J.M.G. v. L.D.G., 2016 ONSC 3042

CITATION: J.M.G. v. L.D.G., 2016 ONSC 3042

OSHAWA COURT FILE NO.: 11-38759-00

DATE: 20160506

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

J.M.G. Applicant

– and –

L.D.G.. Respondent

Heather Hansen & Shannon Beddoe, for the Applicant

Jeffrey Wilson & Sandra Meyrick, for the Respondent

HEARD: November 16, 17, 18, 19, 20, 23, 24, 25, 26, 27, 30, December 1, 2016

FINAL WRITTEN SUBMISSIONS RECEIVED: January 19, 2016

DECISION

FRYER, J

I. INTRODUCTION

[1] This trial was heard after many years of litigation for this family. The primary issue was the parenting arrangement for the parties’ two sons, M.G. (age 12) and A.G. (age 10), and more particularly what to do about the Applicant Father’s fractured relationship with the children.

[2] The relationship between the Father and the boys is severely damaged and, at the time of this trial, almost non-existent. The parties agreed that the boys are “in crisis” and not doing well emotionally, socially or academically.

[3] The Father’s position is that the Respondent Mother has actively interfered with his relationship with the boys. She has encouraged the boys to align with her in an unhealthy way and has over-empowered them to reject him. The Father believes that the Mother must be at least initially excluded from any regime to repair his relationship with the boys; he asks this court to order a custody reversal to be supported through Dr. Warshak’s Family Bridges program.

[4] The Mother’s position is that the Father was abusive during their relationship and that she and the children both experienced and remember this abuse. The Father, according to her, has not adequately addressed his unpredictable and uncontrolled anger issues. Furthermore, she states that he suffers from a sex addiction and has not sought appropriate treatment for this addiction. According to the Mother, the boys’ stated views and preferences in terms of their relationship with the Father are genuine and ought to be respected.

[5] In August 2014, after the parties were divorced, the Mother married B.L. , a Canadian citizen residing in Arizona. The Mother seeks an order permitting her to move to Arizona with the boys.

[6] The Father and the Mother ostensibly agree that it is in the best interests of the children to have a relationship with the Father. Therefore, the primary question for this court is how best to repair the Father’s relationship with the children and how to ensure that they have a healthy and meaningful relationship with both of their parents.

[7] The parties settled many of the financial issues. The outstanding financial issues include the value of the Father’s professional building, retroactive child and spousal support as well as prospective spousal support having regard to the fact that the Mother has re-married among other things.

II. BACKGROUND

Basic Background & Chronology

[8] The Mother and Father met in September 1998. The Father is a doctor who focuses on integrative medicine. The Father had just purchased the building in the Town[1] from which to run his practice. The Mother, who was recently separated from her first husband, was a qualified reflexologist and was looking for a place to practice.

[9] The parties began dating and moved in together later in 1999. The Mother and the Father married on April 22, 2000.

[10] The Mother had three boys from her first marriage: C.B. (born in 1993), A.B. (born in 1994) and R.B. (born in 1997). The boys were living with the Mother and their father, M.B., in a shared parenting arrangement. When the Mother and the Father started living together, C.B. and A.B. came to live with them full time, while the child R.B. lived primarily with his father. The Father assumed a parental role with C.B. and A.B., assisting them with homework, taking them to school and coaching them in sports.

[11] The parties’ child, M.G., was born on March 27, 2003 and the parties’ child, A.G., was born August 10, 2005.

[12] The Mother worked part-time as a medical office assistant in the Father’s practice for much of the marriage.

[13] The Mother and Father purchased a home across the street from the medical practice. Later, they purchased land and built a cottage that was the focus of family life on weekends and holidays.

Relationship of the Parties Leading up to Separation

[14] Both parties agree that there was conflict between them from early on in their relationship. There were instances of domestic violence some of which were witnessed by one or more of the children.

[15] The Father had a preoccupation with sexual fantasies that negatively affected the marriage. With the Mother’s support, the Father entered therapeutic programs, one in Arizona and another Bellwoods in Canada. In the course of treatment the Father maintained a therapeutic diary. The Mother obtained a copy of this diary; she was disturbed and devastated by the contents. The marriage quickly declined.

[16] On February 22, 2010 a physical altercation took place between the parties and the Father was criminally charged. The charges were later withdrawn when the Mother recanted. However, this marked the parties’ final separation.

Parenting of the Children following Separation

[17] The Father moved out of the matrimonial home. In July 2010 when the parties sold their matrimonial home, the Mother and the children, M.G. and A.G., as well the child, C.B., moved into a rental property nearby.

[18] From the separation through to about the middle of 2013, the Father had only daytime visits with the children typically on Tuesday and Thursday evenings and during the day on Sundays. The Mother insisted that these visits be supervised and various members of the Father’s family fulfilled this function. There were lengthy negotiations required to arrange access.

[19] In August 2011, the Father learned that the Mother was in a relationship with B.L. The Father commenced his Application on August 18, 2011 seeking to ensure that the Mother could not move with the children to Arizona. In his Application, the Father sought joint custody of the children; he asked for shared parenting or, in the alternative, that the children reside primarily with the Mother and for him to have specified access on two evenings per week and alternate weekends.

[20] In her Answer/Claim dated September 15, 2011, the Mother sought sole custody of the children with access to be determined “by agreement or by the court in the best interests of the children”. She also sought leave to move with the children to Arizona.

[21] There have been numerous court attendances before a number of different judges since. The parties engaged in a lengthy mediation with an experienced mediator. They have engaged in two separate custody and access assessments and, most recently, a whole family intervention.

Dr. Morris’s Initial Custody & Access Assessment

[22] Dr. Raymond Morris was appointed on consent by the order of McDermot J. made January 23, 2012 to conduct a custody and access assessment pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA). He released his assessment report one year later on September 13, 2013. Dr. Morris’ recommendations included that the parties have joint custody and that the Father immediately commence regular alternate weekend and overnight access, phasing into a shared parenting regime. The issue of the Mother’s requested move to Arizona was to be reviewed.

[23] At the time that Dr. Morris’ report was released—over two years after separation—the Father was having only unsupervised day visits with the children.

Parenting following the Initial Assessment

[24] The Father readily accepted Dr. Morris’ recommendations and sought to implement them. The Mother did not accept the recommendations. However in January 2014, the Father started to have alternate weekend access from Friday to Saturday. Implementation of even this schedule was irregular.

[25] In or around March 2014, the parties agreed that the Father would have access on Tuesday overnights and on alternate weekends from Friday to Sunday (the next phase of Dr. Morris’ recommendations). Again, implementation remained irregular. However, the children did spend additional time with the Father over March Break and had two consecutive weeks of holidays with him in July 2014.

[26] The Mother asked Dr. Morris to commence the contemplated follow-up mini-review. In his mini-review report released on September 3, 2014, Dr. Morris stated:

[T]here have been no substantive changes that would allow for a recommendation of move on to Stage Two [i.e. moving to Arizona] of the previously recommended parenting plan. [The Mother] has not really facilitated the children’s relationship with their father nor in a tangible way given them permission to do so. Both parents claim to be much calmer, but there is no supporting evidence to that effect and the children continue to struggle with their father’s temper at times. The children are still exposed to parental conflict.

It is this writer’s view, that the boys’ relationship with their father is important for their mental health and well-being. [The Father] appears to love them and they appear to still care for him and the possibility of a more congruent and healthy relationship with them appears possible. Their immediate relocation to Arizona under the current circumstances, runs counter to that goal. It is unfortunate that the recommended parenting plan was not implemented so that the children might have had a less conflicted, healthy relationship with their father, and movement on to the recommended Stage Two of the parenting plan.

[27] The Mother married B.L. in August 2014.

[28] After this time the Father rarely had mid-week overnight access and reported considerable difficulty implementing the alternating weekend access for various reasons including the children’s professed refusal to go.

[29] On January 12, 2015, the Father served his Notice of Motion for increased access. This motion was adjourned several times. The motion was heard first by Kaufman J. on May 15, 2015 and his order was continued by Douglas J in his order dated June 2, 2015. Kaufman J.’s order was the first temporary order for regular (as opposed to holiday) access. Douglas J also ordered the parties to engage in an intensive reunification program with Dr. Barbara Fidler.

Dr. Fidler Therapeutic Intervention

[30] Dr. Fidler has expertise in issues of parental alienation or unjustified rejection and she was so qualified to give opinion evidence at this trial.

[31] The parties jointly retained Dr. Fidler. Following a consultation with Dr. Fidler, the parties agreed to undergo an intensive whole family intervention.

[32] Per the detailed plan developed during the consultation phase, the parents, the children, Dr. Fidler and her associate, Shely Polak, convened at a resort. The whole family intervention took place over three days in August 2015.

[33] Although the children exhibited some oppositional behaviour, Dr. Fidler reported some significant gains in the children’s relationship with the Father. Following the whole family intervention, the Father spent several days with the boys at the resort, which went reasonably well.

[34] Following the whole family intervention and their vacation time with the Father in Ontario, the children went to Arizona to meet the Mother and spend vacation time with her. The Father also had further vacation time with the children in Arizona.

[35] It was anticipated that the “regular” access schedule would then continue, as well as Dr. Fidler’s after-care program.

Circumstances at Time of Trial

[36] From the time the children returned home from Arizona in August 2015, their relationship with the Father deteriorated. At the time of the trial, the Father had minimal contact and almost no visits with them.

[37] Dr. Fidler’s after-care program was not implemented.

[38] The Mother sought an adjournment of the trial. In the motion for the adjournment, both parties agreed that the children were in serious crisis. I declined to grant the Mother’s request for an adjournment, as outlined in my oral reasons on November 16, 2015.

III. CREDIBILITY

[39] I will make some general observations regarding the credibility of the parties and some of the witnesses. Other specific observations and examples will be set out in my analysis.

[40] In R. v. White, 1947 1 (SCC), [1947] S.C.R. 268, at p. 272, the Supreme Court of Canada discussed the inexact science of weighing a witness’s credibility:

It is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration. The general integrity and intelligence of the witness, his power to observe, his capacity to remember and his accuracy in statement are important. It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he is biased, reticent and evasive.

[41] In Christakos v. De Caires, 2016 ONSC 702, 2016 CarswellOnt 1433, Nicholson J. summarized some aspects of the credibility assessment as set out in Re Novak Estate, 2008 NSSC 283, 269 N.S.R. (2d) 84, at paras. 36-37:

a) The ability to consider inconsistencies and weaknesses in the witness’s evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 252 (BC CA), 1951 CarswellBC 133, it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah, 2002 NSCA 99 [at paras.] 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H. 2005 253 (ON CA), [2005] O.J. No.39 (OCA) [at paras.] 51-56).

There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence. (See R. v. D.R. [1966] 2 S.C.R. 291 at [para.] 93 and R. v. J.H. supra). [Emphasis omitted.]

The Father

[42] I found the Father on whole credible. He gave his evidence in a forthright manner. He addressed difficult allegations made against him personally for the most part directly and was prepared to make admissions against interest. He acknowledged how he had contributed to the current circumstances regarding the children.

[43] In his evidence, the Father, tried to focus less on blaming the Mother and more on how he hoped to have a more meaningful relationship with the boys. He was, generally speaking, focussed on the remedy.

The Mother

[44] The Mother’s evidence contained significant disconnects. She said that she knew it was important for the children to have a good relationship with the Father. However her evidence was focussed on the Father’s negative actions both during the marriage and after separation in support of what appeared to be her ‘real’ position that it was not in the children’s best interests to spend time with the Father. One striking example of this disconnect was in Dr. Fidler’s intake form wherein the Mother acknowledged that it is in the best interests of the children to have a relationship with both parties; in a separate questionnaire, she ranked the Father’s importance in the lives of the children as a 1/10 being of little or no importance.

[45] The Mother placed emphasis on the views and preferences of the children without being prepared to acknowledge that those views and preferences might not be genuine expressions and that she might have influenced the children.

Dr. Raymond Morris

[46] Dr. Morris is a registered psychologist and an experienced clinical assessor.

[47] Dr. Morris was scrupulous in his approach to questions put to him in both his direct evidence and in cross-examination. He was careful not to stray beyond the scope of his mandate for this family.

[48] Although his involvement with the family is somewhat out of date, as will be seen, I am prepared to lend weight to his observations and his recommendations.

Dr. Barbara Fidler

[49] Dr. Fidler is a registered psychologist with extensive clinical experience working with high conflict families. In recent years she has developed a specialized practice dealing with cases of “unjustified rejection”.

[50] Dr. Fidler gave her evidence in a careful and considered manner. I found her to be very organized and disciplined both in her written report and in the delivery of oral evidence. She acknowledged the limits of the opinion evidence she could provide to the court.

[51] I put significant weight on Dr. Fidler’s observations and her professional opinion regarding the parenting dynamics of this family.

Diane Moody

[52] Diane Moody is a registered social worker with many years of experience providing therapy to children. She also has experience conducting custody and access assessments. Ms. Moody was retained to provide individual therapy for the children and as part of her mandate to assist with the children’s relationship with the Father.

[53] The Father consented to Ms. Moody being qualified as an expert despite the fact that her report did not comply with rr. 20.1 or 23(23) of the Family Law Rules, O. Reg. 114/99.

[54] While it was clear that Diane Moody was committed to and concerned about the wellbeing of the children, I find her to have been partial to the Mother. Ms. Moody communicated extensively with the Mother. The Mother was responsible for bringing the children to the therapy sessions with Ms. Moody. The Mother also received support and parenting advice from Ms. Moody. In contrast, Ms. Moody was much less acquainted with the Father, and her relationship with him was less positive.

