintain medical, hospitalization, drug and dental coverage for the respondent and the children); and

c) paragraphs 51 to 61 inclusive (being the provisions in relation to life insurance).

30. All provisions in this order in relation to custody, access, child support and spousal support are made pursuant to the Divorce Act.

31. If the parties are unable to agree on the costs of this proceeding, then the parties are at liberty to make written submissions on costs. The written submissions shall be forwarded to the Family Court trial coordinator within four weeks of the date of this order. Submissions shall not exceed three typed pages, plus copies of any time dockets and offers to settle. If no costs submissions are forwarded within the timeframe ordered above, then each party shall be responsible for his or her own costs of this proceeding.

“Justice Victor Mitrow”

Justice Victor Mitrow

Released: December 4, 2015

COURT FILE NO.: FD1667/14

DATE: December 4, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Brian Lawrance

Applicant

• and -

Diane Lawrance

Respondent

REASONS FOR JUDGMENT

MITROW J.

Released: December 4, 2015

[^1]: In Ex. 44, calculation 1, Mr. Lawrance submitted SSAG calculations for a scenario where he earns $75,000, Ms. Lawrance earns $30,000, with both children living with Mr. Lawrance and a cohabitation of 13 years; this exhibit used the Tools One 2015 version; the SSAG ranges for monthly spousal support for the low – mid – high ranges were $517 - $603 - $689. Using the same input data as Mr. Lawrance’s SSAG calculation, but changing Ms. Lawrance’s income to zero from $30,000, produced SSAG ranges of $897 - $1,047 - $1,196.

[^2]: Using Ex. 44, calculation 1, and using all the same input data except changing Mr. Lawrance’s income to $87,000 and Ms. Lawrance’s income to zero, results in SSAG ranges of $1,007 - $1,075 - $1,343.

[^3]: Using Ex. 44, calculation 1, and using the same input data, except that Mr. Lawrance’s income is $87,000 and for both children the living arrangements are changed from living with Mr. Lawrance to “shared”, results in SSAG ranges of $521 - $829 - $1,137. Ms. Lawrance’s income is unchanged as it was already shown at $30,000 in Ex. 44, calculation 1.