ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lisa mCcabe
Applicant
- and -
bertrand samuel tissot
Respondent
Harold Niman/Katharine Rajczak, for the Applicant
Appearing in Person
HEARD: November 12, 13, 16, 17, 18, 19, 20, 23, 24, 25, 26, 2015 and January 18, 19, 20, 2016
STEVENSON J.
REASONS FOR DECISION
Introduction
1The applicant, Dr. Lisa McCabe ("Dr. McCabe"), seeks sole custody of the child of the marriage, Liam McCabe Tissot ("Liam"), born September 9, 2006. She also seeks an order for other parenting provisions, including those pertaining to major medical decisions; religion; education; and extracurricular activities and lessons. She further requests a specified schedule with respect to the respondent, Bertrand Samuel Tissot’s (“Mr. Tissot”) time sharing with Liam and holiday time. Dr. McCabe is not agreeable to increasing the amount of overnights that Liam currently spends with Mr. Tissot. Additionally, Dr. McCabe seeks an order providing for certain safeguards to be put in place prior to Mr. Tissot travelling with Liam to France, the country where Mr. Tissot was born and raised, and to other countries. She also seeks an order imputing income to Mr. Tissot, an order for retroactive and ongoing child support, retroactive and ongoing section 7 expenses, and costs.
2Mr. Tissot provided a draft order at trial wherein he proposes a mechanism for decision making with respect to Liam but he does not provide for a specific custodial arrangement. In Mr. Tissot’s Answer, he originally sought custody of Liam while in his Amended Prayer for Relief, he sought an order for a “no name” parenting plan and, in the alternative, he sought joint custody or sole custody of Liam. Mr. Tissot is agreeable to Liam’s primary residence remaining with Dr. McCabe; however, he seeks a specified time sharing schedule with Liam allowing for him to share more time with Liam than he currently spends. He is also seeking an order for equal time sharing of all holidays. Mr. Tissot is prepared to pay child support based on an income imputed to him determined by his analysis of his previous years’ expenses, but he is opposed to paying any retroactive child support or retroactive section 7 expenses as he contends that he has significantly contributed to the support of Liam. Mr. Tissot is prepared to pay his proportionate share of ongoing section 7 expenses based on his imputed income determined by his expenses, but he is opposed to paying for Liam’s private school education at this time. He is also opposed to any provisions restricting his travel with Liam to France or anywhere else. Mr. Tissot also seeks costs.
Background
3The parties met in May of 2005 at the Granite Club in Toronto where Dr. McCabe was working and continues to work as a chiropractor. At the time, Mr. Tissot was employed as a squash professional at another club and he taught lessons at the Granite Club. The parties were married on August 5, 2006 and their son Liam was born September 9, 2006. The parties do not agree on their date of separation. They separated on May 2, 2008 according to Dr. McCabe and in July 2008 according to Mr. Tissot as set out in the Partial Separation Agreement entered into between the parties in June 2010. They were subsequently divorced pursuant to the order of Frank J. dated November 12, 2014.
4Dr. McCabe is 47 years of age and Mr. Tissot is 42 years of age. Liam is now nine years of age and in grade 4. Liam has experienced many difficulties academically. While the parties agree that Liam has experienced significant difficulties with respect to reading, math and writing and that he has struggled to achieve success at his grade level, they disagree on whether Liam has experienced other difficulties, including anxiety on an ongoing basis. Many professionals have been involved with Liam with respect to his academics as well as assisting him with anxiety and other issues.
5Dr. McCabe is concerned that any change in Liam's current time-sharing schedule with Mr. Tissot could negatively impact Liam and she is concerned with how Liam will manage. She contends that when Liam had increased time with Mr. Tissot including additional overnights, Liam experienced significant anxiety which when coupled with his ongoing academic struggles, provided added stress to Liam. In contrast, Mr. Tissot believes that Liam has improved significantly academically and that any stress or anxiety that Liam may have experienced in the past has dissipated. Mr. Tissot contends that Liam enjoyed spending additional time with him, including more overnights in the past and that there is no reason to deny Liam the opportunity to spend additional time with him now.
6Dr. McCabe is not agreeable to any form of joint parenting or shared parenting with Mr. Tissot. She contends that Mr. Tissot has severe anger management difficulties which have manifested themselves on numerous occasions. Mr. Tissot contends that Dr. McCabe has been attempting to control his time with Liam since Liam was born and that she has marginalized him. Mr. Tissot views Dr. McCabe's attempts to limit his time with Liam and put restrictions on his travel with Liam to France as yet another attempt to marginalize him and to prevent Liam from maintaining an excellent relationship with him.
7The parties have opposing views as to the nature of their relationship from 2009 to April of 2013. Dr. McCabe views this time period as one in which the parties’ relationship regarding Liam and one another was somewhat amicable. She contends that she was managing the relationship between Mr. Tissot and Liam and she was only acting in Liam’s best interests. She is adamant that there was no reconciliation with Mr. Tissot. Mr. Tissot, however, views these years as a time when the parties were working on a reconciliation. He contends that they travelled together with Liam on a frequent basis which included taking trips to France, Prince Edward Island, Banff, Lake Louise, Calgary and Blue Mountain as well as other excursions. Mr. Tissot also contends that the parties ate frequent meals together and celebrated many special occasions together as a family.
8Dr. McCabe asserts that Mr. Tissot did not pay appropriate child support for Liam during this time period and that there are significant arrears of child support owing by Mr. Tissot along with significant arrears of section 7 expenses. In contrast, Mr. Tissot argues that he was contributing significantly to the family during this time by paying support and monies towards section 7 expenses as well as paying for vacations, meals, gifts and other expenses for the benefit of Liam and Dr. McCabe. The parties do agree that Mr. Tissot has been unemployed since 2010, but they do not agree on what income should be imputed to Mr. Tissot for child support purposes. They also disagree on what are proper section 7 expenses.
9This matter originally went to trial before Frank J. in November of 2014. After three days of testimony of Dr. McCabe, the parties settled the matter and signed Minutes of Settlement (the “Minutes”). Subsequent to the signing of the Minutes, on December 4, 2014 Dr. McCabe informed her counsel that a provision was missing from the Minutes. The parties could not agree and as a result, a rectification motion was heard before Stewart J. which resulted in an order from her on April 24, 2015 that Mr. Tissot could either rectify or rescind the Minutes. Mr. Tissot chose to rescind the Minutes. As such, this matter was eventually re-scheduled for a 15 to 17-day trial. It was subsequently agreed by the parties that the evidence given by Dr. McCabe before Frank J. in November of 2014 would form Dr. McCabe's evidence for this trial along with any update from her since November of 2014, all subject to cross-examination which had just commenced prior to the parties settling.
Issues
10The issues for determination are as follows:
(1) What type of custodial arrangement and parenting provisions are in the best interests of Liam?
(2) What residency or access arrangements are in the best interests of Liam, including holiday time?
(3) What, if any, provisions should be put in place for Liam to travel to France or any other country with Mr. Tissot?
(4) What are the incomes of the parties for support purposes, including contributions to section 7 expenses?
(5) What, if any, child support payments are owed by Mr. Tissot to Dr. McCabe for the time period 2008 to 2015? What is the proper amount of ongoing child support payable by Mr. Tissot?
(6) What are the proper section 7 expenses for Liam?
(7) What is the appropriate share of section 7 expenses by the parties and what, if any, section 7 expenses are owing by Mr. Tissot to Dr. McCabe for the time period 2008 to 2015?
Issue #1
What type of custodial arrangement and parenting provisions are in the best interests of Liam?
Dr. McCabe’s Position
11Dr. McCabe seeks sole custody of Liam. She does not believe that joint custody would be in Liam’s best interests. She contends that Mr. Tissot has a significant anger management problem and that she cannot communicate with him. She indicates that she shares information with Mr. Tissot concerning Liam, but is usually met with resistance from Mr. Tissot. It is her position that all decisions made by her have been in the best interests of Liam and based on recommendations from various professionals.
12Dr. McCabe testified that she has been met with conflict and opposition from Mr. Tissot throughout the years since separation. She is concerned about the constant conflict and its effect on Liam. She contends that she has always attempted to reduce the conflict but that Mr. Tissot has at times expressed his anger or opposition to her inappropriately in front of Liam.
13Dr. McCabe indicated that after separation and pursuant to the consent order of Allen J. dated September 22, 2008 which primarily dealt with access terms, the parties were to attend mediation with psychologist Dr. Helen Radovanovic (“Dr. Radovanovic”) with respect to developing a parenting plan. Mediation with Dr. Radovanovic was also a term of the order of McWatt J. dated July 21, 2009.
14Dr. McCabe testified that Dr. Radovanovic mediated custody and access issues. One of Dr. Radovanovic’s suggestions was that the parties do things together as a family for Liam. Dr. McCabe contends that this was her “ultimate wish for Liam” and that she tried to facilitate that as well as to assist Mr. Tissot in his relationship with Liam.
15Dr. McCabe stated that during this time period, the parties had gone from a time of “super high conflict and aggression” to a period of time where: “…it would be very friendly and conciliatory and we would be getting along and to the point where we were actually intimate…then there would be an explosive period and then it would be calm.”
16She described that Mr. Tissot started to openly criticize Liam about his abilities, including his ability to speak French and his athleticism. Mr. Tissot would also state that Liam was fat and he would grab Liam’s belly all of which was concerning to her.
17Dr. McCabe stated that Mr. Tissot would come over to her home to spend time with Liam primarily when she was at work and the nanny, Alison Sutherland (“Ms. Sutherland”), was present. She indicated that Mr. Tissot at one point insisted that Liam have one bed and that Liam sleep at Dr. McCabe’s home. Mr. Tissot had unrestricted access to Dr. McCabe’s home whenever he wanted to visit with Liam. She indicated that it was her intention to do what was best for Liam.
18Dr. McCabe detailed trips that the parties took together with Liam to France and Prince Edward Island after separation. She indicated that in 2011 the parties went again to France with Liam over the Christmas period. During the summer of 2011 the parties, along with Liam, went back to France for two weeks and went on an RV trip. Dr. McCabe contends that during that trip there was conflict between the parties and that Mr. Tissot’s anger levels were “starting to come up again”. She also testified that the parties travelled with Liam to Prince Edward Island in the summer of 2011. Dr. McCabe stated that while Mr. Tissot did share part of the vacation with them, he was primarily interested in kite boarding.
19She recalled an incident after the return from Prince Edward Island in August when Mr. Tissot telephoned her in a panic indicating that he had $250,000 worth of silver bars stolen. At one point Mr. Tissot drove up in a white van and stated to her that the remaining silver bars were in the van. Mr. Tissot was speaking about the collapse of the monetary system and he was talking about “extreme ideas” in the presence of Liam. She testified that if she tried to shut Mr. Tissot down on this kind of discussion he would become angry with her. She also contends that he was sending her bizarre random e-mails and she was very concerned.
20On a number of occasions she has found Mr. Tissot to be threatening to her and inappropriate in his behaviour. She testified as to an incident at a fundraising event at Liam’s school in April of 2013. She contends that Mr. Tissot was consuming alcohol that evening and was making comments and gesturing inappropriately to others in a sexual manner. She indicated that Mr. Tissot became intoxicated. On the way home while in the cab an argument ensued between them which became high conflict. Mr. Tissot was insisting on speaking about reconciliation and he would not let her out of the cab. The shouting continued on the sidewalk outside of Dr. McCabe's home after they left the cab.
21Dr. McCabe’s evidence was that Mr. Tissot became very threatening and frightening. This resulted in Dr. McCabe calling 911. She indicated that Mr. Tissot blocked her and pushed his way in through the door of her home. Mr. Tissot eventually drove off in his vehicle. The next morning she received a number of text messages and e-mails from Mr. Tissot wherein he expressed to her that life would be changing and that the litigation would commence. She changed the locks on her home and she and her step-mother, Constance McCabe, met with the police to file a report regarding the incident as Constance McCabe had witnessed the incident.
22Dr. McCabe gave much evidence regarding Liam’s schooling. She indicated that it was originally intended by the parties that Liam would attend a French immersion program. When Liam was in senior kindergarten he attended Children's Garden private school (“Children’s Garden”) in the morning and in the afternoon, he attended a French immersion program at a public school. She stated that during this time the teachers started to notice that Liam would become easily distracted, he was not respecting other children's boundaries and he was not attentive in class.
23Dr. McCabe contends that Mr. Tissot deferred all educational decisions to her because he did not know or understand the Canadian education system. Based on the recommendations of teachers and principals at both schools, Dr. McCabe testified that it was understood that the best place for Liam would be in a private school with a small class size with Liam learning in the English program. Mr. Tissot agreed with Liam not attending a French immersion program.
24Dr. McCabe indicated that it was difficult for her financially to afford to send Liam to Children's Garden. Liam was able to attend Children's Garden in grades 1, 2 and 3 as a result of a scholarship offered to him. Mr. Tissot was not agreeable to Liam attending if Mr. Tissot had to pay, but when he found out that a scholarship was offered, Mr. Tissot was agreeable to Liam attending.
25After Liam commenced grade 1 at Children's Garden, it was quickly determined that Liam was behind in reading and writing. It was suggested that Liam would benefit from occupational therapy. Occupational therapy started for Liam in October of 2012 with Danna Rybko whose married name is now Danna Mosko, (“Ms. Mosko”). Ms. Mosko continues to be Liam's occupational therapist. Regular feedback is provided to both parties by Ms. Mosko through progress reports.
26In an attempt to follow through with her commitment to have Liam become bilingual, as Dr. McCabe understood that this was important to Mr. Tissot, Liam also attended French classes at Alliance Française.
27Dr. McCabe testified that towards the end of grade 1, Liam was still experiencing challenges at school as reflected in his report cards which included an inability to pay attention to detail and to focus on his work. Liam was also involved with tutoring at the school as he needed additional assistance with reading. Liam was receiving occupational therapy and had tested low in both visual and motor integration. He was also experiencing difficulties with writing. Additional occupational therapy sessions were requested for him.
28In the fall of 2013, Liam entered grade 2. Dr. McCabe testified that Liam was struggling. Liam missed a number of days of school and was late on a number of occasions. She explained that the parties had gone back to court and there was another change in the access schedule which was a significant change for Liam. She contends that Liam was run down and became quite ill. He was having difficulty leaving home and getting Liam to school became a challenge. She indicated that Liam was confused and did not understand.
29Dr. McCabe noted that Liam started to improve in French in grade 2, but he was no longer enrolled in Alliance Française. He continued to struggle in math and writing; however, he was still working with Ms. Mosko and he had shown improvement. Dr. McCabe testified that the principal also identified a change in Liam. Dr. McCabe indicated that Liam was withdrawing and was still struggling with paying attention. It was recommended that a psycho-educational assessment take place. Mr. Tissot did not agree with the assessment proceeding and Dr. McCabe had to return to court. This led to the order of Czutrin J. dated November 19, 2013 which was ultimately made on consent. The order resulted in the involvement of Dr. Iris Kaidar (“Dr. Kaidar”) who began to complete the psycho-educational assessment in January of 2014.
30As a result of Dr. Kaidar's assessment, Liam was identified as being significantly below grade level in the academic areas of reading, writing, spelling and math. Dr. Kaidar recommended tutoring for Liam at Angus Lloyd and she recommended an educational consultant, Elaine Danson (“Ms. Danson”). She also suggested that occupational therapy for Liam continue. Dr. McCabe indicated that Dr. Kaidar felt that additional French tutoring was too much for Liam.
31As a result of the recommendations of Dr. Kaidar, Dr. McCabe communicated with Mr. Tissot and shared some of the research that she had completed on appropriate schools for Liam. Dr. McCabe contends that she attempted to obtain Mr. Tissot's consent after speaking with Ms. Danson to allow Ms. Danson to speak with Dr. Kaidar; however, Mr. Tissot would not agree.
32Dr. McCabe researched appropriate schools for Liam after meeting with Ms. Danson. She indicated that she provided contact names and their numbers to Mr. Tissot. She asserts that she encouraged Mr. Tissot to contact the school officials as well as Ms. Danson. She provided a spreadsheet of the various factors to be considered with respect to the choice of a school for Liam. After analyzing all of this information, she believed that Crestwood School (“Crestwood”) was the best possible school for Liam.
33Dr. McCabe indicated that she asked Mr. Tissot to consider Crestwood and to meet with officials from the school. She advised him that she had met with the officials at Crestwood and that there was a spot open for Liam for grade 3. She explained to Mr. Tissot that the cost would be similar as she was now paying for tutoring separately, but Liam would receive tutoring at Crestwood as part of the overall fees. The decision was ultimately made that Liam would remain at Children's Garden for grade 3 as Mr. Tissot was agreeable to Liam attending Crestwood, but he would not contribute to the costs.
34Dr. McCabe testified that despite the parties getting along for a period of time, problems escalated in 2013. The parties attended two sessions of mediation with Dr. Radovanovic in September 2013 in an attempt to resolve the issues of custody and time sharing. Dr. McCabe testified that during the last mediation session, Mr. Tissot became very angry and Dr. Radovanovic had to remove him from the room. After some time, Mr. Tissot was brought back in, but the mediation broke down. Dr. McCabe asserts that Dr. Radovanovic asked both parties to be mindful of the child, who was seated in the waiting room; however, Mr. Tissot continued to be angry. Dr. McCabe went into the kitchen to get a glass of water and was followed by Mr. Tissot. Dr. Radovanovic had to stand between the parties and there was a lot of arguing. Eventually, Dr. Radovanovic was able to get Mr. Tissot to leave.
35Dr. McCabe explained that in the fall of 2014, there was a discussion regarding the need for an updated assessment from Dr. Kaidar. Mr. Tissot did not want the assessment to take place until the new year and he was not agreeable to Dr. Kaidar completing the assessment but rather he wanted Angus Lloyd (the organization providing Liam's tutoring) to complete the assessment.
36The parties proceeded to trial in November 2014 and they settled after three days of trial. Dr. McCabe testified that despite the Minutes being signed in November of 2014, the conflict actually escalated. She further stated that the conflict between the parties continued even before the rectification motion. She explained that this conflict centered around many issues, including the change in Liam's schedule, payment for section 7 expenses, Mr. Tissot using Liam as a “courier” as alleged by Dr. McCabe, the exchange of Liam's sporting equipment, disputes over holiday time, Liam's First Communion, and Liam's activities. Dr. McCabe indicated that there was substantial conflict regarding Christmas holiday time with Liam in 2014. She testified that despite a letter from her counsel, Mr. Tissot kept Liam and was not agreeable to returning him to Dr. McCabe as scheduled.
37Dr. McCabe testified that from December 2014 to May of 2015, Liam's ability to cope and stay at school was concerning. Liam was experiencing stomach aches; he was unwell on a number of occasions and unable to attend school. In April of 2015 Liam was missing so much school that Dr. McCabe requested that homework be sent home for him.
38Dr. McCabe would receive e-mails from the school regarding these stomach problems and anxiety issues. She testified that Liam started to do poorly, he was not able to attend school at times, he was crying emotionally, the slightest incident would set him off and he would crawl under the bed and sob. She also indicated that Liam started acting out. Liam would hit her, tell her that she was not a real doctor, that she had orange hair, and he would state that he was being mean to her but he did not know why.
39She testified as to another occasion in January of 2015 when the parties had ongoing conflict around Liam’s schedule. She contends that on this occasion Mr. Tissot did not return Liam to her home as scheduled. Liam did not have his belongings and she feels that Liam was thrust into the middle of the conflict as Mr. Tissot put Liam on the telephone to ask her for his belongings which she eventually dropped off to him. Dr. McCabe also gave evidence that through the years Liam has missed several birthday parties and going away parties for friends, including a birthday party again in March of 2015 due to Mr. Tissot's refusal to bring Liam to the parties.
40Dr. McCabe indicated that she was so concerned about Liam that she took him to see the family doctor to rule out any physical causes. She also contacted Dr. Radovanovic and Liam's counsellor Eyglo Thorlaksdottir (“Ms. Thorlaksdottir”) who both recommended counselling for Liam. Dr. Barbara Fidler (“Dr. Fidler”) was recommended. She asked Mr. Tissot to reach out to these various professionals to speak to them but he refused. She also informed Mr. Tissot that Liam’s school officials supported counselling for Liam. Ultimately Mr. Tissot refused to meet with Dr. Fidler.
41Dr. McCabe asserts that she was constantly met with financial and litigation threats from Mr. Tissot. She also contends that Mr. Tissot was denying that Liam was ill at his home; however, her evidence is that she picked him up on at least two occasions when Liam had been vomiting and feeling unwell at Mr. Tissot's home.
42Eventually Mr. Tissot agreed to Dr. Kaidar completing another assessment and an updated report was completed May 22, 2015. After further testing by Dr. Kaidar, Dr. Kaidar concluded that Liam was still having difficulties in math and writing but he had progressed in reading. Dr. Kaidar recommended anxiety support for Liam. Dr. McCabe also indicated that Ms. Mosko relayed to the parties that in June of 2015, Liam was staring into space, he was restless, rocking back and forth and expressing concerns regarding his math test. Ongoing occupational therapy was recommended by Ms. Mosko. She also recommended that a social worker or psychologist assist Liam.
43Liam is now in the grade 4 at Crestwood which is a new school for Liam. Liam could no longer attend Children's Garden as it only went up to grade 3. Dr. McCabe testified that Crestwood was the school recommended by Ms. Danson and one which Dr. McCabe felt was the best fit for Liam, given his challenges. Liam is enrolled in the Roots program and has an Individual Education Plan. In this program, all tutoring is completed in class so Liam no longer has to attend separate tutoring at Angus Lloyd. In January of 2015, Mr. Tissot stated in an e-mail to Dr. McCabe that he was pleased that Liam was accepted into Crestwood; however, he stated that he was not responsible for any costs for Crestwood.
44Dr. McCabe's evidence is that access was increased in November of 2014 to May of 2015 which resulted in Liam having additional overnights with Mr. Tissot. As indicated above, Dr. McCabe asserts that Liam was having significant difficulties during this time.
45After the Minutes were rescinded in early May 2015, Dr. McCabe testified that the parties agreed to revert back to the access schedule of Czutrin J. dated February 14, 2014. A different access schedule was then put in place pursuant to the order of Stewart J. for the summer of 2015. Once the summer was over, Dr. McCabe indicated that Mr. Tissot unilaterally changed the schedule and kept Liam overnight on September 20, 2015. This resulted in a call to the police by Dr. McCabe on their non-emergency line. More conflict ensued as the parties could not agree on which access schedule was to be in place pending trial.
46Dr. McCabe expressed that up to May of 2015, Liam had experienced five residential changes in a 24 month period. Yet another motion was brought which was ultimately heard before me after leave had been granted by Kiteley J. Pursuant to my order dated October 1, 2015, the access schedule as set out in the order of Czutrin J. dated February 14, 2014 was to be in place pending a determination of the issue at trial.
