Court File and Parties

COURT FILE NO.: D13627/11 DATE: 2016 May 20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Jean Diab Applicant – and – Christine Clare Diab (Cartwright) Respondent

Counsel: J. Wilson/C. Hooper, for the Applicant L. St. Amand, for the Respondent K. Janczaruk, for the Office of the Children’s Lawyer

HEARD: April 6, 7, 8, 11, 12, 13, 14, 15, 18, 20, 21, 22 and 26, 2016

The honourable J. C. Kent

REASONS FOR JUDGMENT on PARENTING ISSUES

INTRODUCTION

[1] Until 2011, even close observers would have seen the Diab family as a successful and untroubled unit. Jean, age 51 at trial, had a successful career as a real estate lawyer practicing from his home office. Christine, also age 51 at trial, after a period as an entrepreneur in the day-care and retail fields had become a stay at home mother to their four children.

[2] Susan Widdis and Carol Childs, who both knew the Diab family for several years and socialized with them, testified that they observed the Diab children to be happy, relaxed and loving. Neither expressed any concern about the parenting of either Jean or Christine prior to the fall of 2011.

[3] Carol Childs, who had a background in social work, said that she would not have expected problems in the family. She was, however, contacted by Christine in late October or early November in 2011 for a recommendation of a counsellor and she provided a recommendation to Christine.

[4] Clearly, there were very significant stresses in the marriage in the fall of 2011, leading ultimately to the separation of John and Christine over Christmas of that year. The almost four and one-half years since that separation have not gone well for the family.

[5] As of trial, in April, 2016, the three oldest children are completely estranged from their mother. John and Christine’s youngest child, Hakuin, age 10 at the time of trial, lives with his mother and sees his father on alternate weekends and one week night after school in accordance with a court order of 13 April 2012. Phoebe, age 24 at trial, Chirho, age 18 at trial, and Sophi, age 16 at trial, refuse to have any contact with their mother even though Christine has court-ordered access with both Chirho and Sophi.

[6] The principal focus of the trial, understandably in the circumstances, has been a consideration of parenting issues. Both parents and their supporters point to the deficiencies of the other parent. The concerns and positions of the children have also been fully reported. It would not, however, be a productive exercise to endeavour to apportion responsibility for what has become a very high-conflict parenting situation. Rather, this court should focus on what, if anything, can be done with this family that will be in the best interests of the children.

THE CHILDREN

[7] There are four children of the Diab marriage. Phoebe Heloise Cartwright Diab, born March 25, 1992, 24 at the time of trial, is living temporarily in England. She is working on her master’s degree in sociology. When home in Brantford, she does not see her mother. Mikhael Soren Chirho Diab, born June 3, 1997, 18 at the time of trial soon to be 19, lives in Toronto where he attends the University of Toronto and is in his second year. When home in Brantford, he does not see his mother. Sophiana Magdalene Seigen Diab, born December 4, 1999, 16 at the time of trial, lives with her father and attends St. John’s College in Brantford. She does not see her mother. John Michael Hakuin Diab, born May 22, 2005, 10 at the time of trial will soon be 11. He resides with his mother pursuant to a consent court order and sees his father alternate weekends as well as after school and overnight every Wednesday.

[8] Phoebe and Chirho are both adults. It is beyond the legal and practical jurisdiction of this court to make any order concerning them. It is hoped that one day they will re-connect with their mother and enjoy a relationship with her.

[9] This court must determine what can be ordered that will be in the best interests of Sophi and Hakuin.

POSITION OF FATHER

[10] Jean wishes a change in the status quo created by the existing consent court order. He feels that Hakuin’s best interests would be served by him spending equal time with each of his parents.

[11] Hakuin has consistently expressed a desire to reside with his father and visit his mother, essentially a reversal of the existing status quo. This is understandable given that his older sibling(s) reside with his father.

[12] Counsel appointed by the Office of the Children’s Lawyer does not support Hakuin’s expressed desire, although acknowledging it must be given some weight. Her submission is that the father’s position is best suited to achieving Hakuin’s best interests. Counsel suggests that the equal time proposal would enable Hakuin to enjoy a relationship with both parents. With regard to Sophi, her counsel, appointed by the Office of the Children’s Lawyer, submits that, given her age, Sophi’s wishes should govern. Sophi has been consistent in expressing her desire to live with her father. Jean would be prepared to have no custody order for Sophi given her age, her strongly held views and her estrangement from her mother. A court order is probably academic, but should be made in any event.