[55] Ms. Moody prepared a report for trial at the Mother’s request and over the Father’s opposition despite Ms. Moody’s acknowledgment that the therapeutic process was presumptively a closed one and over the Father’s opposition. She then attempted to remedy the situation by providing the Mother with a copy of the report in a sealed envelope and asking that the Mother deliver it to the court. This further compromised Ms. Moody’s neutrality.

[56] Ms. Moody acknowledged that she did not have particular expertise in cases of unjustified rejection or parental alienation.

[57] For all of the reasons enumerated above, I found Ms. Moody to lack neutrality. As a result, I give less weight to her opinion evidence than that of the other professionals involved with this family.

C.B.

[58] C.B. is the Mother’s son from her marriage to M.B. He swore an Affidavit and gave oral evidence detailing his experience growing up with the Father.

[59] I observed C.B. to give his evidence in a generally direct and forthright manner despite some emotionally difficult subjects. He acknowledged that there were some positive aspects of his relationship with the Father. However, I also note that C.B. is very bonded to the Mother. C.B. said he was giving evidence “to help his Mum as she has been through a lot”. Given C.B.’s attitude with respect to his Mother and the evidence he gave, I have difficulty believing his contention that the Mother had not spoken to him about this case.

[60] While I found C.B. to be credible in many respects, I approached his evidence with a degree of caution due to his obvious desire to support the Mother.

The Mother’s Husband, B.L.

[61] B.L. gave fairly limited evidence and did so in a reasonably straightforward manner. However, B.L. is clearly supportive of the Mother and has much to gain if the Mother was to be successful in her attempts to move to Arizona.

IV. ANALYSIS – CUSTODY & ACCESS

1. Parents Proposed Plans

[62] It is important to understand the positions of the parties from the outset.

(a) Father’s Proposed Plan

[63] The Father’s position is that the status quo (the children residing with the Mother and the Mother failing to facilitate access) has not worked. Maintaining the status quo would be akin to asking him to walk away from his children.

[64] At trial, the Father sought a 90-day custody reversal. The Father acknowledged that he was looking for the custody reversal as a temporary measure until his relationship with the children healed.

[65] The Father opposes the Mother’s move to Arizona; he says this will completely end his relationship with the children.

(b) Mother’s Position

[66] I have taken the Mother’s position from her two draft orders submitted at the beginning of the trial.

[67] The Mother wishes to move with the children to Arizona to live with her Husband, B.L. If she is permitted to move, she proposes that the children will spend five days per month with the Father initially the visits will take place in Arizona and later in Ontario. In addition, the Father shall have the children for extended holiday time, including five consecutive weeks during the summer holiday. The Mother states that the move to Arizona would be the best way to remove the children from conflict and that it would repair the children’s relationship with the Father.

[68] The Mother provided the court with an alternative proposal that assumed this decision would be released in January, and in which a decision regarding her move would be delayed until May 2016. In the intervening period, while she remained in Canada, the children would still reside with her but that they would spend alternate weekends from Friday to Monday with the Father as well as each Wednesday overnight.

[69] The Mother proposed that while she resides in Ontario the parties have joint custody of the children and appoint a parenting coordinator to assist them with decision-making for the children. The parenting coordinator would be responsible for managing any therapeutic interventions affecting the children and would be tasked with reporting to the court on each party’s compliance with the order.

2. Best Interests of the Children

[70] Under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (DA):

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

[71] Sections 16(8)-(10) of the DA stipulate:

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

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

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

[72] The CLRA at s. 24 also details the facts that a court shall consider when making a determination with respect to custody and access. While not strictly applicable, the CLRA factors may act as a useful guide for a best interests analysis under the DA: A.F. v. D.G.1., 2012 ONSC 764, 2012 CarswellOnt 1351, at para. 185.

[73] Section 24 of the CLRA is set out below:

(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.

(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).

(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).

Status Quo

[74] There is no presumption that the status quo will dictate the future parenting regime; rather, it is a factor for the court to consider: Ackerman v. Ackerman, 2014 SKCA 86, 442 Sask. R. 113, at para. 32.

[75] As the Supreme Court of Canada stated in Gordon v. Goertz 1996 191 (SCC), [1996] 2 S.C.R. 27, at para. 544, applying Appleby v. Appleby, 1989 8821 (ON SC), 21 R.F.L. (3d) 307, [1989] O.J. No. 2547 (H.C.J.):

Every child is entitled to the judge’s decision on what is in its best interests; to the extent that presumptions in favour of one parent or the other predetermine this inquiry, they should be rejected No matter what test or axiom one adopts from the many and varied reported decisions on this subject, each case must, in the final analysis, fall to be determined on its particular facts and, on those facts, in which way are the best interests of the children met”. [Citations omitted.]

[76] It is useful to look at the status quo to see what is working for the children and what is not.

[77] M.G. and A.G. have resided primarily with the Mother in the Town since the parties separated in 2010. The Father has lived close to the Mother, also in the Town, since separation.

[78] The Father acknowledged that the Mother was the primary care parent. It appeared from the early days of this litigation that the Father was not seeking to change this arrangement; rather, he wanted meaningful and regular access. Even at trial, he acknowledged that ideally he did not want a change in custody from the Mother but he felt that it was necessary to break the cycle of unjustified estrangement.

[79] The children are very bonded to the Mother. They also have a close relationship with their older brother, C.B., who also lives with them. The children have a good relationship with B.L. and they have spent significant time with him and the Mother at B.L.’s home in Arizona.

[80] The children’s time with the Father has been sporadic and irregular.

[81] The children have been struggling for some time. The parties both described the children as “in crisis” at the time of the trial. In his initial custody and access assessment completed in September 2013, Dr. Morris described both children as bonded to the Mother; they see her as their primary source of nurturance and stability. When asked about the Father, both children indicated that they were afraid of the Father but had difficulty articulating why. Dr. Morris stated in his report:

It was interesting to observe that contrary to many of the statements both boys have made with regard to fear of their father, they demonstrated no such anxiety or fear in his presence and in fact volunteered and appeared to enjoy physical proximity to [the Father].

[82] Dr. Fidler notes in her report dated October 26, 2015 at p. 59 that the children are “each exhibiting significant social, emotional, academic and behavioural adjustment problems.”

M.G.

[83] The child M.G. was seven years old when the parties separated. He is now almost 13.

[84] The Father described M.G. at his best as full of zest, a great athlete, compassionate, social, funny and determined. However, he also felt that M.G. exhibited oppositional/defiant behaviour; the Father described M.G. as lost , struggling, stressed and strained.

[85] The Mother described her relationship with M.G. in less detail than did the Father. The Mother acknowledged that she has difficulty with M.G.’s behaviour and setting limits for him. For example, en route to the resort for the whole family intervention with Dr. Fidler, M.G. tried to jump out her car. M.G. has also punched and kicked the Mother. At times, M.G. has become so angry that he punched holes in the drywall in the Mother’s home. The Mother has trouble enforcing discipline, particularly around the use of devices (such as tablets) and the need for bike helmets.

[86] The Mother said that M.G. had on several occasions reported thoughts of self-harm; she suggested that this was at the prospect of being forced to see his Father. On September 29, 2015, the Mother reported to Dr. Fidler that M.G. had thoughts of self-harm. Dr. Fidler stressed that the Mother must immediately take M.G. for a psychiatric evaluation. The Mother said she took M.G. to see the family doctor, Dr. Wise, who did not feel that further intervention was required. However, Dr. Wise’s notes show that the Mother had been at his office the day before the suicide threat. The Mother then said that she did not follow up on the suicide threat as M.G. was “doing better as he was not seeing” his Father. As part of her request to adjourn this trial, the Mother indicated that M.G. had again threatened to harm himself. As with at least two of the prior instances, the Mother did not inform the Father of this serious issue; in this most recent instance, the Father learned about the suicide threat in the Mother’s Affidavit in support of her motion for an adjournment.

[87] The Mother reported to Dr. Fidler that that M.G. is “precise and honest and never exaggerates.” She adopted this same position in her evidence at trial. However, when asked about why she did not take M.G.’s threats of self-harm more seriously, the Mother said that she did not “really think he would try anything.” The fact that M.G. is making such threats—genuine or otherwise—is of concern.

[88] M.G. has had a significant number of late school attendances and absences. The Mother attributed some of these school absences to M.G. being apprehensive about seeing the Father after school. M.G. appears to be underperforming at school and he has had personality conflicts with some of his teachers. Diane Moody reported that M.G. told her that he “hated all teachers”. M.G. has been requesting that he be home schooled.

[89] With respect to M.G., Dr. Fidler states at pp. 59-60 of her report that: “[he] has struggled with specific learning difficulties, anger management problems and oppositional and defiant behaviour, not only that associated with spending time with his father.”

[90] The children’s therapist Diane Moody also acknowledged that despite having attended therapy, there was little improvement with M.G. in a number of areas.

A.G.

[91] The child, A.G., was four years old when the parties separated. At the time of trial he was 10 years old.

[92] The Father described A.G. as more flexible and easy-going than his brother, M.G. He is bright and compassionate. He loves animals and nature. A.G. is very creative and loves making YouTube and Lego movies. However, the Father made concerning observations about A.G., saying he is “very withdrawn with low self-esteem…he appears to be twisting in the wind or ducking for cover….” A.G. is developmentally very young; he is clingy and dependent.

[93] The Mother did not provide a detailed description of A.G. or her relationship with him. She acknowledged that A.G. suffers from low self-esteem, that he is socially behind and that he is being bullied at school.

[94] Dr. Morris observed A.G. to be more shy and reserved than M.G. A.G. shared with Dr. Morris that at the time of the assessment he did not have many friends at school. Dr. Morris stated that A.G. was strongly influenced by his older brother, M.G., who he clearly adored.

[95] Dr. Fidler provided the following more recent observations of A.G. at p. 59 of her report:

By nature, 10-year old [A.G.] is introverted. He struggles with peer relationships and age appropriate, individuation, mastery and autonomy. Dr. Morris' 2011 report noted a concerning number of absences from school and late arrivals in 2011, which raises concern about [A.G.'s] pre-existing emotional issues, separation anxiety and the associated parenting challenges, now exacerbated by the pre and post separation parental conflict and situation at that time. [A.G.] often copes by resorting to behaviour expected of a younger child (regressive behaviour)…. [A.G.] attempts to soothe himself and ultimately "lose himself' in repetitive actions, most concerning of which is his excessive iPad use.

[96] Dr. Fidler further noted at p. 62 of her report: “[A.G.] does not appear to have the same issues with his father that [M.G.] does, though [A.G.], who struggles with maturity and autonomy, follows the group and takes [M.G.]'s lead.”

[97] The children have been in the Mother’s almost exclusive care since separation. There was consensus between the parties and the professionals retained by the parties that the children were not doing well; they were in crisis and struggling and had little or no relationship with the Father.

[98] The status quo has not benefitted the children.

(a) Maximum Contact Principle

[99] The DA and the CLRA both enshrine the principle that children should have maximum contact with each parent as is consistent with the children’s best interests.

[100] The Mother stated that she believes that the boys should have regular contact with the Father and her two draft orders would seem to support this position. The Mother’s position tells me that the current estrangement between the Father and the children is unjustified and must be remedied.

[101] However, as the Mother’s evidence unfolded, it seemed to suggest that the estrangement was in many ways justified: the Father had issues with anger management and a sex addiction, and the children were “terrified” of his unpredictable anger and his “evil looks”. It appeared that the Mother still believed that the boys should not be forced to see the Father if they say they do not want to. I do not agree.

[102] The Father has had a herculean struggle to achieve even basic, regular contact with the boys. He was able to recite in detail some of the few visits that he has had, demonstrating how meaningful they were for him and the children. Furthermore, for the most part, the children seemed to accept and enjoy their most recent time with the Father.

[103] It is contrary to the best interests of children, and indeed harmful to them, to become unjustifiably estranged from a parent whether the result of alienation or a combination of factors: Cantave v. Cantave, 2014 ONSC 5207, 49 R.F.L. (7th) 368, at paras. 64-65; J.K.L. v. N.C.S., 2008 30289 (ON SC), 54 R.F.L. (6th) 74, at para. 126; C.S. v. M.S., 2010 ONCA 196, 76 R.F.L. (6th) 14, at para. 7.

[104] In his mini-review dated September 3, 2014, Dr. Morris expressed concern about the failure to implement the recommended parenting schedule at p. 10; he stressed how important it is for the mental health and wellbeing of M.G. and A.G. to have a relationship with the Father.

[105] In her capacity as an expert with respect to unjustified rejection, Dr. Fidler outlined the longer-term effects on children of being denied a relationship with one parent. In their article entitled “Children Resisting Post-Separation Contact with a Parent: Concepts, Controversies, and Conundrums” (2010) 48:1 Fam. L. Rev. 10, Dr. Fidler and co-author Professor Nicholas Bala state:

Relevant to the controversy over how much weight to give children’s preferences, whether or not we should heed their wishes, and if they mean what they say, Baker reported that while most of the adults distinctly recalled claiming during childhood that they hated or feared their rejected parent and on some level did have negative feelings, they did not want that parent to walk away from them and secretly hoped someone would realize that they did not mean what they said.

[106] Dr. Fidler stated that children who are caught in a cycle of unjustified rejection are more likely to suffer from low self-esteem, self-hatred, self-blame, guilt and substance abuse problems. Children do better when they have a relationship with both of their parents.

[107] Diane Moody who was called as a witness by the Mother also confirmed that although it is important to relieve children from the experience of conflict, it is also clinically and developmentally very important for children to have a relationship with both parents.

[108] In support of her request to move with the children to Arizona, the Mother posits that the maximum contact principle may be outweighed by the imperative of removing the children from conflict. She suggests that based on history both during the marriage and after separation, it is possible that neither she nor the Father have the ability to reduce conflict. I do not agree.