47Dr. McCabe testified that she also experienced difficulty with Mr. Tissot in obtaining his agreement to have Liam commence his First Communion classes. She acknowledges that Liam received his First Communion on April 26, 2015 and that she did not advise Mr. Tissot. She contends that she made this decision to not involve Mr. Tissot as she felt it was in Liam's best interests given the level of conflict and Liam's anxiety at the time. She asserts that there was hostility at Liam's Baptism and she wanted Liam to have a peaceful and meaningful experience. She further contends that if Mr. Tissot had a genuine interest he would have been welcomed, however, she asserts that he showed no interest until a June 2, 2015 e-mail which she contends was strategic due to an upcoming motion and was not genuine.
48Dr. McCabe also described an incident where Mr. Tissot physically grabbed Liam out of her car thereby exposing Liam to the conflict. She contends that Mr. Tissot has an inability to keep Liam out of the conflict and exposes Liam to the hostility frequently. She further contends that Mr. Tissot chastises her and uses inappropriate language and gestures in front of Liam when angry. She described a number of occasions when this has occurred. Given the ongoing conflict, she believes that an order of sole custody to her would be in Liam’s best interests as the parties continue to be unable to communicate.
Mr. Tissot’s Position
49Mr. Tissot testified that it was not his desire to demonize Dr. McCabe or diminish the fact that Dr. McCabe loves Liam. He asserted that in Dr. McCabe's testimony, she showed a reluctance to acknowledge Liam's love for him and Mr. Tissot's love for Liam. It is Mr. Tissot's desire to be an important participant in Liam's life but he strongly feels that through the efforts of Dr. McCabe, his role in Liam's life has been marginalized.
50Mr. Tissot contends that Dr. McCabe has been very rigid in allowing him to share time with Liam which has worsened over time. He has no difficulty with Liam residing primarily with Dr. McCabe but he believes that Dr. McCabe refuses to see him as an able parent. Mr. Tissot asserts that Dr. McCabe has made decisions without consulting him or informing him of those decisions including decisions regarding summer camps, travel, Liam’s school, a tutoring schedule for Liam, and Liam’s Baptism and First Communion. He strongly feels that if it were not for the involvement of the Court, he would not have been able to share time with Liam as he did for the past two summers.
51Mr. Tissot explained that he comes from a very close, intact family that is culturally different from Dr. McCabe's family as he grew up in France. His parents still reside in France as does his brother, his sister-in-law and their five children. It is Mr. Tissot's desire for Liam to be able to spend significant time with Mr. Tissot and Mr. Tissot's extended family members.
52Before Liam was born, Mr. Tissot explained that the parties had many discussions. He felt that Dr. McCabe was embracing the French culture, she was open to having a French nanny, enrolling Liam in French schooling and to Liam becoming bilingual. He also indicated that Dr. McCabe had agreed to Liam obtaining a French passport and was open to attending a Baptist Church. He indicated that after Liam's birth, Dr. McCabe was no longer receptive to these ideas.
53After Liam was born, the relationship between the parties quickly deteriorated. Mr. Tissot asserts that Dr. McCabe believed that the only parent capable of taking care of Liam was her. He contends that Dr. McCabe had difficulties with breast-feeding and he was not allowed to be around if she was attempting to breast-feed Liam. On a rare occasion he was allowed to hold Liam but he was not allowed to feed him. He further indicated that he was not allowed to change Liam’s diaper. Dr. McCabe did not allow him to bathe Liam until Liam was almost 2 years of age. He was also not allowed to drive with Liam in the car.
54Mr. Tissot contends that he was shut out not just emotionally but also physically as he was relegated to the basement to sleep on a couch while Dr. McCabe's family stayed at the matrimonial home for the first 22 to 25 weeks during Liam's first year. He further testified that his mother was not permitted to hold Liam when visiting from France and that his parents were always on a timer with respect to the amount of time they could spend with Liam.
55It is Mr. Tissot's belief that Dr. McCabe never had any intention of having him involved in Liam's life from the outset. He believes that Dr. McCabe always had a plan or a mission. Mr. Tissot explained that his relationship with Dr. McCabe became distant. He found Dr. McCabe to be controlling and rigid with Liam and he was shut out from Liam's life.
56Mr. Tissot strongly feels that Dr. McCabe put a premium on her time with Liam over Mr. Tissot's time with Liam. He indicated that Dr. McCabe would prioritize her trips to Prince Edward Island with Liam which would last approximately 4 to 5 weeks in the summer showing no concern for Mr. Tissot's desire to spend time with Liam in France with Mr. Tissot’s family.
57Mr. Tissot asserts that the parties had discussed Liam's Baptism but had a difference in their opinions and beliefs. The parties had not been married in the Catholic Church and he indicates that he was unaware that Dr. McCabe had met with a priest concerning Liam’s Baptism when she was pregnant with Liam until the priest, Father Casper, testified at trial. Mr. Tissot contends that they had not yet agreed on Liam’s Baptism but despite this, Dr. McCabe told Mr. Tissot that Liam was being baptized whether he liked it or not. This necessitated Mr. Tissot’s mother jumping on a plane from France at the last minute in order to attend the Baptism.
58After separation, Mr. Tissot testified that the parties went to see Dr. Radovanovic in late 2008 and early 2009. His evidence is that Dr. McCabe was reluctant to expand his time with Liam as she was not ready for overnights and was still breast-feeding Liam. Mr. Tissot saw this as another obstacle and an example of Dr. McCabe's rigidity. This led to his increased frustration which increased the conflict and tension between the parties. He indicated that his frustration was a direct result of Dr. McCabe's rigidity and abandonment of the relationship.
59Mr. Tissot further indicated that the nanny, Ms. Sutherland, was given strict instructions never to leave Liam alone with Mr. Tissot unsupervised. Mr. Tissot contends that once he decided to be more assertive, as in sending Ms. Sutherland home so he could spend time with Liam alone, Dr. McCabe became very aggressive.
60However, Mr. Tissot testified that in September of 2009, the situation started to get better. He was able to see Liam a little more and he and Dr. McCabe, along with Liam, were doing things together. For Christmas, the parties took Liam to Lake Louise and Banff, with Dr. McCabe flying to Calgary with Liam then joining Mr. Tissot in Lake Louise. He asserts that the parties were behaving like a family unit on weekends. He would see Liam every Monday afternoon until Dr. McCabe returned home from work at approximately 7:30 p.m. or sometimes later. He was able to read Liam a story and put him to bed. The same would occur on Wednesdays. He indicated that this was convenient for Dr. McCabe as she was at work. He further testified that on Friday afternoons, he would see Liam and the parties would eat dinner together with Liam on Friday evenings.
61Mr. Tissot testified that he was being pressured as early as November of 2007 to sign a Partial Separation Agreement which he contends the parties referred to as a marriage contract. Mr. Tissot stated that he was constantly getting pressure from Dr. McCabe to sign the Partial Separation Agreement which was ultimately signed in June of 2010. It was Mr. Tissot's belief that this would assist the parties in making their relationship work which was his desire.
62Mr. Tissot testified that during 2010 the parties were getting along well and sharing time together with Liam. The parties and Liam spent vacation time together in Prince Edward Island, France and Blue Mountain and also worked together on a condo project. He further indicated that he would stay at Dr. McCabe's home Saturday mornings if she had errands to run and he would look after Liam. He purchased family memberships at the ROM and the Ontario Science Centre. Mr. Tissot also testified that he celebrated his birthday at Dr. McCabe's home in 2010 and that he purchased a number of gifts for Dr. McCabe during this time.
63Mr. Tissot testified that he, Dr. McCabe and Liam continued to spend time together in 2011 which included weekends at Blue Mountain, another trip to both France and Prince Edward Island, they celebrated Easter together and Dr. McCabe's birthday at Dr. McCabe's home. They enjoyed dinners together on Friday evenings, and they attended a gala together for Liam’s school. Mr. Tissot indicated that he would often stay for the weekend at Dr. McCabe's home so that she could again run errands and he could look after Liam.
64Mr. Tissot acknowledged in his evidence that many promises had been made to him by Dr. McCabe, but the parties did not reconcile. He found this time confusing and frustrating. He advised Dr. McCabe in December of 2011 that they needed to fully separate if there was to be no reconciliation. However, he took Dr. McCabe's providing to him a book on the consequences of divorce to children as a sign that the relationship was not really over.
65Mr. Tissot testified that in January to February 2012 the parties started to do things together again with Liam and that December 2011 was merely a “blip”. The parties continued to spend time together with Liam in Thornbury and celebrated Christmas together. He also testified that the parties went to France together with Liam once again in 2013. It is Mr. Tissot's evidence that the parties had been spending much time together with Liam and were not complying with any of the access orders from 2009 to early 2013.
66Mr. Tissot testified that in January 2012, Dr. McCabe took Liam to see a counsellor, Ms. Thorlaksdottir, without informing him. He now believes that Dr. McCabe was taking steps to build her case.
67Mr. Tissot indicated that Ms. Sutherland was still present when he shared time with Liam on Mondays, Wednesdays and Fridays in 2012. He still found it difficult to spend time alone with Liam even when he was together with Dr. McCabe.
68At the time of the gala for Liam's school on April 26, 2013 Mr. Tissot was hoping for reconciliation; however, the evening did not go well. He indicated that when the parties returned to mediation with Dr. Radovanovic after this incident, Dr. McCabe remained rigid and inflexible which created a lot of anxiety for him. He testified that he was emotionally devastated and he was afraid of losing his relationship with Liam. He expressed that he regrets what occurred at Dr. Radovanovic’s office but that this was his state of mind at the time.
69Mr. Tissot testified that Dr. McCabe changed the locks on her home after the incident at the gala. Shortly thereafter, Mr. Tissot asserts that Ms. Sutherland was fired by Dr. McCabe after having been Liam's nanny for over 6 years. He contends that this was an abrupt and significant change for Liam as Liam and Ms. Sutherland loved each other.
70It is Mr. Tissot's evidence that Dr. McCabe continued to place her interests first, including ensuring that she would be allowed to take long trips to Prince Edward Island, but refusing to allow Mr. Tissot to travel with Liam to France.
71Mr. Tissot contends that as set out in Dr. McCabe’s e-mail to him of June 17, 2014, Dr. McCabe had already taken steps for Liam to attend Crestwood in September 2014 without consulting with him. With respect to Liam's enrollment at Crestwood in the fall of 2015, Mr. Tissot asserts that Dr. McCabe pushed forward to have Liam enrolled at Crestwood unilaterally. He testified it is always Dr. McCabe's decision, her opinion, and what she wants which she indicates is always done in the best interests of Liam.
72Mr. Tissot testified that he and Liam have a close bond. They do exciting things together and are comfortable and loving with each other. He feels that Liam is enriched by his time with him and that Liam benefits culturally given their ability to speak French to one another.
73When he is with Liam, he engages in many activities with him including taking Liam to museums, rock climbing, biking, outings with Liam and his friends, playing hockey, skiing, camping, canoeing and sailing. Many of these activities involve Liam and Mr. Tissot together while many camping trips and other excursions take place with Liam's friends and Mr. Tissot's friends. Mr. Tissot points out that on a number of these excursions, other parents trust him to take care of their children.
74With respect to decision-making, Mr. Tissot is not proposing to use the word custody but rather to provide general guidelines with respect to medical, educational, religious and other major decisions. He concedes that sole custody to him would not work and that both parents should be involved in decision-making with respect to Liam. He is proposing that the parties use Our Family Wizard to communicate. It is Mr. Tissot's position that interaction between the parties needs to be reduced and that his proposed time sharing schedule significantly reduces the interaction between the parties and the chance for conflict which is in Liam’s best interests. Mr. Tissot also seeks provisions allowing him to travel to France with Liam in order to expose Liam to the French culture and more importantly for Liam to spend time with his grandparents, uncle, aunt and five cousins.
Discussion
75This is an application under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) and the provisions of section 16 of the Divorce Act apply. Section 16(1) provides that a court may make an order respecting custody of or access to the child of the marriage on application by a spouse or by any other person. As per s. 16(4), the court may make an order granting custody of a child to any one or more persons. The only factor that a court shall take into consideration when making an order under section 16, as set out in s. 16(8), is the best interests of the child as determined by the conditions, means, needs, and other circumstances of the child. Pursuant to s. 16(6), the court may make an order for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
76Under s. 16(9) of the Act, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child. Further, in s. 16(10), the court shall give effect to the principle that a child should have as much contact with each spouse as is consistent with the best interests of the child and, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
77Courts in Ontario have consistently referred to s. 24 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (the "CLRA") as a guide when considering the best interests analysis in deciding cases under the Divorce Act. Section 24 sets out the following requirements which I have also considered in determining what is in the best interests of Liam:
Merits of application for custody or access
- (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).
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child. 2006, c. 1, s. 3 (1).
Same
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).
78As indicated, Dr. McCabe seeks sole custody of Liam while Mr. Tissot in his draft order provided does not seek to use the term custody, but it is Mr. Tissot’s desire to be equally involved in major decision making regarding Liam.
79As stated by Weiler J.A. in the Ontario Court of Appeal decision of Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), 2005 CarswellOnt 266 at para. 11, in order for a court to grant joint custody or, as Mr. Tissot seeks, joint decision-making: “There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another.”
80This trial was 14 days in duration with much of the evidence focusing on the issues of custody and time sharing. It is clear based on the evidence that both parties have a close and loving relationship with Liam and that both have much to offer to him. What is also evident is that this has not always been recognized by both parties.
81The parties struggled after their separation in 2008 with many issues. This is often the case when a separation has recently occurred and litigation commences. To their credit, the parties agreed to mediation with Dr. Radovanovic, a very skilled and well respected psychologist who not only has much experience in mediation but also in custody and access assessments. (The parties eventually agreed to the mediation being open and that Dr. Radovanovic would prepare reports regarding the mediation sessions in 2009 and 2013).
82It appears that at times, after the parties mediated with Dr. Radovanovic in 2009, they heeded the advice of Dr. Radovanovic and attempted to lessen the conflict for Liam. However, it is unfortunate that the parties, who from 2009 until May of 2013 did not require the assistance of the Court and managed to keep Liam somewhat out of the conflict, were unable to maintain the course. While this period of time was not without its challenges for both parties and Liam, the focus was on the best interests of Liam. Both parties testified as to joint holidays taken together with Liam. Mr. Tissot gave much evidence as to other events attended together, birthdays and holidays celebrated together and meals enjoyed as a family. Mr. Tissot presented many photographs of the parties sharing time together with Liam during this period.
83The evidence is that Mr. Tissot hoped for reconciliation, but Dr. McCabe’s evidence is that she was not agreeable. The issue came to a head in April 2013 and tragically Liam was thrust into the middle of the conflict between his parents that escalated after April 2013 and continues to this day. As pointed out in counsel for Dr. McCabe’s submissions, the parties have 45 court orders in this matter and 41 of these orders were made after April 2013.
84For the reasons that follow, I find that it is in the best interests of Liam that Dr. McCabe be granted sole custody. Both parties testified as to their current inability to communicate with one another, the ongoing conflict and their need and desire to lessen contact between them. Given this lack of communication and the constant conflict between the parties as will be outlined further below, I cannot conclude that joint custody is in the best interests of Liam. The best interests of Liam will not be advanced if the parties are unable to make joint decisions together. Dr. McCabe has proposed in her draft order that she consult with Mr. Tissot with respect to medical and educational decisions. This is appropriate; however, if the parties are unable to agree, Dr. McCabe shall make the final decision.
85In assisting me with the determination of the best interests of Liam, I had evidence from the parties, Dr. Kaidar, Ms. Danson, Dr. Radovanovic, Ms. Mosko, Ms. Thorlaksdottir, Constance McCabe, Dr. Ann Mussett (Dr. McCabe’s friend), Father James Casper, Mr. Tissot’s friends Derek Finkle; Dr. Phillippe Poussier; Trevor Sossin and Julie Griffiths, as well as Ms. Sutherland, and Julia Harper (Mr. Tissot’s girlfriend). I have taken all of the evidence of these various witnesses into consideration in determining what is in Liam’s best interests.
86I was greatly assisted by several of these witnesses who are professionals and many of whom had much interaction with Liam. This provided much assistance to me in understanding Liam’s challenges both academically and emotionally and in determining what is in his best interests.
87In his closing submissions, Mr. Tissot seemed to suggest that Dr. McCabe relied on these “paid professionals” as he put it, to support her evidence whereas he indicated that his witnesses all knew him and Liam well and were close friends. It is concerning that Mr. Tissot would infer that the evidence of these witnesses should be discounted as they are “paid professionals.” All of these professionals including Dr. Kaidar, Ms. Mosko, Ms. Danson, Dr. Radovanovic and Ms. Thorlaksdottir provided valuable evidence in order to assist me in the determination of what is in Liam’s best interests (as did Mr. Tissot’s witnesses) and to understand Liam’s challenges.
88It is evident from their testimony, in particular, the evidence of Dr. Kaidar, Ms. Mosko, Ms. Danson, and Ms. Thorlaksdottir, that Liam has experienced many challenges and while he continues to make excellent progress, he has struggled academically and emotionally at times. What is also evident from their testimony, as well as that of Mr. Tissot’s witnesses and Dr. McCabe’s witnesses who spoke of her relationship with Liam, is that Liam is a wonderful, caring boy who is now fluent in French. Many spoke of Liam’s amazing smile and his loving and cooperative nature. Despite his academic challenges, Dr. Kaidar and Ms. Mosko spoke of his perseverance and his kind disposition.
89Unfortunately, despite Liam’s struggles, I find that at times Mr. Tissot has failed to fully recognize those struggles and/or he has presented obstacles to Liam in obtaining the assistance he needs. For instance, Dr. Kaidar testified as to the recognition by both parents that Liam was struggling academically; however, in order for the psycho-educational assessment to proceed, Dr. McCabe had to bring a motion as Mr. Tissot would not agree. Ultimately, an order was made on consent that the assessment proceed; however, this should have been agreed to by Mr. Tissot in the first place so that the assessment could proceed expeditiously and Liam could obtain the further supports he needed. This may have been a push back by Mr. Tissot to exert some control as he felt marginalized; however, it was clearly not done in the best interests of Liam, who greatly needed support.
90Liam’s academic struggles were outlined in the testimony of Dr. Kaidar. Dr. Kaidar is a psychologist with an expertise in learning and attention issues. She conducts psycho-educational assessments which are the focus of her practice. Dr. Kaidar completed two assessments with respect to Liam. Dr. Kaidar also completed two reports, one dated February 21, 2014 and one produced May 22, 2015. In the latter assessment only Liam’s academic functioning was examined.
91Dr. Kaider concluded in her first report that Liam is a very bright boy with many strengths; however, she also concluded that Liam was academically underperforming in numeracy and literacy. In her opinion, Liam had far more strengths than weaknesses; however, he had areas of need in virtually all academic areas.
92Dr. Kaidar testified that she recommended in her first report, among many recommendations, that Liam receive remediation for reading two to three times a week. She also recommended Angus Lloyd for tutoring and that Liam continue with his occupational therapy but that he move towards the use of a computer and assisted technologies. Dr. Kaidar also testified that Liam needed in-class support in math and recommended the use of flash cards, drills and other supports to assist Liam.
93Dr. Kaidar further testified that Dr. McCabe had telephoned her approximately a month or two after she had completed her first report in which Dr. McCabe indicated that Liam was having problems with attention. Dr. Kaidar provided recommendations to the school so that Liam could remain focused in school as Dr. McCabe continued to raise concerns. Dr. Kaidar provided an Addendum to her report as a result.
94It was later suggested that an updated assessment be completed by Dr. Kaidar. Again, Mr. Tissot resisted as he wanted someone from Angus Lloyd (tutors) to complete the assessment and he wanted the assessment delayed. Once again this was not a reasonable approach as it was important to see what, if any, gains had been made by Liam as determined by Dr. Kaidar so that adjustments could be made if necessary.
95Dr. Kaidar reported in the reassessment that Liam continued to be a lovely, sociable, friendly and polite boy who had a great attitude and wonderful motivation. Dr. Kaidar found Liam to be the same only she did not have to push Liam when things were challenging, he “persevered beautifully” and worked even harder. She indicated that Liam performed very differently on the tests and that he had made “beautiful gains” in reading and math but that his biggest area of weakness was writing.
96Dr. Kaidar stated that it was very rare to see this significant gain in only one year and she attributed much of this gain to the support that Liam had been receiving through Angus Lloyd and in-class support in math. She testified that Liam's confidence was better but that it took significant effort by Liam to obtain average scores. On cross-examination, Dr. Kaidar testified that Liam was still underachieving in math fluency, reading fluency and writing. However, it was not as pervasive as it was the first time that Liam was tested. Dr. Kaidar had no concerns regarding Liam's ability to learn, his memory and language skills and her biggest concern was with respect to his written output.
97It is Dr. Kaidar's opinion that Liam continues to need support and that he would flourish in the Crestwood Roots program. She indicated that the program offers a smaller classroom setting and has much individualized support. She testified that Crestwood abides by the Ministry of Education curriculum, but Crestwood teachers move at a different pace and volume and they focus on skill acquisition in order for the child to become a better learner. When questioned by the Court, Dr. Kaidar indicated that Crestwood provides great support in math and writing. Dr. Kaidar stated that she knows less about the reading program offered at Crestwood than she does about the Angus Lloyd program. However, in her opinion Liam was now a reader and he did not need as much intense support so the remediation piece was not needed.
98Dr. Kaidar testified that Dr. McCabe was concerned regarding Liam's anxiety about going to school and his unhappiness at times about going to school. She indicated to Dr. McCabe that this was not her area of expertise and she recommended Dr. McCabe obtain other supports for Liam.
99Dr. Kaidar also testified that both parents provided an equal level of cooperation during the assessment process. She indicated that if Liam’s pursuit of bilingualism had a negative impact this would have shown up in his language and vocabulary and it did not.
100As recommended by Dr. Kaidar, Dr. McCabe took steps to obtain the assistance of Ms. Danson in order to determine the best school for Liam’s needs. While it is recognized that Dr. McCabe took the first step in consulting Ms. Danson, I do not find that this was an attempt to marginalize Mr. Tissot or an attempt to keep him out of the decision-making, but rather a desire to follow through with the recommendation of Dr. Kaidar as soon as possible. As testified to by both Dr. McCabe and Ms. Danson, Mr. Tissot then refused to allow Dr. Kaidar and Ms. Danson to speak to one another. Again, this refusal by Mr. Tissot was not in Liam’s best interests and was not putting Liam’s needs first.
101Dr. McCabe researched the best options for a school for Liam using information and criteria provided to her by Ms. Danson. There was no attempt to withhold this information from Mr. Tissot but rather Dr. McCabe shared all of the information and reached out to him as evidenced by her e-mail to him dated June 7, 2014. She provided contact names and numbers to Mr. Tissot and he chose not to follow up. In his evidence he criticizes Dr. McCabe as having gone to Crestwood without his consent in 2014 and that Dr. McCabe made a unilateral decision to enroll Liam in Crestwood in 2015. I accept that Mr. Tissot was fine with Liam attending Crestwood as corroborated by his e-mails but that his concern was that he did not want to pay for Crestwood. However, he made no thorough investigation into the public system to see whether the supports for Liam would be available as he provided no evidence as to what specialized programs were available for Liam at public schools given Liam’s needs.
