CITATION: Rocki v. Wencel, 2016 ONSC 3758

COURT FILE NO.: FS-12-74819-00

DATE: 2016 06 15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Roman Jan Rocki

William H. Abbott, for the Applicant

Applicant

• and -

Paulina Elzbieta Wencel

Mark Trenholme, for the Respondent

Respondent

HEARD: January 5, 6, 8, 11, 12, 13, 2016

REASONS FOR JUDGMENT

TZIMAS J

INTRODUCTION

[1] This family law trial was heard over seven days in January 2016. The Applicant, Roman Rocki and the Respondent, Paulina Wencel were married on August 13, 2005 and separated on January 21, 2012. They have two children, M.R., born on October 30, 2008 and S.R., born on April 21, 2011.

[2] The principal issue before the court concerned the parenting, custody and access arrangements for M.R. and S.R. The secondary issues related to the equalization of the net family property (NFP) and the determination of any net family payment. Within that subject, there was disagreement over the characterization of the sum of $29,000 that Ms. Wencel’s parents gave to the parties to buy a new home. Furthermore, the parties disagreed on the treatment and valuation of the parties’ household contents, missing evidence concerning two of Ms. Wencel’s alleged bank accounts, and the value to be attributed to Ms. Wencel’s vehicle.

[3] In addition, although there were no claims for spousal or child support, Mr. Rocki raised the issue of how to deal with child support deductions on the parties’ respective income tax returns. He also sought certain adjustments to be made to the NFP payment on account of certain payments he made during the period of separation.

[4] Finally, Mr. Rocki sought a divorce, which Ms. Wencel did not oppose.

[5] Regrettably, this family breakdown was marred by very high conflict between the parties. By the conclusion of the trial, Ms. Wencel reluctantly agreed to Mr. Rocki’s position that the shared parenting and week-about residency arrangement, in place since November 2012, become a final arrangement. Significant disagreement, however, remained over who ought to have the final say in relation to major decision-making for the children. Each party agreed to consult the other. Nevertheless, each ultimately wanted to retain control and have the final say over major decisions concerning the children’s education, health, religious practices and extra-curricular activities.

[6] On equalization, Ms. Wencel submitted that the funds advanced by her parents were a loan and should be treated as such for the purposes of the equalization analysis. Mr. Rocki disagreed and said that the funds were a gift from her parents. On the balance of the issues, Ms. Wencel did not really contest Mr. Rocki’s submissions. In closing submissions, Ms. Wencel’s counsel asked the court to decide equalization and do what it concluded to be equitable and fair.

[7] Having considered the evidence before the court, the parties’ submissions, and the applicable case law, on the subject of parenting arrangements, custody and access, the parties shall have a shared parenting arrangement in accordance with the detailed parenting plan outlined at the conclusion of this judgment.

[8] Highlights of the plan include the following elements. The access / residency week-about arrangements already in place pursuant to the interim court order of Nov. 29, 2012, shall become final. For all major decision-making related to education, health matters, religion and extra-curricular activities, the parties will make best efforts to come to a mutually agreed upon decision. Where that does not occur, Mr. Rocki shall have the final say, subject to consultation and input from Ms. Wencel. Where necessary, he must also be able to demonstrate that the course of action he chooses is reasonable and supported by the advice of the appropriate experts. Such consultation and expert guidance is to be proportional to the decision at issue.

[9] Given the very difficult communications between the parties, Ms. Wencel’s determined and persistent attempts to marginalize Mr. Rocki from his relationship with his sons and the overall high conflict within the parenting plan, the court has outlined a communication protocol that both Mr. Rocki and Ms. Wencel shall follow when a major decision is to be made.

[10] The objective of this approach is to rehabilitate the parties’ communication and decision-making skills. Both parties are highly intelligent and educated. They do not lack the ability to engage in effective communication. For the benefit of their sons, they must regain their will to engage in effective communications without being stubborn and fixed in their views. They must also accept that whether they like it or not, they will always be connected to each other through their sons. The sooner they can put their differences aside as those relates to raising and caring for their sons, the better it will be for everyone.

[11] On equalization, insofar as the funds from Ms. Wencel’s parents are concerned, despite certain discrepancies in the evidence, on a balance of probabilities I am satisfied that they amounted to a loan and should not be included in the NFP analysis.

[12] The treatment of the household contents was compromised by the absence of any reliable evidence in support of Mr. Rocki’s claim. Mr. Rocki provided the court with his own best estimate of the market value of the contents, to come to a value of approximately $80,000. That assessment was not supported by any evidence or valuation. He also provided the court with several pictures of the items. Ms. Wencel did not lead any evidence on this issue. She said that she kept some items, sold others, and gave the balance to charity. I therefore have significant difficulty agreeing with Mr. Rocki’s submission that an adjustment of $40,000 be made to any NFP payment found to be owing by Mr. Rocki to Ms. Wencel on account of the missing household items.

[13] Mr. Rocki’s request that his obligation to make a net family payment be waived on account of Ms. Wencel’s failure to comply with a court order that she disclose information about her own two bank accounts is appropriate and is granted. Absent such a request, and given my findings concerning Ms. Wencel’s funds and the household items, Mr. Rocki would have had to pay Ms. Wencel the sum of $21,022.45. Given Ms. Wencel’s refusal to comply with her court-ordered disclosure obligations without any explanation and her handling of the household contents, the relief sought is appropriate and is granted.

[14] Mr. Rocki’s request for an adjustment on account of mortgage and tax payments for the matrimonial home and certain rent collections is appropriate and uncontested by Ms. Wencel. Accordingly, Ms. Wencel shall pay the sum of $37,142.43, on account of the said adjustments out of her share of the net proceeds from the sale of the parties’ matrimonial home currently held in trust by legal counsel. This payment attracts pre-judgment interest at the rate of 1.16 percent.

[15] Finally, the parties shall be divorced. The divorce shall take effect 31 days from the date of this order.

[16] My reasons are outlined below.

BACKGROUND

[17] The background facts were enumerated in a Request to Admit, which Mr. Rocki served on Ms. Wencel on April 30, 2015. Counsel for Ms. Wencel advised the court that he did not recall receiving the Request to Admit but he also did not contest that it was sent. With the exception of one proposed admission, the parties agreed to have the Request to Admit admitted by the court as an Agreed Statement of Facts. The parties executed Form 22 on January 11, 2016 wherein, they signed-off on 106 agreed facts.

[18] These facts are detailed and relevant to the issues I must consider and determine. For the purposes of setting out the broader context for my analysis, I provide an overview of the agreed facts, together with references to specific court orders and some admissions made by the parties in the course of the trial. However, it is important to note that in my analysis, I have considered the agreed facts in their totality and accordingly they are included in my judgment as Schedule “A”. An overview of the background to this case is as follows:

i) Mr. Rocki and Ms. Wencel were married on August 13, 2005. They have two children, M.R., born October 30, 2008 (age 7); and S.R., born April 21, 2011 (age 5). They separated on January 21, 2012 after almost 6 ½ years of marriage with no prospect of a reconciliation.

ii) Mr. Rocki and Ms. Wencel discussed separation as early as the summer of 2011, soon after S.R. was born. At that time, Ms. Wencel proposed a draft separation agreement for Mr. Rocki’s review. In that document, she proposed that Mr. Rocki have twelve hours of access to their children every other weekend.

iii) The parties identified January 21, 2012 as the date of separation. That is the date when Ms. Wencel called the police and had Mr. Rocki charged with five counts of uttering threats and one count of assault with a weapon. Mr. Rocki was found not guilty on all of these charges on November 17, 2012. He did not return to the matrimonial home after January 21, 2012, except on one occasion when he arrived with a police escort to pick up some of his belongings.

iv) Mr. Rocki’s bail conditions stated that he was to have access to the children “to be arranged in the presence of a mutually agreed-upon third party, or a valid Family Court Order”. Ms. Wencel refused to accept Mr. Rocki’s brothers and his parents as third parties who could supervise Mr. Rocki’s visits with their sons. Consequently,, Mr. Rocki did not see his children from January 21, 2012 until August 24, 2012.

v) Mr. Rocki commenced this Application on April 25, 2012.

vi) On August 24, 2012, the court ordered supervised access for Mr. Rocki on alternate weekends and one evening weeknight per week. The courtpermitted Mr. Rocki’s brothers and parents to supervise the access.

vii) On November 29, 2012, the court amended the access arrangements to allow for unsupervised access on a shared parenting week-about basis. That arrangement has remained in place since that date.

viii) In the many months that followed, Ms. Wencel refused to:

a. Advise Mr. Rocki of the children’s various doctors’ appointments and identify the dentist, the psychiatrist and the psycologist whom the children were seeing;

b. Provide any of the children’s documents such as passports, birth certificates or health cards as requested by Mr. Rocki;

c. Provide her home address to Mr. Rocki;

d. Provide any information about the children’s extra-curricular activities to Mr. Rocki; and

e. Provide with any emergency contact information.

ix) Ms. Wencel also changed the children’s school unilaterally and without any notice to Mr. Rocki. She would not communicate about M.R.’s First Communion and refused to consent to S.R.’s baptism.

x) Also unilaterally and without any advance notice or consultation with Mr. Rocki, Ms. Wencel retained a psychologist to conduct a psycho-educational assessment for M.R. She refused to provide Mr. Rocki with a copy of the resport; instead she gave him a brief summary.

xi) From about September 2012 to December 2014, Ms. Wencel made a total of nine calls to the Children’s Aid Society (CAS). She made separate calls to the police and alleged various physical and sexual improprieties by Mr. Rocki. All calls were investigated and were held to be unfounded. On June 20, 2014, the police cautioned Ms. Wencel about the possibility of being charged with mischief if she were to continue to call the police with unfounded allegations. Ms. Wencel has not called the police since that caution.

xii) On the subject of property and equalization issues, the matrimonial home located at 26 Edmonton Street in Brampton was sold in February 2015 for $785,000. The transaction closed on April 2, 2015. With the exception of certain advances to both parties, the funds are being held in trust by real estate counsel until a court order or an agreement between the parties is reached. Funds from the sale of two investment properties are also being held in trust pending a final court order or agreement between the parties.

xiii) On the second day of trial, the parties agreed that there were three issues in dispute in the NFP Statement that related to the following issues:

a. the value of the house contents;

b. the value of Ms. Wencel’s 2008 Acura MDX; and

c. the characterization of funds of $29,000 advanced by Ms. Wencel’s parents to the couple for the purchase of a new home.

xiv) Ms. Wencel withheld Mr. Rocki’s 50 percent share in the net rental income for the investment property on 40 Millhouse Mews (the Millhouse Mews property), amounting to a total of $3,009.50. She also withheld his 50 percent share in the net rental income for the investment property on Parkhaven (the Parkhaven property) in the sum of $3,441.74.

xv) Ms. Wencel obtained exclusive possession of the matrimonial home on an ex parte motion on November 19, 2012 (two days after Mr. Rocki’s acquittal of all criminal charges). She moved out of the matrimonial home sometime in the summer of 2014. From that point onwards, until the sale of the matrimonial home, Ms. Wencel did not make any mortgage payments. Mr. Rocki assumed the mortgage payments for the period of July 1, 2014 to April 2015 for a total payment of $20,580.48. This sum included the payment of arrears and interest. In addition, as of the date of the sale of the matrimonial home, property tax arrears accumulated to a total figure of $10,110.71.