[109] It is essential to the best interests of M.G. and A.G. that they have a meaningful and fulsome relationship with the Father. This relationship must be established before consideration of the Mother’s proposed move to Arizona.

(b) Past Conduct/Domestic Violence

[110] Section 16(9) of the DA mandates against considering past conduct unless that conduct is relevant to the ability of that person to act as a parent to a child. Section 24 of the CLRA says much the same, except at s. 24(4), where the court is required to consider any violence or abuse committed against his or her spouse or any child when assessing a person’s ability to act as a parent.

(i) Domestic Violence

[111] Dr. Fidler described the Mother as ambivalent about whether the children would in fact benefit from having a relationship with the Father; the Mother did not necessarily deny this. The Mother’s position is that she is the victim of domestic violence perpetrated by the Father. She claims that these past experiences, along with the ongoing conflict with the Father, affect her ability, as opposed to her willingness, to facilitate the children’s relationship with the Father.

[112] The Mother and Father agree that there was considerable conflict during the marriage, some of which was witnessed by the Mother’s children and by M.G. and A.G.

[113] When the Mother gave her evidence with respect to many of these incidents of domestic violence, the Father, who had already been cross-examined, objected under the rule in Browne v. Dunn (1894), 1893 65 (FOREP), 6 R. 67 (H.L.). I made certain rulings including giving the Father an opportunity to be recalled to give further evidence. The Father declined to do so and the Mother now asks me to draw an adverse inference. The Father submits that the issue should go to the weight of the Mother’s evidence. As will be seen from the analysis below, the Mother’s evidence that led to the objections under the rule in Browne v. Dunn was not germane to my findings with respect to the best interests of the children.

[114] The Father acknowledged a number of specific instances of abuse. He acknowledged that he swatted at the Mother’s head with a sheaf of envelopes during an argument at the office. He admitted to a physical altercation with the Mother in the driveway of the home that the child, C.B., witnessed. He acknowledged that he swiped a phone away from the Mother’s ear during the incident that precipitated the separation of the parties. This last incident was witnessed by M.G., who continues to refer back to it.

[115] C.B. described an incident that occurred when he was about 13 wherein he was practicing with a punching bag in the basement and accidentally hit the Father who was holding the bag for him. According to C.B., the Father became enraged and deliberately hit him several times. C.B. said that he told his Mother about this incident at the time.

[116] The Father denied that he had ever hit C.B. or any of the children. Dr. Morris met with C.B. as part of the first assessment process. C.B. did not advise of any specific instances of abuse by the Father against either the Mother or the children. Furthermore, during the assessment process, the Mother did not bring the punching bag incident that C.B. had allegedly relayed to her to Dr. Morris’ attention. I do not ascribe significant weight to this incident in terms of the Father’s ability to parent and the best interests of M.G. and A.G.

[117] The Mother admitted that the Father has not been physically abusive to the children, M.G. and A.G.

(ii) Father’s Addiction to Sexual Fantasy

[118] In defence of her alleged ambivalence toward the Father having a relationship with the children the Mother spoke about the Father’s longstanding preoccupation or obsession with sexual fantasy.

[119] During the marriage, the Father acknowledged that he had a preoccupation with sexual fantasy that impacted on the couple’s relationship in a number of ways. With the Mother’s support, he engaged in therapy. As part of the therapeutic process, the Father kept a diary or journal. Some time prior to separation the Mother obtained a copy of this diary. In her evidence at trial, she said that she found the diary sitting out in the den as though the Father wanted her to find it. The Father vehemently denied this and said that he kept it locked in the trunk of his car and that he was devastated when he found out that the Mother took it without his permission. I prefer the Father’s version of events.

[120] When the Mother reviewed the diary, she felt betrayed and felt that her marriage had been suffering a “slow death.” The Mother initially refused to return the diary to the Father. When she did return the diary, she told him that she had made no copies; this turned out not to be true. The contents of the diary and the widespread distribution of the diary after separation were instrumental in exacerbating the conflict between the parties.

[121] The diary entries, taken out of context, are concerning.

[122] The issue of the Father’s preoccupation with sexual fantasy was squarely before Dr. Morris, who was provided a copy of the Father’s journal by the Mother and reviewed it. Dr. Morris recommended that the Father obtain further therapy to address the issue of his “sexual related fantasies that have led to poor judgment and inappropriate social behaviour in the past”.

[123] Dr. Morris recommended that the Mother seek therapy to assist her “in the resolution of personal issues related to intimacy and trust and the personal self-esteem issues that have led to over-emotional responses and heightened sensitivity and anxiety in relation to her and the children’s safety”.

[124] However, Dr. Morris specifically stated that the therapeutic interventions recommended for both of the parents were not a precondition to instituting the normalized parenting plan. The Mother felt that Dr. Morris’ report was deeply flawed and that the Father’s access could not be normalized until he first underwent therapy. Dr. Morris and Dr. Fidler both observed that the Mother’s position was that not only had the Father not completed an appropriate therapeutic process but that even if he had, any changes in his behaviour would not be “authentic”.

[125] In his evidence at trial, Dr. Morris stressed that this journal should not be given undue weight. It was created when the Father was depressed and “was unloading in a private and confidential way.” However, it is understandable that the Mother would view the contents of the diary as disturbing and as a betrayal. Dr. Morris acknowledged that reading the Father’s diary would negatively affect the Mother’s ability to co-parent with the Father, particularly given her own personal vulnerabilities and issues.

[126] The Mother admitted that she did not believe that the Father had or would sexually abuse the children. Her concerns were that the children might be exposed to pornography or sexual remarks and jokes, although she later admitted that she did not think that the Father would deliberately expose the children to inappropriate material. According to Diane Moody, the children found it “creepy” when the Father flirted with women.

[127] In summary, I find that there were instances of domestic violence perpetrated by the Father against the Mother during the marriage. These events have impacted the Mother in terms of her attitude toward the Father and, by extension, her attitude toward his relationship with the children. However, I do not accept that the Mother’s experience of domestic violence at the hands of the Father during the marriage renders her incapable of supporting the Father’s relationship with the children.

[128] The Father acknowledges his deficiencies in terms of anger management. He has engaged in therapy, the details of which were not before the court. Dr. Fidler observed that the Father was able to maintain appropriate emotional control during some very trying situations in the whole family intervention.

[129] There was little evidence to suggest that the Father’s issues with sexual fantasy negatively impacted his ability to appropriately parent the children.

[130] The Father’s past conduct is not such that there should be a limit on the Father’s relationship with the children. The Mother’s proposed draft order would support this conclusion.

(c) Ability and Willingness of the Mother and the Father to ensure that children have a meaningful relationship with each of them

[131] The Father’s ability and his willingness to ensure that the children continue to have a meaningful relationship with the Mother were not seriously called into question. He acknowledges that the Mother has been the children’s primary caregiver and he further admits that, were it not for his struggle to get regular visitation with the children, he would likely not be pursuing a custodial change.

[132] The issue of the Mother’s ability and her willingness to facilitate a meaningful relationship between the Father and the children occupied much of the trial. The Father’s position is that the Mother has alienated the children from him. The Mother bridles at the label and suggests that so labelling her might be a further factor in her ambivalence toward the Father having a relationship with the children.

[133] The Mother stated that she knew that it was very important for the children to have a relationship with the Father. However, her evidence often suggested that, in reality, she felt the opposite. This disconnect which appears to have played out for some time is a serious concern particularly as it may have negatively affected the children.

[134] In her evidence, Dr. Fidler referred to a Checklist of “Alienation: Typical Behaviours Exhibited by Child, Favoured Parent and Rejected Parent”. I have found many of these behaviours present in this family and have highlighted some below.

(i) Limiting Parenting time

[135] Immediately following separation, the Mother insisted that the Father’s access be limited to day visits in the presence of his family members.

[136] In his first assessment report dated September 13, 2013, Dr. Morris recommended that the Father have regular overnight weekend access phasing into a shared parenting arrangement; the issue of the Mother’s move to Arizona would be reviewed at a later date. Despite Dr. Morris’ recommendations, the Father did not start having weekend access until March 2014 and even then the visitation was irregular and quickly deteriorated.

[137] In her Checklist of Behaviours, Dr. Fidler noted that a favoured parent will insist that the child has the right to make decisions about contact and may not “correct a child’s rude, defiant and/or omnipotent behaviour directed toward the rejected parent”.

[138] The children took strong positions on issues. However, their inability to justify those decisions (such as when M.G. was unable to state why he was only willing to see the Father for part of a scheduled visit) suggests that these decisions may not be entirely their own. The Mother frequently took the position that ‘the children did not want to go’ and that ‘their wishes should be heeded.’ She expressed frustration at having to force the children and said she had ‘done everything possible’.

[139] In his mini-review report, Dr. Morris reported that when the children, particularly, M.G. resisted following the agreed parenting schedule, the Mother opted to “let him work it out with the Father” rather than intervening.

[140] According to Dr. Fidler, the Mother believes that her efforts to encourage and cajole the boys to attend access have been compromising her own relationship with them.

[141] The last time the Father had the children overnight at his home was Easter 2014. By the time this matter reached trial, the Father had little or no relationship with the children.

(ii) Undermining the Father’s Relationship with the Children

[142] There were a number of examples of the Mother taking steps to subtly and not so subtly undermine and interfere with the Father’s relationship with the children.

[143] The Father sought access to the children on Father’s Day. However, each year, despite the Father’s protests, the Mother would take the children to the U.S. for her family’s annual reunion. On one occasion, the Father drove down to where the reunion was being held so that he could enjoy a few hours with the children on Father’s Day.

[144] The Father purchased a brown and white shih-poo puppy named Ted for A.G. for his birthday. The Father reported that both boys were excited about having a dog and enjoyed spending time with the dog at his home. Within two months, the Mother purchased a dog for the boys: a brown and white shih-poo. Her reasoning behind the purchase was that A.G. missed Ted and that the Father was to be blamed for not allowing A.G. to bring Ted to the Mother’s home.

[145] On one of the last visits between the Father and the children that took place in Arizona following the intervention process in Ontario, the child M.G. not atypically, insisted on cutting the visit short without any apparent reason. When the Father complied with his wishes and returned the children to the Mother’s home, he found the Mother and her husband finalizing the packing of a large R.V. in which they planned to drive with the children to Disney World that same day.

[146] This past Thanksgiving, the Father did not see the children. However, the child A.G. took his iPad outside by himself and, it appeared somewhat surreptitiously, initiated a Skype call to the Father so that he and the Father could enjoy Thanksgiving dinner together.

(iii) Lack of Symbolic Contact

[147] The Mother assisted the child A.G. with creating a life/time line project for school; the project was designed to highlight significant moments in the student’s life. The project contained no mention of the Father.

[148] The Mother was asked about an e-mail wherein A.G. said that he loved and missed his Father. The Mother claimed that A.G. was not referring to the Father but rather to her husband, B.L., who had just left.

[149] The Mother produced a scrapbook of photos of the children with her and with B.L. Some of the photos were historical and others were designed to show the court why Arizona would be a good place for the children to live. There was only one photo in the Mother’s scrapbook of the Father and this was with M.G. alone; both the Father and M.G. looked upset and miserable.

[150] The Father also produced a series of photos showing him and the children participating in a variety of activities; some of these photos were taken during his holiday time after the whole family intervention in August. The Father included several photos of the Mother with the children.

[151] The Mother ranked the importance of the Father’s relationship with the children as a 1/10 on Dr. Fidler’s intake questionnaire, 1 being of least importance.

(iv) Children’s Behaviours including Unhealthy Alliance

[152] In her Checklist of Behaviours, Dr. Fidler outlines a number of behaviours that can be exhibited by an alienated child. These behaviours include the following:

• Opinion of parents is one sided, all good or all bad; idealizes one parent and devalues the other;
• Vicious vilification of rejected parent;
• Trivial, false and irrational reasons to justify hatred;
• Reactions and perceptions unjustified or disproportionate to parent’s behaviours;
• No guilt or ambivalence regarding malicious treatment, hatred, etc.;
• A strong but not necessarily healthy psychological bond with alienating parent;
• Speech about rejected parent is brittle, a litany, obsessed; has an artificial quality; affect does not match words; no conviction; uses adult language; has a rehearsed quality;
• Stories are repetitive lacking in detail and depth; and
• Expresses worry for preferred parent, desire to care for that parent.

Many of these behaviours were exhibited by M.G. and also A.G., examples of which are set out below.

[153] The Father described M.G.’s attitude toward him as bordering on hatred.

[154] M.G.’s responses and comments have an absolutist, histrionic quality to which the Mother’s belief that he is ‘precise and honest and never exaggerates’ cannot be reconciled.

[155] M.G. told Diane Moody that he ‘hated all teachers’. In a text message exchange with therapist Shely Polak, M.G. said she had ‘ruined his whole summer’ by forcing him to participate in the whole family intervention and making him spend vacation time with the Father. After he witnessed his Father make a negative comment to his Mother during basketball tryouts, M.G. said that this ‘ruined basketball for him.

[156] The language adopted by the children, particularly M.G. mirrors some of the Mother’s own language. For example in a text message to the Father, M.G. said ‘don’t ever talk to me again until you realize who you really are’ and in a different text ‘you lie and do disgusting things.’ M.G. told Shely Polak in a further text message exchange about his Father that “HE WILL NOT CHANGE AND YOU NEED TO REALIZE THAT…” When Ms. Polak tried further reality checking with him, M.G. texted: “omg, YOU HAVEN’T BEEN WITH HIM YOUR WHOLE LIFE […] YOU HAVEN’T SEEN WHAT I HAVE SEEN.”

[157] Dr. Morris observed that while the children stated that they were afraid of the Father, their demeanour and actions did not match up. Dr. Fidler and Shely Polak also observed that, contrary to their feelings of fear and terror with respect to the Father, the boys behaved warmly toward him at the whole family intervention M.G. climbed into the Father’s lap during a game.