102Another example of Mr. Tissot’s inability to always act in Liam’s best interests is with respect to his position on past and ongoing counselling for Liam. Ms. Thorlaksdottir was Liam’s counsellor. Ms. Thorlaksdottir is a psychoanalytic therapist. She has been practicing for 30 years, 21 of those years in private practice. She was first contacted by Dr. McCabe in December 2011 when Liam was 5 years-old. She was advised by Dr. McCabe that Liam was having emotional difficulties, he was showing signs of anxiety and emotionally shutting down. Ms. Thorlaksdottir also indicated that Liam’s teachers had reported that Liam was experiencing an inability to pay attention in class.
103Ms. Thorlaksdottir met with Dr. McCabe first as Mr. Tissot was out of the country. She asked Dr. McCabe to advise Mr. Tissot to contact Ms. Thorlaksdottir. Ms. Thorlaksdottir initially met with Liam on January 19, 2012. Subsequently she met with Mr. Tissot and Liam on June 25, 2012.
104Ms. Thorlaksdottir stated that the first part of Liam's treatment lasted approximately 6 months commencing on January 19, 2012. She met with both Dr. McCabe and Mr. Tissot on July 3, 2012 to advise of Liam's progress and in August of 2012 both parents decided that Liam was doing much better and that the regular sessions with Ms. Thorlaksdottir would cease.
105Ms. Thorlaksdottir testified that during the sessions she observed that Liam could be quite erratic, aggressive at times, his moods varied, but he could relate quite well and had the capacity to form good relationships. She observed that he had security within him, but somehow the trust within himself and others had been affected. She also noted that at times it was difficult for Liam to stay focused or to calm down.
106On many occasions Dr. McCabe brought Liam to the sessions and at times Liam wanted his mother to be in the room. However, Ms. Thorlaksdottir testified that for the majority of the time, her sessions were held alone with Liam. She noted that Liam’s range of emotion with Dr. McCabe was far greater and at times he was vulnerable, needy, angry and defiant. In the first six months she saw Liam only once with Mr. Tissot but observed that Liam clearly wanted to please his father and that there was great deal of caring between Liam and Mr. Tissot. Liam enjoyed engaging in activities with Mr. Tissot.
107At the end of the six months, Ms. Thorlaksdottir noted that Liam's anxiety had lessened; he was calmer and able to recognize some of his feelings and was more emotionally available. Overall, she indicated that Liam was better as observed by both his parents and teachers at school.
108Ms. Thorlaksdottir indicated that there were times when Dr. McCabe would telephone her to talk about Liam and see how he was doing. She was informed by Dr. McCabe in November of 2012 that there was less conflict between Dr. McCabe and Mr. Tissot and Liam was doing well. However, in April of 2013, Dr. McCabe asked Ms. Thorlaksdottir to see Liam again as Dr. McCabe indicated that Liam was showing signs of emotional difficulty.
109Mr. Tissot agreed to allow Ms. Thorlaksdottir to meet with Liam again which she did on May 17, 2013. At this meeting, Ms. Thorlaksdottir indicated that Liam presented very differently as he was highly anxious and was worried about coming into the session and was in fact refusing to come into the session. She felt that something had made him quite fearful. This behaviour continued for two or three sessions. She did not meet with Mr. Tissot during this time and after three or four sessions; the sessions were discontinued as discussed with Dr. McCabe.
110Ms. Thorlaksdottir testified that Liam showed more anger towards Dr. McCabe during these sessions, he was highly anxious, there was a sense of helplessness and Liam was anxious about showing and talking about his feelings. Liam was unable to enter into play and he was defiant. She stated that in June of 2013 she met with Dr. McCabe and urged Dr. McCabe and Mr. Tissot to obtain therapy or to see a mediator to address the ongoing conflict. She indicated that she was aware that the parties had contacted Dr. Radovanovic.
111From June of 2013 to August of 2013, Ms. Thorlaksdottir had additional contact with the parties and Liam. She testified as to a telephone conversation with Dr. McCabe in early June wherein they discussed the importance of Liam having telephone contact with Dr. McCabe if overnights with Mr. Tissot were increasing. She had another meeting with Liam and Dr. McCabe in mid-June and then met with Mr. Tissot the latter part of June. She saw Liam again on August 13, 2013 with Dr. McCabe.
112Ms. Thorlaksdottir testified that the last time she met with Liam was on December 13, 2013. She had received a telephone call from Mr. Tissot on December 6, 2013 asking for a session with Liam. Ms. Thorlaksdottir indicated to Mr. Tissot that she needed Dr. McCabe's consent. It was her understanding, as per a telephone message left by Mr. Tissot, that Dr. McCabe was consenting to Liam attending with her once again. Moments before she was to meet with Liam, Dr. McCabe telephoned expressing her concern that she had not given permission for the meeting.
113Ms. Thorlaksdottir also indicated that she would receive intermittent telephone calls from Dr. McCabe and occasionally Dr. McCabe would request a meeting to discuss how Liam was doing and any concerns with Liam. On cross-examination, Ms. Thorlaksdottir did acknowledge that she had many interactions with Dr. McCabe and possibly four or five meetings with Mr. Tissot. She did not meet further with both parents together. She indicated that Dr. McCabe telephoned in approximately April of 2015. Ms. Thorlaksdottir expressed that there was much going on including legal issues, a psycho-educational assessment and she had not seen Liam for a long period of time. By e-mail dated June 2, 2015, she advised the parties that she was closing the file and she recommended that the parties contact a psychologist, Dr. Fidler, to assist them further. In her e-mail, she states that Dr. Fidler “…has a strong awareness and expertise in supporting children who are experiencing difficulties related to their parents’ conflict and on-going unresolved issues.”
114On cross-examination, Ms. Thorlaksdottir acknowledged that Mr. Tissot interacted with Liam very lovingly and openly. Liam was happy and pleased with Mr. Tissot. She also indicated that Liam was interested in soliciting admiration from Mr. Tissot. She commented that there were some aspects of Liam being fearful of losing a parent and that Liam worked hard to obtain Mr. Tissot’s admiration in the sessions.
115Ms. Thorlaksdottir was of great assistance to the Court as she outlined the struggles that Liam was experiencing in 2012 and in 2013. She spoke of Liam presenting very differently in 2013 and that he was highly anxious. She also spoke of Liam being defiant and unable to enter into play. Ms. Thorlaksdottir testified that she wrote a letter to Dr. McCabe's previous lawyer dated May 31, 2013 at the request of the lawyer. She expressed that she was able to write a letter as it was her observation that after 30 years of practice, she was fully aware that some of Liam's anxiety stemmed from the difficult circumstances arising from each of his parents.
116It is evident that throughout Mr. Tissot's cross-examination of Ms. Thorlaksdottir, he was attempting to show the Court that Ms. Thorlaksdottir did not have his consent to proceed with the initial counselling for Liam and that she had met with Dr. McCabe on numerous occasions but had met with him only a few times. While on the one hand it appeared as though Mr. Tissot wanted to challenge Ms. Thorlaksdottir as not being neutral, (as he also felt that at one point she was weighing in on the residential schedule issue and had also written a letter to Dr. McCabe’s lawyer), it is important to note that at the time that Liam was receiving counselling in 2012, Mr. Tissot was involved in the consultation and meeting in determining whether Liam's counselling would end. He was also consulted in 2013 and had consented to the counselling for Liam. Additionally, Mr. Tissot turned to Ms. Thorlaksdottir in December of 2013 and requested a meeting with Ms. Thorlaksdottir with him and Liam without the consent of Dr. McCabe.
117This approach by Mr. Tissot is troubling as he fails to fully appreciate the ongoing struggles that Liam was and is experiencing. Mr. Tissot appears to downplay the necessity for Liam to have counselling (as he continues to do), yet he chose to thrust Liam into the middle of the conflict by bringing him to a meeting with Ms. Thorlaksdottir and misleading Ms. Thorlaksdottir into believing that he had the consent of Dr. McCabe. As indicated by Ms. Thorlaksdottir, Ms. Thorlaksdottir did not want Liam to feel rejected or upset nor did she want Mr. Tissot to get upset so she continued with the session. She did note, however, that she did not know whether it was appropriate or not for the session to take place and she stated on cross-examination that it was inappropriate for Mr. Tissot to have turned up with Liam when Ms. Thorlaksdottir had clearly stated to him that she required Dr. McCabe's consent. She testified that her sense was that Mr. Tissot needed to have her observe a positive interaction with Liam and that was part of the motivation why Liam was brought to the session. Again, this is not putting Liam’s best interests at the forefront.
118Whatever the source of Liam’s anxieties, it is apparent that Liam has struggled with anxiety and with attention issues at various periods of time. Some of these concerns were also observed by Ms. Mosko and Ms. Danson. After the assessment of Dr. Kaidar, Liam's sessions with Ms. Mosko increased to two times per week. Ms. Mosko testified that as Liam entered grade 3 he continued to have difficulty focusing and he was still having difficulty with written output. Assistive technologies were being introduced to Liam. On one occasion, Liam had expressed to Ms. Mosko that he was worried about failing a math test. Ms. Mosko reported that she was able to re-direct Liam to address his worry.
119In her June 3, 2015 progress report to Liam's parents, Ms. Mosko reiterated that Liam was having difficulty maintaining focus and continued to stare into space. She noted that Liam started to rock back and forth in his chair which had commenced in December of 2014. She also observed that when Liam would start to write he would take a bathroom break likely attempting to avoid the task. At this point, Ms. Mosko suggested that Liam see a social worker or psychologist to assist with attention issues. She also reported that Liam was still having difficulty with written output.
120During the fall of 2015, Ms. Mosko continued to provide regular reports to both parents in which she outlines that Liam is still chewing gum in class to remain focused, a visual timer is used to assist him with taking breaks, and Liam is still experiencing problems adding details to sentences. In her report dated October 29, 2015, Ms. Mosko reports that Liam is happy, social, but that he still requires breaks and will often stare into space and fidget. She reported that Liam’s teacher was continuing to scribe for Liam. Liam was not rocking back and forth and not taking regular bathroom breaks as she had observed previously. Ms. Mosko reported that Liam still required her to repeat instructions and provide reminders to him but he was able to go without a break on multiple occasions by using the visual timer.
121Ms. Mosko testified that from April of 2014 to current Liam has made much progress and has met many of his occupational therapy goals. Although Ms. Mosko did indicate that Liam still requires redirection, the rocking has stopped. Additionally, Liam is no longer resistant to writing and is motivated. On cross-examination by Mr. Tissot, Ms. Mosko indicated that she would not agree that Liam's focus is better as despite the fact he is no longer rocking, his teacher indicated that there are still difficulties and redirection is required. She also indicated that Liam enjoys using the computer but that he is not yet proficient and is still learning computer skills.
122Ms. Mosko believes that Liam still requires occupational therapy for his written output but that he is doing really well at school and he is happy. She observed that Liam is at a great school (Crestwood) and has an amazing teacher.
123Ms. Danson observed Liam in his classroom in grade 3 in approximately February of 2015. From her observations she noted that Liam appeared to be interested in learning but was unfocused as he needed lots of breaks and he had to get up and walk around or go to the bathroom. The teacher needed to refocus Liam on several occasions. It was her observation that Liam was a bright boy who needed a structured classroom setting and that information had to be “chunked” to him. She felt that Liam benefited from this kind of classroom setting.
124Ms. Danson indicated that she recommended Crestwood for Liam. She provided an outline of three schools to both parents and had a conversation with both of them. It was her understanding that she sent an e-mail to Dr. McCabe who forwarded the e-mail to Mr. Tissot. Ms. Danson recommended Crestwood and she indicated that it was a program where Liam would receive remediation throughout the day so he was not pulled out of the classroom as she was concerned that this may have been causing him anxiety. She felt that a program that combines all of these benefits for Liam would be better for him.
125Ms. Danson testified that she knew that Liam had experienced a series of stomach aches and anxiety with respect to going to school. It was her evidence that she did not see that in Liam in February of 2015. She observed all of his absences on his report card and commented that as Liam had the same school and the same teacher, she could not see any change in the school environment that would make Liam not want to go to school. She indicated to Dr. McCabe that this was something that should be looked into further.
126Ms. Danson attended Liam's classroom on November 10, 2015 for another observation. She noted that Liam was chewing gum which helped him remain focused and that he was able to get up and take quick breaks. She observed that Liam was engaged in the classroom which was structured. Liam was enjoying the classroom.
127On cross-examination, Ms. Danson testified that she could not see any behavioural anxiety on the part of Liam when she observed him in February and June of 2015. She also indicated that she does recommend public schools and has in the past. She testified that the public system could not offer a smaller class size as Liam has currently with 10 children in the class. She further indicated that there often are not as many resources available in the public system but that it depended on the school. She did not feel that it was an option for Liam to place him in the public school system. She acknowledged that it was difficult for parents who may not have the means to pay for private school.
128Ms. Danson testified that it was not a big change for Liam to move from Children's Garden to Crestwood. She felt that Liam adapted well to the change so far. When questioned by the Court as to why the public school system would not be appropriate for Liam, Ms. Danson indicated that class size was one reason but also the amount of resources that would be available to Liam as Liam has not been diagnosed with a learning disability. Ms. Danson feels that without this diagnosis, Liam would not receive the support that is needed. She also indicated that she observed Liam's teachers interacting with him and redirecting him. She did not foresee that happening in a bigger classroom.
129There have been times that Liam has struggled with anxiety. Much of Liam's struggles with anxiety coincide with the increased conflict between his parents. Dr. McCabe first contacted Ms. Thorlaksdottir with respect to Liam's anxiety issues in December of 2011. This was the time period referred to as a “blip” by Mr. Tissot when in his mind it was determined that there was not going to be a reconciliation and he instructed his lawyer to proceed with the divorce. Liam was in counselling from the beginning of 2012 until August of 2012 when both parents decided that Liam was doing much better. Not surprisingly, this was the period of time that the parties were getting along again.
130In November of 2012, Ms. Thorlaksdottir testified that Dr. McCabe had been in touch with her and that Liam was doing well. Once again it appears that conflict was minimized between the parties during this time. Unfortunately, as testified to by both parties, there was an incident in April of 2013 that resulted in Dr. McCabe calling 911 and subsequently changing the locks at her home. Dr. McCabe testified that she found Mr. Tissot to be threatening and frightening. Mr. Tissot’s conduct that evening was corroborated by Constance McCabe as was the fact that he had been drinking excessively. Constance McCabe also testified as to her concerns with Mr. Tissot’s anger issues. She explained that she had spoken to Mr. Tissot on various occasions regarding his anger which she explained she witnessed again during this incident.
131After this incident Mr. Tissot came to the realization that there was to be no reconciliation. Shortly thereafter, Liam experienced difficulties once again with anxiety and returned to counselling with Ms. Thorlaksdottir where he presented as a highly anxious and at times defiant child who would not engage in play therapy. Once again, it was no coincidence that the conflict between the parties had escalated and that Liam was struggling.
132Liam continued to struggle in the fall of 2013 and the conflict between his parents had not subsided. Dr. Radovanovic testified that she was not able to assist the parties in reaching a resolution after two sessions of mediation in September 2013. She terminated mediation as she felt there was a definite impasse. She indicated that given the length of time since separation she found that the emotional interaction between the parties was somewhat more than other couples who attend for mediation. Dr. Radovanovic found that during both sessions the parties were “still making jabs” at one another, and were fairly upset with one another. She indicated that the sessions were especially difficult for Mr. Tissot as he became quite frustrated, agitated and angry at times.
133During the first session Dr. Radovanovic indicated that she had to separate the parties at one point. She attempted to calm Mr. Tissot down by removing him from the room. A few minutes later the parties were able to continue. She further testified that Mr. Tissot was frustrated which was making it difficult to get Mr. Tissot to focus on the tasks at hand which included addressing Liam's needs and schedule.
134In the second mediation session, Dr. Radovanovic testified that it was more intense and that Mr. Tissot's anger and frustration could get the better of him. Towards the end of the session she requested that both parties lower their voices as they were being emotional towards one another and it was becoming heated. She reminded the parties that there was a young child in the waiting room. Dr. Radovanovic testified that Dr. McCabe complied but that Mr. Tissot had great difficulty adhering to Dr. Radovanovic’s request. She explained that she attempted to get Mr. Tissot to leave but Mr. Tissot followed Dr. McCabe into the kitchen area which was off the waiting room. He continued to speak to Dr. McCabe in a loud and intense manner. Dr. Radovanovic stated that this was not only uncomfortable for her but also for everyone else. Eventually Dr. Radovanovic had to coax Mr. Tissot out of the office.
135Dr. Radovanovic indicated that she spoke to Ms. Thorlaksdottir between the first and second session after obtaining both parents’ permission. She explained that she did this as Dr. McCabe and Mr. Tissot were presenting very different views of Liam. She felt that this was different from the first mediation sessions in 2009 as then the parties had presented with more concordant views but had some differences. In particular in 2013, Dr. McCabe expressed concern regarding Liam's anxiety and certain behaviours. Dr. McCabe expressed that there was a pronounced aggression in Liam's behaviour. In contrast, Mr. Tissot reported that Liam was doing fine and he did not see the concerns that Dr. McCabe did.
136As a result of her conversation with Ms. Thorlaksdottir, Dr. Radovanovic spoke to the parties to provide them with feedback on how Liam's therapist was viewing Liam. She outlined that the intent was to help both parents focus back on Liam and bridge any difference in how they viewed Liam's functioning. Dr. Radovanovic outlined that she was able to ascertain from Ms. Thorlaksdottir that Liam's behaviour had regressed since Ms. Thorlaksdottir's initial contact with Liam and she felt that Liam was not functioning as well.
137Despite the difficulties in the sessions, Dr. Radovanovic believed there was a possibility of an interim agreement between the parties. She advised the parties that she was open to further sessions with them. Both parties were provided with time to think about the options. Dr. Radovanovic stated that the following day Mr. Tissot advised her by e-mail that he was not agreeable. Dr. Radovanovic explained that she also offered to meet with each parent individually so as to try to assist the parties in reaching a resolution and narrow their differences to avoid proceeding in court arguing over Liam's schedule. Dr. McCabe agreed and came in for one visit while Dr. Radovanovic indicated that Mr. Tissot did not feel the need to come in.
138Dr. McCabe testified that Liam continued to struggle in 2014 as she asserts that he underwent significant changes in the time sharing schedule. From December 2014 to May of 2015, Dr. McCabe testified that Liam had numerous stomach aches, he did not want to go to school and at times he was defiant and angry with her. It is also not a coincidence that the conflict between the parties was high. There is evidence of Mr. Tissot not returning Liam from visitation in December 2014. In January of 2015 Liam was not returned to Dr. McCabe and Liam was put in the middle of the conflict by having to speak to Dr. McCabe on the phone. In April of 2015, Liam's First Communion took place without Mr. Tissot being present.
139I find that at times Mr. Tissot's behaviour has been very concerning. I accept Dr. McCabe’s evidence that Mr. Tissot has had trouble controlling his anger, contributing to the ongoing conflict. This was corroborated by Dr. Radovanovic as well as Constance McCabe. Mr. Tissot has also acted inappropriately by directly involving Liam in the conflict. In addition to the incidents mentioned above, I accept Dr. McCabe’s evidence that examples of Mr. Tissot’s inappropriate behaviour include Mr. Tissot physically grabbing Liam out of the car, chastising Dr. McCabe in front of Liam, using inappropriate language and gestures to speak to Dr. McCabe in front of Liam and refusing to return Liam as scheduled to Dr. McCabe on a number of occasions, thereby placing Liam directly in the conflict.
140Another example includes Mr. Tissot showing up at Dr. McCabe's door and demanding that Liam come with him as Mr. Tissot stated that it was his scheduled time with Liam. On this occasion Mr. Sossin accompanied Mr. Tissot. I accept the evidence of Ms. Sutherland that this incident was videotaped by Mr. Sossin. I did not find the evidence of Mr. Sossin to be credible on this issue as at first he testified that he did not own a video camera and then he mentioned that there could have been a phone. He then further indicated that the incident was not videotaped at all. His recollection of the event was questionable. I question why Mr. Sossin even attended at Dr. McCabe’s home other than for the purpose of supporting Mr. Tissot as a witness and to videotape the incident as corroborated by the evidence of Ms. Sutherland. What does not seem to be challenged is that Liam was inside Dr. McCabe's home and once again thrust into the centre of the conflict.
141I also accept Dr. McCabe's evidence, as corroborated by e-mails from Mr. Tissot to counsel for Dr. McCabe as recently as September 2015 and as corroborated by the evidence of Dr. Radovanovic, that Mr. Tissot has made litigation and financial threats against Dr. McCabe. Mr. Tissot has also acknowledged that on his own volition he has chosen not to work since 2010, leaving Dr. McCabe primarily responsible for Liam's financial needs. Although Mr. Tissot has provided some financial support for Liam, Dr. McCabe has been the parent who primarily supports Liam and who ensures that he receives the proper supports. Additionally, I also accept Dr. McCabe’s evidence that Mr. Tissot tried to have her terminated by the Granite Club by attempting to convince Club officials that she was stealing clients from them or had an intention to do so. This again is not putting Liam's best interests at the forefront as any financial devastation by either party, including loss of employment directly impacts Liam.
142However, despite Mr. Tissot’s inappropriate behaviour at times, the blame for the conflict does not lie solely with Mr. Tissot. I accept Mr. Tissot’s evidence that Dr. McCabe has not been without fault in this conflict. I accept Mr. Tissot’s evidence, and that of Ms. Sutherland, that in the early years of Liam’s life Dr. McCabe did not allow Mr. Tissot to play a significant role. Although Dr. McCabe denied that she refused to allow Mr. Tissot to feed or bathe Liam or to take on other responsibilities with Liam in the early years, I accept Mr. Tissot’s evidence that this occurred and that he felt marginalized. This was corroborated by Ms. Sutherland.
143Ms. Sutherland was Liam’s nanny for over 6 years. She testified as to her instructions from Dr. McCabe that she was to feed and bathe Liam and put him to bed. She indicated that she was not allowed to leave Mr. Tissot alone with Liam but that she did after a time as she did not see the necessity of being Mr. Tissot’s “surveillance officer”. She felt Mr. Tissot was capable of caring for Liam. She corroborated Mr. Tissot’s evidence that he was frustrated and repeatedly came to her to express his concern that she as Liam’s nanny could do more with Liam than he could. She testified that she did not see the reason for this and she felt bad for Mr. Tissot that no one had stood up for him.
144Ms. Sutherland testified that Mr. Tissot always wanted to be involved with Liam. In the early years, Mr. Tissot would complain to Ms. Sutherland that he could not hold Liam or be involved with Liam. Dr. McCabe always wanted Liam in the same routine. She testified that she did not think that Dr. McCabe had confidence in Mr. Tissot. She did not see anything wrong with what Mr. Tissot was doing with Liam. Ms. Sutherland clarified that even when Dr. McCabe was not around, Mr. Tissot was not allowed to care for Liam. She felt very sad and distraught and wondered whether this was normal. She did not think this was fair. She felt that Mr. Tissot had no chance as Liam's father to have any involvement. She also found Mr. Tissot to be very compliant with what Dr. McCabe wanted to do. She saw Mr. Tissot as under Dr. McCabe's control.