xvi) In August 2014, Ms. Wencel removed the household contents from the matrimonial home without Mr. Rocki’s prior consent or court order allowing her to take such action. The household contents that were removed constituted the majority of the household contents.

xvii) Mr. Rocki works as a firefighter at the City of Toronto Metro Hall. This job requires him to work six to eight days per month on a set schedule which is provided to him a year in advance. He also is employed as a part-time supply teacher with the Dufferin Peel Catholic School Board.

xviii) Ms. Wencel is employed as a teacher at the Peel District School Board. Her expected income for 2012 was $87,449. Apart from that estimate, Ms. Wencel’s income particulars are unknown as she did not file an updated financial statement as required by the Rules. The only financial statement served and filed by the Respondent is from May 23, 2012.

xix) Although Ms. Wencel claimed spousal support in her Answer, that claim was not pursued at trial. At the beginning of this trial her counsel confirmed that the claim was being abandoned.

xx) In her Answer, Ms. Wencel did not check off the boxes for child support pursuant to the Child Support Guidelines but she did raise it in paragraph 6 of her Answer. At trial, she did not seek any child support set-off or base child support amount.

xxi) Mr. Rocki recognized that in the years to come the children will incur various different section 7 expenses. Mr. Rocki is prepared to pay his net after tax proportional share of any reasonable section 7 expenses. These expenses must be agreed to in advance and in writing with neither party unreasonably withholding their consent.

xxii) Mr. Rocki is prepared to maintain the children on any extended health care plan available to him and would ask Ms. Wencel do the same.

xxiii) Mr. Rocki suggests that both he and Ms. Wencel maintain life insurance naming each other as beneficiary in trust for the children for an amount of not less than $250,000 with the amount to be reviewed every two years.

xxiv) Dr. Sol Goldstein was retained by the parties to conduct an assessment pursuant to section 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, (CLRA). Ms. Wencel selected Dr. Goldstein from a list of assessors and Mr. Rocki retained Dr. Goldstein on the understanding that the parties would be sharing the costs of the assessment.

POSITION OF THE PARTIES AND EVIDENCE

I. Roman Rocki

a. Parenting, Custody and Access Issues

[19] Mr. Rocki asked that the court allow for the existing week-about schedule first outlined in the court order of November 29, 2012 to continue, with exchanges occurring every Friday. He asked that the exchanges be a direct pick-up from the children’s school. When not in school, Mr. Rocki asked that the exchanges take place at Peel Regional Police 22 Division.

[20] With respect to custody, there seemed to be some confusion over the characterization of the arrangement. In closing submissions, Mr. Rocki’s counsel submitted that Mr. Rocki would agree to joint custody with Ms. Wencel. However, in the event that they could not agree on a decision concerning the children’s education, health, religion or extra-curricular activities, Mr. Rocki should be the one to have the final say after consulting with Ms. Wencel. He also asked that he be the one to hold the children’s birth certificates and passports. He agreed that he would provide Ms. Wencel with notarized copies of the documents and make them available to her for travel purposes. Finally, Mr. Rocki proposed to the court a detailed holiday access schedule.

[21] In support of his position, Mr. Rocki testified about his attachment to his sons. He described in some detail their routines and activities when they are together as well as their living arrangements. He testified that they had a strong bond and that they enjoyed their times together. When it came to matters of discipline, Mr. Rocki explained that he tries to reason with the boys. If necessary, he takes them to the side, talks to them about what they are doing and explains how it is wrong. He said that if necessary, he might give them a time-out but he does not resort to physical punishment.

[22] Mr. Rocki said that he never encountered any difficult behaviour from either of his sons. He was asked specifically about witnessing any tantrums or aggressive behaviour by M.R. Mr. Rocki expressly denied witnessing any tantrums or anything out of the ordinary. When asked about Dr. Antczak’s assessment report for M.R., Mr. Rocki explained that he was initially unaware that she was even treating M.R. He testified that he asked her to stop treating M.R. once this information came to his attention. Mr. Rocki also said that he disagreed with the contents of Dr. Antczak’s assessment report of M.R.

[23] Mr. Rocki elaborated on his sons’ personalities as well as their respective strengths and weaknesses. He discussed at some length M.R.’s performance in school and described M.R. to be doing very well. In cross-examination, Mr. Rocki eventually acknowledged that M.R. had some difficulties. Nevertheless, he placed significant emphasis on M.R.’s progress over time. He felt that overall M.R. was performing just fine. As an example, Mr. Rocki was asked if he was troubled by M.R.’s initial difficulties with reading and the observation in one of M.R.’s report cards that he was a non-reader. Mr. Rocki said he was not. Mr. Rocki was also asked if he was troubled that in kindergarten and early in grade one M.R. had some difficulties printing his name and printing sentences. His response was an emphatic “Not at all”.

[24] Mr. Rocki explained that he discussed some of these issues with M.R.’s teacher who gave a number of possible explanations for the difficulties, including the distinction in performance between girls and boys, the family tension to which M.R. was exposed, and the change in schools. Mr. Rocki indicated that he was satisfied with the response and did whatever he could to help his son at home. Ultimately, Mr. Rocki was very firm in his view that there was no need for any tutorial support or other external intervention. Furthermore, he expressed grave concern over the subjection of his children to multiple assessments. In Mr. Rocki’s view, M.R. was performing fine, he was meeting curriculum expectations, M.R.’s report cards had Bs and some Cs, and on balance he interpreted the comments in the report cards to mean that M.R. was doing “very well”. He added that it was important not to lose sight of the fact that the report cards related to M.R.’s time in kindergarten and grade one.

[25] On the specific issue of an Individualized Education Plan (IEP)for M.R., Mr. Rocki said that he was never advised of any such need by any of M.R.’s teachers or the school generally. Nor was there ever any communication or indication in M.R.’s report cards that he would benefit from a psycho-educational assessment and / or an IEP. In addition, he indicated that Ms. Wencel did not consult him about obtaining a psycho-educational assessment for M.R. He had no idea about that particular referral and only came to know of Dr. Phillips’ name as the assessor when it was referenced in a communication from M.R.’s school. In this communication, the school invited Mr. Rocki to a meeting to discuss the results of the assessment.

[26] Mr. Rocki explained that as of the day of his testimony at this trial, he still had not seen a copy of M.R.’s psychoeducational assessment report. Although early on, Ms. Wencel offered to provide him with a copy and outlined some options for its delivery, she then changed her mind and told Mr. Rocki that he could request a copy from the school. Mr. Rocki admitted that he would not agree to a meeting with the school until he had an opportunity to see the report. He suggested that he felt awkward about having to ask the school for a copy of the report when Ms. Wencel could provide it to him directly.

[27] In one of Mr. Rocki’s e-mail communications to Ms. Wencel, he expressly asked her not to provide the report to the school until he had the opportunity to review it. He made this request because he was concerned about its content and the private information in it. Mr. Rocki agreed that he refused to engage in the assessment process because he was not consulted and did not see any need for it. In the context of this and other assessments, Mr. Rocki reiterated his grave concern over the effect of subjecting M.R. to multiple assessments and the suggestion that there is something wrong with M.R. when there is nothing wrong with him.

[28] Regarding his difficult communications with Ms. Wencel, Mr. Rocki reviewed numerous e-mail exchanges on the subject of S.R.’s baptism, the scheduling of M.R.’s First Communion, travel plans, the exchange of passports and birth certificates, school selection, basic information concerning Ms. Wencel’s address, M.R.’s psychoeducational assessment and counseling, the possibility of using a parenting co-ordinator, S.R.’s rash, and information about the names of various doctors. For each of these subjects, Mr. Rocki highlighted his repeated requests as well as Ms. Wencel’s responses. In the context of M.R.’s suggested communication difficulties, Mr. Rocki was asked in cross-examination if he would agree to retain the services of a parenting co-ordinator. Mr. Rocki testified that this suggestion was unacceptable in the past and would remain so in the future.

[29] Mr. Rocki also discussed his persistent fear that no matter what he might do, Ms. Wencel was prepared to provoke a confrontation with him. Apart from the criminal charges for which he was eventually acquitted, Mr. Rocki brought to the court’s attention Ms. Wencel’s allegations to the police that he had breached his bail conditions when that was not the case. Mr. Rocki also discussed Ms. Wencel’s repeated calls to the police and CAS with a range of allegations of sexual and physical improprieties, all of which were held to be unfounded.

[30] Mr. Rocki described certain incidents where he felt Ms. Wencel was trying to provoke him or trying to take the children away. One was in church, another at a park and a third at the school Christmas concert. In light of these multiple incidents of animosity and tension, Mr. Rocki did not believe that it would be safe for him to be in any place simultaneously with Ms. Wencel, no matter how large the venue and no matter what he did to avoid any contact with her.

[31] Somewhat related to these issues, Mr. Rocki also noted that Ms. Wencel did not tell him the location of the children’s extra-curricular activities such as taekwondo or soccer. The lack of disclosure on Ms. Wencel’s part meant that the children attended at these activities bi-weekly instead of weekly. This inevitably created gaps in their training.

[32] Finally, in his closing submissions, counsel for Mr. Rocki submitted that there was a discernable and very disturbing behavioural pattern of marginalization and alienation by Ms. Wencel. He suggested that Ms. Wencel’s first attempt to gain the upper hand in the matrimonial litigation was to pursue criminal charges against Mr. Rocki. When that did not work in her favour, she advanced various allegations of physical and sexual abuse against Mr. Rocki and his family, resulting in a total of nine complaints with the CAS. She raised concerns about Mr. Rocki’s mental stability and anger management, none of which she substantiated, as a further step to try to push Mr. Rocki out of her and her children’s lives.

[33] Having failed to besmirch Mr. Rocki, Ms. Wencel’s next step was to raise concerns about M.R.’s abilities and to try to develop a profile of a child with special needs. She did this by undertaking unilaterally a psychoeducational assessment which she then did not disclose to either Mr. Rocki or Dr. Goldstein. She raised concerns about M.R.’s tantrums, which nobody other than Ms. Wencel and a psychologist she retained had observed. Counsel for Mr. Rocki cautioned the court to be vigilant over these allegations since neither Dr. Goldstein nor any of the reports from M.R.’s school identified any such difficulties. The only person to verify the tantrums was Dr. Antczak, who was not qualified as an expert and whom Ms. Wencel hired unilaterally to advance her particular view.

[34] In their totality, counsel submitted that Ms. Wencel’s various allegations reflected her attempt to develop a narrative that all was not well with M.R., that Mr. Rocki was inattentive to those problems and that she therefore had to be the one to receive sole custody of the children. Counsel added that the court should be troubled by Ms. Wencel’s behavioural pattern and should put a stop to it, as recommended by Dr. Goldstein.