[158] Dr. Fidler opines, and I accept, that the child M.G. has adopted a protective role toward his Mother. In Dr. Fidler’s view, M.G. feels that going to see his Father willingly would, in his mind, be a betrayal of his Mother and his parental role towards her.

[159] Dr. Fidler also noted that according to the Mother: “if the children do not report negatively about their [Father], it is because they are reticent to disclose for fear of reprisals from their father, and/or of not being believed by professionals (that is, their wishes and preferences for parenting time are not heeded). To the contrary, [M.G.] was quite brazen and at times rude, not reticent to express his negative views of their father.”

[160] The children’s stated negative feelings with respect to the Father do not match the more positive reality when they spend time with him. The Mother needs to help both children unburden themselves from protecting her. The Father needs to be scrupulous in always treating the Mother with respect and in referring to her respectfully, particularly around the children.

(d) Children’s Views & Preferences

[161] I learned of the children’s stated views and preferences through the evidence of each of the parents and through the experts involved, namely Dr. Morris, Dr. Fidler and the children’s therapist Diane Moody.

[162] It is clear that the child, M.G. holds very strong views and preferences on a variety of topics including his teachers, his desire to be home schooled, the amount of screen time and his relationship with his Father. The child, A.G. does not appear as forceful but is swayed by his older brother..

[163] In summary, while I have considered the boys’ views and preferences, for the reasons set out above, I have done so with great caution.

(e) Analysis of the Best Interests of the Children

[164] The children have been in the Mother’s primary care since separation. The children are not doing well and are in crisis. Not all of the children’s difficulties can be attributed to conflict between the parties or laid at the Father’s doorstep.

[165] All of the experts involved in this case stated that it is important for M.G. and A.G.’s long-term emotional growth and development to have a healthy relationship with both parents. The research by Dr. Fidler suggests that children who unjustifiably reject a parent suffer long-term negative social and emotional consequences.

[166] The Mother’s fears and concerns are not completely without foundation. However, Dr. Morris and Dr. Fidler stressed that not only are the children safe in the care of the Father, it is imperative that they have a relationship with him.

[167] The Mother states that she knows that the boys love their Father and she wants them to have a relationship with the Father. Her proposed draft orders both involve the Father spending extensive periods of time with the children.

[168] I therefore start with the basic premise that it is in the best interests of M.G. and A.G. to have a relationship with the Father and to spend significant time in his care. The repair of this fundamental relationship must begin immediately. For reasons I have set out in more detail below, to permit the Mother to move with the children to Arizona at this time would not be in the children’s best interests and would run contrary to reintegrating the Father into the lives of the children. I have therefore focussed on a remedy that will require the children to remain living in the Town.

3. The Remedy

(i) Father’s Request for a 90 Day Custody Reversal

[169] The Father seeks to have the children in his sole custody for a period of 90 days. He submits that “the Mother cannot participate in the repair” and that there are few other options. The Father proposes to engage in Dr. Warshak’s Family Bridges program that would provide him and the children with therapeutic support during the 90-day period. During this time the Mother and her family members would have no contact with the children. At the end of the 90-day period the Mother would have supervised access for 30 days, after which time the Mother’s access to the children would be gradually increased.

[170] It was clear that the Father only reluctantly and recently sought a custody reversal due to the downturn in his relationship with the children following the whole family intensive program. It was also clear to me that the Father has tried to take a more moderated approach to realizing on his parenting time with the children.

[171] The Father did not plead a reversal of custody as a remedy and the Mother asks the court not to consider the custody reversal for this, among other reasons.

[172] Per r. 2.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, courts “may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute”. The power to cure defects is further strengthened in family cases, where r. 2 of the Family Law Rules “provides the court with great latitude to adjudicate cases fairly” (Titova v. Titov, 2012 ONCA 864, 29 R.F.L. (7th) 267, at para. 48).

[173] Rule 11(3) of the Family Law Rules states: “[o]n motion, the court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.” See also Stefureak v. Chambers, 2005 16633 (ON SC), [2005] O.J. No. 1949 wherein Quinn J. dealt with the Father’s motion to amend his pleadings to seek sole custody at the end of a trial.

[174] In the case before me, the Father did not bring a motion to amend pleadings. The Father put the Mother on notice of his intention to seek this relief as early as September 2015 and the issue was live at the Trial Management Conference. In this case, the children’s circumstances vis-a-vis the Father and in general, were rapidly deteriorating in the months leading up to the trial. It was not unreasonable for the Father to adjust the relief sought to reflect the current situation.

[175] The Mother sought an adjournment of the trial, as she wanted to call expert evidence to speak to the issue of the custody reversal, among other things. On the motion for the adjournment, both parents acknowledged that the children were in crisis. I declined to grant the adjournment for this and other reasons already given. The Father’s experts were not legally qualified to give evidence with respect to the issue of whether a custody reversal was an appropriate remedy for this family. The case proceeded as though this issue had been pled and I am prepared to consider the relief sought by the Father in the context of what is in the best interests of the children under s. 16 of the DA.

(ii) Analysis of the Remedy

[176] In analyzing the parenting arrangement that is in the best interests of the children, I have considered the particular strengths and vulnerabilities of each of the Mother and the Father as well as the particular circumstances of the children.

[177] The Mother and the Father have very different personalities and different parenting styles. Both parents presented as caring parents. The Mother seemed to have a naturally warm, nurturing and easygoing nature with the children. She is clearly a more permissive parent who has struggled maintaining boundaries and limits for the children. The Father is obviously devoted to his children and enjoys participating with them in sports, games and other activities. The Father also sought to provide educational guidance for the children. The Father not inappropriately stressed the need for discipline and structure and he was concerned about the children’s autonomy in areas such as ‘screen time’. Both Dr. Morris and Dr. Fidler noted these differences in parenting styles.

[178] There was consensus between the parties and the professionals involved with this family that the Mother is the children’s primary attachment figure. Dr. Morris stated that it can be harmful for children to be removed from their primary attachment figure and that the removal could be even more damaging in situations of an unhealthy attachment. Diane Moody felt that it would be devastating for the children to be removed from the care of the Mother.

[179] The evidence was that during their limited time together during and after the whole family intervention, the children enjoyed their time with the Father and in fact asked to extend it. The children expressed warmth and affection toward the Father and he toward them. I noted with some interest that despite M.G.’s strident opposition to having a relationship with his Father, for over a year up until just before the trial his Facebook cover was a photo of him and the Father along with other members of the Father’s family. It is clear that the children can have a normal relationship with the Father. However, the Father has not had the opportunity to parent the children in a meaningful way or for extended periods of time for several years now and this is a concern in terms of crafting a parenting plan.

[180] The children are experiencing significant emotional turmoil. The child M.G. in particular appears to be very wilful and defiant even in the sole care of his Mother to whom he is allied. The Mother expressed concern that M.G. would simply run away if forced to do something that he did not want to. A.G. appeared more tractable but is strongly influenced by M.G. While the Father has taken steps to address some of his parenting deficiencies, including his anger management, it will be very challenging for him to parent the children full-time given their particular personalities.

[181] I acknowledge that the Father’s proposal to address this is to engage in the Family Bridges Program. For a number of reasons, I am not prepared to make this order at this time. I am concerned that the negative impact of completely removing these children from the care of the Mother could outweigh the proposed benefits of the program. There was no independent expert evidence before me during the trial that would assist me in assessing this issue.

[182] The first court order setting out terms of the Father’s access was that of Kaufman J made in May 2015 and continued by Douglas J in his order of June 2, 2015. Even then the parties agreed that the order of Douglas J would not be enforced while they participated in the whole family intervention. The order of Douglas J was not followed after the whole family intervention and the Father brought a contempt motion at the beginning of trial that he withdrew during submissions related to the adjournment. Although I do not wish to minimize the importance of adherence to out of court agreements, there was not a history of the Mother chronically breaching court ordered access throughout the litigation.

[183] A further reason why I am not inclined to consider a custody reversal at this point is that the Mother’s proposed draft orders set out some concrete terms to address the children’s unjustified rejection of the Father and her role in it.

[184] The Father asserts that the Mother cannot participate in the repair of his relationship with the children. The history relayed to me through the evidence at trial would suggest that this might be true. However, the optimal remedy is one in which the children know their Mother is prepared to support. The court heard many hours of evidence about the Mother’s ambivalence about the boys’ relationship with their Father and the foundation for such ambivalence. The time for ambivalence is over. The boys are being negatively impacted not just by the conflict to which both parents have contributed but also by the Mother’s continued failure to permit­—if not support—the children in having a relationship with the Father.

[185] The Mother and the Father, not the children, are the decision-makers when it comes to parenting time with the Father. It will not be acceptable for the Mother to fall back on the children’s ostensible wishes. I anticipate that this will be challenging for her given each child’s unique personality. She will need to enlist the help of B.L. and the children’s brothers. I would hope that she recognizes that if she gives the children her blessing to have a relationship with the Father this will support them in becoming healthy and balanced young men.

[186] The Father acknowledged that he has also contributed to the current circumstances. Although this may not seem like ‘normal’ parenting, for his part the Father must be vigilant and scrupulous with respect to managing his anger when the children are in his care.

(b) Parenting Plan

[187] It is in the best interests of the children to remain living primarily with the Mother. However, the children will have regular extended alternate weekend visits with the Father and they will spend half of all vacation time in his care. I recognize that this is very similar to the temporary order that was put in place this time last year by Kaufman J. and that His Honour’s temporary order was not followed in the months leading up to the trial. However, this order is similar to the one proposed by the Mother. Therefore, I expect her to support it and ensure that it is followed. If this does not happen, the Father will be at liberty to raise the issue of a custody reversal as an appropriate remedy upon review.

(c) Parenting Coordinator

[188] Dr. Morris recommended that the parties retain a parenting coordinator to assist them in implementing the terms of a parenting plan. The Mother now makes this proposal.

[189] A parenting coordinator would be of assistance in helping the parties resolve some of the issues that will arise out the parenting plan that I have ordered. Furthermore, the parenting coordinator can provide independent and neutral feedback to the court about the challenges faced by the parties.

[190] The Mother suggested that the cost of the parenting coordinator be treated as a special and extraordinary expense under s. 7 of the Federal Child Support Guidelines, S.O.R./97-175 (FCSG). In that case, the Father would bear roughly 70% of the expense and the Mother 30%. I do not agree. The parenting coordinator is to be put in place to assist the parties in resolving their own conflict and communication issues and to avoid further court attendances, the expense of which would be borne by the parties individually subject to any costs orders. This expense should therefore be borne by them equally. The Mother’s share of this expense shall be paid out of the funds due to her from the Father as detailed below.

(d) Therapeutic Support

[191] The Mother took issue with the nature of the Father’s therapy with Paul Scuse. Despite Dr. Morris recommendations back in 2013, the Mother felt that the Father had not adequately addressed his issues with anger management and sexual fantasy. The Mother, on the other hand, has not engaged in any therapeutic process, despite Dr. Morris’ recommendations.

[192] The Father and the Mother both proposed a regime of significant therapeutic support. The Father’s proposed resolution would have the Mother engage in a therapeutic process and her therapist would liaise with the Family Bridges service providers to ensure that there is a coordinated treatment approach. The Mother proposed that the parenting coordinator also be responsible for appointing therapists for the parties and for the children with a view to ensuring a coordinated approach to therapy with the goal of reintegrating the Father into the lives of the children.

[193] I agree that coordinated therapy is an important part of the remedy in this case.

[194] The children must be immediately enrolled in therapy. However, the therapist shall not be Diane Moody. While committed to the children, Diane Moody appeared to have taken sides in favour of the Mother and was, wittingly or not, reinforcing the children’s reluctance to see the Father. I make this specific order so that the children know that Diane Moody is not an option and the Father is not blamed for rejecting her as a proposed therapist.

(e) Fryer J. to Remain Seized

[195] The Mother proposed that I remain seized of this matter for a period of six months.

[196] The parties have had numerous court attendances and have appeared before a number of different judges. This matter needs to be case managed to avoid each of the parties having to re-tell his/her story and to enable them to have appropriate and expeditious access to justice. This is supported by the court’s duty to manage cases pursuant to r. 2(5) of the Family Law Rules. See also: D.G. v. A.F., 2015 ONCA 290, 59 R.F.L. (7th) 301.

[197] I shall remain seized of this matter for a period of 12 months, or the end of the review, whichever is longer.

4. The Mother’s proposed move to Arizona

(a) Background

[198] The Mother had a connection with Arizona even before her relationship with B.L. Her father and her stepmother live in Arizona and the boys have a good relationship with their grandparents. The Mother’s sister also lives in Arizona some of the time. The parties travelled with the children to Arizona roughly twice a year while they were married.

[199] The Mother also has family in Ontario. Her mother and her stepfather, with whom she is close, live in Peterborough. The Mother’s other sister lives in Newmarket.

[200] B.L. is a Canadian citizen who now resides in Arizona. He has grown children who live in Western Canada. B.L. is self-employed through his own corporation. His company does business in the U.S. but also in Western Canada and is starting to do business in Ontario.

[201] B.L. owns a nice home with a pool. The children have their own bedroom in B.L.’s home. The children enjoy a number of activities in or around B.L.’s home, including golfing at B.L.’s club.

[202] The children’s’ brother, A.B., is a U.S. citizen and currently lives with B.L. and works for B.L.’s company. The children’s brother, C.B., to whom they seem particularly close, may also be going to work for B.L. but is currently living with them here in the Town. The boys’ other brother, R.B., remains living in Aurora, Ontario.

[203] The Father did not appear to harbour any animosity toward B.L. B.L. clearly took issue with aspects of the Father’s parenting but had in the past facilitated the Father’s visits with the boys.