145Ms. Sutherland testified that Mr. Tissot has a very caring, loving relationship with Liam and wanted to be involved with him. Mr. Tissot would wrestle and play with Liam. Mr. Tissot always spoke French to Liam. She explained that Mr. Tissot loves Liam and that Liam loves him and that they have a sweet relationship. Liam enjoys spending time with Mr. Tissot.
146Much of Ms. Sutherland's testimony centered around whether she was fired by Dr. McCabe or whether she quit her employment as Liam's nanny. An incident had occurred in May of 2013 when Ms. Sutherland was attending an event at Liam's school at Dr. McCabe’s request. Ms. Sutherland testified that she was distraught as the parties were back in court that day and she was feeling sad for Liam. She acknowledged that upon hearing a song “Somewhere over the Rainbow” during the assembly at the school, she started to cry. It was her evidence that she was devastated as to what was happening to Liam. The principal saw that she was upset and spoke to her.
147The text message and e-mails sent to Dr. McCabe shortly after the incident by Ms. Sutherland support Dr. McCabe's evidence that Ms. Sutherland quit her employment as Liam's nanny. In her e-mail of May 3, 2013, Ms. Sutherland expresses that the parties are both great parents and that Liam loves them both. She explains that she is “…heartbroken about the whole situation.” In her text message of May 16, 2013 she speaks of being “…physically, mentally and emotionally finished” and that “I have given it my all.” She later offers to stay until the end of June in her e-mail of May 17, 2013. Dr. McCabe in her e-mail of May 18, 2013 to Ms. Sutherland indicates that she hears that Ms. Sutherland needs to take some time and step back for awhile.
148There is no doubt that Ms. Sutherland was concerned for Liam as the conflict continued between the parties. In a series of e-mails dated May 17, 2013 addressed to Dr. McCabe she outlines her concerns about the ongoing conflict and its effect on Liam. She states that she is “grief stricken for your child” and that she is “broken in grief.” I accept that she felt thrust into the middle of a very difficult situation and wanted what was best for Liam. Ms. Sutherland admitted that despite what she stated in the e-mail dated May 3, 2013 written by her and addressed to both parties, she lied at the time with respect to being under the care of her health care professional. Ms. Sutherland clarified that her brother, who is a medical doctor, had told her to stay out of matters between Dr. McCabe and Mr. Tissot.
149Ms. Sutherland was challenged on cross-examination with respect to an e-mail she wrote dated December 7, 2011 addressed to Mr. Tissot wherein she indicated that Mr. Tissot had been abusive to Liam. Her answer on cross-examination when asked whether the statement made in her e-mail was truthful was “what is truth?” She also testified that “abusive” was a word that Dr. McCabe had put into her head regularly but she clarified that she never saw Mr. Tissot being abusive to Liam.
150She explained that on this occasion Mr. Tissot had lost his temper as he wanted Liam to visit with him and Mr. Tissot's father but Liam was focused on a video. She clarified that Mr. Tissot was frustrated and that Liam was not upset at all. She viewed this frustration as being with Dr. McCabe rather than Liam. In an e-mail to Mr. Tissot dated November 17, 2013, Ms. Sutherland asserted that she needed to clarify the incident so that it was not misrepresented. She also clarified that she did offer to assist Mr. Tissot and his lawyer in November 2013. She stated that as Dr. McCabe's employee, she felt caught between “a rock and a hard place”. She wished that someone would speak up for Mr. Tissot as she stated that from “day one” she had always seen his point of view and that he was not allowed to care for Liam.
151There were certainly aspects of Ms. Sutherland's testimony that were concerning; in particular, her position that she was terminated by Dr. McCabe and her now downplaying of the incident wherein she had originally deemed Mr. Tissot's behaviour with Liam to be abusive. She was no doubt upset with Mr. Tissot in December of 2011 in how he had handled the situation with Liam and as a result wrote an e-mail to him. It may be her position now that the e-mail was misunderstood and was not intended to paint Mr. Tissot as abusive to Liam; however, it is evident that she was extremely upset with Mr. Tissot after this incident and the e-mail is a reflection of that. I note, however, that there was no other evidence presented to Ms. Sutherland on cross-examination wherein she had expressed concerns with Mr. Tissot's treatment of Liam. She further denied that Mr. Tissot had ever berated her as alleged by Dr. McCabe.
152Despite my concerns with these aspects of Ms. Sutherland's testimony as outlined, I accept that Ms. Sutherland’s primary focus was and is her care and concern for Liam along with her desire to ensure that Liam was cared for appropriately by both parents and that he has an excellent relationship with both parents. She was thrust into an unenviable situation from the outset. She spoke of times when the parties were getting along well but also of times when the conflict was escalating. I accept that her concern remained that of Liam’s well-being. No matter how she ceased to be Liam's nanny, this would have had a profound impact upon Liam to lose a caregiver of six years’ duration. No doubt this loss contributed to the anxiety and stress that Liam was struggling with in May of 2013 which necessitated his return to counselling with Ms. Thorlaksdottir.
153Mr. Tissot’s frustration and sense of being marginalized was also addressed by Dr. Radovanovic as she testified about the first mediation sessions in 2009. She explained that Mr. Tissot was upset that the marriage was ending, but also testified that she did observe that when Dr. McCabe was concerned and anxious about Liam's functioning, when emotionality was high between the parties, some of Dr. McCabe's behaviours appeared to be less flexible and rigid in scheduling Liam's time with Mr. Tissot.
154Dr. Radovanovic testified that Dr. McCabe's alleged rigidity around Liam's schedule was one source of frustration for Mr. Tissot, especially in 2009; however, she also stated that much frustration for Mr. Tissot was due to the fact that the marriage had ended. Dr. Radovanovic also indicated that she agreed with Mr. Tissot's statement that the more rigid Dr. McCabe would become, the angrier Mr. Tissot would get. She indicated that there was a “reciprocity of certain vulnerabilities and weaknesses in each” party which had also been reported by the parties’ marriage counsellor Mr. Costello. Dr. Radovanovic further testified that there was a mutual influence at times as Dr. McCabe would become more anxious and rigid and Mr. Tissot would become angrier, combative and frustrated and would blurt out inappropriate statements. She acknowledged, as set out in her report, that Dr. McCabe could speak to Mr. Tissot in an abrupt and condescending manner when she was upset. Dr. Radovanovic also acknowledged that Mr. Tissot had reported to her his frustrations in not being allowed to be involved with Liam.
155Despite the tension and having to separate the parties in the first session, Dr. Radovanovic outlined that there were some positives that she noticed with the parties in 2009. She expressed that there were some upswings in terms of the quality of the parental relationship and the mutual ability to speak calmly about Liam and agree on some matters. She indicated that the difficulty was that there was no stability. There would be “upswings and downswings” and the deterioration of the relationship again. She acknowledged that this was only in the first year since separation and that this would impact the stability of the relationship.
156Dr. Radovanovic also clarified that in 2009, it was clear that Mr. Tissot longed for reconciliation throughout most of the mediation process and stated that in the sessions. She felt that Mr. Tissot was less able to control his anger because there was no reconciliation and that he struggled with the end of the marital relationship. It was also her observation, based on the discussions between the parties in mediation, that during transitions when Liam was present, there was conflict between the parties.
157Dr. McCabe has made appropriate educational and medical decisions for Liam and she has a close and loving relationship with Liam as corroborated by the evidence of Constance McCabe and Dr. Mussett. She has also shared information with Mr. Tissot regarding Liam's education and ongoing struggles. However, I do find that at times Dr. McCabe has not fully supported or encouraged Mr. Tissot's relationship with Liam. Counsel for Dr. McCabe submitted that Mr. Tissot’s complaints about Dr. McCabe are all historical. I do not agree as some recent events cause me concern.
158Both Dr. McCabe and Mr. Tissot testified as to Liam's Baptism and First Communion. The parties had a difference of opinion with respect to whether Liam should be baptized in the Catholic Church. However, as is evident from the testimony of Father Casper, who was called as a witness by Dr. McCabe, Dr. McCabe had contacted Father Casper when she was pregnant regarding scheduling Liam's Baptism. This was prior to finalizing this issue with Mr. Tissot and obtaining his consent. This resulted in Mr. Tissot's mother having to quickly travel from France in order to attend this very important event in Liam's life. This also created more tension between the parties.
159Both parties spoke of the conflict surrounding Liam's Baptism and subsequent First Communion. While I accept that Dr. McCabe encountered frustration with Mr. Tissot's refusal to cooperate with Catechism lessons for the First Communion, resulting in Dr. McCabe having to teach Liam on her own with the support of the Church, Mr. Tissot should have been provided with the date of Liam's First Communion. Dr. McCabe did not even notify Mr. Tissot of the finalized date and the event was held without him. Undoubtedly this would have been upsetting to Liam and another cause of concern for him as the conflict between his parents continued.
160Dr. McCabe testified that her intent was to do what was in the best interests of Liam and avoid conflict at his First Communion that had occurred surrounding Liam’s Baptism. She also testified that Mr. Tissot had shown no interest and that had he shown interest, she would have included him. However, this significant event in Liam's life was for Liam not for Mr. Tissot and one which Liam no doubt would have liked to have shared with both of his parents. Dr. McCabe did not provide the opportunity for Mr. Tissot to attend and denied Liam the opportunity to have both of his parents and Mr. Tissot's extended family present at a very important event in Liam’s young life. This was not putting Liam's best interests at the forefront.
161Additionally, Dr. McCabe testified on cross-examination that it is important for Liam to have a healthy, secure relationship with Mr. Tissot and important for Liam to have happy times with his father. However, when questioned as to whether Liam loves Mr. Tissot, Dr. McCabe answered that this was a tricky question and that she could not answer this on Liam's behalf. On re-examination in an attempt to clarify her answer, Dr. McCabe testified that she hopes that Liam loves his dad and that his dad loves Liam. However, she felt that this question was better answered by Mr. Tissot. She knows that Liam loves her and her hope is that Mr. Tissot and Liam have a loving relationship as this is healthy and important for both Liam and Mr. Tissot.
162It is troubling that Dr. McCabe was not able to answer this question. Ms. Sutherland and Mr. Tissot’s many other witnesses were able to speak to Liam’s love of his father, but not Dr. McCabe. If a parent is actively encouraging the relationship between the child and the other parent, one would think that this question could be answered easily in the affirmative. Dr. McCabe’s failure to do so does cause me concern. I question whether Mr. Tissot will ever be able to gain the trust and confidence of Dr. McCabe with respect to his relationship with Liam.
163The Court heard much evidence about Mr. Tissot's loving relationship with Liam from numerous witnesses while Dr. McCabe and Constance McCabe downplayed Mr. Tissot's involvement, relegating him at times to a playmate for Liam. This theme was continued by counsel for Dr. McCabe in his closing submissions when he suggested, in reference to Mr. Tissot and his relationship with Liam, that parenting was more than just doing activities with a child.
164Dr. McCabe also focused on how imperative it was for Liam to spend time with her family in Prince Edward Island each summer. She repeated this many times in her evidence. Dr. McCabe testified that in the past Liam had spent four to five weeks each summer in Prince Edward Island. At times it appeared that Dr. McCabe's interests in Liam spending time in Prince Edward Island with her family was more important than Liam spending time with Mr. Tissot.
165Mr. Tissot has many strengths with respect to parenting Liam which are often overlooked. It is apparent that he does have a warm and caring relationship with Liam. Mr. Tissot has also taught Liam to speak French to the point where Liam is strong in both English and French which will only assist Liam in the future. Mr. Tissot works with Liam on his math and on his reading skills as corroborated by Julia Harper. While Mr. Tissot’s behaviour at times has not been exemplary, I do accept that he has a positive, loving relationship with Liam and has much to offer Liam.
166Despite his concerns of marginalization, Mr. Tissot acknowledged in his evidence that Dr. McCabe is a good mother. However, he stated that her level of rigidity and level of concern with respect to Liam was too much. He felt that it was beyond normal. Mr. Tissot further acknowledged that Liam loves Dr. McCabe and that she has made good educational and medical decisions for Liam. He conceded that Dr. McCabe has done a good job of looking after Liam's needs. It is his position that Liam does not have ongoing anxiety problems, but he does acknowledge that Liam still has some challenges academically.
167Liam has resided with Dr. McCabe in a stable environment since birth. As acknowledged by Mr. Tissot, despite the conflict between the parties, Dr. McCabe has made appropriate educational and medical decisions for Liam. Dr. McCabe has searched out resources for Liam in order to support him with his academic challenges and to provide the best for him so that he is able to overcome these challenges. Dr. McCabe has also ensured that Liam has obtained appropriate tutoring, occupational therapy and other supports which has been financially challenging for her. She has followed the advice of professionals and has sought out their advice when needed. Mr. Tissot raised concerns that perhaps this professional advice was sought out too frequently and that there were too many professionals involved; however, he does not seem to fully appreciate the struggles that Liam has had to contend with and the struggles that will no doubt continue for Liam if the parties do not end this conflict. Mr. Tissot’s refusal to allow Liam to obtain support from Dr. Fidler, a well-respected psychologist who deals with high conflict matters, is very troubling.
168The Court was not able to ascertain Liam's views and preferences. There was no section 30 assessment conducted pursuant to the Children's Law Reform Act, nor was the Office of the Children's Lawyer appointed to assist the Court. However, what is clear from the evidence of the professionals who have worked closely with Liam is that there are ongoing concerns academically, concerns with attention and at times concerns with anxiety. Liam is also still in the middle of his parents’ ongoing conflict. He is doing much better but supports must continue to be in place for Liam to ensure that he thrives and overcomes any obstacles that he may continue to encounter. Counselling for Liam is imperative which is supported by Dr. McCabe.
169It is in the best interests of Liam that Dr. McCabe have sole custody. As indicated, neither parent is without fault in this ongoing conflict; however, Dr. McCabe has been the parent who has provided stability and consistency to Liam. She has continuously supported Liam's educational and medical needs and Liam has resided with her in the same home since birth. It is important that this stability be maintained for Liam. This is not to suggest that Mr. Tissot should not be involved in important issues in Liam's life. As indicated, Dr. McCabe has proposed that she consult with Mr. Tissot prior to making major decisions which is appropriate. The provisions set out in the order below allow for input and opinions of Mr. Tissot to be considered with respect to major medical and educational decisions. Both parents shall also be guided by the principles as set out in the order below in an effort to reduce the conflict and provide peace for Liam which he so deserves.
170Most importantly, both parents need to be cognizant of the fact that most of Liam's life has been spent in the middle of the conflict created by them. This is so damaging to a child and the conflict must end. Liam deserves no less.
Issue #2
What residency or access arrangements are in the best interests of Liam, including holiday time?
171There have been many access orders in place since the parties separated in 2008. Initially, Mr. Tissot shared time with Liam on Mondays and Wednesdays (not overnight) and on the weekend. In the early years given Liam's age, Mr. Tissot's weekend access was for a few hours each Saturday. Eventually this progressed to an overnight on alternate weekends. As indicated by the parties, their relationship improved between 2009 and early 2013 such that the access order that was in place was not strictly followed. Dr. McCabe testified that Mr. Tissot on his own initiative determined that Liam should have one bed and for a period of time he did not exercise overnight access but visited with Liam in Dr. McCabe’s home.
172Pursuant to the order of Czutrin J. dated June 4, 2013 (which was made on consent after litigation commenced again after the incident in April 2013), Mr. Tissot had access to Liam Mondays and Wednesdays (not overnight) and Friday overnight to Saturday. After Labour Day that year, access was to change to alternate weekends from Friday overnight to Sunday and every Wednesday from 3:30 p.m. to 7:30 p.m. Summer access was also dealt with in the order and another term of the order was that the parties were to go back to mediation with Dr. Radovanovic.
173Dr. McCabe contends that an agreement was made with the assistance of Dr. Radovanovic to expand access to include an additional Monday; however, Mr. Tissot changed his mind. As indicated previously, mediation was ultimately unsuccessful.
174Further changes were made to the access schedule. Dr. McCabe testified that Liam started to become ill and was run down. She indicated that she had difficulty getting Liam to attend school and that Liam was confused.
175Dr. McCabe relayed an incident that occurred in April of 2014. Liam had a virus and was pushed at school and one of the spots on his back that had developed as a result of the virus, was scratched. Dr. McCabe testified that Liam had a complete breakdown at school and could not stop crying. She indicated that Liam has had at least three such episodes at home, where he has not been able to stop crying, for no apparent reason. These would occur after he came home from spending a weekend with Mr. Tissot.
176After the trial in November 2014, Mr. Tissot's access with Liam was expanded to include additional overnights. As set out previously in these Reasons, it is Dr. McCabe's position that the conflict escalated and that from December 2014 until May of 2015 when the Minutes were rescinded, Liam's inability to cope and stay at school was concerning.
177Once the Minutes were rescinded, the parties reverted back to the order of Czutrin J. dated February 14, 2014. As set out in the order, Mr. Tissot shared time with Liam on alternating Mondays, after Dr. McCabe's weekend with Liam, from school dismissal or 3:30 p.m., whichever was sooner, until 6:30 p.m. Liam also shared time with Mr. Tissot every Wednesday from school dismissal or 3:30 p.m., whichever was sooner, until 7:00 p.m. and every other weekend on Friday from school dismissal or 3:30 p.m., whichever was sooner, until 6:30 p.m. on Sunday.
178Dr. McCabe's evidence is that once the parties reverted back to the access schedule as set out in the Czutrin order, Liam was well and settled. However, she contends that over the summer of 2015, more litigation took place surrounding Father's Day and summer access. It is her position that this resulted in a summer schedule that was chaotic and Liam did not adjust well. She testified as to many difficulties, including Liam having “a meltdown” when she picked him up one day from a baseball summer camp that Mr. Tissot had enrolled Liam in rather than allowing Liam to stay with her longer in Prince Edward Island. She further testified that Mr. Tissot presented difficulties for her in arranging her summer vacation with Liam to Prince Edward Island and Liam was experiencing sleep disturbances as he did not know where he was at times. She contends the problems were further exacerbated when Mr. Tissot kept Liam with him overnight in September of 2015 despite the fact that the parties had reverted back to the Czutrin J. order of February 14, 2014 when the Minutes were rescinded in May of 2015.
179In contrast, Mr. Tissot denies that Liam was experiencing any difficulties during the time when access was expanded to include additional overnights with Mr. Tissot. He contends that there was confusion after the summer months as the parties had shared time equally over the summer and he was not sure what order was to be in place once the summer schedule ended. He testified that he kept Liam at his home on the Sunday evening in September as he understood that the previous time sharing schedule which allowed for him to have Liam overnight on Sundays in addition to other overnight time was to be in place. It is Mr. Tissot's position that he had no intention of retaining Liam on a long-term basis and that Dr. McCabe did not have to resort to telephoning the police and exposing Liam to the conflict. He further contends that Dr. McCabe denied him access to Liam the following Wednesday in defiance of the Czutrin J. order.
180As previously indicated, given the parties were unable to resolve this issue the matter ended up in court once again. Pursuant to my order dated October 1, 2015, the Czutrin J. order dated February 14, 2014 was to remain in place pending trial so that Liam did not encounter yet more change when the matter was to be determined at trial shortly. This is the schedule currently followed by the parties.
181It is Dr. McCabe's position that Liam is doing better at Crestwood despite all the conflict; however, she is very concerned about any more changes for Liam. It is her position that Mr. Tissot had additional overnight visitation with Liam, but that Liam had significant anxiety and struggles throughout that period. She does not believe that it is in the best interests of Liam to extend Liam's time with Mr. Tissot given Liam's ongoing struggles with anxiety and academically.
182Dr. McCabe testified that by having the period of additional overnights, it became clear that the additional overnights proved to be difficult for Liam and greatly affected him on a daily basis resulting in many missed days at school. She contends that the additional overnights did not work as they led to a decline in Liam's health, impacted his behaviour, his ability to learn and also affected his overall happiness. It is her position that Liam is now settling down as there is consistency in the schedule and no further changes in the schedule would be in Liam’s best interests.
183Dr. McCabe agrees that the parties should minimize contact and that they are doing so by having all transfers take place in a neutral location which is at the concierge section of Mr. Tissot's condominium. She contends that this also provides a separate room for Liam's hockey and other equipment which is substantial. She does all the pickups and drop offs of Liam. She does not believe it would be in Liam's best interests or the school's best interests to have transitions take place at school. She is not agreeable to Sunday overnight visitation or Wednesday overnight visitation as requested by Mr. Tissot as she believes that by avoiding transitions on Monday morning this allows Liam to start the week fresh and there is no risk of any of his belongings going missing.
184Counsel for Dr. McCabe provided an alternative position to the Court in his closing submissions only in the event that the Court was inclined to increase Mr. Tissot’s time with Liam, which he emphasized is not Dr. McCabe’s preference. Dr. McCabe’s alternative position is that Mr. Tissot share time with Liam on alternating weeks from Thursday to Sunday which will still allow Dr. McCabe to ensure that Liam is settled and ready for the week on Sunday night. There would also be the elimination of the weekly Wednesday visits.
185As indicated, it is Mr. Tissot's desire to spend additional time with Liam. He strongly feels that Liam is doing well in school and outside of school. He feels that Liam with only benefit from spending additional time with Mr. Tissot.
186Mr. Tissot testified that he wants to move forward and that there is no reason why Liam, who is now nine years of age, should not have increased time with Mr. Tissot which would benefit Liam. He asserts that the access schedule provided by Dr. McCabe increases the number of interactions between the parties which increases conflict and is not in Liam’s best interest. It is Mr. Tissot's position that interaction between the parties needs to be reduced.
187Mr. Tissot's proposal is that he would share time with Liam on alternate weekends from Friday after school to Monday morning return to school and on Tuesday morning if it was a long weekend. He would also spend every Wednesday after school to Thursday morning to school with Liam and alternate Mondays from after school to Tuesday morning return to school. He contends that the schedule is similar to what is working now but by adding the overnights, this provides consistency and predictability. It also reduces the interactions between the parties. He also seeks one-half of all holiday time with Liam. Mr. Tissot clarified that he is seeking to have Liam with him 6 nights out of 14 nights, but that he is flexible as to which nights he has Liam.
188As I have already expressed in these Reasons, many of Liam's struggles coincide with the increased conflict between his parents. Liam enjoyed a period of relative calm from 2009 to early 2013 apart from early 2012 when Liam attended counselling with Ms. Thorlaksdottir with respect to some anxiety concerns. Unfortunately, the conflict greatly escalated after April 2013 to the detriment of Liam.
189There have been many changes for Liam even since the order of Czutrin J. of February 14, 2014. Once the Minutes were signed in November 2014, Liam's time with Mr. Tissot increased. Once the Minutes were rescinded in May of 2015, Liam's time decreased with Mr. Tissot providing yet another change for Liam. The summer of 2015 brought another schedule for Liam. Understandably all of these changes would be difficult for Liam. All the while the conflict between the parties continued as both asserted their positions as to what they believed to be in the best interests of Liam. More litigation ensued which once again thrust Liam into the middle of the conflict.