[35] In contrast to the grave concerns about Ms. Wencel’s conduct, counsel for Mr. Rocki placed significant emphasis on Mr. Rocki’s overriding objective to provide stability and predictability for his sons. Counsel submitted that the high conflict situation vitiated against midweek access for either parent when the children are with the other parent. He felt just as strongly about phone contact and raised the concern that Ms. Wencel would use such opportunities to ask the children about what Mr. Rocki was doing with them. Given the children’s young age, counsel submitted that Mr. Rocki’s strong preference and view was that it would be best if the children’s time with each parent were exclusive of the other parent. Counsel agreed that this could be revisited in the future if the conflict between Mr. Rocki and Ms. Wencel were to be reduced, if not eliminated altogether.

b. Equalization of Net Family Property

[36] Although the parties had a number of disagreements over the particular claims, most were resolved by the time of the trial. The principal disagreement was in relation to the characterization of the sum of $29,000 that Ms. Wencel’s parents advanced to the couple so that they could upgrade to a larger home. In addition, disagreements remained over the treatment of the home contents and the valuation of Ms. Wencel’s 2008 Acura MDX. Mr. Rocki also raised the concern that Ms. Wencel failed to comply with the court’s disclosure order concerning two of her bank accounts and submitted that any equalization payment owing by Mr. Rocki to Ms. Wencel ought to be waived in light of such non-compliance.

[37] Regarding the funds from Ms. Wencel’s parents, Mr. Rocki testified that they were a gift. He said that in the fall of 2011, with a growing family, he and Ms. Wencel wished to purchase a larger home. Mr. Rocki acknowledged that this initiative was undertaken even though they were already having difficulties in the marriage, so much so that Ms. Wencel had produced a draft Separation Agreement in July 2011 for his consideration.

[38] Mr. Rocki explained that the home they wanted to purchase was more than what they could afford. However, Ms. Wencel’s parents offered to gift them $29,000 to enable the purchase. Mr. Rocki testified that he never understood those funds to be a loan. He specifically recalled being told by Ms. Wencel that her parents wanted to help them and that the funds were a gift. Mr. Rocki said that he did not know how the parents would be obtaining the funds for such a gift. He said that he would not have gone ahead with the purchase if he had understood that they would have to be reimbursing Ms. Wencel’s parents at some future stage. He also said that there was no loan agreement or promissory note in relation to the funds. Mr. Rocki testified that Ms. Wencel’s parents never directed any payment demands towards himself. He was also unaware of any actual repayments by Ms. Wencel to her parents.

[39] Regarding the household contents, Mr. Rocki produced multiple e-mails concerning this subject, including arrangements for Mr. Rocki to attend at the home with a police escort to pick up his belongings. Mr. Rocki acknowledged that Ms. Wencel advised him that she was intending to dispose of the contents. He indicated that it was his understanding that the two would be sharing the contents on a fifty-fifty basis. As a result, he did not obtain a valuation of them.

[40] Mr. Rocki was asked about a reference to a value of $17,000 for the household contents in the draft separation agreement. Mr. Rocki testified that Ms. Wencel prepared that draft and that he neither signed it nor agreed with the proposed estimate. Mr. Rocki provided the courts with pages of photos of the household contents as well as a detailed inventory list with his own best estimate of the market value of those items. He did not give any evidence on how he came to those various figures. He estimated the total household contents to have a fair market value of $80,000. He submitted that he should receive an adjustment to the NFP after that figure is determined in the sum of $40,000 on account of his share of the household contents.

[41] Finally, regarding Ms. Wencel’s Acura MDX, in the absence of any evidence from Ms. Wencel, Mr. Rocki put before the court the Black Book value set at $31,500.

c. Post-Separation Adjustments

[42] As per the Agreed Statement of Facts, Mr. Rocki did not receive his share of rental payments from two properties. For the Millhouse Mews property he is owed $3,009.50. For the Parkhaven property he is owed $3,441.74. He also seeks reimbursement for arrears that he paid in the sum of $10,110.71 for tax arrears and $20,580.48 for mortgage arrears. The total post separation adjustment, separate and apart from the equalization payment adds to the sum of: $37,142.43.

d. Child and Spousal Support

[43] Ms. Wencel did not advance a spousal claim at trial and so there was no need for Mr. Rocki to provide any evidence or respond to this issue.

[44] On the subject of child support, Ms. Wencel did not claim any support. The main issue in dispute was around which parent may claim the children on his or her taxes. Mr. Rocki’s position was that, since they have had a shared parenting regime in place, each parent should claim one child. Mr. Rocki testified about his efforts to get direction from Canada Revenue Agency (CRA) on this issue. In response to this direction, he directed a request to Ms. Wencel that she execute an agreement regarding dependent credits for CRA’s purposes. His letter to her identified a deadline of September 2015 for the signing of the proposed Agreement. The e-mail communications suggest a tacit agreement by Ms. Wencel to share the dependent credits. However, that communication was received only after the September 2015 deadline.

[45] According to Mr. Rocki, Ms. Wencel claimed both children as dependents on her taxes for 2012, 2013, and 2014. In light of the shared parenting arrangement and Ms. Wencel’s approach to date, Mr. Rocki would like to claim the children on his taxes for the years 2015, 2016 and 2017.

[46] Finally, in recognition of various section 7 expenses, Mr. Rocki proposed that such future expenses be shared equally until June 1, 2017 and thereafter in proportion to the parents’ respective incomes.

e. Divorce

[47] Given the unlikelihood of any prospect for reconciliation, Mr. Rocki testified that he is seeking a divorce.

II. Ted Rocki

[48] Ted Rocki is Mr. Rocki’s brother. He testified that he took care of the boys on three or four occasions after the parties separated. He explained that Mr. Rocki did not see his children for seven months following his arrest. Although Mr. Rocki’s bail terms allowed for supervised access by a third party, Ted explained that he proposed various arrangements for access to Ms. Wencel but she would not agree to any arrangement that involved Ted or any one of the Rocki family members. She suggested supervised visits either at her own home, her mother’s home, or at CAS premises. Ted did not consider any of those suggestions to be suitable. He feared that Mr. Rocki’s presence at the matrimonial home could result in further confrontation and hostility.

[49] In cross-examination, it was put to Ted that the real reason for his refusal was that he did not want to agree to any of Ms. Wencel’s proposals, and it had to be his way or no way. Ted denied any such battle of the wills and underscored his concern about wanting to avoid any confrontation. Ted confirmed that at one point there was a suggestion that both grandmothers supervise the access but Ms. Wencel would not agree to that either.

[50] On August 24, 2012, Mr. Rocki obtained a court order for supervised access. After that, Ted said he facilitated the exchanges which occurred at 22 Police Division. Ted would pick up the children and he would bring them to the Rocki residence where Mr. Rocki was living with his parents and brothers.

[51] Ted said that he was present at the first reunion between Mr. Rocki and his sons. He said that M.R. was very happy to see his father. S.R. was just over a year old and could not express himself verbally but he had a smile and went to his dad. Ted testified that on the following day, while the children were still at the Rocki residence, the Rockis received a call from the CAS about the children’s well-being.

[52] Regarding the exchanges at Peel Regional Police 22 Division, Ted described Ms. Wencel as argumentative, hostile and vocal; so much so, that on some occasions, police officers present had to remind her that she was not at the station to have any conversation. Ted said that he tried not to engage in any discussions with Ms. Wencel. Ted also talked about one instance after August 2012 when Ms. Wencel alleged that Mr. Rocki breached his bail terms related to supervised access. That was not the case. Ted had to explain to the police his own role as facilitator for the exchanges. The police confirmed that there was no breach.

[53] Ted also gave evidence with respect to an incident he witnessed at a dentist’s office. A minor accident between M.R. and his brother while at Canada’s Wonderland required M.R. to see a dentist. On the day following the accident, Mr. Rocki took M.R. to a dentist and also advised Ms. Wencel of the occurrence. Ted went with Mr. Rocki and the boys to the dentist. When Ms. Wencel arrived at the dentist, she was very upset and argumentative. She pushed Mr. Rocki aside and started interrogating M.R. about exactly what happened.

[54] Finally, Ted also testified about his visit to the matrimonial home. He said that in the period between January 21, 2012 and August 2014, he attended at the matrimonial home in April 2013 to pick up some of Mr. Rocki’s clothes and to drop off Easter chocolates for the boys. On August 29, 2014, he attended at the home during an open house. On this occasion, he took a video and pictures of the premises. The contents in the home were sparse. Ted admitted that he did not seek the permission of the agent to photograph the home; he said that he did not feel that he had any obligation to obtain such permission.

III. Paulina Wencel

a. Parenting, Custody and Access Issues

[55] Ms. Wencel’s position on the subject of parenting, custody and access evolved during the course of the trial. In her testimony, Ms. Wencel said that she would like to see the existing week-about schedule varied such that the children live primarily with her but see Mr. Rocki eight to ten times during a month. She did not identify any specific days or get into any details about holiday time. Ms. Wencel described this arrangement as her perfect scenario. At a different point in her testimony she agreed that a week was too long for a parent to be away from the children. Midweek access and daily phone contact would help break up the week away from the children. In closing submissions, Ms. Wencel’s counsel indicated that though Ms. Wencel described her original proposal to be her perfect world, she agreed reluctantly to the continuation of the week-about shared parenting.

[56] She strongly disagreed with the proposal that Mr. Rocki retain control over the final decision-making for the boys and submitted that she should be the one to have the final say. In her view, she would be the more appropriate parent to retain the final decision-making because when she sees a problem, she acts on it immediately. Ms. Wencel also indicated that going forward, she would consult Mr. Rocki about an issue, she would try to come to a reasonable agreement with him, and if they could not reach an agreement, she would proceed with a decision rather than delay and wait.

[57] In her testimony generally, Ms. Wencel acknowledged that she made a number of poor decisions and recognized that she should have approached a number of issues differently. She said that she was undergoing counselling and would like to work on being more co-operative. She juxtaposed these various difficulties against a narrative of a very unhappy marriage. Although she did not provide any details, she described her marriage as “fake”, that she found herself “walking on eggshells” and that she felt embarrassed about what was going on in the marriage. Ms. Wencel tried to get into some particulars of what she labeled as an abusive situation. Since that allegation was not put to Mr. Rocki during his cross-examination, counsel for Mr. Rocki objected to such evidence being led at all. When the court suggested that the evidentiary deficiency, commonly referred to as the “Brown and Dunn” problem, could be addressed by recalling Mr. Rocki and giving him the opportunity to respond to the specific allegations, Ms. Wencel preferred to abandon them altogether. Ms. Wencel did indicate later in her testimony that she felt that there was spite in her interactions with Mr. Rocki and that she felt everything was one-sided. She also said that she was not a spiteful person.

[58] On the subject of access, Ms. Wencel acknowledged that in the first seven months of the separation she and Mr. Rocki could not reach an agreement about an appropriate supervised access arrangement. Her proposals, all of which were rejected by Mr. Rocki, would have had access visits occurring at the matrimonial home, a park, or some other public place. The visits would be supervised by Ms. Wencel’s mother, her sister, or possibly both grandmothers at the matrimonial residence. A further alternative that was proposed by the CAS was to go to a supervision centre. In her testimony, Ms. Wencel acknowledged that, with the benefit of hindsight, she could have agreed to allow her mother to go over to the Rocki residence and have the access visits take place there.

[59] Going forward, on the subject of exchanges, Ms. Wencel indicated that on non-school days she would prefer that they take place at a Tim Hortons or a McDonalds. On school days, she agreed that Mr. Rocki could pick the children up from school and that on her days the bus would bring them to her place.