[204] It was not disputed that the boys enjoy their time in Arizona. Diane Moody reported that the boys feel comfortable there.

[205] The Mother provided details of the local schools that the boys would attend. M.G. is currently finishing Grade 7. If the children moved now, M.G. would attend Stapley Middle School until high school starts in Grade 9. A.G., who is going into Grade 6, would attend Hermosa Public School.

[206] The Mother proposes that if she is permitted to move the Father can spend extensive periods of time with the children with the children both in Arizona and in Ontario. For his visits in Arizona the Father could stay at the local Holiday Inn.

[207] Dr. Morris was asked to conduct his custody and access assessment with reference to the issue of the Mother’s proposed move with the children to Arizona. His opinion at the time of the review assessment was that the move would not be in the best interests of the children until his recommendations for the Father’s parenting time with the children had been implemented.

[208] There has been no significant change since Dr. Morris completed his mini-review assessment.

(b) Analysis of the Mobility Issue

[209] The test for whether the children should be permitted to move with the Mother to Arizona is as set out in the Supreme Court of Canada’s decision in Gordon v. Goertz: the best interests of the children.

[210] In Gordon v. Goertz, 1996 191 (SCC), at para. 25, McLachlin J. stated:

25 The reduction of beneficial contact between the child and the access parent does not always dictate a change of custody or an order which restricts moving the child. If the child's needs are likely to be best served by remaining with the custodial parent, and this consideration offsets the loss or reduction in contact with the access parent, then the judge should not vary custody and permit the move. This said, the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child.

[211] The Mother’s views with respect to the children’s best interests are entitled to deference when determining mobility provided that the move is not for some improper motive: G.M. v. S.S., 2013 BCCA 365, 49 B.C.L.R. (5th) 41, at para. 35.

[212] The Mother clearly wishes to live on a full-time basis with her husband, whose primary residence is in Arizona. However, based on the evidence before me, the move also supports the Mother’s historical position of failing to facilitate and limiting the children’s relationship with the Father. The Mother has not yet demonstrated that she is prepared to enforce a parenting regime wherein the children spend significant time with the Father.

[213] Despite the fact that the Mother has been the primary caregiver for the children and that they have had little or no relationship with the Father, they are still struggling and in crisis. These challenges cannot all be attributed to the conflict between the parents, to be substantially ameliorated by a move to Arizona. The Father has much to offer the children; they need a relationship with him and he needs to be permitted to actively participate in addressing these challenges facing the children.

[214] For these reasons, it is in the children’s best interests to remain living in the Town.

5. Review of Parenting Arrangements

[215] The Mother proposed that I delay the decision regarding her move to Arizona with the children for a period of six months to allow her proposed access schedule to be implemented.

[216] I agree that a review as opposed to a variation (which requires one party to demonstrate a material change in circumstances) is appropriate to monitor implementation of the parenting plan and to re-consider the Mother’s request to move to Arizona. Support for this approach can be found in the Court of Appeal for Ontario’s decision of Fiorito v. Wiggins, 2015 ONCA 729, 69 R.F.L. (7th) 5.

[217] I have allowed for a reasonable period of time for the court to monitor compliance with the order during the period when the children are in school and during the school holidays.

6. Initializing

[218] The parties consented to an order that the parties and their children be referred to by initials. However, in considering this relief, the court must be mindful of the overarching rights of the public to freedom of information and freedom of the press.

[219] S. 70 of the CLRA sets out the authority for preserving confidentiality in matters affecting children. The provision states as follows:

(1) Where a proceeding includes an application under this Part, the court shall consider whether it is appropriate to order,

(a) that access to all or part of the court file be limited to,

(i) the court and authorized court employees,

(ii) the parties and their counsel,

(iii) counsel, if any, representing the child who is the subject of the application, and

(iv) any other person that the court may specify; or

(b) that no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file.

(2) In determining whether to make an order under subsection (1), the court shall consider,

(a) the nature and sensitivity of the information contained in the documents relating to the application under this Part that appear in the court file; and

(b) whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents.

[220] The request to initialize this decision is appropriate and in the best interests of the children. The allegations levelled against both parents in this case are serious. There is a real risk that information contained in this decision could negatively impact the children. The children should be shielded from this information being made public to the extent possible.

[221] There was no request to seal the court file and the matter has to date proceeded with the parties’ full names. I am satisfied that the order sought only minimally limits the open court principle and this limitation is significantly outweighed by the best interests of the children and the privacy interests of the parents in this case.

V. THE FINANCIAL ISSUES

[222] The parties worked out many of the financial issues between themselves. Their agreement was initially put to me by way of a motion for summary judgment that ultimately proceeded on consent.

[223] The parties agree to all of the figures necessary for the equalization of net family property but for the value of the Father’s professional building.

1. Value of the Father’s Professional Building

[224] The Father purchased his building in the Town as a place to operate his medical practice. He is the sole owner of the property. The property is a multiplex and was built around 1895. At the date of separation, the Father was running his medical practice from the ground floor and he had tenants in the two upper units.

[225] The property is located in a heritage corridor of the Town. It consists of a 2,935 square feet. It is a two-and-one-half storey commercial apartment building with a full and unfinished basement and a detached barn to the rear of the property. The building is located on a large corner site and is a reverse pie shaped lot. The total property area is 10,890 square feet. There are eight parking spaces available for patrons of the medical clinic and the tenants at the back of the building. While the area is zoned R1, or residential, the subject property has been used commercially since its inception. Many of the properties in the same area have been converted to stores or other commercial enterprises, particularly in that Main Street North is a busy thoroughfare. The building is located on the main street of the Town. There is a commercial district immediately south of the Father’s property. The property is in a heritage section of the Town, although it is not formally designated as a heritage property.

(a) The Positions of the Parties

[226] The Father’s position is that the property is zoned for residential use and that its value should be based on residential comparators. His position is that the value of the property on the date of separation was not greater than $440,000.

[227] The Mother’s position is that the property has been used for a commercial/professional purpose since it was built and that its legal non-conforming use includes professional/commercial. Therefore, it is more appropriate to use commercial comparators that would put the value of the property on date of separation at no less than $600,000.

[228] Both parties’ experts used a direct comparison approach to the valuation of the building. The Mother’s experts also provided a further valuation using the income approach.

(b) The Father’s Expert

[229] The Father called Wayne Crawford, who has been an independent practitioner and member of the Appraisal Institute of Canada since 1979. He is President and Senior Partner of Appraisal Group Inc., a real estate appraisal firm. Mr. Crawford’s employee, Tony Lima, prepared the appraisal report. Mr. Crawford reviewed and signed off on the report. I have referred to this report throughout as being Mr. Crawford’s.

[230] Mr. Crawford treated the building as a residential property for the purpose of the appraisal report. This is the property’s highest and best legally permitted use, according to Mr. Crawford. According to the Town’s Official Plan, the property is located in a Residential Low Density 1 area and has an R1—a Residential Zoning Classification. According to s. 6 of By-Law No. 1229, permitted uses in the R1 zone include one-family detached dwellings and accessory buildings.

[231] However, in evidence, Mr. Crawford described the property as a hybrid property—one that is used for something other than it’s official plan designation. He also testified that hybrid properties are particularly challenging to appraise. Despite this, Mr. Crawford stated that it was not appropriate to use commercial properties as comparators, as the building’s legal uses did not include commercial use.

[232] Neither Mr. Crawford nor Mr. Lima consulted with the Town by-law offices to determine if the Father’s use of the property was a legal non-conforming use. He indicated that he did not want to “stir the pot” with the Town, as this might result in them “shutting down” the Father’s use of the property.

[233] Mr. Crawford also acknowledged that he did not have accurate dimensions for the comparator properties. This data would typically come from the Municipal Property Assessment Corporation (MPAC) that was shut down when the appraisal was prepared. Neither the author of the report, Tony Lima, nor Mr. Crawford adjusted the report when this data became available. Mr. Crawford acknowledged that the MPAC data put to him during cross-examination would impact his estimate of value. However, it was not clear to me what the ultimate numerical impact would be.

[234] Mr. Crawford’s report also stated that the property was designated as a heritage property. In evidence-in-chief, Mr. Crawford corrected this to state that the property itself was not designated as a heritage property although it was located in a heritage area and it was likely on the ‘watch list’.

[235] Mr. Crawford acknowledged that if one considered the property as a commercial property, the presence of parking spaces and its location on a corner of a busy street would enhance its value.

[236] Lastly, Mr. Crawford confirmed that he had considered the building a residential triplex as its “highest and best use” for the purpose of his appraisal. He emphasized that one should not consider illegal uses when assessing value. However, triplex is not a legal use under the applicable by-law.

(c) The Mother’s Experts

[237] The Mother retained the real property appraiser Tracey L. Smith to appraise and value the subject property as of the date of separation. Tracey Smith has practiced as a qualified real estate appraiser for 10 years. Ms. Smith prepared an Appraisal Report, dated March 1, 2015. Ms. Smith was qualified to provide expert evidence in these proceedings in relation to the appraised value of the subject property.

[238] Ms. Smith appraised the subject property as a commercial property. She stated in her evidence that the property is rightly appraised as a commercial property for the following reasons:

(1) A property must be appraised on the basis of highest and best use, which in this case is the commercial use of the building;

(2) The property is being used commercially and is generating income not only from the two tenanted units, but the medical clinic on the main floor;

(3) The commercial use of the subject property is a “permitted use”, although the area is R1;

(4) There are other comparable heritage buildings that are being used commercially in the area;

(5) The subject property is designated as a Class A building. It is not an historical building but it is of significant importance to the Town. The designation does not have much effect on the value of the property but instead has a “neutral effect”; and

(6) Ms. Smith spoke to the Town in her preparation of her appraisal and was advised that the subject property is a “legal conforming use”.

[239] When comparing the property to other similar commercial properties, Ms. Smith estimated that the value of the property was $600,000 as of the date of separation.

[240] The Mother also called Rita Chemilian, who is an experienced real estate agent in the region where the property is located. Ms. Chemilian attended at the Heritage-Planning Department of the Town in relation to this property and was advised that the subject property was residentially zoned but that the subject property, having been built and used throughout it’s tenure as a commercial building, was considered to be a “legal non-conforming use.”

[241] Ms. Chemilian also provided a value of the subject property based on the income approach, as the subject property is income producing. She stated that the subject property has three units and she determined that the income produced at the date of separation by the three units would be approximately $3400 net per month and that an investor would be interested in this net income if s/he were looking to buy the subject property.

[242] Ms. Chemilian opined that the value of the property at the time of separation was in the range of $650,000 to $660,000 based on various factors.

(d) Analysis of the Issue of the Value of the Property

[243] The Father estimated the value of this property at $700,000 in a number of sworn Financial Statements sworn early on in this matter.

[244] I prefer on whole the evidence of the Mother’s experts. It is clear that the Father purchased this property to use for a commercial purpose, namely, the operation of his medical practice. The property, although technically zoned for residential use, has been used for a commercial purpose since the building was erected. The property is located on a corner of a busy street immediately north of a developed commercial area and it has several parking spaces.

[245] Mr. Crawford acknowledged from the outset that this property was a hybrid building. He did not make inquiries of the Town as to whether the Father’s use on date of separation was “legally non-confirming” and how this might have impacted its value. The Mother’s two experts both confirmed that the Town treats the Father’s use of the property as legally non-conforming to the existing zoning (see [Merrifield v. Merrifield, [1995] O.J. No. 289 (Ont. Gen. Div.)]).

[246] I accept Ms. Smith’s value for the property as the most reasonable representation of its value as of the date of separation. The “highest and best use” of this property for the purposes of assigning value would seem to be its existing commercial and residential use, rather than as an exclusively residential triplex. I find that the Father’s property is valued as a commercial property at $600,000 for the purpose of the division of net family property calculation.

2. Retroactive Child Support

[247] The parties agree that the Applicant’s income shall be $389,000 for 2015. His income for 2010 to 2014 is agreed by the parties to be as follows:

2010 $350,000

2011 $519,500

2012 $381,000

2013 $365,000

2014 $389,000

[248] The parties entered into Minutes of Settlement arising from a motion on January 23, 2012, before McDermott J., where at para. 2 the parties agreed:

[C]ommencing on January 1, 2012, the Applicant shall pay interim child support to the Respondent for two children in the amount of $1941 per month, based on the Applicant’s reported income of $143,875….This shall be on an entirely without prejudice basis to the Respondent’s entitlement to bring the issue back before the Court at any time to deal with, among other things, quantum, payment of child support for [C.B.], born December 20, 1992, and [A.B.], born July 16, 1994 and retroactive support.

[249] On May 2, 2012, Rogers J. ordered on consent:

3. Commencing May 1, 2012, and on the first day of every month thereafter the Applicant shall pay child support to the Respondent of $3,152 for two children based on his stated income of $250,000.

4. Commencing May 1, 2012 and on the first day of every month thereafter the Applicant shall pay spousal support to the Respondent in the amount of $5,732.

5. Paragraphs 3 and 4 are on the basis that this is without prejudice to the Respondent requesting a change in quantum of support as more information becomes available regarding the Applicant’s income.

(a) The Parties’ Positions

[250] The Mother’s position is that she is entitled to child and spousal support re-calculated back to the date of separation while giving the Father credit for certain payments made.

[251] I have set out below the Mother’s calculations of child support due to her:

Required child support

Monthly

Total

2010

4,312

10

$43,120

2011

6,278

12

75,336

2012

4,645

12

55,740

2013

4,463

12

53,556

2014

4,737

12

56,844

2015

4,737

12

56,844

Total required child support

341,440

Less Child support paid

2010 - Rent $1,850 @ 5 months

(9,250)

2011 - Rent $1,950 @ 12 months

(23,400)

2012 - $1,942 x 4 months

(7,768)

Uncharacterized payment Fall 2014

(25,000)

Section 7 expenses of $9,364.76 @ 30%

(2,809)

Child support May 1/12 to Dec 31/15 ($3,152 @ 44 months)

(138,688)

Retroactive child support owing

$134,525

[252] The Father’s initial position was simply that he should not be required to pay any “support arrears”, or in the alternative, that there was not sufficient evidence adduced by the Mother with respect to this claim.