POSITION OF MOTHER

[13] Christine wants her children to know that she will not stop loving them. She believes, having done considerable research, that what brought about the separation and subsequent estrangement was parental alienation or pathogenic parenting on the part of Jean.

[14] Christine maintains that the children are crying out for relief and has posted information concerning parental alienation on Facebook.

[15] Christine seeks custody of Chirho, Sophi and Hakuin or, alternatively, shared custody with the principal residence of the children being with her. She also requests a police assistance provision which she maintains would give her the tools to carry out a therapeutic intervention for Chirho and Sophi.

[16] Christine is aware that the cost of her proposed intervention could be as much as $150,000.00, but did not make the court aware of the success rate of such intervention programs. The court learned during the trial that there are other programs available that would cost less but was not provided with evidence as to the success rate of any alternative programs or intervention.

[17] Christine wishes that Jean’s access to Hakuin be supervised or reduced in order for it to be in Hakuin’s best interest. She is concerned that if Hakuin is with his father for increased time, he will end up having no relationship with her. She suggests that alienation has resulted in her three older children becoming “not true authentic people”. She led evidence of examples such as her “shunning” by Sophi at Sophi’s Grade 8 graduation.

POSITION OF THE PROFESSIONALS

1. Paul Ricketts

[18] Paul Ricketts is a well-qualified Marriage, Family and Child Therapist. His CV is Exhibit 23. He was involved with the family for a total of twenty two hours, although not at all during the last three years. At trial, he testified that he had been able to ascertain Hakuin’s views and preferences. He felt that they were expressed free of any undue or toxic influences.

[19] Paul Ricketts testified that for Chirho and Sophi to have a “very extreme” wish to have no relationship at all with their mother made him suspicious that they were influenced by their father. He found that worrisome.

[20] Paul Ricketts expressed the opinion that if Hakuin were to reside with his father, there would be a risk of sibling influence by Chirho and Sophi.

[21] In a letter dated April 4, 2013 written to counsel, Mr. Ricketts noted:

“Hakuin stated that he wished he could spend more time with his father because “it’s fun there” and his brother and sisters are there.”

Regarding Chirho and Sophi, he stated:

“Despite my best efforts, I have been unable to improve the relationship between Ms. Diab and her two middle children, Chirho and Sophie. It is apparent that there is a stalemate between the children and their mother in that the children feel that their mother does not acknowledge their reality that their mother had significant problems with her temper. Ms. Diab denies her children’s view of reality and reports that the observations that the children have made are accurate, but this is how their father behaved, not her.

During the interaction between Chirho, Sophie and Ms. Diab the children provided Ms. Diab with specific examples of their mother getting upset with them or Mr. Diab. Ms. Diab denied that the incidents occurred and stated that Mr. Diab was the person who was angry and that the children’s views were distorted. Ms. Diab stated that Mr. Diab often came home in a rage and that Mr. Diab was screaming and in a rage many times, which was denied by the children.

At the present time, it is my opinion that there is a poor prognosis regarding the reconciliation and rehabilitation of the relationship between Ms. Christine Diab and her children, Chirho and Sophie.” (See Exhibit 4)

2. John Butt

[22] John Butt is a well-qualified marriage and family therapist. His CV is Exhibit 33. Mr. Butt became involved with the family when he was appointed by the Office of the Children’s lawyer to assist the children’s counsel. Specifically, he was to assist in determining and presenting to the court, in context, the children’s views and preferences regarding issues of custody and access.

[23] Mr. Butt’s affidavit of 6 August 2015, Exhibit 35, updated earlier affidavits made in July and September in 2013. In addition, he conducted updating interviews with Sophi and Hakuin in November 2015 and March 2016.

[24] Mr. Butt reported to the court that in their most recent interviews, Sophi and Hakuin made their preferences known. Sophi wants to reside with her father and not have any visitation with her mother. Hakuin’s wish is to reside with his father and have visits with his mother. Hakuin also felt that even equal time with each parent would be better than the present situation.

[25] Mr. Butt supported a Section 30 assessment as ordered by Broad, J. on 9 September 2013. The disclosure meeting for that assessment was held 23 April 2015 following which Mr. Butt interviewed both Sophi and Hakuin.