190There is no doubt that Liam needs stability and calm. He has made wonderful gains academically and both parents indicate that he is stable at present. Many witnesses testified that Liam is a happy, pleasant and wonderful nine-year-old boy who loves both his parents. Liam should be allowed to further develop his relationship with both of them.
191As indicated, Mr. Tissot called a number of close friends as witnesses. They are all very supportive of Mr. Tissot’s position and spoke of a warm, loving relationship between Mr. Tissot and Liam. Mr. Finkle, Mr. Sossin, and Ms. Griffiths all described many activities that they have engaged in with their children with Mr. Tissot and Liam. These included activities such as canoeing, camping, rock climbing, tobogganing, and cooking.
192All of these witnesses spoke very highly of Mr. Tissot with Mr. Finkle describing Mr. Tissot as a great father who is very loving and has a natural relationship where nothing is forced. He described Mr. Tissot as having a positive energy, always being happy, compassionate and faithful. Mr. Finkle indicated that he admires Mr. Tissot for the manner in which he has handled challenges with Liam. He indicated that Mr. Tissot had done more with Liam by the time Liam was school-aged, than Mr. Finkle had done in his entire childhood. Counsel for Dr. McCabe asserted in closing submissions that Mr. Finkle’s evidence should not be taken as credible as he had clearly been assisting Mr. Tissot with his evidence and he had spoken to Mr. Tissot with respect to his evidence. While I do have some concerns that Mr. Finkle and Mr. Tissot may have spoken to one another despite an order excluding witnesses, I did not find Mr. Finkle’s evidence concerning his observations of the relationship between Mr. Tissot and Liam to be anything but sincere and based on spending time with Liam and Mr. Tissot.
193Mr. Sossin also testified that Mr. Tissot is a very loving, involved father. He indicated that Mr. Tissot has a good relationship with Liam and that Liam looks up to Mr. Tissot. He described how Liam listens to Mr. Tissot and has a level of respect that has been fostered over the years. He further described Mr. Tissot as being principled, kind and considerate among other attributes.
194Ms. Griffiths described Mr. Tissot as having a very good relationship with Liam and that Liam adores Mr. Tissot. She indicated that Mr. Tissot is firm with Liam and there are rules for Liam to follow. She commented that she thought it was fantastic that Liam was bilingual. Ms. Griffiths also spoke about Mr. Tissot's parents and her admiration for them. She described the wonderful relationship that Mr. Tissot has with his parents.
195Dr. Poussier described his strong friendship with Mr. Tissot and the fact that he considers Mr. Tissot to be like a son. It was also evident that Dr. Poussier does not have a fondness for Dr. McCabe. He indicated that he and his wife have become very close friends with Mr. Tissot's parents. He described Mr. Tissot's parents as morally impeccable, generous and honest people who are very religious and are guided by their faith. Dr. Poussier also testified that Mr. Tissot is honest, generous, and morally impeccable. Dr. Poussier indicated that when Liam sees his grandparents he is extremely happy to see them and speaks French to them. He has also observed Liam showing affection towards his grandparents and that Liam loves his grandmother's French cuisine.
196It was Dr. Poussier's evidence that Mr. Tissot changed profoundly as a result of ongoing issues with Dr. McCabe. Dr. Poussier described Mr. Tissot as an exemplary, very loving father who has had to fight over the last nine years. He stated that Mr. Tissot went from a lively person full of zest to a sad individual full of doubts who had lost energy and courage. Dr. Poussier described Liam as becoming very affectionate and that Liam is always in physical contact with Mr. Tissot, either sitting on Mr. Tissot's lap or hugging or kissing Mr. Tissot. He sees Liam as being very confident and happy when he is with Mr. Tissot. He indicated that Liam loves his father. Dr. Poussier also commented that Liam has become fully fluent in French and that Liam is proud of this accomplishment. Dr. Poussier only speaks French to Liam when he sees him. Although I accept that Dr. Poussier does not see Liam with Mr. Tissot as frequently as some others, it was evident that he shares a close bond with Mr. Tissot and his family and is genuinely concerned for Liam.
197Mr. Tissot's girlfriend, Julia Harper, indicated that she met Mr. Tissot in May of 2014 and that their relationship moved quickly. She described how she and Mr. Tissot spend much time together which includes every weekend and time during the week. Ms. Harper indicated that she and Mr. Tissot have a great relationship and that they are both active in sports and other activities. She further indicated that they both have close families and spend time together with friends and family often.
198Ms. Harper met Liam in approximately November of 2014 after she and Mr. Tissot had been together for approximately 6 months. She relayed how she was first introduced to Liam as a friend and was introduced to Liam slowly. Ms. Harper outlined that there was a period of time when she and Liam were getting to know each other, but they are now comfortable around each other. They share an interest in music and movies. Ms. Harper described how she participates in a variety of activities with Mr. Tissot and Liam including rock climbing, skiing, skating and spending holiday time together with Liam and Mr. Tissot with friends at a chalet or farm.
199Ms. Harper described Mr. Tissot as an excellent father who is very caring, loving and unselfish. She indicated that Mr. Tissot always puts Liam first, he and Liam have developed a close relationship and Liam idolizes Mr. Tissot. She finds Mr. Tissot neither abusive nor aggressive. She indicated that Mr. Tissot disciplines Liam in the right amount and in the right way if necessary. She described how Liam and Mr. Tissot have a routine which includes spending time together doing activities and then at bedtime Mr. Tissot always reads to Liam and they pray together. Mr. Tissot ensures that he does this every evening when Liam stays over with Mr. Tissot. She also described how Liam and Mr. Tissot communicate in French when she is with them.
200Ms. Harper testified as to the disappointment that she and Mr. Tissot experienced when Liam was not allowed to travel to France with them in the summer of 2015. Mr. Tissot had to shorten his trip and was only able to spend 5 to 6 days in France for a family function without Liam. As she testified it was clear that Ms. Harper was upset by this Court’s decision not to allow Liam to travel to France with Mr. Tissot.
201As indicated, there is no question that Liam has struggled at times. He has significant challenges at school. At times Liam has not wanted to go to school because he was suffering from stomach aches and he has become defiant with Dr. McCabe. Dr. McCabe appears to want to attribute most of Liam's difficulties solely to the expanded overnights with Mr. Tissot and Mr. Tissot’s actions; however, based on the evidence I do not reach that same conclusion.
202Both parties have, at one time or another, contributed to the conflict. Dr. McCabe's rigidity with respect to access from the beginning and in allowing overnights with Mr. Tissot along with her struggle to trust Mr. Tissot, has no doubt lead to frustration for Mr. Tissot and outbursts of anger by him. This in no way excuses Mr. Tissot for his actions which at times have been highly inappropriate and have occurred in front of Liam as outlined earlier. Both parties have failed to put an end to the conflict despite countless warnings from Judges of this Court.
203Mr. Tissot concedes that Liam's primary residence should remain with Dr. McCabe. Liam's need for stability requires that he have a stable home base during the week and the schedule that he is accustomed to during the school week. I am not prepared to change Liam's schedule to add additional overnights on Wednesdays and alternate Mondays as I am concerned that given the history of Liam's struggles and his ongoing academic needs, this may create further problems for him.
204I do find, however, that there should be an expansion of time that Liam shares with Mr. Tissot to include alternate weekends from Friday after school to Monday return to school. This provides Liam with an additional overnight with Mr. Tissot on alternating Sundays. Liam is now nine years-old and many witnesses testified as to Liam's close and loving relationship with Mr. Tissot. It is in the best interests of Liam that his relationship with Mr. Tissot continues to grow. This expansion of access to include alternate Sundays overnight affords Liam the opportunity to spend more time with Mr. Tissot to enjoy a full weekend and to enjoy a relaxed Sunday dinner with his father. This also allows for Mr. Tissot to take Liam to school Monday morning and complete any homework with Liam throughout the weekend. This also reduces some of the conflict between the parties as the pickup and drop offs of Liam on Mr. Tissot’s weekend will be at the school.
205Dr. McCabe testified that she wants Liam home on Sunday evening to ensure a fresh start and that Liam is settled to start the week given his struggles with anxiety and academics. She also indicated that she wants Liam at her home to ensure that none of Liam's belongings going missing. Mr. Tissot is more than capable of preparing Liam for the school week by ensuring that homework is completed and that Liam is ready to start the week. Liam will benefit from both parties continuing to be actively involved in his academic progress. Mr. Tissot has shown his capabilities by reading and doing math problems with Liam and teaching Liam French. I am confident that he and Dr. McCabe will both continue to ensure that Liam does well academically.
206I am also confident that given Liam's attendance at a small school with a small classroom setting (which Liam shall continue to attend as set out in these Reasons), this will lessen the chances of any of Liam's belongings going missing. Both parents are aware of Liam's activities and need to organize his equipment with him. Both are capable of doing so.
207Dr. McCabe's alternative proposal of alternate Thursdays to Sundays does not afford Liam as much time to spend with Mr. Tissot in a non-rushed, relaxed family atmosphere as is often the case on Sunday evening. Her proposal also eliminates Wednesdays which Liam has consistently been spending with his father. Liam shall continue to spend every Wednesday from after school, expanded to 8:00 p.m. with Mr. Tissot. While I am not prepared to expand Wednesdays and alternate Mondays to be overnights, I have expanded the time on Wednesdays and alternate Mondays given Liam's age and the fact that this affords Liam the opportunity to spend more quality time with Mr. Tissot and to ensure that any homework is completed. Mr. Tissot will also continue to spend alternating Mondays with Liam from after school, expanded until 8:00 p.m. This time sharing on Mondays shall take place after Dr. McCabe's weekend with Liam.
208I also see no reason to deny Liam the opportunity to spend an equal amount of time with each parent during holidays as set out in the order below. With respect to the summer holiday period, the summer shall be shared equally by the parties with neither parent to spend more than two consecutive weeks with Liam at a time unless agreed otherwise by the parties as also set out in the order below.
Issue #3
What, if any, provisions should be put in place for Liam to travel to France or any other country with Mr. Tissot?
209Mr. Tissot was born and raised in France and his extended family members reside in France. Mr. Tissot has expressed a desire to travel with Liam to France on his own in order that Liam can spend time with his paternal grandparents as well as with Liam’s uncle, aunt and cousins. Additionally, Mr. Tissot would like to expose Liam to the French culture and for Liam to obtain a French passport as Mr. Tissot believes that by having a French passport, this will provide Liam with many benefits. Mr. Tissot asserts that he has never threatened to remove Liam from Ontario and in any event, he contends that France is a signatory to the Hague Convention and as such, there are protections for Liam. Mr. Tissot views Dr. McCabe’s desires for these protections in an order as another attempt by Dr. McCabe to control his time with Liam and to marginalize him.
210In her draft order, Dr. McCabe seeks provisions pertaining to Mr. Tissot's future travel with Liam to France and other countries. Dr. McCabe is not opposed to Liam travelling with Mr. Tissot to France; however, she wants to ensure that certain safeguards are put in place. It is Dr. McCabe's position that Mr. Tissot's behaviour has been unpredictable and concerning at times. As an example, she asserts that Mr. Tissot refused to return Liam to her care in September of 2015. Dr. McCabe expressed a concern that Mr. Tissot will do what he wants despite a court order from this Court and added protections are necessary to ensure that any order of this Court is followed in France and elsewhere. Dr. McCabe testified that the purpose in obtaining “French protections” is to limit the risk of Mr. Tissot travelling to France with Liam and not returning Liam to Canada. She expressed that her intention was to avoid Liam being placed in the middle of further conflict and chaos.
211Despite Mr. Tissot’s objections that this Court did not require any expert evidence on this issue as France is a signatory to the Hague Convention, I allowed Dr. McCabe’s witness, Ms. Butruille-Cardew, a French lawyer who has much expertise in international issues in family law and child abduction, to testify as an expert and to give opinion evidence on jurisdictional issues in French law and how this relates to the abduction of a child from another country. Specifically, Ms. Butruille-Cardew gave opinion evidence on what provisions would have to be in an order of this Court and steps needed to be taken in the French courts in order to prevent the abduction of a child who resides in Canada. Additionally, Ms. Butruille-Cardew addressed under what circumstances a French court could take jurisdiction over a minor child such as Liam. Ms. Butruille-Cardew prepared a report dated June 5, 2015 in which these issues were also addressed.
212Ms. Butruille-Cardew explained that a French Family court will take jurisdiction over a minor child if that child is habitually resident in French territory (she clarified that the passage of time may give jurisdiction) or if the child is a French national regardless of how many nationalities that child has. She explained that a child could be considered habitually resident very rapidly and that there is no minimum duration of stay. There are material and social components which are taken into consideration.
213Ms. Butruille-Cardew further testified that a French Juvenile Court could take steps if a child was found to be in danger from themselves or their social environment and the child is present in France. This does not only include physical danger. Additionally, the child only needs to be present in France and in danger, not habitually resident in France for the Juvenile Court to assume jurisdiction.
214With respect to the enforcement of a Canadian order, Ms. Butruille-Cardew testified that Canada is not a party to the International Hague Convention of October 1996 on jurisdiction, applicable law, recognition and enforcement in matters of parental responsibility and protective measures towards children. As a result, she explained that any French court would not be forced to recognize a Canadian order simply because the order was made. Specific enforcement of that order is required in France. The Canadian order must be domesticated in France. She stated that there are no reasons why a French court would not recognize an order of this Court; however, as Canada is not a signatory to the Hague Convention of October 1996, the process would take approximately 6 to 8 months. This requires an application in the French court, but it is not a complicated procedure. The process is initiated by one parent and the other parent cannot oppose.
215Ms. Butruille-Cardew stressed that it is very important that the Canadian order be domesticated otherwise a parent could commence an application in France and ask the French Judge to look at the matter afresh. She also testified that French law provides for equal rights for both parents in the exercise of their parental responsibility.
216Ms. Butruille-Cardew was questioned as to whether the Hague Convention of October 1980 on civil aspects of child abduction to which Canada and France are both signatories would provide sufficient protection if Liam was not returned to Canada. She indicated that the central authorities in the countries would be contacted, but in reality it would take 6 to 8 months before a child was returned to his or her country of origin. The child is often deprived of any contact with the parent left behind in Canada during this time. Ms. Butruille-Cardew emphasized that both Canada and France enforce the Hague Convention of October 1980; however, the reality is that the process is not as quick as one would like it to be.
217Ms. Butruille-Cardew testified as to the exceptions under the Hague Convention of October 1980. Under Article 12, if a child has been in the country of relocation for 12 months and the other parent has not originated a request for that child’s return, it can be determined that the child is now settled in the new environment. Ms. Butruille-Cardew indicated that it is quite rare that this happens. Under Article 13, if there is great risk that the return of the child will expose that child to physical or psychological harm or otherwise place the child in an intolerable situation, the child will not be returned. Ms. Butruille-Cardew explained that the risk is such that the child cannot be returned or if the country to which that child would be returned cannot protect the child. Ms. Butruille-Cardew also explained that in the event that the location of the child is unknown or the abducting parent refuses to provide the child’s location, the power of the French central authority is limited. A criminal claim would then have to be commenced.
218During her testimony, Ms. Butruille-Cardew explained that France is a member of the Schengen treaty. She indicated that there are a number of member states and that there are effectively no borders between them. Some of these member states include France, Germany, Spain and Italy. Ms. Butruille-Cardew testified that it would be easy to travel by train or other mode of transportation into these other countries with the child. As set out in her report, travel between these countries is easy and often without passports being checked. Ms. Butruille-Cardew also stated that all Schengen states are signatories to the Hague Convention of October 1980.
219Ms. Butruille-Cardew provided her opinion as to what steps can be taken to prevent a non-return of Liam. It is her opinion that the Canadian order should be domesticated into the French system (a mirror order) and in the Canadian order it should be stated that a Canadian court has the jurisdiction over Liam and that Liam is habitually resident in Ontario.
220Additionally, it is her opinion that Liam’s stay in France should be limited to 15 days, thereby providing Dr. McCabe with the opportunity to obtain a travel ban with the police for 15 days if Dr. McCabe is in France. This notification is passed on to all airports and train stations within the Schengen states and Mr. Tissot and Liam would not be able to board a plane, train or a boat. There is no court order needed nor is notice required to be given to Mr. Tissot. Within the 15 days, Dr. McCabe would then have to launch an application in the French court.
221Ms. Butruille-Cardew also indicated that Dr. McCabe could bring Liam to France and in exchange for Liam, she would be given Mr. Tissot’s passport. Dr. McCabe would then have her lawyer in France hold Liam and Mr. Tissot’s passports for the duration of Liam’s stay in France. This would need to be done by agreement. Ms. Butruille-Cardew also indicated that the Canadian order should contain a provision requiring Mr. Tissot to undertake to remit all passports.
222Another suggestion made by Ms. Butruille-Cardew is that the parent who wishes to travel with the child posts a bond in order to ensure the return of the child prior to leaving for the holiday. In the case of the child not being returned, a party can move to collect on the bond. This would be a financial incentive to induce the return of the child.
223Ms. Butruille-Cardew also provided her opinion as to what could occur should Liam obtain French citizenship. She indicated that this would facilitate the lodging by Mr. Tissot of an application with the French courts on the basis of Liam's nationality. She did acknowledge that there would be advantages to Liam obtaining French citizenship in that he would have access to healthcare, he could reside anywhere within the European Union and travel to the Schengen states. Liam would also be provided with free university.
224As set out in her draft order, Dr. McCabe seeks a term in the order that Mr. Tissot provide a declaration that there is no current proceeding in France regarding Liam and that neither he, nor any members of his family, shall commence any proceeding in France regarding Liam as Canada has exclusive and continuous jurisdiction over Liam. She also seeks a term that Liam's habitual residence be in Ontario, Canada and that the Ontario courts have jurisdiction to deal with all issues involving Liam, including custody, access, support, travel, and mobility. She further seeks an order that Mr. Tissot shall not apply for a French passport, ID or citizenship for Liam until he is 17 years-old unless by agreement of both parents.
225Dr. McCabe also seeks that Mr. Tissot register the parties’ marriage and divorce in the Livret de la Famille with the French consulate in Toronto. Upon proof that the parties’ marriage and divorce is registered in the Livret de la Famille in France and with the French consulate in Canada and in France, and the translated divorce order and final custody order has been provided to the French consulate in France and Canada, Mr. Tissot may travel with Liam to France.
226Dr. McCabe further seeks that before any travel by Mr. Tissot with Liam outside of Canada occurs that the parties cooperate to ensure that there is a mirror order/recognition order (Exequatur order in France), for the purposes of ensuring Liam's return to Toronto, with the specific contents of the orders to be mutually agreed, after input from family law counsel in the destination country. Upon arrival in the destination country, she seeks an order that Mr. Tissot register Liam with the Canadian Embassy in the destination country. If there is a dispute as to the language of the mirror/recognition travel orders, either party may have the issue resolved by the Court.
227It is apparent from the evidence that Dr. McCabe has been attempting to put these protections into place for a significant period of time should Mr. Tissot wish travel to France with Liam. Mr. Tissot's travel to France was the subject of a motion before Stewart J. in the summer of 2015. Mr. Tissot's request to travel to France with Liam was denied by Stewart J. In her endorsement dated June 12, 2015, Stewart J. indicated that she was “…of the view that it is in Liam's best interests that he have as predictable and uncomplicated a summer, as free of anxiety and upset as can be managed by all concerned. This would preclude extended periods of absence from either parent. As a result, I consider that the proposed trip to France with the respondent is premature and should not happen in June/July as planned. Further, there is inadequate time to put in safeguards and conditions in place which have been requested by the applicant. Accordingly, I make no order at this time permitting Liam to travel with his father to France.”
228It is unfortunate that the parties did not take steps at that time to resolve the issue of travel to France as most likely, the safeguards would have already been put in place. Unfortunately for Liam the litigation continued and no resolution was reached. At this point Dr. McCabe expresses a willingness to allow Liam to travel to France with Mr. Tissot. However, she still seeks that these safeguards be put into place. Mr. Tissot sees no need for the safeguards as he contends that he has never threatened to remove Liam and retain him in France. Mr. Tissot also testified that he is a Canadian citizen and not only a citizen of France. He contends that he resides in Toronto, he has a partner in Toronto, and he is well settled here. He expresses no desire to relocate to France with Liam.
229The evidence of Ms. Butruille-Cardew was extremely helpful to the Court. There are risks to Liam if safeguards are not put into place given the fact that France will not automatically recognize a Canadian order. Steps need to be taken in the French court to ensure that the order of this Court is domesticated in France. Liam cannot be placed into a situation of more conflict. It is hoped that with the resolution of this trial both parties will see the detrimental effect that this ongoing litigation has had on Liam and will continue to have on Liam if it continues.
230It is in Liam's best interests that he be able to visit with his grandparents, uncle, aunt and cousins in France with his father and that he be exposed to the French culture. This is part of Liam's family background and it is important for Liam. However, Mr. Tissot has no employment in Toronto, he owns no property in Toronto, his parents and brother along with his brother’s family all reside in France and, coupled with some inappropriate behaviour on Mr. Tissot's part in the past as outlined earlier in these Reasons and the fact that he would not consent to these protections, this does cause me concern. Further, I would have been assisted on this issue by the testimony of Mr. Tissot’s parents, but despite their presence in court, Mr. Tissot chose not to have them testify. Had they testified, I would have been able to assess whether Mr. Tissot’s parents would also ensure that Mr. Tissot complies with any court order from this Court regarding the provisions relating to custody and access of Liam and the travel provisions.
231The Court needs to ensure that there are appropriate terms in an order with respect to Mr. Tissot's travel with Liam so that Liam is not thrust into the centre of conflict again. The order of this Court needs to be domesticated in France as stated by Ms. Butruille-Cardew. This is not difficult to achieve and the French process can commence as soon as this order is made. There also need to be protections in place if Mr. Tissot wishes to travel to other countries with Liam as part of his travel to France. I find that as an incident of custody, it is in Liam's best interests that proper protections be put in place in order to prevent any possibility of conflict and further anxiety and upset for Liam. The terms of the draft order on this issue as proposed by Dr. McCabe and as set out above in paragraphs 224 to 226 above are reasonable and in Liam's best interests.
Issue #4
What are the incomes of the parties for support purposes including contributions to section 7 expenses?
Dr. McCabe’s Income
232The following is the line 150 income of Dr. McCabe as reflected on her Income Tax Returns from 2008 to 2014:
| Year | Line 150 Income |
|---|---|
| 2008 | $165,200 |
| 2009 | $187,500 |
| 2010 | $ 63,116 |
| 2011 | $ 48,700 |
| 2012 | $129,733 |
| 2013 | $205,062 |
| 2014 | $200,973 |
233In her Financial Statement sworn October 28, 2015, Dr. McCabe states that her gross annual income is $174,000 for 2015. When asked by the Court for clarification as to her current income, Dr. McCabe testified that her income will be approximately $175,000 gross for 2015 as she estimates that she has suffered a loss of approximately $25,000 as a result of trial preparation and attendance at trial. Dr. McCabe also provided as evidence, two pay stubs, one for the period ending June 30, 2015 wherein her year to date gross income is $100,042 and for the period ending August 16, 2015 wherein her year to date gross income is $114,688.