(b) Analysis of Re-Calculation of Child Support

[253] I agree with the Mother’s position that her claim with respect to child support, as far as it commences with the delivery of her Answer, should not be viewed as retroactive support, but rather as a calculation of prospective support with the benefit of more accurate information with respect to the Father’s income: MacKinnon v. MacKinnon, 2005 13191 (ON CA), 75 O.R. (3d) 175, at paras. 17-29; Vitagliano v. Di Stavolo, 2001 28202 (ON SC), 17 R.F.L. (5th) 194, at paras. 116-129.

[254] In MacKinnon, there was no issue of pre-application support. However, child support is the right of the child. In this case, child support should be calculated from the date of the Mother’s Answer retroactive to the date of separation. There is clearly sufficient evidence with which to determine the Father’s child support obligation. The discrepancies that arose were with respect to the credit that the Father should receive for payments made and I have addressed those discrepancies below.

[255] The Father agrees with the Mother’s calculations (although not her claim) except as noted below:

(a) Uncharacterized payment made in the Fall 2014. The Father says that this payment was $30,000 not $25,000. In her reply submissions, the Mother acknowledged that the correct figure was $30,000 and that the calculations as set out above would need to be adjusted.

(b) The rent paid by the Father on behalf of the Mother in 2010. The Father says the amount paid by him was $19,210 not $9,250. However he did not explain how he arrived at that figure. The Mother resided in the matrimonial home until July 2010 when the property was sold. The Father was given credit in post-separation accounting between the parties for mortgage payments that he made on the matrimonial home while the Mother and children were in possession. The Father paid the rent on the rental property that the Mother resided in for the remainder of the year or five months. I accept the Mother’s figures as correct.

(c) The rent paid by the Father on behalf of the Mother in 2011 and for four months in 2012. The Father says the amount paid by him was $32,900 and not $31,168. The Father’s evidence on this point was unclear whereas the Mother provided details and proof of her calculations and I accept her figure.

[256] I accept the Mother’s adjusted calculations. The Father shall pay child support fixed as of December 31, 2015 in the amount of $129,525.

3. Ongoing Child Support

[257] The Father sought an order that child support flow from the parenting schedule determined by this court based on an imputed income to the Mother.

[258] The Mother sought full Table child support based on the Father’s income as agreed and set out above.

(a) Parenting

[259] Pursuant to my order for parenting time, the Father shall have the children in his care on the regular schedule on alternating weekends from Friday after school to Monday drop-off at school, and every Wednesday from pick-up at school and drop-off at school on Thursday morning.

[260] The FCSG, at s. 3(1), stipulates that:

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

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

(b) the amount, if any, determined under section 7.

[261] The Father’s position was that child support would be dictated by the parenting schedule that I determined. He agreed that should the children reside primarily with the Mother, full Table child support would be payable based on his 2015 agreed annual income of $389,000 or $4,737 per month.

(b) Special and Extraordinary (s. 7) Expenses

[262] The Mother also seeks a contribution to the following expenses for the children:

• Basketball
• Hockey
• Gymnastics
• Extra-curricular music; and
• Post-Secondary Education

[263] Section 7(1) of the FCSG states:

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.

[264] Along with other uninsured medical or dental expenses, therapy expenses should be shared by the parties proportionate to income per s. 7(2) of the FCSG. The Father’s current proportionate share of the special and extraordinary expenses, having regard to my order for spousal support set out below, is 73% and the Mother’s 27%.

[265] Extra-curricular activity expenses must be deemed extraordinary. Section 7(1.1) defines extraordinary for the purposes of s. 1(f) as:

(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.

[266] The expenses for all but music lessons were fairly modest. There was little or no evidence adduced with respect to whether the children were at a competitive level or whether either of them had any special talent that might affect my consideration of this claim. Given the significant amount of child support that the Father is paying, the extra-curricular activity expenses do not qualify as extraordinary expenses.

[267] The children’s post-secondary education expenses would qualify as a special and extraordinary expense, however, it is some years before either child will be ready for college or university. As there are a number of unknown factors including what country the children may be living in, I am not prepared to make a specific order at this time.

4. Ongoing Spousal support

[268] The Mother seeks an order for ongoing spousal support in the amount of $9,000 per month, commencing on January 1, 2016 and on the first day of each month, for a period ending not sooner than December 31, 2020. Her calculations assume that the children reside primarily with her, that her income is zero and that the Father’s income is $389,000.

[269] The Father’s position is that the Mother is not entitled to spousal support on compensatory or non-compensatory grounds. Given her relative youth, her remarriage, her budget and her own admissions about her potential to earn an income, the Father is no longer obligated to support her.

(a) Entitlement to Spousal Support

[270] The DA at ss. 15.2(4)-(6) sets out the criteria for a corollary relief claim for spousal support:

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

(a) the length of time the spouses cohabited;

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

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

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

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

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

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

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

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

[271] In Thompson v. Thompson, 2013 ONSC 5500, 2013 CarswellOnt 12392, at paras. 46 and 47, Chappel J. provides a useful elucidation of these provisions:

The court’s duty pursuant to section 15.2(4) of the Act to consider the parties’ “condition, means, needs or other circumstances” in carrying out the spousal support analysis is very broad and involves the exercise of a considerable amount of discretion. However, not every circumstance of the spouses will be relevant to the support analysis. The factors referred to must be interpreted in the context of the purpose of the spousal support provisions of the Act as articulated by the Supreme Court of Canada in Moge v. Moge, and are circumscribed by that purpose….[T]he purpose of spousal support is to relieve economic hardship that results from the marriage or its breakdown,” and the focus of the analysis is therefore “the effect of the marriage in either impairing or improving each party's economic prospects.” The condition, means, needs and other circumstances relied upon for the purposes of the support analysis must be relevant in some way to this purpose and focus.

The “condition” of a spouse includes such factors as their age, health, needs, obligations, dependents and their station in life. A spouse's “means” encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives gains or benefits. The assessment of the “needs” of a spouse should take into consideration the accustomed lifestyle of the spouse, subject to ability to pay. As the Ontario Court of Appeal stated in Rioux v. Rioux, “self-sufficiency is a relative concept; it relates to achieving a reasonable standard of living having regard to the lifestyle the couple enjoyed during their marriage.” In considering the extent of a spouse's need from this perspective, the court should take into account the joint income which the parties anticipated they would be able to enjoy as of the time of their separation. [Footnotes omitted.]

[272] Chappel J. in Thompson continues by providing a summary of the law regarding entitlement as follows, at para. 54:

The Supreme Court of Canada articulated the fundamental principles respecting entitlement to spousal support in the cases of Moge v. Moge and Bracklow v. Bracklow. In Moge v. Moge, the court summarized the overall goal of spousal support as being to ensure an equitable sharing of the economic consequences for both parties of the marriage or its breakdown. However, it also emphasized that the entire burden of these consequences should not necessarily fall on the shoulders of one party. The Supreme Court held in both Moge v. Moge and Bracklow v. Bracklow that entitlement to spousal support must be determined in accordance with the terms of the governing legislation, but that the issue should be considered keeping in mind the following three conceptual models upon which entitlement to spousal support may arise: (1) compensatory support, which primarily relates to the first two objectives of the Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support. As the British Columbia Court of Appeal emphasized in Chutter v. Chutter, the court is not required to apply one conceptual model of entitlement over the other. In many cases, entitlement may be established on more than one ground.

[273] The parties’ marriage was of medium term—ten years including a period of cohabitation. The Mother was 42 when the parties separated and the Father was 45.

(i) The Compensatory Claim

[274] In Roseneck v. Gowling, 2002 45128, 62 O.R. (3d) 789, at para. 61, the Court of Appeal for Ontario further described the nature of compensatory support as set out in Moge as follows:

Compensatory support is intended to compensate a spouse upon the breakdown of a marriage for contributions made to the marriage, such as sacrifices made for a spouse’s career and loss of economic opportunity sustained as a consequence of raising children. This is particularly applicable where a property division is insufficient to achieve this result: see Moge, supra, at pp. 843-49 S.C.R. Where a spouse has the capacity to be self-sufficient but the spouse’s ability to enjoy the same standard of living as during the marriage has been negatively impacted as a result of the marriage breakdown, compensatory support helps to ensure that the economic impact of this breakdown is equitably shared: Linton v. Linton (1990), 1990 2597 (ON CA), 1 O.R. (3d) 1 (C.A.), 75 D.L.R. (4th) 637 (C.A.).

[275] The Father’s emphasizes that when the parties met, the Mother had just declared bankruptcy and had no job. She also had three dependent children, two of whom resided with her. In his view, the Mother did not sacrifice for his career, but rather, left the marriage in a better financial position than she entered it.

[276] The Father’s approach to the analysis of compensatory support is too simplistic. Through the parties’ ten-year relationship, in the words of Professor Carol Rogerson, they developed “an interdependency and merger of their economic lives”: Roseneck v. Gowling, at para. 61. The unwinding of this economic interdependency has resulted in disparity in the standards of living of the Mother and the Father.

[277] The Mother took on a supportive role in the Father’s practice. While this role may have been secondary to the Father, I find that their common commitment to integrative medicine assisted the Father in developing a flourishing practice. Furthermore, the Mother was the primary caregiver to the parties’ two children, and among other things, this freed the Father up to focus on his practice. See Gray v. Gray, 2014 ONCA 659, 122 O.R. (3d) 337, at paras. 37-41, and Mason v. Mason, 2014 ONSC 4290, 47 R.F.L. (7th) 173, at paras. 20-28, 31-34.

[278] The Mother has not worked in any significant way since the parties separated.

[279] The Mother does have the capacity to contribute to her own support. She acquired skills through her work in the Father’s medical practice. I address this further below in determining an income to impute to the Mother for the calculation of spousal support. However, the Mother does not at this time have the capacity to achieve a reasonable approximation of the standard of living enjoyed by the parties during the marriage through their joint efforts.

[280] The equalization of property and the Mother’s share of the net sale proceeds of the matrimonial home were relatively modest and do not necessarily reflect an equitable sharing of the economic consequences of the parties’ marriage.

[281] The Mother has established an entitlement to support on a compensatory basis.

(ii) Needs-Based Spousal Support & the Effect of Re-Partnering

[282] In analyzing non-compensatory support in Thompson, at para. 59, Chappel J. cited Bracklow v. Bracklow and stated:

[A] spouse may be obliged to pay support based on the other spouse's economic need alone, even if that need does not arise as a result of the roles adopted or sacrifices made during the marriage.

[283] When a support recipient re-partners, this can be considered by the court in determining both the quantum of duration of spousal support. Murray J. in Boland v. Boland, 2012 ONCJ 102, [2012] O.J. No. 925, at paras. 106-110 summarized the law in this respect:

A former spouse who is in receipt of spousal support is not automatically disentitled from receipt of support because she or he repartners. Repartnering is simply a factor to be taken into account in the assessment of entitlement to and quantum of support.

The case law indicates that the significance of the repartnering will vary, depending on a number of factors, such as :

• the duration and stability of the new relationship;

• the value to the support recipient of any benefits she or he receives by reason of this new relationship;

• the existence of any legal obligation of the new partner to provide support;

• the economic circumstances of support recipient’s new partner, sometimes in comparison to his or her former partner.

Also relevant in the analysis is whether the basis for the recipient’s support entitlement is compensatory of partially compensatory. As was said by Justice G. M. Barrow in Kelly v. Kelly, “”Remarriage does not compensate the receiving spouse for that which was foregone during an earlier marriage.”

[284] The Mother entered into a relationship with B.L. not long after separation. The Mother and B.L. married in August 2014. The Mother and B.L. have carried on a long distance relationship. B.L., who appears to be financially comfortable, provides financial support for the Mother.

[285] I have found that the Mother’s entitlement to spousal support has a significant compensatory component. For this reason, the impact of her relationship with B.L. on the issue of entitlement at this time is lessened.

[286] The Mother also has a needs-based claim for support.

(b) Income of the Mother for Support & Quantum of Support

[287] The Mother submits that her income for the purpose of calculating support should be set at zero.

[288] The Father’s position is that an income of at least $60,000 should be imputed to the Mother. He states that the Mother is not interested in working and that her goal is to be a full-time homemaker for B.L.

[289] The Mother was 42 at the time the parties separated and she is now 48 years old. She has remained in good health throughout.

[290] The Mother indicates that she wants to return to school to re-train to be a nurse. In questioning, she admitted that could earn in the range of $60,000 to $100,000. She now qualifies this to say that she would only be able to earn this level of income once she re-trains. She has taken few steps to implement that goal. The Mother asserts that she has been overwhelmed by her parenting obligations. She blames the Father for perpetuating the conflict and this litigation, thereby delaying her return to school and/or the workforce.

[291] Pursuant to s. 19 of the FCSG the court can impute an income in circumstances where it: “finds that a 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”.

[292] The Mother is young, healthy and has skills that she could utilize to contribute to her own support and to the support of the children. For example, she could utilize the skills acquired working in a medical administrative role with the Father. The children are both in school on a full-time basis and have been for some time. Furthermore, I do not find that the Mother’s parenting obligations were such that she could not have worked in some capacity in the years since the parties separated.

[293] Despite the Mother’s admission, there was insufficient evidence for me to find that the Mother could earn that level of income based on her current skills and qualifications. I find it reasonable that an income of at least $25,000 should be imputed to the Mother for the purpose of calculating child support.