[26] In his affidavit of 6 August 2015, Mr. Butt set out the position of the Office of the Children’s lawyer as follows:

“In light of the ages of the children, their rather consistently held views and preferences, and in consideration of the outcomes of the Custody Assessment, the OCL takes the position that absent any further interim Order of the Court:

a) Sophi be placed in the sole custody of her father and has contact or visits with her mother only in accordance with her wishes;

b) Hakuin remains in the primary care and residence of his mother pending trial and/or a final determination of this proceeding;

c) In light of the findings of the Assessment Hakuin have supervised access visits with his father and siblings pending trial and/or a final determination of this proceeding.” (See Exhibit 35)

3. Jacqueline Vanbetlehem

[27] Jacqueline Vanbetlehem could fairly be described as an expert in high-conflict parenting situations. Her CV is Appendix A to her Assessment Report which is Exhibit 28. She carried out the Section 30 Assessment ordered by Broad, J. on 9 September 2013. Jacqueline Vanbetlehem explained the delay in getting the assessment underway and the reason why the report only arrived at court on the eve of trial.

[28] Apparently, until she was paid in accordance with her agreement with the parents (Exhibit 7). She was not obligated to appear voluntarily at trial.

[29] During the trial, payment to Jacqueline Vanbetlehem was completed. She was paid a total of $36,398.42 by Christine Diab and $30,245.27 by Jean Diab according to her calculations as set out in Exhibit 29.

[30] Ultimately at trial, she was called by counsel for Christine. All counsel were provided with an opportunity to cross-examine her concerning her assessment report.

[31] Jacqueline Vanbetlehem saw Sophi for the last time 23 April 2014. She had her last meeting with Hakuin on 6 February 2015. She was, therefore, unaware of any events in the lives of the children since her last contact and acknowledged that the court may have heard more current information. It is clear from Jacqueline Vanbetlehem’s evidence and her assessment that she considers the Diab family situation as serious and extreme. When asked about parental alienation and realistic estrangement, she testified that a therapeutic intervention had a risk of breaking down to the detriment of the children. She agreed with Paul Ricketts that the reaction of Sophi and Chirho to their mother was “very extreme”. In fact, she described it as “beyond the pale”.

[32] Jacqueline Vanbetlehem expressed concern about the effect Sophi and Chirho might have upon Hakuin if he were to spend more time with them. She felt that it was a “sad reality” that he might go the same way as Sophi and Chirho. This concern seems to have been compounded by her observation that, at times, Jean was unable to understand and support the children having a relationship with their mother.

[33] Jacqueline Vanbetlehem testified that she found nothing that validated Jean’s suggestion that Christine was suffering from an undiagnosed mental disorder. She did, however, observe that some of Christine’s thinking was “simplistic”.

[34] Notations in Jacqueline’s lengthy assessment report (Exhibit 28) included the following:

(a) From an interview with Carol Gordon, a family services worker at Nova Vita (a shelter):

“The father expressed his own concerns about the mother. There had been conflict and a lack of intimacy in the marriage for years prior to the separation. Many of the arguments revolved around the children. When the children were questioned by Ms. Gordon their answers appeared rehearsed. Sophi would not answer any questions unless her older sister Phoebe was in the room.”

(b) From her Assessors Impressions:

“According to Hakuin he is disciplined by the mother’s partner over Skype and that he also supervises his homework over Skype. While Phoebe had expressed concern about this in the interview with her, Hakuin had not mentioned it as an issue until his final interview with the assessor almost a year following his initial interviews. This suggests that he is vulnerable to his siblings’ influence.”

(c) From her Clinical Impressions and Observations:

“The mother’s lack of “authenticity” was a theme that was prevalent throughout the assessment and served to support Mr. Diab’s view that he would be unable to challenge the children’s overly rigid or negative views about the mother. From his perspective to not to support the children’s views of their mother would be unauthentic. The children’s rejection of the mother is validated and sanctioned by Mr. Diab as he believes that the mother has been abusive to the children and they experienced her unabated emotionality. Mr. Diab’s opinion of the mother as unauthentic is also reflected in the children’s ideas of her character. This is observed in the children’s assessment that their mother’s environment is not genuine, yet they are unable to reflect any understanding of what they meant by that statement. This theme is also reflected by Mr. George Diab, and his language of the mother not being genuine, also replicates the father’s and the children’s language.”