234As indicated, Dr. McCabe is a chiropractor having practiced as a chiropractor for approximately 16 years. She currently continues to practice out of the Granite Club in Toronto. In September 2007, Dr. Lisa McCabe Chiropractic Professional Corporation entered into a Sale Agreement with the Granite Club to sell its equipment and inventory along with the goodwill to the Granite Club for $120,000. As a term of the Agreement, the patient files of Dr. McCabe were to remain the property of Dr. Lisa McCabe Chiropractic Professional Corporation.
235Currently Dr. McCabe is contracted by the Granite Club to provide chiropractic services to its members and her own patients through Dr. McCabe's professional corporation. As set out in a letter dated May 23, 2012, from the Granite Club to Dr. McCabe, her professional corporation earns a percentage of its total billings for chiropractic services.
236Mr. Tissot, on cross-examination, asked many questions regarding Dr. McCabe's corporate expenses. In his closing submissions, Mr. Tissot submitted that Dr. McCabe earns $200,000 gross per year but pays 3% in income tax. He questioned a number of her office expenses and the veracity of her statement that she does some work at home. He also questioned her expenses for meals and car expenses in 2012. He contends that Dr. McCabe failed to state on her latest Financial Statement, sworn October 28, 2015, that she has incurred a $50,000 corporate loan and a $20,000 personal loan for the purposes of this litigation as testified to by Dr. McCabe. Mr. Tissot contends that this financial information is self-generated by a self-employed individual and is suspect. He asks the Court to consider to what extent any relief should be granted to Dr. McCabe given these concerns.
237Dr. McCabe filed as evidence the Financial Statements of her professional corporation from 2006 to 2014. She also provided the corporate income tax returns for the same time period as well as some Trial Balances up to 2014 (as 2008 to 2010 were missing) and some profit and loss statements for the years 2006 to 2013. Upon a review of this documentation and the expenses as submitted, I do not find any of the expenses to be unreasonable with the exception of the expenses for Ms. Sutherland treated as a business expense.
238Dr. McCabe was able to answer questions on cross-examination pertaining to these expenses. In particular, she was asked about her expense for a home office. Dr. McCabe testified that she does have a home office as she works at home to manage her corporation. I accept that she would have paperwork that would have to be completed for her corporation which requires work to be completed at home. I also accept that she would have some expenses for meals and entertainment as she explained she has lunch with other professionals and those who assist her, including her accountant or bookkeeper. Dr. McCabe also testified that she will buy gifts for staff or take them out for a meal as a means of expressing her appreciation. She does not hire the staff but likes to show appreciation for their hard work. She further explained that her telephone expenses relate solely to her running of the practice.
239Mr. Tissot also cross-examined Dr. McCabe with respect to voluntary disclosure that she has made to Canada Revenue Agency (the “CRA”). Dr. McCabe testified that she has commenced this process due to expenses claimed through the business for Ms. Sutherland’s services. Dr. McCabe stated that as a result of this litigation, she became aware that it was inappropriate for her to pay Ms. Sutherland through her professional corporation and she took steps to refile and amend her income tax returns. Dr. McCabe clarified that the matter is currently in process. As such, it appears that no adjustments have been made to her income tax filings for any of the years in question. Without the results of this voluntary disclosure, this Court is not in a position to determine Dr. McCabe’s line 150 income other than that which has been already been reported and assessed by the CRA. However, this does have an impact upon Dr. McCabe’s claims for section 7 expenses as dealt with below in these Reasons.
240Mr. Tissot did not ask the Court to impute additional income to Dr. McCabe for any of the years in question. Given the reasonableness of Dr. McCabe's expenses claimed related to the operation of her business (not with respect to Ms. Sutherland’s expenses), I would not be inclined to impute income to Dr. McCabe had Mr. Tissot requested an imputation of income. Further, given the time for trial attendance and preparation in leading up to trial with her counsel, I accept Dr. McCabe's evidence that she has lost approximately $25,000 in gross income as she has been unable to service her patients as a result of this trial and time spent on trial preparation with her counsel. As such, I accept that Dr. McCabe's income for the purposes of determining her contribution to section 7 expenses for the calendar year 2015 is $175,000 gross.
Mr. Tissot’s Income
241In his Supplementary Trial Record, Mr. Tissot has included his Notices of Assessment for 2011 to 2013. They reflect a line 150 income as follows:
| Year | Line 150 Income |
|---|---|
| 2011 | $ 8,258 |
| 2012 | $ 179 |
| 2013 | $0 |
242Mr. Tissot swore a number of Financial Statements throughout the litigation that were identified by Mr. Tissot and filed as an exhibit on his cross-examination. These Financial Statements provide the following gross annual income for Mr. Tissot:
| Date | Annual Income |
|---|---|
| Oct. 17, 2008 | $64,953 |
| Sept. 19, 2013 | $0 |
| Jan. 30, 2014 | $22,175 |
| Apr. 10, 2014 | ($34,575) |
| Oct. 21, 2014 | $60,885 |
| Oct. 22, 2015 | $74,839 |
| Nov. 4, 2015 | $74,839 |
243Mr. Tissot's curriculum vitae was filed as an exhibit. As set out in the curriculum vitae under education, Mr. Tissot attended Superior School of Engineering Sciences and Technology of Nancy in France from 1992 to 1995. He obtained a bachelor’s degree in business from IUP (Professional University Institute) in Annecy, France in 1997. Mr. Tissot also lists that he has received certification from the National Canadian Coaching Program (the “NCCP”) as a fully certified Level III squash coach, completed in 1999, and a fully certified Level I tennis coach in 2002. More recently, Mr. Tissot indicates on his curriculum vitae that he completed the CIFC (Canadian Investment Course) in 2006, he became a life insurance agent in 2007 and he completed the CSC (Canadian Securities Course) in 2010.
244Mr. Tissot also states that he was the coach of international Junior squash champions from 1999 to 2006 and from 2001 to 2006 he was a touring professional squash player. Under experience he lists various jobs commencing in 1996 in sales administration, sales agent, sales account manager, squash professional from 2000 to 2006, financial consultant and investment broker from 2007 to 2010 at Investors Group (December 2006 to December 2009) and Nesbitt Burns (January 2010 to July 2010) and futures and commodities trading from 2009 to current. Mr. Tissot testified that he is not presently working. He acknowledged on cross-examination that he has not worked since 2010 when he quit his employment at Nesbitt Burns.
245Mr. Tissot indicates that one of his pursuits since 2010 is that he was working on developing and coding a computer program. This is also set out in his curriculum vitae wherein he indicates that he has been involved in the development and coding of proprietary trading systems in 2012 among other experience he lists under futures and commodities trading. It is Mr. Tissot's evidence that he did not have success with this program and is now focusing on completing more courses in the financial industry in order to obtain employment. Mr. Tissot acknowledged in his evidence that he had not disclosed to the Court that he had recently begun employment as an Uber driver. He contends that this employment did not start until mid-December 2015 and that he has only earned approximately $2,500 from this employment.
246It is Dr. McCabe's position that income should be imputed to Mr. Tissot. She testified that she was advised by Mr. Tissot in 2008, when the parties were in France visiting with Mr. Tissot's family, that the family business had been sold for €10 million. She indicated that Mr. Tissot informed her that these funds were divided equally between his parents, his brother and Mr. Tissot. Dr. McCabe stated that there was a business meeting held in her presence; however, she acknowledged that the conversation was in French and she did not understand all of the conversation.
247Dr. McCabe testified that Mr. Tissot's Financial Statements outline that his net worth has decreased from $1.15 million to $250,000 between 2008 and 2013. As stated earlier in these Reasons, Dr. McCabe recalled an incident where Mr. Tissot had advised her that $250,000 worth of silver bars had been stolen from him. She recalled seeing some of the bars in a white van driven by Mr. Tissot, but has received no documentation supporting the value of the silver bars. She contends that no insurance claim was ever made concerning these bars nor any police report made that she is aware of by Mr. Tissot.
248Mr. Tissot acknowledged that he had ceased working by his own choice in 2010 and there was nothing physically or emotionally preventing him from working. Mr. Tissot also swore in his Financial Statement dated October 17, 2008 that he had approximately $1.3 million in property on the date of marriage. It is Dr. McCabe's position that Mr. Tissot should have invested funds that he had in order to earn income and in addition he should have been employed from 2008 to current.
249Dr. McCabe asserts that Mr. Tissot had the ability to work throughout all of these years and that he had access to funds given the significant expenses incurred during the years as reflected by his bank statements and credit card statements. She contends that Mr. Tissot has failed in his obligation to provide full disclosure as required under the Family Law Rules, O. Reg. 114/99. She asserts that he has failed to establish his income for support purposes and has left this task to her and the Court. Mr. Tissot criticizes Dr. McCabe's analysis of the imputation of his income.
250Dr. McCabe points out that Mr. Tissot's list of expenditures claimed for the benefit of the family from 2009 to 2014 are actually higher than the expenses claimed in his sworn Financial Statements. Dr. McCabe explained that she and her lawyers went through Mr. Tissot's bank statements and credit card statements provided by him as suggested by Goodman J. and added up all of his expenses. These expenses were then grossed up for income tax which would reflect the gross income required to cover these expenses. She acknowledged that the documentation relied on by her was completed by her former counsel, Ms. Radbord. The calculation of Mr. Tissot’s income based on his expenses and grossed up for taxes was set out in a letter dated May 29, 2014 from Ms. Radbord to Mr. Tissot’s counsel at the time and entered as an exhibit along with numerous charts (prepared by Ms. Radbord) analyzing Mr. Tissot’s credit card and bank statements available from 2008 to 2014. Dr. McCabe contends that no bank statements and credit card statements were provided by Mr. Tissot for 2015.
251On the basis of these expenses and the gross up for tax purposes, Dr. McCabe seeks that the following gross income be imputed to Mr. Tissot for the years indicated:
| Year | Imputed Gross Income |
|---|---|
| 2008 | $275,717 |
| 2009 | $250,134 |
| 2010 | $428,324 |
| 2011 | $506,030 |
| 2012 | $157,548 |
| 2013 | $176,391 |
| 2014 | $279,989 |
| 2015 | $125,000 |
252Mr. Tissot testified that the income figures provided by Dr. McCabe with respect to an imputation of income to him are unrealistic. He is content that the Court impute income to him with respect to his current child support obligation based on his expenses. In Mr. Tissot’s draft order provided for trial, he sets out that his income should be determined each year based on his analysis of his previous year’s expenses. No income amount is provided.
253Mr. Tissot asserts that there has been no expert analysis of his income and only a reliance upon Dr. McCabe's former counsel’s review of his expenses. Mr. Tissot testified that these calculations include double counting of transfers from and to his various bank accounts and transfers from his investment accounts. It is his position that these calculations completed by Ms. Radbord are wholly inadequate and inflate his income for the periods in question given this double counting. Mr. Tissot provided examples of this in some of his accounts. Additionally, Mr. Tissot testified that he provided significant amounts of child support and contribution to section 7 expenses to Dr. McCabe that have not been acknowledged by her in her calculations.
254Mr. Tissot provided a chart outlining the amount of income that should be imputed to him for the years 2009 to 2015. He determined the income for each year in question based on his expenses from his credit card statements and bank statements:
| Year | Imputed Gross Income |
|---|---|
| 2009 | $ 59,091 |
| 2010 | $ 71,124 |
| 2011 | $100,165 |
| 2012 | $ 98,917 |
| 2013 | $ 81,777 |
| 2014 | $ 76,402 |
| 2015 | $ 48,494 |
255It is Mr. Tissot’s position that the level of his expenses has been decreasing. He acknowledges that both parties have used up investments and other assets and are now in significant debt. He wants both parties to be able to move forward and to give themselves the chance to re-build.
256Section 15.1 of the Divorce Act states that a court may, on application of either or both spouses, make an order requiring a spouse to pay for the support of any or all of the children of the marriage. Section 15.1(3) states that a court making an order under subsection (1) shall do so in accordance with the applicable guidelines.
257Section 19(1) of the Child Support Guidelines, O. Reg. 391/97, as amended (the “Guidelines”) allows the court to impute income to a spouse if it considers it appropriate in the circumstances. Section 19(1) lists certain enumerated examples as follows:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(b) the spouse is exempt from paying federal or provincial income tax;
(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
(e) the spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(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; and
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
258As set out in Riel v. Holland, 2003 CanLII 3433 (ON CA), [2003] 67 O.R. (3d) 417 (C.A.), at para. 36, the wording of s. 19(1) is open-ended and the categories listed in the section are merely examples of situations in which income may be imputed.
259One of the sections relied upon by Dr. McCabe with respect to imputation of Mr. Tissot’s income is s. 19(1)(a). In the Ontario Court of Appeal decision of Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (C.A.), the Court set out at para. 23, the three-part test in applying the provision under s. 19(1)(a). The first part of the test is to determine whether the spouse is intentionally under-employed or unemployed. If so, the second part of the test asks is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs, the needs of a child or reasonable health needs? If the answer to the second part of the test is negative, the third part of the test is what income is appropriately imputed in the circumstances?
260In Drygala at para. 28, the Court determined that "intentionally" means a voluntary act. The Court also stated that: "[t]he parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning.... The word ‘intentionally’ makes it clear that this section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work." The Court also found that there was no requirement of bad faith.
261As also stated in the Ontario Court of Appeal decision of Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552, at para. 28: "The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding."
262In accordance with section 16 of the Guidelines, the starting point for the determination of Mr. Tissot’s income is line 150 of his income tax return. This is of little assistance in this matter given Mr. Tissot did not provide the Court with all of his income tax returns for the relevant years and the ones provided reflect nominal income which does not accord with Mr. Tissot’s spending. Additionally, Mr. Tissot concedes that that there should be an imputation of income to him based upon his expenses. Mr. Tissot did not provide evidence that the income figures submitted by him for the relevant years had been grossed up for tax purposes.
263I agree with Dr. McCabe’s position that there is an evidentiary basis for a finding that Mr. Tissot is intentionally under-employed or unemployed. He has earned some income as an Uber driver recently (not disclosed by Mr. Tissot voluntarily) but he is choosing to earn less than he is capable of earning. Mr. Tissot acknowledged that he has not worked since 2010 and that there is nothing prohibiting him from seeking employment. Mr. Tissot spoke of a coding project and some contacts that he had made in the financial industry, but he provided no evidence that he has been actively seeking employment since he, on his own volition, left his employment at Nesbitt Burns in 2010.
264Mr. Tissot is well educated and a former professional athlete. He has many qualifications and experience in sales, as a squash professional and as a financial consultant and investment broker. With respect to the financial industry, it appears that he had steady employment from December 2006 until July 2010 when he quit.
265Mr. Tissot agreed that he had not applied for or actively pursued employment from 2010 to 2014. He was vague when he gave evidence as to where he was applying for employment and not many details were provided. He testified that he had an informal interview, but was provided with no offer. He outlined that he had a recent opportunity for employment with Bilingual Source but was unable to pursue this further given this ongoing trial. He indicated that this would have paid approximately $50,000 gross per year. Mr. Tissot admitted that he did not receive any paperwork so this opportunity was not a formal job offer. He did not provide any documentary evidence that he had submitted any applications or sent any letters to prospective employers. He conceded in his testimony that he had not actively pursued employment given this ongoing litigation.
266With respect to the second part of the test, I do not find that Mr. Tissot’s intentional under-employment or unemployment is required by virtue of any educational needs, the needs of Liam or reasonable health needs. Mr. Tissot did indicate that he is currently taking courses to better his chances for employment; however, Mr. Tissot is quite capable of maintaining full-time employment while also taking additional courses that may assist him in the financial industry. Additionally, he has had from 2010 to current in order to pursue these courses when he has been unemployed by his own choice.
267There was also no evidence of any inability of Mr. Tissot to work due to health concerns or any of Liam's needs. Undoubtedly both parties have been under significant stress as they have had to deal with this high conflict matter and the academic challenges along with emotional struggles that Liam has had. However, Dr. McCabe continued on with her employment through these years fully aware of her obligation to financially support Liam which is the obligation of both parties.
268The parties are significantly apart with respect to the income to be imputed to Mr. Tissot. For example for the calendar year 2009, Dr. McCabe seeks to impute an income of $250,134 gross to Mr. Tissot while Mr. Tissot contends that his income should be imputed to be $59,091. Both parties submit that they used Mr. Tissot's bank statements and credit card statements in order to determine an appropriate income for Mr. Tissot.
269The Court did not have the benefit of expert evidence on this issue which would have been of great assistance in order to determine Mr. Tissot’s income for support purposes. The Court did not have the benefit of having an accountant or other expert analyze Mr. Tissot’s expenses, any income that he could have earned through investments or provide the basis for the amount of the tax gross up on Mr. Tissot’s expenses. As indicated, Dr. McCabe provided charts upon which she relies as a basis for the imputation of income to Mr. Tissot. She testified that these charts were compiled by Dr. McCabe's previous counsel. These charts provide summaries of expenses on Mr. Tissot's credit card statements and bank account statements for the calendar years in question and apply a gross up for taxes.
270As an example, for 2009 in the chart labelled “Support Calculations of Lisa McCabe” included as part of the Retroactive Child Support Brief filed as an exhibit at trial and relied on by Dr. McCabe, there is no spending for Mr. Tissot listed but rather estimated spending for Mr. Tissot of $184,713. It appears that this figure was determined based on an average of Mr. Tissot’s expenses, as the charts and Ms. Radbord’s letter of May 29, 2014 indicate that there was no disclosure for 2009. There is then a gross up based on estimated spending to $309,848. However, as indicated, Dr. McCabe seeks to impute an income to Mr. Tissot of $250,134 for 2009.
271The Court did not have the benefit of Mr. Tissot's income tax returns for either the calendar years 2008 or 2009. In his sworn Financial Statement dated October 17, 2008, Mr. Tissot indicates that he earns monthly income of $5,412 based on commissions earned to September 30, 2008. This would have been the time that Mr. Tissot was employed by Investors Group. This amounts to a gross annual income of $64,944. Mr. Tissot's expenses are listed as $3,762 per month which amounts to $45,144 per year.
272At the time, Mr. Tissot swore in his Financial Statement that on the valuation date (he states as July 2008) he had over $1 million in investments and significant cash. Mr. Tissot also indicated that he had over $1.5 million in assets on the date of marriage of August 5, 2006. I also note that in Mr. Tissot's Answer dated October 17, 2008, he indicated that he had been employed by Investors Group for the past 18 months and had earned a “Rookie” award with his employer.
273It is extremely difficult for the Court to determine the accuracy of the expenses as set out in Dr. McCabe's former counsel's chart. Without the author of the chart testifying, there is no way to determine whether the numbers reflected in her chart accurately reflect the source documents. The chart is hearsay and cannot be relied upon for the truth of its contents. This is not to suggest that it is the role of Dr. McCabe to prove Mr. Tissot's income as Mr. Tissot has the onus of demonstrating the basis of his income; however, it does appear as shown by some of the source documents provided by Mr. Tissot, that some of these figures may have been counted twice with respect to transfers and other movement of funds as indicated by Mr. Tissot.
274However, Mr. Tissot himself in his chart estimates that his expenses for 2009 total $59,091. Given his income was stated to be approximately $64,944 in his sworn Financial Statement, this suggests that his income for 2009 was actually higher than $64,944.
275Counsel for Dr. McCabe in his closing submissions raised the issue of the failure of Mr. Tissot's parents to testify. Counsel asked that this Court draw an adverse inference against Mr. Tissot for his failure to call his parents as witnesses. Counsel contends that not only would Mr. Tissot's parents have been able to assist the Court with respect to custody and access issues, but they also would have been able to address Dr. McCabe's evidence that the family business was sold in approximately 2008 and significant funds were disbursed to Mr. Tissot and his brother.
276I too share this concern. Mr. Tissot's parents were present, according to Mr. Tissot, during the first part of the trial and were present in the courtroom for the last three days of trial. I accept that Mr. Tissot's parents may not speak fluent English, as they are from France; however, a French interpreter could have been provided to assist them and the Court. Their evidence would have clarified for the Court the source of the funds that Mr. Tissot received from them whether through the purported sale of a family business or otherwise and the amount of funds provided by them to Mr. Tissot. There is no question that funds were provided by them to Mr. Tissot as admitted to by Mr. Tissot (he stated $393,000) and reflected on some of his Financial Statements. Their evidence would have assisted the Court greatly.
277It is apparent from Mr. Tissot's own chart and his own review of his expenses that he concedes that from 2009 to 2015, he had expenses ranging from approximately $48,494 to $100,165 per year. On some of Mr. Tissot’s sworn Financial Statements, he states that silver bars had been cashed in, generating significant income. No documentation was provided to the Court to support their value by Mr. Tissot. It is also apparent that Mr. Tissot had significant investments that would generate income. Mr. Tissot failed to provide the Court with any of this information which would have assisted in the determination of his income. Additionally, Mr. Tissot provided much historic detail regarding his section 7 expenses from 2008 to 2015 in comparison to sparse, superficial documentation as to his income through those years. This provides yet another reason to draw a negative inference against him.
278Mr. Tissot's income tax return for 2011 reflects a line 150 income of $8,258, while 2012 is stated to be $179 and 2013 is nil. There are no sworn Financial Statements by Mr. Tissot for the years 2009, 2010, 2011 and 2012. As indicated, for the most part during this time period, the parties were able to stay out of court. Dr. McCabe contends that she did not pursue the issue of child support and section 7 contributions as she was doing what she thought was in the best interests of Liam by not creating more conflict. In contrast, Mr. Tissot's evidence is that there was hope of reconciliation and that he spent significant funds on both Dr. McCabe and Liam. It is clear from the parties’ Partial Separation Agreement in 2010 that the issue of child support was still to be resolved.
279A number of subsections in s. 19 (1) of the Guidelines are relevant here including ss. (a), (d), (e), (f), and (h) and an income must be imputed to Mr. Tissot. Mr. Tissot is intentionally under-employed (if only working for Uber) or unemployed, as he has been for several years by his own choice. There are questions surrounding Mr. Tissot’s income: Mr. Tissot may have received money from his parents through the sale of a family business or otherwise; some of those funds may have been diverted to purchase silver bars or other assets for which there is no information; his investments would have generated income; he has failed to provide detailed information regarding his income and how he was able to pay for significant expenses despite reporting very little income on his income tax returns and sworn Financial Statements (other than the cashing in of silver bars and some funds from his parents) and it does not appear that income received was subject to tax.
280Given the difficulty with the figures put forth by both parties as set out above, as the Court has no ability to determine the accuracy of the charts prepared by each party, along with Mr. Tissot’s failure to meet the burden of proving his income, I find that the most reasonable approach is to start with the income that Mr. Tissot would have earned had he stayed with either Nesbitt Burns or Investors Group and impute additional income to him given these other sources of income available to him. Mr. Tissot's sworn Financial Statement in October of 2008 indicates that his income was approximately $64,944. Had Mr. Tissot stayed in that industry, already being successful in 2008 having won a “Rookie” award, it is reasonable to infer that his income would have increased over the years as he would be more experienced and would have built up his clientele. Mr. Tissot would also not have had to deplete any of his investments as he would have had sufficient income coming in not only to support himself but also Liam, as was his obligation. He would have generated interest income from these investments had he been working.