(c) Quantum of Spousal Support

[294] The Spousal Support Advisory Guidelines (SSAG) provide for a range of spousal support. After imputing an income to the Mother of $25,000 as set out above, the range of spousal support is between $7,119 and $9,025. The SSAG also suggest a duration for support between four-and-one-half and nine years.

[295] The Father has paid spousal support to the Mother since the parties separated. I have addressed the Mother’s claim for a readjustment to the quantum in the section below.

[296] In determining where in the SSAG range the prospective support obligation should lie, I have considered the Mother’s budget as set out in her Financial Statement sworn on October 1, 2015 and the Father’s budget as set out in his Financial Statement sworn on November 12, 2015. The budgets put forward by both parties as they related to living expenses and expenses for the children were, on the whole, reasonable. However, both parties have large monthly debt payments in relation to debt incurred after the date of separation.

[297] In determining the quantum of spousal support, I have also considered the financial support the Mother receives from B.L. He has an ownership interest in a company that has offices in the U.S. and in Canada. B.L. had sold his business some years ago but re-purchased it in 2011 for $1.87 million cash. B.L. acknowledged that he draws $120,000 in income from the business and is able to run certain personal expenses, such as travel, through the business. B.L. owns a five-bedroom home with a pool in Arizona The Mother and B.L. do not have a marriage contract or pre-nuptial agreement. The Mother has the use of a credit card that B.L. pays for. B.L. has paid for the Wife to travel back and forth to Arizona regularly.

[298] On the flip side, although B.L. financially assists the Mother, she does not have the benefit of residing with him. She must maintain a residence in Ontario for herself and the children.

[299] The spousal support payable to the Mother should be in the low SSAG. The Father shall pay $7,120 per month in spousal support.

[300] I decline to consider the issue of a termination for spousal support at this time. I have provided that there should be a review of spousal support to coincide with a review of the parenting arrangements and the Mother’s request to move to Arizona. The issue of a termination of spousal support shall form part of that review.

5. Retroactive Spousal Support

[301] After the parties separated, the Mother remained living in the matrimonial home. The Mother received the income from PME, a professional corporation ancillary to the Father’s medical practice, as set out in the table above. This arrangement continued until Rogers J. made her temporary spousal support order on consent on May 2, 2012, at which point the Father started to pay regular child and spousal support. The order of Rogers J. was based on the Father having an income of $250,000; the order specifically states that the quantum of temporary support is “without prejudice to the Respondent requesting a change in quantum of support as more information becomes available regarding the Applicant’s income.”

[302] The parties each engaged an expert to determine the Father’s income for the purpose of support. Prior to trial they reached an agreement on the Father’s income for the years 2010 to 2015, as set out above. The income of the Father that was ultimately agreed upon for each year was significantly higher than the income of $250,000 that was used to calculate support in Rogers J.’s temporary order.

(a) Positions of the Parties

[303] The Mother now seeks mid-range support calculated pursuant to the SSAG back to the date of separation. Her calculations are based on the income agreed upon by the parties for the Father and no income attributed to her. The Mother’s chart is reproduced below:

Retroactive spousal support owing

Mid-range monthly

#of months

Total

2010

$8,207

10

$82,070

2011

12,708

12

152,496

2012

9,075

12

108,900

2013

8,624

12

103,488

2014

9,062

12

108,744

2015

9,031

12

108,372

Total required spousal support

664,070

Less PME income and gross-up

(311,693)

Spousal support May 1/12 to Dec 31/15 ($5,732 @ 44 months)

(252,208)

Spousal support owing after tax

$100,169

[304] This chart refers to a total owed after tax. However, the calculations appear to be on a pre-tax basis. She did not provide any after-tax calculations.

[305] The Mother relies on MacKinnon for the proposition that what she seeks is prospective and not retroactive support. Again, to the extent that her claim is assessed from the date of delivery of her Answer, I agree with this characterization. To the extent that her claim pre-dates her Answer & Claim, it should be characterized as a retroactive support claim.

[306] The Father’s position is firstly that there should be no recalculation of support. Secondarily, he submits that that the Mother has not adduced sufficient evidence to determine the issue.

[307] The Father submits that if retroactive spousal support is considered, it should be calculated such that the Mother receives 55% of the total pool of net disposable income up to the time she re-married in August 2014. He submits that the order of Rogers J. was based on the Mother receiving 55% of the net disposable income, albeit on a lower level of income for him. Thereafter, the spousal support should be re-calculated, if re-calculated at all, based on the low range of the SSAG. He submits that after deducting for payments made and adjusting for taxes payable of 30%, the net amount due to the Mother would be closer to $26,000.

(b) Analysis of the Retroactive Spousal Support Claim

[308] In Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 207, citing D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, the Supreme Court of Canada set out the principles that govern retroactive spousal support awards. The factors to consider in determining whether to award retroactive support are as follows:

a. The needs of the recipient,

b. The conduct of the payor,

c. The reason for the delay in seeking support, and

d. Any hardship the retroactive award may cause to the payor.

[309] There are important differences between retroactive child support and spousal support claims. Unlike with child support, there is no presumptive entitlement to retroactive spousal support. Moreover, the payor has no legal duty to “look out for the [recipient’s] legal interests.” Therefore, “concerns about notice, delay and misconduct generally carry more weight in relation to [retroactive] claims for spousal support.”: Kerr v. Baranow, at para. 208.

[310] The Court of Appeal for Ontario in Bremer v. Bremer, 2005 3938 (ON CA), 13 R.F.L. (6th) 89, at para. 9, set out a list of factors that the court can consider in a claim for retroactive spousal support. These factors fit within the more general factors outlined in Baranow:

a. The extent to which the claimant established past need (including any requirement to encroach on capital) and the payor’s ability to pay;

b. The underlying basis for the ongoing support obligation;

c. The requirement that there be a reason for awarding retroactive support;

d. The impact of a retroactive award on the payor and, in particular, whether a retroactive order will create an undue burden on the payor or effect a redistribution of capital;

e. The presence of blameworthy conduct on the part of the payor, such as incomplete or misleading financial disclosure;

f. Notice of an intention to seek support and negotiations to that end;

g. Delay in proceeding and any explanation for the delay; and

h. The appropriateness of a retroactive order pre-dating the date on which the application for divorce was issued.

[311] The Father made financial provision for the Mother from the date of separation forward. Up to May 2012, when the first temporary support order was made, the Mother continued to receive funds from the professional corporation known as PME. The Mother failed to introduce evidence of requests for increased support leading up to delivery of her Answer & Claim. Similarly, I was not provided with evidence of the Mother’s requests to obtain financial disclosure from the Father prior to this time.

[312] A review of the parties’ most recent sworn Financial Statements shows me that the Father is, at this time, in a better financial position than the Mother.

[313] It is appropriate to consider the Mother’s claim for an adjustment of spousal support from the date of the first temporary order up to the date of the trial. The quantum of spousal support set on consent at the interim level was expressly made without prejudice to a re-adjustment after the parties had a clearer picture of the Father’s income. To decline to consider this claim would discourage parties from reaching expeditious, temporary resolutions of support while they are assembling and analyzing financial disclosure.

[314] While I would not be inclined to order retroactive spousal support (being spousal support that pre-dates the filing of the Mother’s Answer & Claim dated September 11, 2011), according to the Mother’s chart, the Father over-paid support in the period prior to the Mother’s Answer & Claim. Accordingly, the Father should receive credit for this over-payment against the Mother’s claim for the re-adjustment.

[315] The parties worked out their own calculation of post-separation adjustments including the carrying cost of the jointly owned matrimonial home up to the date of sale. Therefore, my analysis focuses simply on the application of the SSAG and the fact that the Father’s income was significantly higher than the income used by Rogers J. for her temporary order.

[316] For the reasons set out above, I find that as part of a discretionary assessment of the retroactive spousal support claim, an income of $25,000 should be imputed to the Mother. I have used the mid-range SSAG for these calculations as opposed to the low range SSAG used for the prospective support calculations. In part this is because the Mother’s relationship with B.L. was still developing and she only married B.L. August 2014.

[317] The adjusted spousal support amounts are set out below:

[318] As the amount due represents taxable/deductible support and my order will be for lump sum support, I have deducted 30% to represent the approximate after-tax value of the payments to the Mother. The Father shall pay lump sum spousal support in the amount of $20,186 to the Mother in full satisfaction of all claims for spousal support up to and including December 31, 2015.

VI. ORDER:

1. The Applicant Father and Respondent Mother shall have joint custody of the children.

Parenting Coordination

2. A parenting coordinator shall be immediately engaged. The Applicant Father shall select a parenting coordinator who shall not be a person previously connected with the case, but who may be someone recommended to him by or in part of a practice group with any one of the experts involved in this case. The Respondent Mother’s consent shall not be unreasonably withheld in respect of the Father’s selection. Failing the Applicant Father selecting a parenting coordinator within seven days of this Order, the Court shall receive written submissions by way of a 14B motion from each party not to exceed three pages, listing the names of potential parenting coordinators and the reasons for their proposed appointment, with their statement of qualifications to attached to the submission and the Court shall select the parenting coordinator.

3. The parenting coordinator’s mandate shall be to monitor and implement this Order. The parenting coordinator shall be obliged to forthwith notify the parents and the Court in the event if either party or the parties fail to strictly adhere to the terms of this Order. Upon receiving notice from the parenting coordinator of failure to strictly adhere to this Order, this matter may be brought back before this Court by a motion on short notice, with service for same to be permitted by email communications between the lawyers. After motion materials have been served, the parties may request a teleconference session between the Court and the parties through their counsel to address scheduling and process by contacting Fryer J.’s assistant.

Time Sharing

4. The children shall reside with the Respondent Mother except when they are in the care of the Applicant Father as follows:

(a) Commencing May 13, 2016, alternate weekends from Friday after school or 4:30 when school is not in session to Monday drop-off at school or 8:30 am when school is not in session;

(b) if Monday is a school holiday, the weekend shall be extended to include the Monday and drop-off shall be on Tuesday at school;

(c) every Wednesday from after school or 4:30 pm when school is not in session through to Thursday morning drop-off at school or 8:30 am when school is not in session commencing May 18, 2016; and

(d) the holiday time as set out below.

5. The Respondent Mother shall not attend at the children’s school except for the purpose of picking up and dropping off the children on her parenting time, to pick the children if she is called because they are sick on her parenting time or to attend a previously scheduled school function such as a parent-teacher night or holiday pageant.

6. The Respondent Mother shall not permit nor allow others residing with her to permit the children to come to her home during the Father’s parenting time with the children. If the children attempt to contact her to come to her home when it is the Applicant Father’s parenting time, she shall decline to intervene and she shall notify the Respondent Father immediately so that he can address the issue and assume care of the child(ren). If the children are given a key to the Respondent Mother’s home during her parenting time, it must be returned to her prior to the Father’s parenting time with the children. The children shall not have access to a hidden or spare key except during the Respondent Mother’s parenting time.

7. When school is not in session and subject to the Holiday Schedule set out below, the Mother shall drop the children off at the Father’s home for the commencement of his parenting time and the Father shall drop the children off at the Mother’s home at the end of his parenting time.

Holiday Schedule

8. The Applicant Father and Respondent Mother shall share all school vacations and holidays. The residency schedule set out at para. 4 above will be replaced during vacations and holidays as follows:

I. Christmas vacation is that period of time commencing at the end of the last day of school in December and terminating on the first day of school in January. Commencing Christmas 2016 and in even numbered years thereafter, the Applicant Father shall have the children in his care from the last day of school, as above, until Christmas Day at 1:00 p.m. The Applicant Mother shall have the children from Christmas Day at 1:00 p.m. until the first day of school in January 2017. In 2017 and odd-numbered years thereafter, the Respondent Mother shall have the first half of the Christmas school vacation and the Applicant Father shall have the second half. This schedule shall apply even if the school schedule results in one parent having significantly more time with the children over a particular Christmas holiday period.

II. The Respondent Mother shall have the children for Easter weekend in odd-numbered years commencing Thursday after school to Tuesday at the start of school. The Applicant Father shall have the children for Easter weekend in even-numbered years.

III. Summer vacation is defined as that period of time which starts on the first day following the last day of school and terminating on the day prior to the first day of school in the school district(s) where each of the children go to school. Commencing in 2016, each party shall have the children in his/her care for one half of the summer vacation period, in a cycle that rotates between their residences in two-week cycles, until it becomes mathematically impossible to do so. In that event, in order to ensure equal time between the parties, any remaining time after the two-week cycles have been exhausted shall be shared equally between the parties. The children shall not spend more than a continuous two-week period of time with each party. The party who does not have the children in his/her care on the last day of school in June of each year, shall have them for the first two-week cycle of summer access. Exchanges shall occur on Fridays at 5:30 p.m.

IV. In odd-numbered years, the Respondent Mother shall have the children for Thanksgiving weekend from Friday after school to Tuesday at the start of school. The Applicant Father shall have the children for Thanksgiving weekend for the same period of time in even-numbered years.

V. The Applicant Father shall have the children every Father's Day weekend and the Applicant Mother shall have the children every Mother's Day weekend, from Friday after school until Tuesday at the start of school.

VI. The children shall spend their birthdays with the party who has care of them in accordance with the residency schedule set out above.

VII. All other holidays and special occasions, including but not limited to, Family Day, Victoria Day, Canada Day, the August Civic Holiday and Halloween shall follow the residency schedule set out at above.

VIII. The parent whose holiday parenting time is ending shall be responsible for transporting the children to the other parents home.

IX. Commencing with the Respondent Mother’s first holiday parenting time period during the summer holidays in 2016, she shall be permitted to take the children with her to Arizona during her holiday parenting time with the children. She shall provide the Applicant Father with proof of her return plane ticket for the children. The Applicant Father shall execute whatever travel consents are reasonably required.