[60] With respect to parenting generally, Ms. Wencel rooted her differences with Mr. Rocki in a different value system and differences in what the children ought to be doing. She illustrated those differences by contrasting her interpretation of M.R.’s issues and her approach to Mr. Rocki’s interpretation and approach.

[61] For example, on the subject of M.R.’s report cards, she had concerns that there were a number of worrisome comments. She did not agree that they reflected a student who was doing very well. Ms. Wencel noted that where the report indicated that M.R. achieved a certain requirement “sometimes”, she would have wanted that comment to say that he achieved that goal “always”. Where the report indicated “occasional” achievement, she would have liked to see the term “always”. With reference to the comment, “M encouraged to manage his time to complete assignments”, Ms. Wencel interpreted that to mean that M was not managing his time. Ms. Wencel explained that as a teacher, she knows that certain expressions are “code” for a particular meaning because as teachers, they are trained to use particular phrases in their communications. In short, the adjectives used to describe M.R.’s accomplishments did not strike Ms. Wencel to mean that he was doing very well as Mr. Rocki suggested.

[62] With respect to M.R.s’ psychological well-being, Ms. Wencel said that she formed the view that he needed support from her own observations. Where Mr. Rocki denied the existence of any problem and tried to prevent or block treatment, she said that she consulted the family doctor about a concern over M.R.’s tantrums and obtained a referral to a psychiatrist. That doctor referred her to a psychologist, Dr. Antczak, who, according to Ms. Wencel, treated M.R. for an anxiety and depressive disorder, for anger and for mood adaptation.

[63] Ms. Wencel was not asked to comment on Mr. Rocki’s express concern contained in one of the e-mails: that she refrain from submitting the assessment report to the school until he had a chance to see it. Remarkably, on the day of her testimony, Ms. Wencel advised the court that she was now prepared to give Mr. Rocki a copy of the report. She said that she did not provide one at the beginning of trial because she did not have access to a scanner. Nothing more was said about the report and there was no attempt to seek the court’s leave to tendered it as evidence.

[64] On the subject of M.R.’s school needs and the psychoeducational assessment, Ms. Wencel concluded that M.R. needed certain school supports that he could only obtain from the school if he had an IEP. Such supports would include access to the special education support team, access to a computer and the use of certain software such as Kidspiration. In her view, M.R’s challenges were not getting better, they were getting worse. She concluded that the only way to address the concerns was to obtain professional help. She said that in her view, if they could address M.R.’s academic issues, it would allow him to feel better about himself; he could become a leader, be liked by others, his mood would change and his self-esteem would improve.

[65] With respect to the various interventions by professionals, Ms. Wencel readily admitted that she did not consult Mr. Rocki about their involvement. She also readily admitted that she did not comply with the following requirement contained in the court’s order of November 29, 2012:

The Respondent shall provide the Applicant with all details regarding the children’s health, education and welfare, including the names and contact information of all service providers, and details of all programs the children are registered in.

[66] Ms. Wencel agreed that she did not provide Mr. Rocki with the names of the children’s regular dentist, the psychologist treating M.R., the psycho-educational assessor, the optometrist for S.R., information explaining who Dr. Beard is and the extent of his involvement in any treatment, or the contact information for Dr. Phillips.

[67] Ms. Wencel was not concerned about this situation. She suggested at one point that a psychologist told her she did not have to comply with a court order. She testified that in some instances Mr. Rocki could have figured things out for himself. She should not have been required to provide him with the requested information. For example, regarding the psychoeducational report, Ms. Wencel said that Mr. Rocki could have obtained a copy from the school, and in any event, she said that she provided him with a summary of the assessment. In closing submissions, her counsel submitted that Mr. Rocki was never prevented from accessing his children’s school and medical records.

[68] With respect to Dr. Antczak’s therapy sessions with M.R., Ms. Wencel said that Mr. Rocki was eventually provided with a copy of her report and Mr. Rocki had the opportunity to respond to her assessment. Ms. Wencel did not appear concerned that Mr. Rocki received the report after the fact and that he only learned of Dr. Antczak’s involvement in approximately ten sessions with M.R. only after they occurred.

[69] Ms. Wencel admitted that she did not re-attend on her scheduled appointment with Dr. Goldstein. She also admitted that she did not at any time bring to Dr. Goldstein’s attention her concerns about M.R.’s alleged academic and behavioural issues. Nor did she take advantage of the opportunity to provide Dr. Goldstein with copies of M.R.’s psycho-educational assessment or with Dr. Antczak’s report. She had no explanation for that omission.

[70] On the subject of her communications with Mr. Rocki, Ms. Wencel believed that there were numerous examples where the communications were good. She identified some e-mail exchanges concerning the children’s daily activities as examples of good communications. In her view, the communications failed when the exchanges turned into negotiations. She felt that Mr. Rocki would take comments too far and out of context She highlighted the exchange concerning S.R.’s baptism as one such example. Ms. Wencel also agreed there were instances when she could have simply provided Mr. Rocki with the information he was seeking but that she failed to do so.

[71] Generally speaking, Ms. Wencel testified that she did not like using e-mail as a method of communicating with Mr. Rocki. She would prefer to have access to the services of a parenting co-ordinator to facilitate their communications. She said that sometimes the e-mail conversations were not in real time, that the turnaround took a long time, and that they caused delays and misunderstandings. Rather than e-mail, she preferred to have the support of a third party facilitator.

[72] With respect to the subject of being in the same space as Mr. Rocki for the purposes of attending the boys’ extra-curricular activities, school concerts and presentations, and other children’s events, Ms. Wencel agreed that she would be prepared to be in the same space without conflict. She did not deny the past confrontations enumerated by Mr. Rocki in his testimony.

b. Equalization of Net Family Property

[73] On the subject of equalization, counsel for Ms. Wencel submitted in closing that he “left that issue in the hands of the court to deal with the equities of the situation.”

[74] Regarding the household contents, Ms. Wencel testified that she took some items, donated others and threw out the rest. She implied that Mr. Rocki may have taken some items or that, alternatively, maybe Ted Rocki removed some items on his visit to the home because some items were missing. When Ms. Wencel was cautioned by the court about the serious implications of her allegations, she quickly distanced herself from them and clarified that she was not suggesting any wrongdoing by either Mr. Rocki or Ted. Apart from this testimony, Ms. Wencel did not give any evidence on the value of the household contents.

[75] Ms. Wencel also did not give any evidence regarding her vehicle and did not dispute Mr. Rocki’s evidence.

[76] For the sum of $29,000 from Ms. Wencel’s parents, Ms. Wencel said that when she and Mr. Rocki identified the house they wanted to buy, they realized they were short by $29,000. They were hoping to sell another property of theirs, which would have provided them with sufficient funds for the purchase, but that sale had not yet materialized. She and Mr. Rocki considered drawing on their own line of credit for the shortfall. Unfortunately, it was unsecured and they would have had to pay a very high interest. When they explained the situation to her parents, Ms. Wencel said that her parents offered to draw on their own line of credit because it was secured and had a lower interest rate. Ms. Wencel said that they agreed to this arrangement and also agreed that they would pay her parents $500 per month to cover off the interest. They also anticipated paying back her parents as soon as one of the two rental properties, then on the market, were sold.

[77] Ms. Wencel explained that Mr. Rocki was well aware of the details of this arrangement. In accordance with that arrangement, Ms. Wencel paid her parents the following amounts in 2011: $90 for October, $500 for November and $500 for December. On January 17, 2012, just four days from when Ms. Wencel advanced her criminal charges against Mr. Rocki, Ms. Wencel decided unilaterally to repay her mother the sum of $21,000. She testified that just before this payment, she consulted a lawyer about the state of her marriage and her intention to serve Mr. Rocki with separation papers. According to Ms. Wencel, the lawyer advised her to pay her mother back, since there was no formal loan arrangement in place.

c. Post-Separation Adjustments

[78] Ms. Wencel did not disagree with the adjustments proposed by Mr. Rocki with respect to the mortgage payments, the taxes and the rental incomes from the parties’ rental properties.

d. Child and Spousal Support

[79] Ms. Wencel did not advance a spousal claim. She also did not seek child support. On the submission that each parent claim a child as an eligible dependent given the shared parenting arrangement, Ms. Wencel said that she did not think the request was reasonable. She did not give any basis for such a statement. This position diverged from one e-mail communication where Ms. Wencel seemed to agree to such an arrangement.

[80] Ms. Wencel did not take a position on the sharing of various section 7 expenses.

e. Divorce

[81] Ms. Wencel did not take issue with the request for a divorce.

IV. Dr. Eva Antczak

[82] Dr. Antczak is a psychologist who met with M.R. between eight and ten sessions. The admission of her report and her testimony at trial was initially the subject of a motion and a strong objection by Mr. Rocki. His counsel argued that given the court’s Order that Ms. Wencel share with Mr. Rocki all the names of treating physicians, which she ignored, to allow Dr. Antczak to testify would fly in the face of Ms. Wencel’s defiance of that order. In addition, Ms. Wencel did not give any notice that she would be calling an expert. There was no compliance with Rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and Dr. Antczak’s curriculum vitae was provided only the day before these submissions were made. In such circumstances, counsel cautioned the court that Dr. Antczak could not be treated as anything other than Ms. Wencel’s “hired gun”.

[83] Before the court could hear submissions from Ms. Wencel’s counsel, and following a short break, the parties advised the court that they reached an agreement that Dr. Antczak’s report was not admissible. They agreed, however, that Dr. Antczak would testify as a lay person and limit her testimony to her own observations of M.R. She would be permitted to describe her direct observations but she would not be permitted to offer any opinion evidence about those observations. She would also not be permitted to discuss any tests she conducted or any analysis of any outcomes or treatments, even if such were administered.

[84] Dr. Antczak proceeded to testify within the noted parameters. She said that in the period between July 1 and December 14, 2015, she met with M.R. on a bi-weekly basis. At the first visit, M.R. was withdrawn and reluctant to go to the playroom. He was very polite but reserved and he limited his verbal contact with her. On the second visit, he was willing to play and gradually verbalized his communication. Dr. Antczak described a later visit in September when M.R. arrived at the office very upset. He lay on the floor at the office entrance and was hitting his fists and feet. It took thirty minutes for him to calm down. When he did, Dr. Antczak asked him if he wanted to play with some blocks. He did and he started building a structure.

[85] In a subsequent meeting, M.R. was upset. This time, in response to a question about why he was upset, M.R. told Ms. Antczak that he did not want to be there; he wanted to play with his friends. He told her that these meetings took him away from his friends. After that exchange, Dr. Antczak said that he calmed down and was willing to play with her.

[86] In the meetings that followed this particular exchange, M.R. continued to be a reluctant participant but remained very polite and answered various questions that were put to him. Dr. Antczak said that they played various games. These games included role-playing activities that were intended to promote M.R.’s creativity and imagination. Dr. Antczak noted that M.R. preferred self-talk to a conversation.

[87] Dr. Antczak testified that at no time did she discuss the upcoming trial with either Ms. Wencel or Ms. Wencel’s mother. She also confirmed that she never had any conversation with Mr. Rocki.