281In determining Mr. Tissot’s income for support purposes, the amounts of his expenses also need to be taken into consideration. There is no consensus on what these expenses total as the evidence is conflicting and few source documents were provided. However, Mr. Tissot was able to pay for considerable expenses over the years despite the fact that very little income is acknowledged as being earned by him. Mr. Tissot contends that he used his capital but again, had he continued to work, he would not have done so. Imputation of income should also be made on the basis that Mr. Tissot should have earned interest income on his significant investments. An adverse inference is also drawn with respect to Mr. Tissot’s failure to call his parents as witnesses. An inference is made that Mr. Tissot’s parents’ evidence would not have supported his position that he did not receive any funds from the sale of a family business.
282Taking all of these factors into consideration, I find that a reasonable income to impute to Mr. Tissot is a gross annual income of $150,000 for the years 2008 to 2014. Dr. McCabe has already indicated that she will accept an imputed income to Mr. Tissot of $125,000 for 2015 and current and I agree that $125,000 should be imputed to him for 2015 and 2016.
Issue #5
What, if any, child support payments are owed by Mr. Tissot to Dr. McCabe for the time period 2008 to 2015? What is the proper amount of ongoing child support payable by Mr. Tissot?
283Mr. Tissot's evidence is that the parties were working on reconciliation from 2009 through to April of 2013. He spent much of his testimony focusing on this issue. It is his position that he made many financial contributions to the family throughout this period of time and direct contributions to child support and section 7 expenses. He indicated that he paid for family trips, family meals and gifts for both Liam and Dr. McCabe.
284In contrast, Dr. McCabe testified that she was managing the situation and was doing what she felt was in the best interests of Liam. It is her evidence that she did not pursue child support in this Court throughout this period of time as she did not want to detrimentally affect Liam by engaging in litigation. Both parties acknowledge that this was a period of relative calm but what is apparent is that they both had conflicting views as to whether there was going to be a reconciliation.
285The Court is not determining the issue of whether there was a reconciliation or not, but as indicated throughout the trial, the evidence is relevant to the relationship between the parties for the purposes of custody and access and the understanding by the parties as to how expenses were to be shared for Liam. It is part of the factual history.
286Dr. McCabe commenced her Application on July 16, 2008. In her Application she states that the parties separated on May 2, 2008. In the parties’ Partial Separation Agreement dated June 2010, it is stated that the parties separated on May 2, 2008 according to Dr. McCabe and July 2008 according to Mr. Tissot. Mr. Tissot did not plead reconciliation in his Answer dated October 17, 2008 nor did he amend his pleadings to reflect same. Additionally, the evidence shows that in December of 2011 when Dr. McCabe was not agreeable to reconciling, Mr. Tissot had his lawyer at the time write a letter indicating that he was proceeding with a divorce. Further, Dr. Radovanovic testified as to Mr. Tissot's desire in 2009 that the marriage not end and as to Mr. Tissot's upset in 2013 when there was to be no reconciliation. She corroborated Dr. McCabe’s evidence that the parties seemed to be at odds in how the relationship between them was viewed by each of them.
287Mr. Tissot had an ongoing obligation to pay child support in an appropriate amount. In MacKinnon v. MacKinnon (2005), 2005 CanLII 13191 (ON CA), 75 O.R. (3d) 175 (C.A.) at para. 19, the Ontario Court of Appeal clarified that retroactive support relates to claims for support for the period predating the commencement date of the pleading in which support is claimed. A claim for support within the pleading is properly characterized as prospective support. Dr. McCabe claimed child support in her Application dated July 16, 2008. Dr. McCabe has acknowledged in her evidence that Mr. Tissot did make some child support payments. After hearing Mr. Tissot’s evidence as to additional payments that he stated he made, in her closing submissions counsel for Dr. McCabe advised the Court that there were a few payments that were missing that Dr. McCabe acknowledged Mr. Tissot as having made. As such, Dr. McCabe’s calculation was increased to reflect that $74,526.70 had been paid by Mr. Tissot from 2008 to 2015, inclusive. This figure includes the addition of direct payments made by Mr. Tissot for Alliance Française, hockey, summer camp, and Liam’s therapy with Ms. Thorlaksdottir all of which total $3,123.70. She also acknowledges that Mr. Tissot paid $5,500 towards tutoring with Angus Lloyd in the fall of 2014. These additional figures are included in the sum of $74,526.70.
288Even though some of these expenses paid by Mr. Tissot are towards section 7 expenses, Dr. McCabe has included all support payments made by Mr. Tissot in her total, including payments referenced in Mr. Tissot’s e-mail to Dr. McCabe dated May 25, 2013 in which he outlines payments made to Dr. McCabe. In Mr. Tissot's own charts provided as exhibits, he indicates that he paid table child support in the amount of $70,899.50 (comprised of child support in the amount of $36,298 and lump-sum payments in the amount of $34,601.50). He further indicates that he paid section 7 expenses of $17,687.73 and other funds of $74,166.20. He contends that all of these contributions add up to $162,753.43
289Based on the imputation of income to Mr. Tissot as set out above, he should have paid $1,263 per month on an income of $150,000 gross for 2008. Dr. McCabe commenced her claim on July 16, 2008, therefore I find that it is appropriate that child support for 2008 is payable effective August 1, 2008. This means that child support is payable for five months in the amount of $1,263 which results in a total of $6,315 for 2008.
290For 2009 to 2014, Mr. Tissot's income as imputed is $150,000 gross per year and monthly table child support of $1,263 is payable for 12 months of the year. This results in a yearly amount of $15,156 for six years which totals $90,936. For 2015, based on an imputed income to Mr. Tissot of $125,000, the child support payable is $1,076 per month for a 12-month period. This totals $12,916 per year.
291Adding up all of these figures totals $110,167. It is acknowledged by Dr. McCabe that Mr. Tissot paid $74,526.70 in total for child support. This results in a balance owing by Mr. Tissot of $35,640 for table child support from 2008 to 2015.
292Given Dr. McCabe's acceptance of the income of $125,000 to be imputed to Mr. Tissot currently which I agree should be imputed to Mr. Tissot, Mr. Tissot shall pay child support for Liam in the amount of $1,076 commencing January 1, 2016 and continuing monthly until further order of the Court.
293In her draft order Dr. McCabe seeks that both parties maintain life insurance in the amount of $350,000 and that they name each other as irrevocable beneficiary in trust for Liam of these policies for so long as support is payable for Liam. In a number of his sworn Financial Statements, Mr. Tissot indicates that he has a life insurance policy in the amount of $250,000. Dr. McCabe also indicates that she has a life insurance policy in that amount as well as additional policies. It is appropriate that there be an order that each party maintain a policy of $250,000 and that they name each other as irrevocable beneficiary in trust for Liam of these policies for so long as support is payable for Liam.
Issue #6
What are the proper section 7 expenses for Liam?
294Dr. McCabe gave evidence as to section 7 expenses for Liam from 2008 to 2015. In numerous charts entered as exhibits, Dr. McCabe outlined the various expenses for each calendar year from 2008 to December 2015. The total of all of the section 7 expenses is $172,464.23.
295In her draft order, Dr. McCabe seeks that Mr. Tissot pay 50% of Liam’s section 7 expenses incurred from the date of separation to current in the amount of $86,232.12. Mr. Tissot's evidence is that he paid $17,687.73 towards Liam's section 7 expenses and that he paid an additional $74,166.20 towards other expenses, including expenses of the family. The bulk of those expenses appear to be during the years 2009 to 2013. It is Mr. Tissot's position that he has significantly contributed to these expenses and that no monies are owing by him.
296Section 7 of the Guidelines provides:
- (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.
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.
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.
297As set out in section 7 of the Guidelines, the court must take 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. Given the short duration of the parties’ marriage and Liam’s age at the date of separation, there was not a prolonged spending pattern prior to separation.
2008
298Dr. McCabe indicates that the section 7 expenses for 2008 total $8,643.25. She has included receipts and invoices with respect to the expenses. Some of these invoices pertain to a playgroup for Liam as well as various other extracurricular programs. There is also an expense of $7,150 for the nanny, Ms. Sutherland.
299Dr. McCabe testified that for many years she claimed Ms. Sutherland’s expenses as a business expense. She testified that she did not know that this was improper until this litigation continued. There are no child care expenses claimed with respect to Ms. Sutherland’s care of Liam in Dr. McCabe’s personal income tax returns from 2008 to 2013. Dr. McCabe testified in the original trial before Frank J. that she has made a voluntary disclosure with the CRA. Dr. McCabe testified in this trial that the voluntary disclosure issue has still not been resolved. She provided no current information from the CRA to confirm the status of the voluntary disclosure or evidence that her income tax returns had been re-filed.
300For the calendar years 2008 through to 2013, it is apparent that Dr. McCabe continued to deduct Ms. Sutherland’s expenses as a business expense. Dr. McCabe did not provide her Trial Balances for 2008 to 2010 (they are stated as missing), but Trial Balances were provided for 2011 to 2013 which verify that Ms. Sutherland’s fees were claimed as a business expense.
301I decline to allow Ms. Sutherland’s expenses as proper section 7 expenses for the years 2008 to 2013 as they were not treated as child care expenses as submitted to the CRA by Dr. McCabe. Additionally, this Court has no evidence of the increase in Dr. McCabe’s income that will likely result if the CRA reassesses Dr. McCabe’s income for those years in question in order to properly determine contributions by the parties to section 7 expenses. I also note that when seeking contributions to section 7 expenses from Mr. Tissot, Dr. McCabe has made no adjustments to her income to reflect the loss of this business deduction and the resulting increase in her income that would inevitably occur.
302With respect to the remaining expenses claimed as section 7 expenses for 2008 by Dr. McCabe, I do not find that the other expenses, although they may have been beneficial to Liam, were necessary in relation to Liam's best interests.
303In Mr. Tissot's chart listing section 7 expenses paid on account of Liam from 2008 to 2015, he does not list any section 7 expenses paid by him in 2008. As such, there are no proper section 7 expenses for 2008.
2009
304For 2009, the section 7 expenses as submitted by Dr. McCabe total $17,673.47. Ms. Sutherland's expenses are $13,234.12 and there is the Children's Garden tuition of $2,940. This is related to an Early Start program for Liam. The parties should share in this expense for Liam as this was a reasonable expense for the parties and one which was necessary for Liam as it would provide for socialization with other children and both parties were working at the time. I decline to allow the expenses related to Ms. Sutherland as set out above. The expenses related to Liam's bike, a small prescription receipt and cell phone bills for Ms. Sutherland are not necessary expenses. As such, the acceptable section 7 expenses for 2009 as submitted by Dr. McCabe total $2,940.
305Mr. Tissot indicates in his chart of section 7 expenses that he paid for a Science Centre membership of $99 in 2009. This was not a necessary expense and one that does not meet the definition of an extraordinary extracurricular expense.
2010
306In 2010, Dr. McCabe lists tuition expenses at Children’s Garden of $10,047, summer camp of $210, gymnastics club fees of $327.50, Toronto Parks and Recreation receipt of $46 for a summer program for Liam, skating lessons of $499, school clothing of $95.96, a hearing evaluation for $50, a receipt for a Dr. Edward Barrett for $50, prescriptions totalling $227.11, cord blood storage of $129.95, Ms. Sutherland's fees of $15,313.75 and Ms. Sutherland's cell phone expense of $1,285.47 which all total $28,281.74.
307As indicated above, I decline to allow the expenses related to Ms. Sutherland. With respect to the tuition expenses at Children's Garden for Junior Kindergarten, the evidence is that Liam attended half-days in the public system and half-days at Children’s Garden. Mr. Tissot was still working for part of 2010 and it was necessary with respect to Liam’s best interests and reasonable that he attend Children’s Garden. There is evidence that Mr. Tissot made contributions to these costs which have been included in the calculation of total support paid by Mr. Tissot. With respect to the prescriptions totalling $247.11, these are health-related expenses for which there appears to be no health coverage under any plan of Dr. McCabe or Mr. Tissot. These expenses are necessary and reasonable and should also be shared by the parties. The expense of $50 for Dr. Barrett and the $50 for the hearing evaluation are minor in nature and I have not included them as section 7 expenses. With respect to the remainder of the expenses, I do not find that they are necessary or reasonable, and with respect to the extracurricular activities, these are expenses that Dr. McCabe can reasonably cover, taking into consideration the table amount as calculated earlier in these Reasons and Dr. McCabe's income. As such, the total section 7 expenses to be shared by the parties for 2010 is $10,294.11.
308Mr. Tissot indicates that in 2010 he once again paid for a Science Centre membership in the amount of $105 as well as a ROM membership of $189. Again, these are not necessary expenses and ones that do not meet the definition of an extraordinary extracurricular expense.
2011
309For 2011, Dr. McCabe lists a number of expenses, including Children's Garden tuition for Senior Kindergarten $10,313, A+ Smart Tutoring $550, East York Gymnastics Club $849, Sportplay $145.30, Leaside East Toronto Soccer Club $145, Hear Toronto $25, Dr. Fratkin $296.50, prescriptions $16.36, cord blood storage $129.95, Ms. Sutherland $11,457.16 and Ms. Sutherland's cell phone $627.04 for a total of $24,554.31.
310Mr. Tissot indicates that he paid $61.03 for Climbers Rock, and $16 for the Science Centre for 2011 for a total of $77.03. Mr. Tissot also indicates in his chart that he made lump-sum payments to Dr. McCabe and paid other expenses on account of the family in 2010 and 2011.
311The evidence supports that Liam was starting to experience difficulties in Senior Kindergarten and as such, I find that the expenses related to tutoring for Liam in the amount of $550 and tuition at Children’s Garden are necessary and reasonable expenses. The evidence is that Liam attended school half-days in the public system and half-days at Children’s Garden. Liam’s teachers at both schools noticed concerns with Liam and no doubt Liam benefitted from a smaller class setting at Children’s Garden. As indicated above, expenses related to Ms. Sutherland are not proper section 7 expenses as they have been claimed as a business expense. There is also an expense of $145.30 for a March Break Camp for Liam which is also a reasonable and necessary expense. Liam's medical expenses which total $337.86 I also find to be necessary and reasonable expenses; however, the remainder of the expenses are not necessary and reasonable. Additionally, the extracurricular expenses for Liam are expenses that Dr. McCabe can reasonably cover, taking into consideration the table amount as calculated for the calendar year 2011 and Dr. McCabe's income. The expenses as submitted by Mr. Tissot are not appropriate section 7 expenses and ones that do not meet the definition of an extraordinary extracurricular expense. As such, the total of acceptable section 7 expenses for the calendar year 2011 is $11,346.16.
2012
312For 2012, both parties list numerous expenses for Liam that they submit are appropriate section 7 expenses. Dr. McCabe lists the section 7 expenses as Children's Garden tuition $2,500, holiday camp at Children's Garden for two days in December $170, a Children's Garden Foundation donation of $250, tutoring for Liam of $1,265, Alliance Française $313.70, a ski program at the City of Toronto Parks and Recreation $245, Leaside Soccer Club $150, Leaside Hockey Association $395, swimming lessons $192.85, a bike $226, counselling for Liam with Ms. Thorlaksdottir totalling $3,481.40, Dr. Fratkin $266, Dr. Lustig $200, prescriptions $251.69, cord blood storage $129.95, Ms. Sutherland $10,042.45 and Ms. Sutherland's cell phone $816.49 which all total $20,895.53.
313Mr. Tissot indicates that for the calendar year 2012, he paid for ROM membership in the amount of $189, Alliance Française expenses totalling $568.50, Costco $459.62, Liam's school uniforms $441, cash to Dr. McCabe $500, Science Centre memberships $114, another Science Centre expense $16, camping in Prince Edward Island $201.75, and ski school and pass at Blue Mountain totalling $228. Mr. Tissot's total for section 7 expenses that he asserts he paid for in 2012 is $2,717.87.
314Dr. McCabe testified that it was difficult financially for her to afford to send Liam to Children's Garden. She further indicated that Liam was able to attend Children's Garden in grades 1, 2 and 3 as a result of a scholarship offered to him. It was Dr. McCabe's evidence that Mr. Tissot was not agreeable to Liam attending Children's Garden but once he found out that a scholarship was offered, Mr. Tissot was agreeable to Liam attending. Mr. Tissot did not refute this evidence and I accept that he acquiesced to Liam attending Children's Garden for grades 1 to 3. There did not appear to be any dispute that Liam's private school fees are extraordinary for 2012 and the following years in that the expenses for private school exceed those that Dr. McCabe could reasonably cover, taking into account her income and the amount of table child support that she would receive. The evidence also supports, as indicated above in these Reasons that Liam was now struggling more academically in grade one and he needed to be in a small classroom setting in order to receive the proper supports that he required.
315As a result, Children's Garden tuition of $2,500 is a necessary and reasonable expense as is tutoring for Liam of $1,265. Both parties also agreed that Liam would take French lessons with Alliance Française. Both parties incurred costs for this expense which I find necessary and reasonable given the desire of both that Liam become bilingual. The expense of $313.70 for these lessons in 2012 as set out by Dr. McCabe is a proper section 7 expense.
316The evidence also supports that counselling for Liam with Ms. Thorlaksdottir was of great benefit to him as Liam was struggling. This is a necessary expense of $3,481.40 with respect to Liam’s best interests and reasonable given the means of the parties. Both parties should share in this expense. Liam's dental and medical expenses totalling $717.69 are also reasonable and necessary expenses. For the same reasons as set out above, Ms. Sutherland’s expenses are not proper section 7 expenses. I do not find that the remainder of section 7 expenses as submitted by Dr. McCabe for 2012 are necessary and reasonable expenses nor do the extracurricular activities fit the definition of extraordinary expenses that could not be covered by Dr. McCabe’s income and the table amount of support. Additionally, a donation is not a proper section 7 expense. Therefore the total of these allowable section 7 expenses for 2012 as submitted by Dr. McCabe is $8,277.79
317With respect to Mr. Tissot's expenses submitted, the Alliance Française expenses of $568.50 are necessary and reasonable expenses and ones agreed to by the parties. However, these contributions to Alliance Française have been taken into consideration in the total child support paid by Mr. Tissot of $74,526.70 as acknowledged by Dr. McCabe. I have already included these in the credit to Mr. Tissot towards table support owing. Payment for Liam’s school uniform of $441 is also a necessary and reasonable expense especially given Dr. McCabe's desire that Liam continue in private school. The remainder of the expenses are not proper section 7 expenses as they do not meet the definition of extraordinary extracurricular activities nor are they necessary and reasonable expenses. As such, Mr. Tissot should be given a credit for this total of $441 paid in 2012 when calculating section 7 expenses. I also accept the evidence of Dr. McCabe that any cash payments made directly to Dr. McCabe by Mr. Tissot have been taken into consideration by her with respect to child support table amounts paid by Mr. Tissot for the various calendar years.
2013
318For 2013, Dr. McCabe included numerous expenses in her charts. There is Children's Garden tuition $1,800, tutoring $852, Children's Garden uniform $253, Sporting Life $84, ski equipment $383.84, skating lessons at school $190, summer camp $325, ski lessons at Blue Mountain $866.71, City of Toronto Parks and Recreation ski lessons $214, swimming lessons $192.50, hockey lessons and camp totalling $954.85, hockey registration $500, Select team hockey fees $1,550, Dr. Lustig $300, Dr. Fratkin $347, occupational therapy $1,000, Ms. Thorlaksdottir $870.10, orthotics $249.75, prescriptions $83.19, cord blood storage $129.95, Ms. Sutherland $3,568, Ms. Sutherland's cell phone $236.66, and babysitter Ms. Sutton $340. The section 7 expenses as submitted by Dr. McCabe total $15,290.55.
319Mr. Tissot also provided a list of expenses which he submits are section 7 expenses for 2013. He includes Alliance Française classes which total $705, ski passes in France $302, ski school in France $393, Science Centre $135, ROM $189, mediation with Dr. Radovanovic $1,750, climbing $59, Ms. Thorlaksdottir $149, squash expenses $121.27, Select hockey $775, Ryerson hockey $12, gift for Liam's teacher $50, and house league hockey $250. These expenses total $4,880.27 as submitted by Mr. Tissot.
320For the same reasons as set out above, Children's Garden Tuition $1,800, tutoring $852, Children's Garden uniform $253, summer camp $325, Ms. Thorlaksdottir $870.10, orthotics $249.75, $300 for Dr. Lustig, $347 for Dr. Fratkin and Ms. Sutton $340 are necessary and reasonable expenses for Liam. Most of these expenses have been incurred given Liam's academic struggles and struggles with anxiety. Additionally, some are necessary and reasonable medical expenses for Liam as well as expenses relating to his care and to his education. I have not included the minor prescription costs of $83.19. This is the first time that Dr. McCabe has included expenses for occupational therapy which total $1,000. These are necessary and reasonable expenses for Liam given the challenges that he has continuously faced in school as testified to by Ms. Mosko. Mr. Tissot is also in agreement that Liam has benefited from occupational therapy and he agreed to contribute to these expenses.
321There are significant expenses submitted by both parties with respect to Liam's hockey. Both Dr. McCabe and Mr. Tissot testified that Liam was now playing Select hockey and was enjoying hockey. This is a necessary expense with respect to Liam’s best interests given it is an activity that he enjoys and no doubt a diversion from his struggles. However, in my view this is an extraordinary extracurricular expense as Liam's hockey involves significant expense. This is an expense that exceeds that which Dr. McCabe can reasonably cover taking into account Dr. McCabe's income and the amount that she would receive in table support. Liam's hockey expenses outlined by her for 2013 total $3,004.85. It is clear from the evidence that Liam enjoys hockey and has chosen to play at a higher level which results in increased costs for the parties. With respect to the other extracurricular expenses set out by Dr. McCabe, both parties paid significant monies towards Liam’s ski lessons both in Ontario and France. I am not prepared to include these as section 7 expenses as both parties contributed to these expenses in fairly equal amounts. Other extracurricular expenses set out by Dr. McCabe in her chart I do not find are extraordinary extracurricular activities as they can be covered by the table amount of support received by Dr. McCabe and Dr. McCabe's income. As a result, the total amount of section 7 expenses that should be shared by the parties as submitted by Dr. McCabe for 2013 is $9,341.70.
322With respect to the expenses submitted by Mr. Tissot, the Alliance Française classes are appropriate section 7 expenses in the amount of $705 as again both parties agreed to Liam taking these classes. The classes are necessary and reasonable given the desire of the parties to have Liam become bilingual. As set out above, these expenses have already been taken into consideration with respect to credits to Mr. Tissot of $74,526.70 towards table child support owing. Additionally, Mr. Tissot should be given credit for hockey payments made totalling $1,025 for the reasons set out above and it is appropriate that Ms. Thorlaksdottir's fees are shared by the parties which Mr. Tissot states is $149. Dr. McCabe has already included Mr. Tissot’s expense for Ms. Thorlaksdottir and for hockey paid by Mr. Tissot in the $74,526.70 credit to Mr. Tissot. The other expenses set out by Mr. Tissot are not appropriate section 7 expenses. Most of these expenses relate to activities that Mr. Tissot engaged in with Liam and are not extraordinary extracurricular activities. Additionally, both parties should bear their own costs for mediation with Dr. Radovanovic and gifts to teachers are not appropriate section 7 expenses. Therefore Mr. Tissot’s proper section 7 expenses have already been included in credits to Mr. Tissot.