X. The children are not to be removed from school for the purpose of any travel.

9. Parenting time shall only be altered on prior written consent of the parties or by further court order. The parenting coordinator shall have no authority to make modifications to the parenting time schedule.

10. There shall be no make up time for missed parenting time, unless the parties agree otherwise.

11. If one or both of the children are sick, the transition from one parent's care to the other parent's care is to proceed unless the child is too sick to travel between the parties' homes, as per the determination of the child's doctor, evidenced in writing to the other party.

12. Neither party may object to the other's plans with the children and must respect each other's ability to care for the children appropriately.

13. Neither party will arrange activities for the children when the children are scheduled to be with the other parent without that parent's consent. If one party anticipates that an activity is coming up for which he or she is seeking a change to the parenting schedule, the parent proposing to make a change shall not inform the children of the activity, discuss it with them or permit others to discuss it with them before obtaining the other parent’s written consent to the change in the parenting schedule.

14. There shall be no restrictions placed on the children with respect to personal items, toys and gifts they wish to take with them between the residences of their parents. Should the children wish to take a gift, toy or article of clothing, they shall be permitted to do so, without the intervention of the other parent. However, this does not apply to pets, which shall remain at the home of the parent who acquired the pet for the children.

Communication

15. Both parties are to forthwith provide the other by email their current addresses and a phone number where they can be reached at all times.

16. Both parties are to advise the other by email if the children will be other than in the Applicant Father’s home or the Respondent Mother’s home for more than one night, and to provide the details of where the children are, as well as a phone number.

17. Neither party shall speak in a disparaging or negative manner about the other party or allow or encourage others to do so in the presence of the child(ren).

18. Neither party shall discuss with the children, or with another party in the presence of the children, present or past legal proceedings or issues between the parties related to present or past legal proceedings, including any outstanding property or financial issues relating to the parties or the children, or regarding conflicts between the parties relating to parenting issues.

19. The Respondent Mother shall extricate herself from any and all decisions and dialogue or discussions with the children concerning the issue of their Father and their relationship with him. More specifically, the Mother is directed to say to the children, save and except only as may take place in therapy, no less and no more than that the Court has decided it is in the children’s best interests for them to have a meaningful relationship with their Father, and that she respects the Order and agrees it is in the children’s best interests.

20. Neither party shall leave out or accessible to the children information or documents pertaining to any issue arising from the parties' separation and divorce, and neither will permit the children access to their personal email where communications regarding these matters are stored. Both parties shall ensure that the children will not have access to information regarding the parties' separation and divorce by password-protecting any area of their personal computers and smartphones that hold such information.

21. The parties shall communicate about the children by email. The parties shall ensure that the children cannot read the emails by password protecting any device upon which the emails might be accessible. Each party will respond promptly by return email to the email of the other. The parties shall exchange information regarding the children's care, developmental milestones, food likes and dislikes, scheduled activities and appointments, medical and otherwise, and any requests for changes in the parenting schedule. All emails between the parties regarding the children shall not be deleted, nor shall they be forwarded to third parties without the other parent’s consent, other than to a party’s lawyer or to the parenting coordinator. Emails shall be brief, respectful, related solely to the children, with no reference to either of the parties or their activities. Absent an emergency, the parties shall not email each other more than once per day.

22. The parties shall share all documents pertaining to the children by scanning the document and then sending it to the other parent by email. The parents shall not rely on the children to transport documents between them.

23. If one party requests information by email, the other party shall respond within 48 hours. Requests made giving less than 48 hours notice shall be responded to as soon as possible. In the event of an emergency or truly time-sensitive matter, the parties shall call each other. If a reply requires more time than 48 hours, an email shall be sent advising that the reply cannot be reasonably given with this time period and advising when the response can be expected.

24. Any discussions between the parties at transition times, activities or other special events where the children are present or nearby shall be limited to brief and cordial interchanges. If one party considers that the discussion is not courteous, both shall discontinue the conversation and shall take up the issue later by email.

25. If a complaint is made by one (or both) of the children to one parent about the other, the child shall be encouraged to talk directly to the parent he or she is complaining about without further discussion, coaching or input by the parent to whom the complaint was made. If one party finds what one (or both) of the children have said about the other parent to be of significant concern, that party shall first ask the other parent, by email, what actually happened. If a parent proposes to address a significant issue further directly with the children, the parties shall first agree to a joint message to be delivered by both of them to the children. If they are unable to agree on a joint message, nothing further shall be said to the children unless and until the matter is put to the parenting coordinator for resolution.

26. While the children are in the care of the Applicant Father for a period of longer than 72 hours, the Respondent Mother shall be permitted to communicate with the children once every 48 hours for a brief period of time (i.e. 10-15 minutes). Otherwise, the Respondent Mother shall not communicate with the children in any way; for clarity, this includes phone, text, e-mail, any social media outlet or through third parties.

27. The Applicant Father is at liberty to communicate with the children at anytime. The Respondent Mother shall facilitate such communication by encouraging the children to pick up the phone when the Applicant Father calls and/or by returning his calls. The children shall be permitted and encouraged by the Respondent Mother to communicate through other electronic means with the Father subject to reasonable limits on devices (i.e. at bed times or meal times).

28. The Respondent Mother shall not discuss with the children anything about any re-location to Arizona, nor have such discussions with any third party within the earshot of the children.

Therapy for the Children

29. Neither parent shall expose either child to any therapeutic intervention except with the other parties’ consent and, failing the same, as directed by the parenting coordinator.

30. The parties shall jointly select a therapist for the children within 30 days and therapy shall commence as soon as reasonably possible having regard to the therapist’s intake process and schedule. The therapist shall not be Diane Moody. If the parties are unable to agree on a therapist, the parenting coordinator shall have the unfettered authority to appoint the individual. While the therapist may provide feedback to the parties, the therapeutic coordinator and/or the parenting coordinator; the children’s therapist shall not be tasked with making recommendations around a change in the parenting plan.

31. Each of the parents, and the Respondent’s husband, if so requested, shall be involved in individual and joint therapy as the parenting coordinator directs, and the parenting coordinator shall have the unfettered authority to appoint the individual and family therapist(s) for each of the parents.

32. The parenting coordinator shall have the authority to appoint one individual and family therapist who may coordinate the therapy utilizing such other therapists as deemed appropriate, or the parenting coordinator may coordinate the therapists to be involved with the objective of ensuring consistent, reliable, efficient and effective treatment designed to secure the children a meaningful active relationship with their Father and Mother. It is open to the parenting coordinator to select as an individual therapist someone with whom a party is currently working.

Other Incidents of Parenting

33. The children’s surname shall not be changed.

34. The children shall not be removed from Ontario by either parent save and except with the written consent of both parents and, failing the same, as directed by the parenting coordinator.

35. The children's health cards shall travel with the children between the parties' households.

36. The children's school(s) will be advised to contact the party in whose care the children are, in the event of an illness or other emergency at the school. The parties shall provide the school(s) with their contact numbers for this purpose.

37. The children shall attend school except when they are too ill to attend. If a child is too ill to attend school, the parent with whom the children are residing the morning of school shall take the child to the child’s doctor and obtain written confirmation from the doctor that the child was too ill to attend school.

38. Neither party shall move the child’s residence from a distance of more than 10km from the Applicant Father’s current residence.

39. Each party shall provide the children with a copy of Schedule “A”, Fryer J.’s Message to the Children, after first replacing the initialized references with the full names. Schedule “A” does not form part of this decision but is in substitution for a meeting with the children.

FINANCIAL ORDERS

40. An Order shall issue on consent for summary judgement in the form set out in the Applicant’s Notice of Motion dated January 4, 2016. On consent, there shall be no costs associated with the summary judgment motion.

41. The value of the Applicant Father’s professional building for the purposes of the division of net family property is $600,000.

42. The Applicant Father shall pay to the Respondent Mother adjusted and retroactive child support fixed at December 31, 2015 in the amount of $129,525 subject to para. 47, below.

43. The Applicant Father shall pay to the Respondent Mother lump sum spousal support in the amount of $20,186, representing an adjustment to spousal support from the date of separation through to December 31, 2015.

44. Commencing January 1, 2016, the Applicant Father shall pay Table child support in the amount of $4,737 per month based on his 2015 income, as agreed by the parties of $389,000, with credit to be given for child support payments made after December 31, 2015.

45. The Respondent Mother’s income shall be imputed at $25,000.

46. The parties shall share proportionate to income the special and extraordinary expenses for the children. The Applicant Father shall pay 73% and the Respondent Mother shall pay 27%, having regard to the income of the parties and the spousal support payable to the Respondent Mother set out below. The current special and extraordinary expenses of the children are uninsured medical and dental expenses, specifically including therapy costs for the children.

47. The parties shall share equally the costs of the parenting coordinator and any therapeutic coordinator. From the funds due to the Mother firstly for lump sum spousal support and secondly from retroactive/adjusted child support, the Father shall pay $40,000 to his lawyers in trust from which shall be paid the Mother’s share of the expenses for the parenting coordinator and any therapeutic coordinator.

48. The parties shall each bear the cost of his/her individual therapy dictated by the parenting and/or therapeutic coordinator.

49. Commencing January 1, 2016, the Applicant Father shall pay spousal support to the Respondent Mother in the amount of $7,120 per month with credit to be given for payments made after December 31, 2015.

REVIEW & PROCEDURAL ISSUES

50. The Honourable Justice Fryer shall remain seized of this matter for one year or the completion of the review contemplated below, whichever period is longer.

51. No party shall bring any motion to change the terms of this order with respect to parenting prior to the date of the review set out below except in the case of a bona fide emergency. This provision in no way restricts a party’s ability to enforce this order.

52. The following issues can be reviewed without the need to establish a material change in circumstances. The review shall not be initiated earlier than October 1, 2016 and will be commenced by way of application:

(a) parenting schedule for the children;

(b) if for any reason, the residential schedule is not being strictly adhered to, alternate remedies including a custody reversal in favour of the Applicant Father;

(c) the Mother’s proposed move to Arizona with the children;

(d) the parenting coordinator, therapeutic interventions for the parents and/or children, including the cost-sharing arrangements for the same; and

(e) spousal support (both quantum and duration).

53. As part of the review, the Court may consider:

(a) the evidence heard at trial;

(b) a report of the parenting coordinator;

(c) expert evidence with respect to a custody reversal/Family Bridges Program;

(d) evidence from each of the parties updating the court as to the period after the date of this trial; and

(e) other evidence with leave of the court.

54. Within 30 days after the commencement of a review application, or as soon as reasonably possible thereafter, the parties shall schedule a conference either in person or by teleconference with Fryer J. to manage the timelines, process and scope of evidence for the review.

COSTS

55. The Applicant Father shall provide his submissions with respect to costs on or before May 27, 2016. The Respondent Mother shall provide her responding submissions on or before June 17, 2016. The primary costs submissions shall be limited to ten pages, not including offers to settle and a bill of costs. The Applicant Father shall provide his reply to the Respondent Mother’s costs submissions on or before June 30, 2016; these reply submissions shall not exceed five pages. All costs submissions may be emailed to my assistant

JUSTICE L.E. FRYER

Released: May 6, 2016

SCHEDULE ‘A’

JUSTICE FRYER’S MESSAGE FOR M. AND A.

HI M. and A.,

I know you are probably feeling left out the loop while your parents were in court and a stranger – me – is making decisions about your life! Sometimes a Judge will meet with children. In this case, I chose to write a note to you directly so that you could sit down on your own, read it and think about it rather than sitting in a courtroom while I talked to you.

I heard lots about you from both of your parents and also from Dr. Morris, Dr. Fidler and from Diane Moody. I heard that M., you like to play sports and you are a great hockey and basketball player. A., I heard that you are amazing at making Lego movies.

Most importantly, I heard how much both your Mother and your Father love you. Both your parents want you to be happy.

However, it sounds like things have been tough for you for a while. My job, after hearing everything both your parents had to say, was to try to figure things out and set some rules and guidelines for everyone to follow.

Your Mom told me that she thought that it was really important for you to spend lots of time with your Father. I was really glad to hear her say that. I agree.

I understand that sometimes you tell her that you don’t want to want to see your Dad because sometimes he gets mad and you find that kind of scary. Your Dad misses you both a lot; I could see that he was really sad because he had not seen you since Arizona. Your Dad is going to work hard to make sure that he doesn’t lose his temper. He may not always be perfect at this but I think he can do it and so does your Mom.

I have made an order that you are going to stay living with your Mom in M . You are going to visit with your Dad every second weekend. He is going to pick you up after school on Friday and you are going to stay with him until Monday when he will take you back to school. I have also made a holiday schedule so that you will spend half of the school holidays with Dad and the other half with your Mom. You can ask your parents to share that schedule with you too if you want.

When a Judge makes an order, it is important that everyone follows it. Your Mom told me that sometimes it was really, really hard for her because she was trying to get you to visit with your Dad and you didn’t want to go. It is your Mom’s responsibility to make sure that you visit with your Dad on the schedule that I have ordered. Your Mom knows that she can’t come back to the court and tell me that she could not follow the order because you wouldn’t go. Your Mom does not have a choice about when you see your Dad so you have to make sure you cooperate with her.

It’s important for you to know that your Mom was the one who suggested this kind of order to me. She did this because she thinks it is really important for you to spend regular time with your Dad despite some of the things that happened in the past.

I know that M ., you said that you just wanted the conflict to end so you could just be a kid again. I also want this for both you, M. and you, A. as do your parents. I am going to be monitoring things for your parents for the next little while to make sure this happens.

I wish you both all the very best,

Justice Fryer

[1] I refer to the town where the parties reside and the Father works as simply the Town in order to preserve the anonymity of the parties and the children to the extent possible.