V. Grazyna Wencel

[88] Grazyna Wencel is Ms. Wencel’s mother. She was called to give evidence on the character of the funds she and her husband gave to Ms. Wencel and Mr. Rocki. Mrs. Wencel testified that the funds were a loan. She described an initial meeting with both Mr. Rocki and Ms. Wencel. They told her that they were short of funds for the purchase of a new home. They could draw on a line of credit but it was unsecured and carried with it an interest rate of 5.8 percent. In contrast to their circumstances, Mrs. Wencel said that she and her husband had a secure line of credit with an interest rate of 4 percent. She told them that she would be willing to loan them the difference on the understanding that when they sold the Millhouse Mews property, they would pay her back. She said that both Mr. Rocki and Ms. Wencel agreed with that arrangement. Mrs. Wencel said that at no time did she suggest that the funds were being offered as a gift.

[89] Mrs. Wencel testified that following that first meeting, she discussed the arrangement with her husband. He reminded her that interest would be accumulating as long as the loan to the parties remained outstanding. After that exchange, she had a second meeting with her daughter. Mrs. Wencel could not remember if Mr. Rocki was present for this second conversation. In that second meeting, Mrs. Wencel raised the concern over the accumulating interest. Her daughter then agreed to pay $500 per month until they could repay the loan, to cover off the interest. Mrs. Wencel confirmed that she received two such payments, one for December and another for January. She also confirmed that on January 20, 2012, her daughter gave her $21,000. When asked if her daughter gave her any explanation for the repayment, Mrs. Wencel said that she did not. Ms. Wencel only told her that she was acting on the advice of her lawyer. Mrs. Wencel said that she was glad to receive the funds and did not ask any other questions.

[90] Mrs. Wencel confirmed that there remained an outstanding sum of $7,278 owing on the advance that was never paid. She said that she never made any demand for payment because of the change in her daughter’s circumstances. Mrs. Wencel confirmed that they did not sign any loan agreement because Ms. Wencel was her daughter and she trusted her; she expected to get paid. Mrs. Wencel also confirmed that in the cheque she wrote to advance the loan of $29,000, she did not write anything in the memo line to suggest that the funds were a loan. Finally, Mrs. Wencel confirmed that she gave her daughter $150,000 to purchase another home. That property has a basement apartment which Ms. Wencel rents out for $1,000 per month.

VI. Dr. Goldstein

[91] Dr. Sol Goldstein conducted an assessment pursuant to s.30 of the CLRA. Dr. Goldstein has assisted over 500 families in matrimonial matters. He met with the parties’ children, the parties and with collaterals who were identified by the parties. He also conducted an observational visit.

[92] Dr. Goldstein produced an extensive report with his conclusions about this family. In his initial findings, he concluded that both parents were capable of parenting the two boys and suggested that the week-about shared parenting arrangement evolve to a 5-5-2-2 residency arrangement. Given the children’s very young age, he felt it was crucial that the children maximize their contact with both their parents.

[93] Dr. Goldstein found no issues with Mr. Rocki’s mental health nor his ability to control his anger. He also did not have any concerns about any alleged improprieties. Apart from Ms. Wencel’s concerns, Dr. Goldstein noted that nobody else raised any such concerns.

[94] In anticipation of the trial, Dr. Goldstein undertook an update of his report. He met with Mr. Rocki and the boys. He observed the boys to be very close to their father. He watched as they allowed Mr. Rocki to assist them with their various tasks. He noted that the children were very relaxed in their father’s company. He also testified that he did not notice any psychological deficiencies in either of the boys.

[95] Dr. Goldstein testified that Ms. Wencel was scheduled to see him but she cancelled that appointment at the last moment. He was surprised by the cancellation. He also expressed grave concern over a number of Ms. Wencel’s actions and elaborated on their possible implications and effects on the children’s well-being:

1. The nine calls to the CAS by Ms. Wencel created a sense of insecurity for the children as the continued conflict would lead them to believe that they might not be safe with their father. Dr. Goldstein described the situation as “pretty rough”. He confirmed that he reviewed the content of the nine calls and became very concerned about the number of unverified complaints and Ms. Wencel’s excessive worrying.

2. The conflict over the scheduling of S.R.’s baptism was troubling; Dr. Goldstein considered such celebrations to be included in a child’s basic right to enter the place of worship for their religion.

3. Ms. Wencel’s refusal to provide Mr. Rocki with any information regarding the children’s physicians was troubling; the concern was heightened by Ms. Wencel’s express defiance of a court order on this point. It signalled to Dr. Goldstein the extent of her determination to place a distance between Mr. Rocki and the children.

4. On the subject of a consent to travel, Dr. Goldstein said that whether consent should be offered for the other parent to travel would depend on the circumstances. However, Ms. Wencel’s refusal to allow the children to take a day trip to Buffalo with their father raised a red flag for him because this was exactly the kind of trip that the children should have been permitted to take; it would offer them a great bonding experience with their father.

5. Ms. Wencel’s refusal to provide Mr. Rocki with her home address information and certain report cards, her unilateral changing of schools and enrolment of the boys in various activities without even advising Mr. Rocki and her refusal to co-ordinate the scheduling of M.R.’s First Communion were indicators of marginalizing conduct.

6. The quizzing of the children about the care they receive from the other parent was a concern. The specific example related to M.R.’s attendance at the dentist following a minor accident at Canada’s Wonderland. Dr. Goldstein expressed the concern that the quizzing could have the effect of causing the child to feel that either he or his father did something wrong or were in trouble. It could also cause the child to feel insecure and to question the dynamic between the parents. Children, especially in situations such as the visit to the dentist, should be treated with compassion.

[96] Dr. Goldstein then elaborated on his concern that, in the four-year period since the separation, there were several attempts by Ms. Wencel to marginalize Mr. Rocki from the children’s lives. He said that through such actions, Ms. Wencel cheated her children out of a positive relationship with their dad. He explained that both parents should be able to attend school functions, health care appointments and possible treatments, church celebrations, school meetings, and activities. Mr. Rocki’s separation away from such activities compromised his bond with his sons. If such behaviour were allowed to continue, the children would be deprived of their father’s comfort and encouragement. That would impede the children’s ability to form a good relationship with their father and allow for their construction of a narrative that ‘Dad was simply not there’. Given the children’s young age, the children would not be in a position to understand the reason for their father’s absence. Instead, they would be left with a negative belief and memory of his absence that in the future would be very difficult to displace.

[97] In light of four years of repeated and persistent attempts at marginalization, Dr. Goldstein did not believe that Ms. Wencel’s behaviour would change without express positive steps to stop her conduct. Dr. Goldstein said that stopping such conduct would be accomplished by immediately taking the decision-making power away from Ms. Wencel. He concluded that joint decision-making power between these parents was simply not possible or appropriate. Although he acknowledged that the parent with the decision-making power should consult the other parent before any final decision is made, if they cannot reach agreement, then one of the parents, in this case Mr. Rocki, should be tasked with making the final decisions. Dr. Goldstein acknowledged that at the conclusion of his first assessment, he thought that joint decision-making would be possible. However, in light of his latest assessment, he could no longer support that recommendation. Dr. Goldstein also revised his view that access be shared on a 5-5-2-2 basis to the existing week-about arrangement.

[98] The court asked Dr. Goldstein if a shift in the decision-making power in favour of Mr. Rocki might reverse the risk of marginalization in the opposite direction. He did not dismiss such a concern. However, he noted that with decision-making power came responsibilities that should maintain an equilibrium. Earlier in his testimony, Dr. Goldstein confirmed that he did not detect any evidence of efforts by Mr. Rocki to marginalize his sons away from their mother. He therefore did not have such a concern.

[99] Dr. Goldstein also cautioned against the idea of dividing decision-making along the lines of various issues; for example, one parent can make decisions on educational issues and the other on extra-curricular activities. In the circumstances of this family, he expressed the concern that in using such a decision-making model, the parents’ decisions could be driven by a punitive motive, as opposed to by the children’s genuine best interests. In other words, if Ms. Wencel did not like one of Mr. Rocki’s decisions, she would seek to make a decision to get back at him, as opposed to considering the children’s best interests.

[100] On the subject of appointing a parent co-ordinator, Dr. Goldstein acknowledged that this idea was included in his original assessment. Nevertheless, he concluded that this was no longer an appropriate option. Having come to appreciate the dynamics between Mr. Rocki and Ms. Wencel, he felt that they would have to work “time and a half” to afford the kind of parenting services that they would require. Dr. Goldstein did not dismiss the idea if such a support could be limited to major issues relating to religion, health, education and extra-curricular activities. But he cautioned that it would be an impossible task if a parenting co-ordinator had to get into the minutiae of facilitating communications on such basic issues as the production of passports, birth certificates, or travel consents or the sharing of basic information.

[101] Dr. Goldstein was skeptical about the children being completely segregated from one parent when they are with the other parent. He said that it was not good for the children to avoid contact with one parent when they are with the other. Although he seemed to appreciate Mr. Rocki’s fears, he did recommend the use of Skype or other similar applications for communications. At the same time, he emphasized that parents should not use such occasions to raise fears or foster insecurities in the children. Comments such as, “Are you scared?”, “I miss you so much.”, or “Call 911 if something is wrong.” would be examples of harmful communications and should not be tolerated under any circumstances. Appropriate communications would include questions such as: “How was your day in school?”.

[102] In cross-examination, Dr. Goldstein was asked about whether both parents should be expected to attend a meeting with a psychologist should the psychologist ask. Dr. Goldstein responded swiftly that if one of the parents is not advised of the referral to a psychologist, then he could not be faulted for failing or refusing to attend such an appointment. At a later point in his testimony, Dr. Goldstein expanded on this issue and noted that Mr. Rocki should have received some basic background information about the psychologist the children were seeing and the reason for such a referral prior to agreeing to a meeting with such a professional.

[103] Dr. Goldstein concluded his testimony with a comment directed to both parents:

They are lovely little kids and you have got to do whatever you can to keep them lovely and make them lovely adults; they could only learn from how the parents behave towards one another. If you change that, they will learn lovely behaviour.

ANALYSIS

[104] My analysis for each of the issues is outlined below. I note that the “Parenting, Custody and Access Issues” is the most significant matter in this case, followed by the “Equalization of Net Family Property”.

[105] Off the top, I note that the request for a divorce was not contested and there is no need to dwell on that issue. Similarly, with the exception of the treatment of the dependent credits for CRA purposes, no order is being sought with respect to spousal and child support. There is therefore no need to make any findings or consider these issues.

I. Parenting, Custody and Access Issues

[106] There is little doubt in my mind that had the parties been able to resolve the issue of parenting, custody and access, they would not have had to have a trial on the balance of the issues. By the time the parties made their closing submissions, they appeared to agree that the week-about access arrangement should be final. Yet, even that representation seemed fragile and tentative. Ms. Wencel wanted to have some form of mid-week access and phone communications while Mr. Rocki insisted on exclusive uninterrupted access time.

[107] On the subject of custody, each wanted to retain the final decision-making for the children. There seemed to be genuine confusion over the distinctions between shared parenting, sole custody, joint custody, and the implications of each label would affect their arrangement. Underlying this apparent confusion was a desire by each party to assert control over the other, as opposed to a genuine consideration of what would be in their children’s best interests.