2014
323For 2014 up to the trial date in November 2014, Dr. McCabe lists many section 7 expenses which total $18,390.98. These include soccer fees of $220, occupational therapy fees $3,275, hockey expenses including March break camp totalling $2,165.90, tutoring $7,356.13, summer camp $1,540, Ms. Danson's fees of $423.75, orthotics $222.75, $2,700 for Ms. Sutton for childcare, cord blood storage $129.95, ice skating at school $180, and Dr. Fratkin $177.50. All of these expenses are appropriate section 7 expenses as they are necessary and reasonable for the reasons set out earlier except for cord blood storage, ice-skating at school and soccer registration. As indicated previously, the cord blood storage is not an appropriate section 7 expense as it is not necessary and reasonable and ice-skating at school and soccer registration costs are those that do not fit within the definition of extraordinary extracurricular activities under section 7. I find Ms. Danson's fees to be necessary and reasonable given Liam's challenges and the need to find the appropriate school and program for him. Therefore these expenses total $17,861.03.
324Dr. McCabe also provided additional section 7 expenses for 2014 since the trial in November 2014. These additional costs actually cover the period from October to December of 2014. There are tutoring costs of $2,432.50 and additional occupational therapy costs of $900. There is a skiing program and equipment of $765.37 along with power skating in the amount of $395.50 and orthotics of $25. The tutoring and occupational therapy costs are necessary and reasonable given Liam's ongoing needs. Both parties incurred significant costs for Liam's ski lessons and equipment and I am not prepared to accept these expenses as appropriate section 7 expenses. Given Liam's participation in Select hockey, the power skating costs of $395.50 I accept are appropriate section 7 expenses. The orthotics expense is minor and I have not included it in the calculation. Therefore the total of Dr. McCabe's additional section 7 expenses accepted by the Court for 2014 is $3,728 making the grand total of section 7 expenses for Dr. McCabe for all of 2014, $21,589.03.
325Mr. Tissot also lists a number of expenses for 2014 that total $8,898.81. A number of Mr. Tissot's expenses relate to extracurricular activities with Liam. These expenses are not necessary and reasonable and they do not fit the definition of being extraordinary extracurricular activities for the same reasons as set out above. These activities include climbing, ski lessons, Science Centre expenses, and jujitsu activities. Mr. Tissot also includes expenses for Dr. Radovanovic's report which both parties had to incur along with Dr. Kaidar's psycho-educational assessment which both parties also contributed to and is an expense for which Dr. McCabe is not seeking contribution from Mr. Tissot. Both parties would have paid their portion of this expense directly to Dr. Kaidar which was in the amount of $1,870. With respect to the expense of $135.60 submitted for Ms. Thorlaksdottir, I do not find that this was a reasonable or necessary expense at the time given Ms. Thorlaksdottir's evidence that she felt the appointment was Mr. Tissot's need for her to see a positive relationship between Liam and Mr. Tissot. This was not necessary counselling for Liam. As such, there are no proper section 7 expenses for Mr. Tissot in 2014.
2015
326For 2015, Dr. McCabe indicates that her section 7 expenses for Liam total $34,216.03. This includes Children's Garden school trips of $140, Crestwood school fee and clothes $18,833.81, Dr. Kaidar $880, Dr. Fratkin $355, orthotics $199, occupational therapy $2,825, tutoring $4,943.42, Staples $165.95, prescriptions $94.18, cord blood storage $129.95, New Balance $95.28, Sport Check $771.31, hockey $3,359.31, summer camps $835.07 and soccer $165.
327Mr. Tissot indicates that for 2015, he paid $620.75 towards section 7 expenses including climbing, jujitsu, Marineland, and Lakeridge resort. I do not find that any of these are proper section 7 expenses as they are not extraordinary extracurricular activities and do not fall within the definition of section 7 expenses.
328Mr. Tissot testified that he is not prepared to pay any fees with respect to Crestwood at this time. He acknowledged that Crestwood is a great school but that his concern is financial. He will not commit to Liam being enrolled at Crestwood beyond this school year. It is apparent that Liam is thriving at Crestwood. Much evidence was provided by Dr. Kaidar, Ms. Mosko, and Ms. Danson as to the benefits to Liam of remaining in the Roots program at Crestwood such that Liam is provided with structure and the supports that he needs in order to succeed. As indicated earlier in these Reasons, Liam has had many academic struggles and changes in his life. To remove Liam from Crestwood and place him in yet another school with no guaranteed supports in place for him would not be in Liam’s best interests.
329As indicated by Ms. Danson, given Liam has not been identified, it is unlikely that he would receive the supports that he needs within the public school system. Mr. Tissot did not provide evidence that the necessary supports would be available to Liam in the public system. I am satisfied that it is necessary with respect to Liam’s best interests and reasonable taking into consideration the means of the parties, that Liam continue at Crestwood and that both parties contribute to Liam's private school costs. Mr. Tissot has chosen not to work since approximately 2010 and had he done so, these expenses would be reasonable for the parties to incur for Liam's benefit. Based on the income that I have imputed to Mr. Tissot, this is a reasonable expense for the parties to incur for the benefit of Liam given both of their incomes.
330Ms. Danson's fees and those of Drs. Kaidar and Fratkin (all paid solely by Dr. McCabe) are all necessary and reasonable expenses with respect to Liam. Additionally, Liam still required in 2015 occupational therapy and tutoring. These too are necessary and reasonable expenses for the parties to incur for the benefit of Liam. Liam still requires ongoing occupational therapy, but tutoring is now available to Liam through the Roots program at Crestwood which is another reason why it is reasonable for Liam to remain at Crestwood. Liam's orthotic costs and prescriptions are necessary and reasonable as are other expenses relating to Liam’s child care in the summer, in particular summer camps. For the reasons stated above, I accept that Liam's hockey expenses are extraordinary in nature and that his expenses also include additional hockey equipment. Liam's hockey expenses and equipment for hockey totalled $4,130.62 in 2015 which exceeds that which Dr. McCabe can pay with the regular child support table amount along with her income. I am not prepared to accept the $140 for a school trip, a sketchbook at Staples, cord blood storage, purchases at New Balance, smaller prescriptions and Liam's soccer registration as being appropriate section 7 expenses. This results in a total for acceptable section 7 expenses for Liam of $33,425.67 for 2015.
331Therefore the amount of appropriate section 7 expenses for each calendar year is as set out in the following table:
| Year | Section 7 Expenses |
|---|---|
| 2008 | $Nil |
| 2009 | $ 2,940 |
| 2010 | $10,294.11 |
| 2011 | $11,346.16 |
| 2012 | $ 8,277.79 |
| 2013 | $ 9,341.70 |
| 2014 | $21,589.03 |
| 2015 | $33,425.67 |
| Total: | $97,214.46 |
Issue #7
What is the appropriate share of section 7 expenses by the parties and what, if any, section 7 expenses are owing by Mr. Tissot to Dr. McCabe for the time period 2008 to 2015?
332Dr. McCabe seeks that Mr. Tissot pay 50% of the section 7 expenses ($86,232.12) which she contends total $172,464.23. She is not seeking a proportionate sharing in accordance with the parties’ incomes during the period 2008 to 2015.
333With respect to ongoing section 7 expenses, Dr. McCabe seeks that Mr. Tissot pay 50% of the cost of private school including ancillary expenses as well as educational testing, occupational therapy, medical expenses including orthotics, counselling, and dental expenses, including orthodontics. Except for Crestwood to which each party shall pay their share directly, she seeks to have the section 7 expenses paid by Dr. McCabe to the service provider and Mr. Tissot to provide his share to Dr. McCabe within two weeks of having been presented with the invoice or receipt.
334With respect to hockey, Dr. McCabe seeks that the cost of hockey, including fees and equipment (for as long as Liam wishes to participate in Select and house league hockey) is to be shared 65% by Dr. McCabe and 35% by Mr. Tissot. She further seeks that the cost of all extracurricular activities, including those that may take place at Crestwood for a fee, will be shared 65% by Dr. McCabe and 35% by Mr. Tissot.
335As set out in section 7(2) of the Guidelines, “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.” Further, as set out in section 7(3), the court must also 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.
336The difficulty is that Dr. McCabe’s income as indicated is subject to adjustment upward given her evidence that she claimed Ms. Sutherland’s expenses for Liam’s child care as a business expense. There is no evidence before the Court as to the income adjustments that will be made by the CRA to Dr. McCabe’s income. Under the circumstances I find that it is reasonable that the section 7 expenses for Liam be shared on an equal basis for the years 2009 to 2015 (there being no proper section 7 expenses in 2008) given the issues with Dr. McCabe’s income and the imputation of income to Mr. Tissot. The total of appropriate section 7 expenses as set out above is $97,214.46 for the years 2008 to 2015. One-half of that amount is $48,607.23. As indicated, Mr. Tissot is entitled to a credit of $441 therefore the total amount owing by Mr. Tissot to Dr. McCabe for section 7 expenses is $48,166.23.
337Mr. Tissot contends that he paid $74,166.20 towards other family expenses from 2008 through to 2015. The bulk of these expenses occurred during 2010 to 2013 as set out by Mr. Tissot in his chart entered as an exhibit at trial. In support of his figures, Mr. Tissot has included additional charts outlining payments made for each calendar year mainly from his MasterCard and from his bank account. Many of these expenses relate to meals and activities with Dr. McCabe and Liam, gifts for Dr. McCabe and Liam along with expenses incurred for trips to Banff, Lake Louise, Prince Edward Island, Blue Mountain and France taken with Liam and Dr. McCabe. In June of 2011, Mr. Tissot indicates in his chart that he paid for flights to France for the family in the amount of $6,463. He also indicates that in the same month, he paid for an RV rental in France in the amount of $4,819.80. There are flights in December of 2010 for the family to France in the amount of $3,733. Additionally there are also flights to France listed in February of 2013 totalling $1,753.98. All of these expenses total $16,769.78.
338The evidence supports that the parties had a very different view of their relationship from 2009 to 2013. As set out earlier in these Reasons, Mr. Tissot was hoping for reconciliation and in his view the parties were getting along well and were doing things together with Liam as a family with the goal to reconciling. Dr. McCabe did not view this period of time as one in which a reconciliation was being attempted and she believed that she was doing what was in the best interests of Liam which was getting along with Mr. Tissot. During this time Dr. McCabe did not take any steps in court to obtain child support. Despite there not being a reconciliation, this period of time was one of relative calm with some moments of difficulty, as indicated by the parties.
339Mr. Tissot did expend substantial funds for the benefit of Liam and Dr. McCabe during this time. In particular, the expenses relating to flights to France and the rental of an RV in France were significant. Although not categorized as section 7 expenses, I find that it would be inappropriate for this Court not to recognize the contribution made by Mr. Tissot to these travel expenses for the family. The entire family benefited from Mr. Tissot paying for these expenses. I am not prepared to apply a reduction for gifts for Liam and Dr. McCabe, restaurant expenses or expenses for activities for Liam other than those already addressed with respect to appropriate section 7 expenses. However, I am prepared to allow a deduction to Mr. Tissot with respect to section 7 expenses owing in the amount of $11,000 which represents approximately 2/3 of the costs associated with these flight and RV expenses with respect to family trips to France post-separation. I recognize that there were other expenses paid for by Mr. Tissot in France; however, I am not prepared to make any further adjustment. As a result, Mr. Tissot shall pay to Dr. McCabe the sum of $37,166.23 for section 7 expenses owing from 2008 to 2015.
340With respect to ongoing section 7 expenses for Liam, Dr. McCabe's income for 2015 I have accepted is $175,000 gross and I have imputed to Mr. Tissot an income of $125,000 gross. This results in a proportionate sharing of section 7 expenses of 58% by Dr. McCabe and 42% by Mr. Tissot. I see no reason to differentiate in the sharing of section 7 expenses between Liam's education including private school and medical/dental expenses and his extraordinary extracurricular activities. Commencing January 1, 2016, Dr. McCabe shall pay 58% of Liam's section 7 expenses while Mr. Tissot shall pay 42% of those expenses as detailed further in the order below. As also set out in the order, I have specified what expenses are proper section 7 expenses currently, the manner of payment of those expenses by the parties, and disclosure of the parties’ incomes in the future.
Order
341This Court orders the following:
i) The applicant shall have sole custody of Liam McCabe Tissot, born September 9, 2006, and Liam's primary residence shall be with the applicant;
ii) Liam's habitual residence shall be Ontario, Canada. The Ontario courts shall have jurisdiction to deal with all issues involving Liam, including custody, access, support, travel and mobility;
iii) The respondent shall provide a declaration that there is no current proceeding in France regarding Liam and that neither he, nor any members of his family, shall commence any proceedings in France regarding Liam as Canada has exclusive and continuous jurisdiction over Liam;
iv) The respondent shall not apply for a French passport, ID or citizenship for Liam until he is 17 years-old unless by agreement of both the applicant and the respondent;
v) The respondent shall register the parties’ marriage and divorce in the Livret de la Famille with the French consulate in Canada. Upon proof that the parties’ marriage and divorce is registered in the Livret de la Famille in France and with the French consulate in Canada, and the translated divorce order and final custody order has been provided to the French consulate in France and Canada, the respondent may travel with Liam to France in accordance with the vacation terms set out further in this order;
vi) all photographs of Liam and the parties shall be struck from the court file;
vii) neither party shall apply to change Liam's name;
viii) the parties shall be guided by the following principles:
a. Liam shall maintain his current doctor and dentist, namely Dr. Wyman and Dr. Fratkin. The applicant shall make and attend at routine medical and dental appointments. The applicant shall advise the respondent of any non-routine medical and dental appointments, and shall advise the respondent promptly of any change in Liam's health status.
b. The applicant shall provide the respondent with the names, addresses and phone numbers of any new health care professionals (e.g. physicians, dentists, orthodontists etc.) providing care to Liam.
c. The applicant shall be the librarian of Liam's documents, namely his health cards, or certificates, passports, etc. and she shall provide photocopies to the respondent. She shall provide the original health card or passport to the respondent on an as needed basis. Liam’s health card shall accompany him when he travels out of town overnight.
d. If Liam needs emergency medical care while with one parent, that parent shall immediately notify the other of the emergency, and both parents may attend with the emergency physician. If the applicant is unavailable, the respondent may make emergency health decisions in keeping with the emergency physician's advice.
e. Each parent shall provide written permission to release Liam's health information to the other. Each parent has the same right to access to information from all service providers and educational and health facilities.
f. The parties may also request any relevant records/information from Liam's healthcare providers directly.
g. The applicant shall make major medical decisions, after considering medical advice and consulting with the respondent, giving the respondent 30 days’ advance notice where practicable.
h. Liam is Catholic. The applicant shall schedule the requisite preparatory religion classes for Liam’s Confirmation outside of the respondent's parenting time whenever possible. Both parents and extended family may attend Liam's Confirmation and the applicant shall ensure that she provides at least two months’ notice of the date for Confirmation to the respondent;
i. The applicant shall solicit the input and opinions of the respondent in relation to educational decision-making. This communication shall occur through written correspondence only.
j. If the parties are unable to agree in relation to an education issue despite input from the relevant professionals, the applicant shall have responsibility for making a decision in Liam's best interests provided notice in writing is given, of at least 30 days to the respondent.
k. Liam shall continue to attend Crestwood School (in the Roots program while necessary) until completion of grade 8.
l. Whatever school Liam attends, he shall have continued participation in French language instruction within the curriculum.
m. The parties shall schedule and attend the routine parent teacher interviews/meetings separately during their own parenting time.
n. The applicant shall be the primary point of contact for Liam's school, tutoring and educational plan. The respondent shall be the secondary contact. If one parent becomes aware of, or wishes to share with the school, significant information related to Liam's education, that parent shall advise the other parent of the information.
o. A school calendar shall be obtained by the parties from the school. Both parties shall assume responsibility to stay up-to-date on any relevant educational matters (e.g. professional activity days, special events, field trips, concerts, parent teacher meetings, etc.). Each parent shall request from the school that he or she be provided with all of the notices, report cards etc. If the school is unwilling to provide duplicates, the receiving parent shall provide a copy to the other.
p. The applicant and the respondent shall reasonably ensure that Liam stays current with his homework (i.e. completing it, meeting deadlines, and completing step-wise tasks to meet final deadline obligations). The parties shall communicate by e-mail about homework and ongoing projects.
q. Both parents may attend special, non-routine school functions, including: open houses, school Council meetings, curriculum nights, plays, concerts, assemblies, fundraisers etc. regardless of the residential schedule. The parties shall remain cordial during these occasions and shall not have discussions of any issues at these times.
r. Liam shall have psychotherapy/counselling with Dr. Barbara Fidler or some other recommended therapist.
s. With respect to extracurricular activities and lessons, Liam's preferences shall be taken into account and given substantial weight within reason and in keeping with what is considered age-appropriate.
t. In 2015/2016 and for so long as Liam wishes to participate, he shall be registered in Select and House league hockey. Liam shall also be allowed to participate in skiing one evening a week not on the respondent's time and soccer in the spring. During the school year, Liam may participate in two additional afterschool extracurricular activities per season of his choice at Crestwood, regardless of the regular residential schedule. If Liam decides that he is no longer interested in hockey, skiing or soccer, the parties shall discuss with Liam his choice of extracurricular activities and shall ensure that Liam's preferences are taken into account;
u. Each party shall be responsible to access Liam's hockey calendar and to ensure that Liam attends all hockey practices and games, if Liam is well.
v. If Liam is unable to attend an activity, that parent shall notify the other parent. The parent who is with Liam shall inform the other when Liam is sick and provide regular updates regarding Liam's condition. The parent who is with Liam is responsible for Liam's attendances at activities and shall make every effort to ensure attendance.
w. Both parties shall be entitled to attend Liam's extracurricular activities and special events. Both shall ensure that they remain civil to one another throughout the entire event;
x. the parties shall make every reasonable effort to ensure Liam attends special occasions involving his peers (e.g. birthday parties and extended family celebrations such as special birthdays and anniversaries). Where possible, a parent shall schedule such occasions when the parent knows that Liam will be resident with him or her.
ix) Liam shall reside with the respondent as follows:
a) on alternate weekends from Friday at 3:30 p.m. or completion of the school day, until Monday morning return to school. The respondent shall pick up Liam from school on Friday and return him to school on Monday morning;
b) every Wednesday at 3:30 p.m. or completion of the school day, until 8:00 p.m. The respondent shall pick up Liam from school and the applicant shall pick up Liam from the respondent's residence at 8 p.m.;
c) alternating Monday evenings following the weekend that Liam resides with the applicant, from 3:30 p.m. or completion of the school day, until 8:00 p.m. The respondent shall pick up Liam from school and the applicant shall pick up Liam at the respondent's residence at 8:00 p.m.;
d) Liam shall otherwise reside with the applicant.
e) if either parent is not able to care for Liam overnight, that parent shall offer the other parent and opportunity to care for Liam. If Liam is staying overnight outside of Toronto, the parties shall notify one another as to where Liam will be staying prior to leaving.
f) it shall be each parent's responsibility to make contact with Liam if they wish daily when he is sick, every third day when he is well, or more frequently if Liam wishes. Contact shall be between 6:30 p.m. to 7:30 p.m. The residential parent shall facilitate telephone, Skype, Face Time or similar video voice technology with Liam. The context shall be a reasonable length of time, specifically not more than 15 minutes;
g) if Mother's Day falls on the Sunday that the applicant would not normally have Liam, Liam shall be returned to her home on Saturday at 7:00 p.m. and he shall remain with her for the balance of the weekend. In the event that Father's Day falls on a Sunday that the respondent does not ordinarily have Liam, the applicant shall drop off Liam at the respondent's residence on Saturday at 7:00 p.m. and Liam shall remain with the respondent until Monday return to school when the regular schedule resumes;
h) Liam shall have contact with each parent on his birthday. There shall be a two-hour period with the parent with whom he is not ordinarily residing on that day. On weekdays or school days, such contact shall normally take place from 11:30 a.m. to 1:30 p.m. On weekend days, such contact shall normally include lunch or dinner. The schedule shall be arranged by August 9, the month before;
i) the applicant shall have Liam for Halloween. In the years when Halloween falls on the respondent's regular time with Liam, the applicant shall pick up Liam at the respondent's home at 6:00 p.m. and return him to the respondent's home at 7:30 p.m. If Halloween falls on the applicant's residential time, the respondent shall be permitted to take Liam out to trick or treat from 7:30 p.m. to 8:30 p.m.;
j) the regular access schedule shall be suspended during the school holiday break and Liam shall spend his Christmas school holiday with both parents equally. The parties shall finalize the details of the schedule by October 15 of each year. The school break shall be defined as beginning at the time of dismissal on the last day of school and ending the first day back to school. In the event of an unequal number of days, the parent who has Liam Christmas Eve shall also have the extra day and the reverse shall occur in the following year. Liam shall be with the applicant for the first half of the break in all even years and with the respondent in all odd years. Liam shall be with the respondent for the second half of the break in all even years and with the applicant in all odd years;
k) if Family Day falls on the weekend Liam is with the respondent, the respondent shall have Liam from Thursday after school until Sunday at 9:00 a.m. The applicant shall have Liam the remainder of the weekend including Family Day. The applicant shall pick Liam up from the respondent’s residence. If Family Day falls on the weekend that Liam is with the applicant, the respondent shall have Liam from Sunday at 9:00 a.m. until Tuesday return to school;
l) if Easter falls on the weekend that Liam is with the respondent, Liam shall reside with the respondent from Thursday after school until Saturday at 6:30 p.m. and with the applicant for the balance of the weekend including Monday. If Easter falls on the weekend that Liam is with the applicant, Liam shall reside with the applicant from Thursday after school until Saturday at 6:30 p.m. and with the respondent for the balance of the weekend with the respondent returning Liam to school Tuesday morning;
m) if Thanksgiving falls on the weekend that Liam is with the respondent, Liam shall be with the respondent from Friday after school (or Thursday if Friday is a PD day) until Sunday at 1:00 pm., and for the remainder of the weekend Liam shall be with the applicant including Monday. If Thanksgiving falls on the weekend that Liam is with the applicant, Liam shall be with the respondent from Sunday at 1:00 p.m. until Tuesday morning return to school;
n) the parties shall share time equally with Liam during March Break each year. The regular schedule shall be suspended during Liam's two-week March Break. March Break shall be shared equally with seven days each that includes the regular weekend for each parent. Whoever has Liam for the weekend that begins March Break shall have him for the first half of the break and the transfer time shall be 9:00 a.m. on Monday. When the respondent has Liam for the second half of March Break, the applicant shall drop off Liam to the respondent at 9:00 a.m. on Monday morning and the respondent shall keep Liam for the week returning Liam to school on the following Monday morning when school resumes. If either parent enroll