(d) From her Rational for the Recommendations:

“Hakuin, given his age and that he is not alienated from his mother must be considered on the basis of his presenting needs. A parenting arrangement providing more time with the father and even primary parenting has been considered. This is consistent with Hakuin’s stated wishes. However, as Hakuin’s preferences wavered over time and he appears to be succumbing to the pressures to choose one parent over the other, his preferences are not independent. It is obvious that Hakuin does miss his father and siblings given the minimal amount of time he has with him. The benefit of having greater time with his father is that it would support a continuing relationship between Hakuin and his siblings. However, the concern is the lack of confidence that the father can support Hakuin’s relationship with his mother. It is unlikely that the father could help Chirho, Sophi or Phoebe to develop a more balanced view of their mother and protect Hakuin from their perspectives. Moreover, throughout the course of the assessment Hakuin has begun to take on the views of his father and siblings despite his very limited time with them. It is likely that any schedule that accommodates additional parenting time with his father will result in Hakuin’s eventual alienation from his mother. Like his siblings, Hakuin would be likely to lose his ability to think critically, his ability to trust others, and capacity for empathy.”

And further:

“While not all children become alienated despite the alienating behaviours of a parent, Hakuin has some vulnerabilities that contribute to his susceptibility. He has, despite his limited time with his father and siblings, begun to take on their views. He likely also feels significant pressure to side with his father and siblings, identifies that as the easier route, and perhaps feels scared that if he didn’t side with his father he might be rejected himself. It would be difficult for any child to sustain a balanced position under those circumstances over the long term. An equally shared residential arrangement for Hakuin has been considered, however, there is little likelihood that the parents could achieve the level of cooperation around Hakuin’s day to day needs that would make this a viable plan. Moreover, the Assessor had little confidence that the mother could support Hakuin’s relationship with the father. However, the difference is that she does not encourage Hakuin’s negative view of the father to the extent that the father does of her. The father’s behaviour is likely to contribute to Hakuin being alienated from the mother. The reality of any shared residential arrangement is that Hakuin will experience no abatement of the sustained and prolonged conflict that continues to plague him.

It is therefore recommended that Hakuin resides with his mother. He may have supervised access to his father and siblings one day a week for a period of four hours. Supervision is considered necessary to ensure Hakuin is not further subjected to his father’s and siblings’ negative views of the mother.”

[35] In her evidence at trial, Jacqueline Vanbetlehem, gave the opinion that “Hakuin should only have limited and supervised contact with his father”.

LAW

[36] Section 24(2) of the Children’s Law Reform Act, R.S.O. 1990 c C12 sets out the criteria that a court must consider when determining the best interests of children. Those considerations are adopted in the provisions of the Divorce Act, R.S.C. 1985 c 3. A court must decide the best interests of the children on all of the evidence and the appropriate legal principles. The decision of the court should not be abandoned to an assessor. See Dunnett v. Punit, [2006] O.J. No. 4616. The best interests of children are not necessarily the same as their wishes or the position of their parents. See Kaplanis v. Kaplanis, (2005), 10 R.F.L. (6th) 373 (ONCA). The court must consider, at the time of trial, what is going to be best for the children in the long run.

[37] Much of the trial evidence was presented with a view to persuading the court that this was or was not a case of parental alienation on the part of the father. The assessor, Jacqueline Vanbetlehem, in her Section 30 Assessment reviewed the diagnostic criteria and primary symptoms that would be manifested in a child who had been alienated. She went on to demonstrate that, in her view, there were symptoms demonstrated by both Chirho and Sophi consistent with many or all of the 8 symptoms that she set out at page 51 of her assessment report, Exhibit 28. At page 53 of her report, she stated:

“While Chirho and Sophi have succumbed to the father’s negative view of the mother and his inability to support a relationship with their mother, when the prospect of alienation is considered concurrently with the mother’s behaviour there cannot be a finding of alienation exclusively. The findings support that this is a hybrid case of justified rejection of a parent, as a result of the mother’s behaviours, combined with alienation, as a result of the father’s behaviours.”

[38] Counsel have referred the court to a number of cases where judges have struggled with the legal and practical issues that arise where parental alienation has become an issue. I found the following decisions helpful: X v. Y, 2016 ONSC 545, a decision of Trimble, J.; C.S. v. M.S., both the trial decision of Perkins, J. and the decision of the Ontario Court of Appeal, 2010 ONCA 196; N.L. v. R.R.M., also a decision of Perkins, J. 2016 ONSC 809; Supple v. Cashman, 2014 ONSC 3581, a decision of Sheffield, J.