[108] In these circumstances, it is appropriate to begin with a review of the basic guiding principles to determine the appropriate parenting regime and plan. The particular questions to be addressed concern the appropriateness of a shared parenting arrangement and the approach to final decision-making for the children in relation to major life decisions that typically concern education, health and welfare, and religion. The determination of these issues engages a consideration of the following questions: a) Given the parties’ agreement to the week-about access regime, is that sufficient to achieve maximum contact between the children and their parents or should there be additional midweek arrangements? b) Are the parents able to communicate with each other to engage in joint decision-making effectively? c) Should final decision-making be delegated to one of the two parents and if so, what are the appropriate parameters of this decision-making?

[109] I begin with a review of the guiding principles that apply to custody and access, generally. It is crucial that both Mr. Rocki and Ms. Wencel understand that the court’s sole consideration in the determination of child custody is the best interests of the child: see section 24(1) of the CLRA and section 16(8) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) (Divorce Act). Inasmuch as the labels ‘sole custody’, ‘joint custody’ and “shared custody” carry with them symbolic value and are sometimes used by parents to exert control and to validate the power of one parent over the other, these parents are reminded that custody is about defining the rights and responsibilities for the care and decision-making related to the well-being of their children and for no other purpose.

[110] The best interests of a child are to be analyzed at all times having regard for the child’s perspective and not from the perspective of either parent. Parental preferences and ‘rights’ play no role” except as it relates to the best interests of the child: see Gordon v. Geortz, [1996] 2 S.C.R. 27, 1996 CanLII 191 (SCC), at para. 46; and Young v. Young, [1993] 4 S.C.R. 3, 1993 CanLII 34 (SCC), at para. 159 (Young).

[111] According to section 16(8) of the Divorce Act, the best interests of the child are to be determined with “reference to the conditions, means, needs and other circumstances of the child”. Section 24(2) of the CLRA states that the court shall consider all of the child’s needs and circumstances, which include the following considerations:

(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 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;

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[112] Sections 16(10) of the Divorce Act states that when the court makes a custody and access order, “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.” The court must also consider “the willingness of the person for whom custody is sought to facilitate such contact”.

[113] When considering these sections, the courts have noted that a parent shall not be permitted to deprive a child of the benefit of the other parent’s input on childcare decisions without good reason: see Woolrich v. Woolrich, 2005 SKQB 72, at para.26; and Mikan v. Mikan, 2004 CanLII 5062 (ON SC), 2004 CarswellOnt 772 (SCJ), at paras. 22-23.

[114] At the same time, in its interpretation of section 16(10) of the Divorce Act, the Supreme Court of Canada recognized that the ‘maximum contact’ principle is not absolute; it must be reconciled with the best interests of the child. If circumstances are such that the child’s best interests might be compromised by the maximum contact principle, then the said principle may be modified or restricted to meet the particular circumstances, see Young at paras.117-118.

[115] The ‘maximum contact’ principle is grounded on the view that maximum contact with both parents is generally in a child’s best interests. Young children with attachments to both parents need sufficient contact with both of them, without prolonged separations. This is what will enable them to maintain meaningful and close relationships with their parents. When seeking to resolve a custody dispute, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children: see Chin Pang v. Chin Pang, 2013 ONSC 2564, 2013 CarswellOnt 7824 at para. 122 (Chin Pang); Huisman v. Stefaniw (1997), 1997 CanLII 24463 (ON SC), 26 R.F.L. (4th) 406, 1997 CarswellOnt 100 (Ont. Gen. Div.),; and Boukema v. Boukema (1997), 1997 CanLII 12247 (ON SC), 31 R.F.L. (4th) 329, 1997 CarswellOnt 3115 (Ont. Gen. Div.).

[116] Having regard for all the variables that come into play in a particular family situation, when determining custody, access and the appropriate parental arrangement, it is important to note that no one statutory factor enjoys statutory pre-eminence. In Chin Pang, at para. 121, the court offered some useful questions to consider that are especially useful to the analysis of this case:

1. the level of hostility between the parties, the extent to which that hostility could undermine the stability of the child, and what measures, if employed, would likely strip the hostility from the environment;

2. the extent to which the person seeking access has laid down a track record of using contact to the child for a purpose entirely collateral to the child’s best interests; for example, to try to control or denigrate the parent of the parent’s partner;

3. the extent to which the person displaying objectionable conduct has the ability and the motivation to alter the behaviour; and

4. whether the parent is acting responsibly, reasonably, and in a child-focused fashion in an assessment of what is in the child’s best interests.

[117] Decision-making, and in particular, the ability of the parents to engage in joint decision-making without conflict is another essential dimension to consider when deciding on the parenting arrangements and whether to grant joint or sole custody to parents. For joint decision-making to occur, and by implication joint custody, the parents must be able to put their own differences aside and communicate effectively about the various decisions they have to make in relation to their children. Such communications would include each parent sharing of information about the children’s address with the other, selecting schools and then interacting with that school where needed, consulting with one another and considering the other’s views when selecting and contacting treating physicians, counselors, or other supporting specialists who might be needed to support a child’s various health and welfare needs, where the family observes religion, then discussing whatever decisions are to be undertaken in that context, collaborating in the selection of extra-curricular activities, the parents’ attendance at such events, and co-ordinating of access time with the children.

[118] The parents’ inability to engage in effective communications is a serious consideration. In Kaplanis v. Kaplanis (2005), 249 D.L.R. (4th) 620 2005 CanLII 1625 (Ont. C.A.), at para. 11, the court noted that “no matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise and the changing development needs of a child must be addressed on an ongoing basis”. Disagreements over decision-making can make life miserable for children and feed into their insecurities, disillusionment and unhappiness.

[119] That said, even where joint decision-making is neither practical nor realistic, courts have examined various models of decision-making that would still promote the parents shared involvement in every aspect of their children’s lives.

[120] One option is to identify one of the two parents as the final decision-maker coupled with a requirement that there be full information sharing between the parents on all matters relating to a child’s welfare and well-being and with a view to working towards an agreement. Where the parents are unable to reach an agreement and the decision-making parent makes a decision, he or she must be able to demonstrate that the decision made took into account the concerns of the other parent. Depending of the nature of the decision at stake, the decision-making parent may also have to demonstrate the reasonableness of his or her preferred approach. That might require input from third-party arm’s-length advisors, as the case may be. Apart from the overriding concern that a child’s best interests be met, the rationale behinds such an approach is to avoid shutting one parent out of the overall parental relationship: see Leeming v. Leeming, 2015 ONSC 3650, 2015 CarswellOnt 8636; and Goyal v. Goyal, 2014 ONSC 3026.

[121] A variation to the first option might be to separate out the decision-making subjects such that one parent has the final decision-making power over one aspect of a child’s life while the other has that authority over a different subject. Decision-making may also be linked to the parent with whom a child resides, or the decisions may be divided between day-to-day decisions and longer-term decisions: see: M.B. v. D.T., 2012 ONSC 840. These options lend themselves to situations where, although there might be conflict between the parents, one is not more responsible over the other, or one is not more prone to disagreement or unilateral action.

[122] Underpinning these basic principles is the reminder from the Ontario Court of Appeal, in M. v. F., 2015 ONCA 277 (M. v. F.) that the Ontario legislation does not require a trial judge to make an order for custody. Section 28(1)(a) of the CLRA is permissive, not mandatory. Especially instructive to the circumstances of this family, which I will discuss below , is the following reminder from the court (M. v. F., at para. 39):

For twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access”. These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.

[123] Turning to this case and the evidence before this court, I begin with my finding that it is in the best interests of the children that the ‘maximum contact’ principle govern the parenting of M.R. and S.R. Mr. Rocki and Ms. Wencel shall share in the parenting time equally in accordance with the existing week-about arrangement in place. I am alive to the fact that the parties eventually agreed to this arrangement in their respective closings. However, given Ms. Wencel’s expressed view that in her perfect world she would limit Mr. Rocki’s contact with the children to between eight and ten days per month, and given her overall emotions on the subject of custody and decision-making for the children, I find it necessary to underscore my finding that the parties must strive to reinforce the existing arrangements to achieve maximum contact between both parents and the children. I also find it essential to observe expressly that there was absolutely no evidence before the court to support anything less than a week-about arrangement and certainly nothing to reduce Mr. Rocki’s contact with the boys to Ms. Wencel’s perfect world of eight to ten days per month.

[124] On the subject of decision-making, although the parties are to do their best to reach an agreement, Mr. Rocki shall retain the right to make the final decisions on major issues concerning the children’s education, medical and health requirements, extra-curricular activities as well as their religious activities and practices. The critical proviso to this is that Mr. Rocki will make such decisions only after giving Ms. Wencel the full opportunity to consider the particular issue and to provide her input. He will have to able to demonstrate that his preferred approach, where it diverges from Ms. Wencel’s views, is reasonable, that he considered Ms. Wencel’s views and, if the particular decision required it, that he obtained and considered the advice of arm’s-length third party consultants.

[125] Particulars of the parenting plan and a decision-making template are outlined later in my judgment and the specific terms are enumerating in the concluding section of this judgment. Before I review those details, I turn to my findings and reasoning for this approach.

[126] Having considered the parties’ evidence and their respective legal submissions, I have concluded that the difficulties within the Wencel-Rocki family unit do not arise from their inability to care for the sons. They arise from the continuing high conflict dynamics between Ms. Wencel and Mr. Rocki. I will break down this finding in greater detail but it is useful to begin with an observation concerning the essence and source for the high conflict in this family, as summarized by Dr. Goldstein and which I adopt:

Most important would be the establishment of a system of co-operation between both parents whereby they each recognize that the marriage is over, the control of one over the other is over and each is free to parent in their own way, in their own style, with their own set of standards, as long as they are within socially accepted norms – to be able to do this without the criticism of the other.

[127] I use this quotation as my point of departure because of my overriding conclusion that both parties have been caught up in a power-struggle for control over the children’s well-being. The problem is far more pronounced in Ms. Wencel’s overall attitude, behaviour, conduct and in the way she exercised her judgment. I must note, however, that I also have some concerns about Mr. Rocki’s behaviour and approach to various issues. In a number of instances, he got caught up in the maelstrom of exchanges concerning his views over the insufficiency of Ms. Wencel’s behaviour. Consequently, he lost sight of the decision to be made at its core. He also revealed, at times, specific entrenched views that caused the court to wonder about whether, at least in some instances, there was an attitude of “his way or no way”.

[128] If Ms. Wencel and Mr. Rocki would overcome their own differences and move on with their respective lives, I have little doubt that they can both be good parents to their children.

a. Ability to Parent and Access Arrangements

[129] Turning to the specifics of my findings, on the subject of the parents’ ability to parent, I have no concerns about the boys’ general safety or well-being when they are with either parent. In coming to this conclusion, I place significant weight on Dr. Goldstein’s assessment and testimony to the effect that he did not have any concerns about the ability of each parent to look after their sons. Nor was he concerned about the boys’ attachment to each of the parents or their safety. He expressly noted that he had no “doubt about the fact that each of these parents has the best interest of the boys at heart”.

[130] During his testimony in court, Dr. Goldstein expanded on his assessment and noted that Mr. Rocki was a very good parent and that the boys appeared to be very close to their father. He remarked on the boys’ overall relaxed demeanor with their father and noted that they allowed Mr. Rocki to assist them with their various tasks.

[131] I expressly recognize that Dr. Goldstein is a well-respected psychiatrist who is respected for his distinguished career in psychiatry. He has assisted more than five hundred families who have had to deal with a family break-up and parenting issues. His assessment in this case was based on a thorough analysis following interviews with the parties, their children, extended family, and third party collaterals identified by the parties. His conclusions were balanced and very measured.

[132] Dr. Goldstein was unable to offer an updated assessment of Ms. Wencel’s abilities as a parent because she cancelled her appointment scheduled for December 2015, just in advance of this trial. He connected the following concerns to the scope of her participation in any decision making (as opposed to her time with the children or her ability to parent): Ms. Wencel’s filing of nine complaints against Mr. Rocki with the CAS, her deliberate withholding of information concerning the children’s physicians and her home address, her unilateral enrolment activities and her management of the issues relating to the children’s religious practices and activities. Many of Dr. Goldstein’s observations were borne out in the evidence before the court. Regarding Ms. Wencel’s nine complaints to the CAS , the court noted that they were investigated and the files were closed. In the result, there was no evidence before the court to cause any concern over Mr. Rocki’s ability to parent. Nor was there any evidence to support Ms. Wencel’s allegations against Mr. Rocki concerning difficulties with mental health issues, anger management or sexual impropriety with the children.

[133] In my consideration of Mr. Rocki’s evidence, I was impressed by his commitment to his sons. The relaxed demeanour that Dr. Goldstein detected in the boys’ interaction with their father corresponded to Mr. Rocki’s approach to his relationship with his sons, his hands-on approach to their care and his relaxed manner as he testified on this subject. He spoke with ease about their routines and their needs. It was evident to this court that his sons are his priority.

[134] The court was also impressed by Mr. Rocki’s ability to manage his work schedule such that his work shifts are limited to seven or eight twenty-four hour shifts per month. This enables him to support the week-about parenting schedule very effectively and limit the need for third party caregiving to once or twice per month. Since the shift schedules are set well in advance, by all indicators, the parenting time is predictable and allows for a stable and consistent parenting experience for the children. On the totality, the evidence before me left me with no doubt about the quality of Mr. Rocki’s parenting skills and abilities. His emotional bond to his boys was loving and close. Repeatedly, Mr. Rocki demonstrated his commitment to his sons’ well-being. I hasten to add that, quite apart from her unfounded allegations against Mr. Rocki, Ms. Wencel did not raise any concerns about Mr. Rocki’s emotional bond with his sons.

[135] With respect to Ms. Wencel’s ability to parent, neither Mr. Rocki nor Dr. Goldstein expressed any concerns. Mr. Rocki was clear that he wants his children to have a healthy relationship with their mother. Although Dr. Goldstein expressed serious concerns over the cumulative effect of Ms. Wencel’s conduct and her deliberate attempt to marginalize Mr. Rocki from his children’s lives, he did not suggest that a reduction in Ms. Wencel’s time with the children would be appropriate.

[136] In my assessment of Ms. Wencel’s parenting abilities, I am content to find that she cares deeply for her children. However, I am very skeptical over the implications of Ms. Wencel’s efforts to push Mr. Rocki out of the children’s lives on her ability to parent. I am not entirely convinced that this concern can be addressed by a carefully managed parenting plan and restrictions to Ms. Wencel’s decision-making but I am prepared to give Ms. Wencel such a chance. I raise this concern because it has implications for the type of midweek contact and phone access that shall be introduced to complement the week about arrangement.

[137] The source of my concern rests with some significantly glaring contradictions in Ms. Wencel’s evidence before the court and her position on parenting time. She agreed that she would not be happy to see her boys only seven to eight days per month and went further to agree that even a week away from her children, especially given their young age, would be too long for a parent to be away. Yet, she had no difficulty submitting that in her perfect world, Mr. Rocki’s time with his sons should be limited to seven to eight times a month. She had no explanation for the contradiction in terms and the difference in approaches to her time and Mr. Rocki’s time with the children.

[138] Having listened very carefully to Ms. Wencel’s testimony, I am not entirely certain that she appreciates the extent of the detrimental effect of her marginalizing conduct on her children. I also cannot be certain if Ms. Wencel has a deliberate agenda or whether she has been so traumatized by the separation that her judgment has been clouded by the combination of her disappointment and anger over the situation. What was clear was that she wants to punish Mr. Rocki for their break-up. If she were to stop to think about the situation, I would like to believe that she would realize that the net effect of her actions result in harm and punishment primarily to her children and that such conduct compromises her ability to parent. Similarly, I hope she would also realize that her continued misconduct can have a devastating effect on the development of the children’s emotional bonds with their father and by extension their overall emotional health and welfare.

[139] For somebody who is also a teacher and has extensive engagement with students, I am surprised that Ms. Wencel would not have considered the potentially harmful effects of her conduct on her children. Dr. Goldstein captured my concern in his parting comments about the children when he cautioned both parents that it was up to them to “make [the children] lovely adults” and that the children could only learn lovely behaviour from how the parents behaved to each other. I also add that insofar as the Court of Appeal has talked about winners and losers in the context of a custody dispute, when a parenting plan works well, the winners are the children. When the parents resist the plan, look for ways to undermine it and continue their battles with each other, the dramatic losers are their children.

[140] While I am prepared to find that Ms. Wencel may not have appreciated fully the implications of her conduct and viewed herself as simply having failed, she is a capable parent. She will have the opportunity to adjust her approach so that the children have an overall positive life experience with her and come to respect both of their parents. She has to be willing to change her ways.

[141] Since nobody is asking the court to change the week-about parenting schedule, and given both the maximum contact principle and Dr. Goldstein’s views on the appropriate access schedule, I am content to allow the week-about arrangement to continue. However, I do so reluctantly and I find it necessary to warn Ms. Wencel that if, despite the parenting plan and the decision-making arrangements to be implemented, she continues with her attempts to marginalize Mr. Rocki’s relationship with the boys, such a situation may form a basis for the review of the parenting schedule, with a view to reducing her time with the children.

[142] Marginalizing conduct is not in the children’s best interests. In other words, the court may be obliged to revisit the ‘maximum contact’ principle as they apply to this family if the children’s best interests are compromised. This would be a most unfortunate development. It is my sincere hope that with time, if there is to be any change in the access schedule, it is to be in the direction of Dr. Goldstein’s initial proposed formula of a 5-5-2-2 arrangement.

[143] In light of my concerns over Ms. Wencel’s behaviour, as it relates to her ability to offer a balanced perspective on parenting, I am not prepared to agree to any midweek access time when the children are with the other parent. At least until the children are older and the parents improve their communication skills and get accustomed to the decision-making and parenting plan, it is essential that the schedule be kept simple and predictable for everyone involved.

[144] However, I am prepared to allow for the boys to communicate with the other parent using either Skype or FaceTime once a day. Such communication shall take place at an appropriate point between supper time and bedtime if the children would like to talk to the other parent. The children should not have to wait until the following week to talk to the other parent about the events of their day or about something that is pressing to them that they would like to share. I fully expect that on some days, the children may have very little to say. On other days, a remarkable event at school or in their other activities that made a specific impression on them may be something they want to share with both parents immediately. These may be joyful experiences along the lines of “Guess what we did today?” Or, they may be situations where the children are seeking specific comfort and consolation.

[145] As they develop their bonds with both parents, it is conceivable that they will wish to share some issues or concerns with mom and others with dad. Part of the ability to parent must be the ability to facilitate the children’s communications with the parent to whom they wish to talk, with a view to giving the children the opportunity to communicate with either parent. These parties are strongly cautioned that if their children are pushed away from communicating with the people who care for them the most, they may eventually turn to third parties for guidance. Such third parties may or may not have their best interests at hand and may indeed seek to take advantage of particular vulnerabilities. Stated differently, both parents must be available to their children as safe havens. By extension, the children are never to be interrogated about these communications. Neither parent must discredit the other parent or do anything to destroy their children’s safe haven. The children must be able to obtain their parent’s comfort and guidance when they need it.

[146] In setting up such communication arrangements, the parties should identify a regular time for the call until the children can initiate FaceTime or Skype on their own. If the activities of a particular day prohibit the communication, then the other parent should be advised of this in advance by a brief text or e-mail message and the call ought to be re-scheduled as soon as possible. For example, if Ms. Wencel takes the boys to an activity and they are not at home in time to call Mr. Rocki, Ms. Wencel should advise Mr. Rocki by e-mail or text message, with a view to re-scheduling the communication as soon as possible.

[147] Both parents are to give their children sufficient privacy during these conversations. Both parents should refrain from asking their children about the substance of the conversations. If the children express a concern or appear to be unsettled after the call, the parent observing such behaviour may e-mail the other parent to explore the issue further. Both parents must recognize that it is in their children’s best interests to facilitate this mode of communication. If it turns out that the parties are unable to facilitate this exchange and it becomes one more tool in their conflict arsenal, they run the risk that such communications will be suspended.

[148] On the subject of drop-off and pick-up locations, I reject the request that such exchanges continue to occur at Peel Regional Police 22 Division when there is no school. I also decline to make any order requiring the police to locate, apprehend and deliver the children to Mr. Rocki if Ms. Wencel fails to comply with the parenting schedule. This should not be interpreted in any way by Ms. Wencel to mean that she can ignore court orders. She should not underestimate the implications of being found in contempt of a court order.

[149] However, it is essential and urgent that everyone involved begin to de-escalate the high conflict that exists between the parties immediately. It is not healthy for the children to be picked-up and dropped-off at a police station and I do not see any reason for the exchanges to take place there. Such an arrangement only serves to promote continued uncertainties and insecurities for the children. If either or both Mr. Rocki and Wencel are concerned about misconduct or they cannot trust themselves to remain calm, they may consider having a third party with them during the exchange.

[150] It is appropriate that the parties identify a public location that is convenient to both parties for the exchanges. Rather than a Tim Hortons or a McDonald’s, which could be an option, I would strongly encourage the parents to consider the option of a library or a community centre in their neighbourhood where the transfer could take place. In contrast to Tim Hortons or McDonalds, where there is high traffic, hustle and bustle, and stress, environments such as a library or community centre promote calm and quiet engagement and may very well encourage the parties to remain calm during the exchange, and promote the children’s overall welfare. They may also offer the parties and the children the opportunity to participate in educational activities that come to reinforce the children’s overall welfare.

[151] On the subject of the parents’ attendance at school concerts, church activities and extra-curricular showcase activities, both parties are permitted to attend. They are reminded that when they attend such activities, they are there to celebrate their children’s activities and achievements. Under no circumstances are they to ruin such celebrations by engaging in any confrontational behaviour. Each will be responsible to stay away from the other. Failure to respect this may have future implications on how the ‘maximum contact’ principle is applied.