[39] Each case, of course, turns on its own facts. In cases such as this, there are inevitably psychological, emotional or relationship issues that would benefit from some form of therapy for both parents and children.

[40] It is not difficult for professionals and even parents themselves to recognize the potential value of a therapeutic intervention. There is, however, significant controversy about the extent to which judges should order parents and/or children to undergo a therapeutic intervention in a situation where alienation has raised a concern.

[41] This is a case where time has overtaken the issue. Chirho is almost 19 years old. His actions have given voice to his wishes and demonstrate his capacity for self-determination. Custody legislation and jurisprudence concern children, not young adults.

[42] Similarly, Sophi is now 16 years of age. In S.G.B. v. S.J.L., 2010 ONCA 578, it has been made clear that a 16 year old should be listened to on the issue of where he or she will reside and with whom he or she will visit.

CONSIDERATIONS

[43] The marriage of Jean and Christine has irretrievably broken down. Their family cannot be restored to its earlier state. Both parents are intelligent and successful individuals and their four children are doing remarkably well even in this high-conflict parenting situation. The parents, assisted by counsel, at great emotional and financial costs have submitted their differences to this court.

[44] Counsel have made full submissions as to the credibility of the parents and, to some extent, other witnesses, but this case does not really turn on a consideration of credibility. The issue is: what can be done for this family?

[45] Clearly, unless there is an order of near-drastic proportions, Sophi’s wishes will not change in the near future. This court is not willing to make the kind of order that would be required to possibly modify Sophi’s wishes. On the evidence received and on the cases reviewed, there is too great a risk to Sophi combined with little likelihood of successfully modifying her stance.

[46] Given Sophi’s age, her wishes should govern. She should continue residing with her father and see her mother as she wishes (or not see her mother as she wishes).

[47] One would hope, that in time Sophi will realize that a relationship with her mother is missing from her life and that she can actually do something about that.

[48] Hakuin’s situation is considerably different. For over four years he has had a relationship with both parents. His counsel, appointed by the Office of the Children’s lawyer, and the assessor have each made a persuasive case for altering the status quo significantly, but in different directions.

[49] Limiting Hakuin’s access to his father and requiring supervision, while reducing the risk of alienation is bound to alter Hakuin’s relationship with his father.

[50] Equalizing Hakuin’s time with each parent is likely to expose him to the influence of his siblings and increase the risk of altering the relationship with his mother.

[51] I have determined that the best chance that Hakuin has of maintaining a relationship with both parents is for the status quo to continue. This court finds that continuing the status quo is in Hakuin’s best interest.

RESULT

[52] Counsel were of considerable assistance in the presentation of evidence and with their submissions in this very difficult family breakdown. I have endeavored in these reasons to set out the basis upon which I have come to a decision. While time does not permit reference in these reasons to all of the evidence presented or to every specific submission made by counsel, this court assures the parents that everything presented has been reviewed and carefully considered.

[53] Based upon the law and considerations set out above, on the parenting issues, an order will go as follows:

i) Jean Diab will have custody of Sophiana Magdalene Seigen Diab born 4 December 1999 and Christine Clare Diab (Cartwright) shall have access with Sophiana in accordance with Sophiana’s wishes.

ii) Christine Clare Diab (Cartwright) will have custody of John Michael Hakuin Diab born 22 May 2005 and Jean Diab will continue to have access to Hakuin every Wednesday from after school (or 3:30 p.m.) until the next morning before school (or 9:00 a.m.) and alternating weekends from Friday afterschool (or 3:30 p.m.) until Sunday at 6:00 p.m.

iii) Both parents may make inquiries and be given information as to the health, education and welfare of Hakuin. Both parents shall sign consents and authorizations as are required to give effect to this provision.

iv) If the parents do not agree as to a holiday schedule, then the following will apply:

a) If Hakuin is not already with his father on Father’s Day or with his mother on Mother’s Day, he will reside with that parent from 10:00 a.m. until 4:00 p.m. on that day.

b) Hakuin will have a vacation with father for up to three weeks during his summer school break; two of the weeks only may be consecutive. If the parents disagree with respect to that vacation time, Jean Diab will have first pick in odd numbered years and Christine Diab (Cartwright) shall have first pick in even numbered years.

v) Hakuin’s residence may not be relocated outside of Brantford without his father’s consent or the order of a court.

[54] If counsel wish to embody other provisions in the formal order, they may do so, on consent. In the event of a lack of consent, the parties are hereby given leave to bring a motion.

REASONS FOR JUDGMENT ON FINANCIAL ISSUES

[55] Because this trial was focused on parenting issues, there was, unfortunately, very limited time available for the evidence and submissions on the financial issues between the parties. Counsel were advised during submissions that they might be required to make further submissions once the court had made its findings on a number of the contentious financial points/issues.

1. Child Support

[56] Child support will be payable by Jean to Christine for Hakuin. There is a dispute as to what income figure should be used for Jean. His counsel suggests that an average over the most recent years would be appropriate. Christine’s counsel submits that, if one looks further into the past, it is clear that Jean is capable of earning more than his recent average. The evidence supports such a finding even though imputation of income was not sought by Christine in her original answer. This court finds that an income of $96,000.00 per annum should be imputed to Jean and guideline child support calculated on that figure.

[57] Child support will be payable by Christine to Jean for Sophi. Based upon her stated income as a teacher at a Montessori Children’s Academy being $25,000.00 per annum and applying the guideline, her child support obligation can be calculated.

[58] No child support will be payable by Christine for Chirho. He is an adult who, sadly, does not wish to have any relationship with his mother.

[59] Commencing 1 June 2016, the Applicant and the Respondent shall each pay Sophi and Chirho’s special and/or extraordinary expenses proportionate to their respective incomes.

2. Post Separation Adjustments

[60] A total of $50,983.48 is sought by Jean for post separation adjustments. These include credit card charges and line of credit withdrawals made by Christine post separation, but paid by Jean. The bulk of the amount sought, however, is $41,677.48 paid by Jean on the car lease and for insurance on the car used exclusively by Christine post separation.

[61] Jean testified that he thought Christine had confirmed through her then counsel that he would be reimbursed for the lease and insurance payments for the motor vehicle. Christine denied in her evidence that she ever agreed to that. No correspondence confirming such an agreement was placed in evidence. The post separation adjustments to be credited to Jean are, therefore, reduced to $9,306.00.

3. Promissory Notes from Jean to his Parents

[62] Jean testified that the family was living beyond its means. Christine testified that she was unaware of that. The evidence indicates that Jean managed the family finances.

[63] Copies of the Promissory Notes and cancelled cheques are at Exhibit 21, Tab 3. The notes are dated 29 October 2008, 23 September 2009 and 28 July 2011. Counsel for Christine suggested that the cheques may have been gifts because there is no evidence of any demand for payment. The documentation, however, appears to be a legitimate corroboration of Jean’s evidence and this court will allow the total of $150,000.00 to remain as Jean’s debt on his Net Family Property Statement.

4. Arrears of Section 7 Expenses

[64] Jean only asserted his claim for arrears of Section 7 expenses in January 2016. He maintains that he has paid 100% of all Section 7 expenses since separation.

[65] Jean’s calculation of the total for Christine’s share of the expenses as set out in Exhibit 16 which indicates Jean wishes to be reimbursed for $25,744.09.

[66] The supporting documentation for Jean’s calculations forms part of Exhibit 16. There was no evidence as to the breakdown of all of the expenses set out in the documentation, but it appears that a significant portion is related to Phoebe’s education. Similarly, Chirho’s education-related expenses are included.

[67] Consistent with this court’s rationale on child support, there should be no reimbursement for any of the Section 7 expenses for Phoebe.

[68] If counsel are unable to agree concerning any amount to be reimbursed for Chirho’s expenses, the court will require further submissions.

5. Occupation Rent

[69] Christine claims occupation rent is payable by Jean for the time that he has lived in the matrimonial home since separation. He has, however, maintained that home and paid all carrying costs. While doing so, he has paid spousal support in accordance with the Spousal Support Advisory Guidelines.

[70] In the above circumstances, this is not a case where occupation rent should be ordered. There is, however, an issue as to whether Jean has kept the taxes on the matrimonial home current.

6. Sale of the Matrimonial Home

[71] During testimony, both Jean and Christine agreed that the matrimonial home should be sold and that the net proceeds should be divided equally.

[72] This, of course, is subject to certain adjustments that the court will direct as part of the final order.

[73] Christine did not file a Net Family Property Statement. The limited evidence and submissions do not allow the court to consider what amount, if any, should be used for items such as Christine’s excluded property. The court will, therefore, need further submissions from counsel unless they are able to reach an agreement on the issue of equalization payment.

7. Spousal Support

[74] This was a long-term marriage. Christine’s career was put on hold for an extended period. Fortunately, she has been able to find permanent employment in keeping with her education and experience.

[75] Unfortunately, Christine’s income is somewhat modest and significantly less then Jean. She will, therefore, require spousal support from him. A Divorcemate calculation provides a range of $785.00 to $1,473.00 per month with a mid-point of $1,138.00. Jean therefore will be ordered to pay Christine spousal support fixed at $1,138.00 per month.

8. Divorce

[76] The evidence is clear that grounds for a divorce exists and divorce judgment is granted.

9. Ancillary Issues

[77] Counsel will prepare the formal order of this court for child support and spousal support effective 1 June 2016. The post separation adjustments as found above are to be paid out of Christine’s share of the net proceeds from the sale of the matrimonial home.

[78] With regard to the sale of the matrimonial home, the formal order of the court should be prepared by counsel as follows:

i) The matrimonial home located at 64 St. Andrews Drive, Brantford, Ontario, will be listed for sale in accordance with the following terms:

a) The matrimonial home will be listed for sale within 15 days after the release of these reasons, with a closing to occur after the completion of the 2015-2016 school year.

b) The parties will exchange a list of at least 3 listing agents within 10 days of the date of the formal order. If the parties are unable to agree on a listing agent, either party may bring the matter back before any Superior Court Judge by way of motion, for a determination.

c) The parties will cooperate with the listing agent and will sign any required documents necessary to effect the listing.

d) The parties will list the home at a list price based upon the advice of the chosen agent and will make any adjustments to the listing price as are necessary, in accordance with the chosen agent’s advice.

e) The parties will accept the first reasonable offer recommended by the chosen agent.

f) The home will be sold “as is”.

ii) From the proceeds of the sale of the matrimonial home, the following will be paid:

a) All outstanding encumbrances.

b) Real estate commissions, real estate legal fees.

iii) Upon completion of the above payments, the net proceeds from the sale will be distributed as follows:

a) One-half of the net proceeds of the sale will be paid out to each of the applicant and the respondent, subject to any further order of this court.

b) Any amount required to bring the outstanding taxes on the matrimonial home current as of the date of closing shall be paid out of the applicant’s share of the net proceeds.

c) The amount of $9,306.00 for post separation adjustments payable by the respondent to the applicant shall be paid out of the respondent’s share of the net proceeds.

iv) The applicant shall have exclusive possession of the matrimonial home and its contents, pending sale.

v) There will be no occupation rent paid by the applicant to the respondent.

vi) Both parties will retain their personal property and items currently in their possession.

vii) The respondent will have the option of retaining the rental vehicle in her possession or returning it to the applicant. In the event that the respondent elects to keep the vehicle, she will sign all necessary documentation with respect to the lease, payout and the acquisition of ownership. The respondent will be responsible for all lease payments and other costs associated with the vehicle as of 1 June 2016. In the event the respondent does not sign the necessary documents to transfer the vehicle on or before 1 June 2016, she is directed to return the vehicle to the applicant with all keys, manuals and other documentation and items that came with the vehicle.

viii) The respondent will provide the applicant with a list of any and all items that she wishes to retain from the matrimonial home and/or the parties’ storage unit on or before 1 June 2016. The applicant will advise of his position regarding the respondent’s requested items on or before the 5 June 2016. If the parties are unable to agree with respect to the personal property items, then either party may bring a motion before a Superior Court Judge for the matter to be determined on a final basis.

ix) Both parties will be responsible for his or her own debts and will indemnify the other in this regard.

x) A declaration is made that there are no arrears of child support or spousal support owed by either party.

OTHER

[79] Upon receipt of these reasons, counsel are to contact the trial coordinator in Brantford to arrange a date for any further submissions that are required. Similarly, if counsel are unable to agree on costs, they may contact the trial coordinator to arrange a date for submissions. Counsel should bear in mind that this court only has dates available between 13 and 30 June 2016.

Kent, J.

Released: May 20, 2016

COURT FILE NO.: D13627/11 DATE: 2016 May 20 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Jean Diab Applicant – and – Christine Clare Diab (Cartwright) Respondent REASONS FOR JUDGMENT Kent, J. Released: May 20, 2016