[152] With respect to the parties’ communications with the boys’ school, both parents will be named in the school filing system as custodial parents. The school shall be advised that Mr. Rocki shall have the final say in decision-making but that Ms. Wencel shall be entitled to receive copies of any communications relating to the boys. With respect to parent-teacher interviews, the parties will co-ordinate with the school authorities to arrange for separate meetings. The school is also to be advised of the school pick-up arrangements to avoid any miscommunications. A similar approach is to be taken with the extra-curricular activities providers.

[153] The full particulars of the access arrangements are outlined in the conclusion of my decision with specific reference to the schedule, transfers, Skype / FaceTime communications, holiday times, travel times, communications with the school and extra-curricular activities.

[154] Finally, both parents are reminded that if they are unable to make this shared parenting arrangement work, the offending parent may be faced with a variation that reduces his or her access time.

b. Decision-Making and Parental Communications

[155] The subject of the parents’ decision-making for the boys is complex and requires a deliberate approach that does not result in the empowerment of one parent over the other. This dovetails with my concern that the parties appreciate that their parenting of their sons is not about the parties winning or losing. Rather, decision-making is about creating a win-win situation for their sons.

[156] As I already noted, this case would have been easy to resolve if all the faults lay with one parent and the solutions with the other. I find that both parties have been caught up in their own views and that their own interests have had the upper hand in their sons’ upbringing. Counsel for Mr. Rocki described Ms. Wencel’s approach to decision-making as being one of “her way or no way”. The trouble is that to some extent, the same can be said about Mr. Rocki.

[157] Mr. Rocki came across as polished, measured and systematic. Still, he could not conceal his own tendency to be absolute, rigid, and unbending in his own views about how certain issues relating to their boys’ well-being ought to be treated. Using the example of M.R.’s issues in school, I find that where Ms. Wencel exhibited a strong tendency to magnify the concerns to such an extent that resulted in questionable interventions by specialists, Mr. Rocki minimized them to such an extent that the two parties might as well have been talking about different children.

[158] Perhaps the most telling piece of evidence from this whole situation was Dr. Antczak’s reporting of M.R. having politely and diplomatically told her that he did not want to be at her office but that he wanted to play with his friends. One could not help but wonder whether M.R. is the “real adult” in this family.

[159] Turning to the specifics of this dynamic, although the unbending attitudes by both parents has been the cause for much of the high conflict between them, I find that Ms. Wencel has engaged in marginalizing conduct and that has compounded the difficulties in a very dramatic way. I accept Dr. Goldstein’s concern that if left unchecked, Ms. Wencel’s conduct will pave the way for parental alienation. It is this overriding concern that leaves the court with no option but to design a parenting and decision-making plan that will prevent parental alienation and allow for the restoration of a balanced approach to the parental decision-making process.

[160] In support of this finding, the evidentiary record is replete with examples of Ms. Wencel’s manifestly poor judgment and her deliberate attempt to cut Mr. Rocki out of anything relating to the children. They include her refusal to respond to straightforward e-mails about her address, the names of the various treating physicians and psychologists as well as her unilateral decision to change the children’s schools and her uncooperative manner in relation to the scheduling of M.R.’s First Communion and S.R.’s baptism.

[161] The most egregious example of Ms. Wencel’s marginalizing behaviour is reflected in her handling of M.R.’s learning issues. To be clear, I do not fault Ms. Wencel for being concerned about M.R.’s difficulties in school. The report cards and the school communications may or may not have downplayed the measure of M.R.’s shortcomings. I find that M.R. did demonstrate good progress in his grade one report card, going from a number of Cs and C+s to Bs. However, the report card did not reveal a very good situation, as Mr. Rocki would have the court believe. Although without the benefit of any expert evidence, I am in no position to make any findings about the nature or extent of M.R.’s difficulties, or if they even exist, I am prepared to find that there were questions to be asked and possible supporting measures to be explored. Ms. Wencel was not unreasonable to be concerned about the degree of M.R.’s progress and it was appropriate for her to be asking about what supports could help her son.

[162] That said, I take strong exception to her unilateral decision to have M.R. undergo a private psycho-educational assessment in the absence of additional indicators or third party recommendations for such an intervention and without an advance discussion about such an assessment with Mr. Rocki. These concerns were compounded by Ms. Wencel’s refusal to produce to Mr. Rocki the complete copy of the psycho-educational assessment report to Mr. Rocki and to Dr. Goldstein.

[163] The magnitude of Ms. Wencel’s unreasonable approach to this issue is reflected in a number of e-mail exchanges. I do not propose to review all the exchanges. Two excerpts however are worth highlighting to demonstrate the extent of Ms. Wencel’s deliberate attempt to control every aspect of the narrative related to this issue. Starting at least in April of 2015, Mr. Rocki wrote to Ms. Wencel repeatedly to ask for the name of the psychologist who was conducting M.R.’s assessment. He also sought information about the assessment. No response to Mr. Rocki’s specific inquiries were forthcoming until early November 2015, when Ms. Wencel advised Mr. Rocki that the assessment was complete and that M.R. was diagnosed with various learning disabilities. Her attitude and tone are reflected in the actual text of her e-mail message of November 2, 2015:

Roman,

As you are aware, [M] had a psychoeducational assessment completed. If you recall, you refused to provide consent to allow his grade 1 teacher to share information, namely complete a questionnaire to add to the report. This was not a requirement of the report and as such the report was completed. I now have the completed report.

[M] was assessed on:

June 9, 2015

July 8, 2015

August 17, 2015

September 23, 2015

As I suspected, and noted in previous communication with you, [M] has several learning disabilities.

The psycho-educational assessment reveals that [M] has a specific learning disorder with impairment in reading (DSM-5:310.00) in the mild range of severity, impairment in mathematics (DSM-5: 315.1) in the mild range of severity and impairment and written expression (DSM -5 315.2) in the mild range of severity.

[Further details concerning [M] abilities – omitted]

I intend to provide this comprehensive report to the school shortly, so the appropriate steps are taken to support [M’s] learning and understanding needs.

Once again, I continue to believe tutoring would help him however it remains difficult when I am the only parent supporting this.

I continue to believe that second language (Polish school) should be put on pause for now.

I would like to know if you will be attending future meetings and or case conferences with me at St. Julia’s. They will be held in a room, and my understanding continues to be that you do not wish to be in the same room as me.

Paulina

[164] Mr. Rocki responded to Ms. Wencel in the following e-mail:

Paulina,

With regards to the psychologists’ assessments, you did not provide me contact information as I had requested so that I may contact these individuals. My input was not included in these reports. My consent was not obtained for these assessments. The validity of these reports is highly questionable. Do not provide these reports to the school or anywhere else as they contain confidential information where most of the information provided by you is inaccurate and prejudice towards me. …

[165] Up until the last day of trial Ms. Wencel continued to refuse to produce the report. Instead, she took the position that Mr. Rocki could obtain a copy of the report from the school. Although she seemed to relent towards the end of the trial, ultimately nobody saw the report. Her explanation to the court that she could not produce a copy of the report for Mr. Rocki because she did not have access to a scanner was simply ludicrous. Evidently, she did not have any difficulties with the reproduction of the report for the school and thought nothing of ignoring Mr. Rocki’s request that the report not be shared with the school until he could review it.

[166] I am left to wonder about the contents of the actual report and whether the summary she produced for Mr. Rocki is accurate or exaggerated. I am also left to wonder why she would not produce a copy of the report for Dr. Goldstein’s consideration and review. It is also curious that Ms. Wencel would cancel her appointment with Dr. Goldstein for December 17, 2015 and not use the opportunity to have her concerns and those expressed in the psycho-educational report potentially validated by somebody with as high a reputation as Dr. Goldstein.

[167] It is also remarkable that Ms. Wencel did not indicate if the assessor made any recommendations concerning the appropriate supports for M.R. in the face of the alleged results. Instead she conveniently slipped into her e-mail her own views on the appropriate support to be provided to M.R. I also find it extraordinary that in her e-mail of November 2, 2015 to Mr. Rocki, Ms. Wencel manufactured a record against Mr. Rocki, which purported to record Mr. Rocki’s repeated refusal to agree to the assessment. It was as if she was oblivious to Mr. Rocki’s repeated requests for the most basic information concerning the said assessment, or his concerns about subjecting M.R. to multiple psychological assessments. Reading Ms. Wencel’s e-mail in isolation, one would think that Mr. Rocki was missing in action, when that clearly was not the case.

[168] In the face of such evidence, I find that Ms. Wencel deliberately attempted to manipulate the evidentiary record in her favour by fabricating a carefully worded e-mail. Ms. Wencel would have been in a very different position before this court if she could show the court that in advance of any such assessment, she tried to discuss the issue with Mr. Rocki but that he was the one who refused to co-operate. Her position would have also been far more credible if she could demonstrate that she asked Mr. Rocki for his consent to an assessment and he withheld it unreasonably. Such a narrative would have gone a long way to illustrate her otherwise bald contention that she had no option but to take unilateral steps because Mr. Rocki would block her at every step of the way. But there was no such evidence to support such an explanation.

[169] As rigid and determined as Mr. Rocki appeared in his views about M.R.’s school issues, there was no evidence before the court that, in the face of being asked a specific question about a specific concern or assessment, he would be unreasonable or would not engage with a proposed process. If anything, his request that he review the report in advance of it being shared with the school authorities suggested caution and concern for the protection of M.R.’s private information.

[170] I find that whatever Mr. Rocki’s questions and concerns were about M.R. being assessed, they were clearly irrelevant to Ms. Wencel. She did not answer Mr. Rocki’s serious questions or address his concerns because she wanted to convey the message that she was going to take control no matter what. I am left to wonder if M.R.’s assessment was ever about M.R. or whether it was about Ms. Wencel wielding control over Mr. Rocki and developing a narrative to support her contention that Mr. Rocki did not care about M.R.’s learning issues.

[171] Ms. Wencel’s deliberate decision to withhold the report from Mr. Rocki, from Dr. Goldstein and even from this court only compounds the concern. Such withholding leads me to wonder whether there are aspects of the report that simply did not suit Ms. Wencel’s narrative or whether the report gave a measured assessment that was closer to Mr. Rocki’s assessment of M.R.’s abilities and progress. Ms. Wencel’s decision to offer only a summary and then to insert her own conclusions about hiring a tutor and stopping Polish school, compounds the court’s concerns.

[172] It is also hard to know what to make of her direction to Mr. Rocki that if he wanted a copy of the report, he should get it from M.R.’s school--especially when Mr. Rocki had previously asked her to refrain from sharing the private report with the school until he was given the opportunity to review the report’s conclusions. What her direction does reveal is one more example of Ms. Wencel’s serious difficulties in exercising good judgment.

[173] In contrast to Ms. Wencel’s manipulative approach to the assessment of M.R.’s abilities, I accept Mr. Rocki’s evidence that neither M.R.’s teachers nor the school administration raised any concerns over M.R.’s abilities or suggested that M.R. should be assessed. Nor was any concern ever expressed by any third party that M.R. should have an IEP. I recognize that M.R.’s report cards identified areas for improvement that ought to raise questions about what appropriate supports might be offered to M.R. But they also reflected progress and tracked M.R.’s successful outcomes.

[174] These observations only make Ms. Wencel’s conduct more suspect and validate Dr. Goldstein’s conclusion that Ms. Wencel’s actions were deliberately designed to cast Mr. Rocki in a negative light for his refusal to agree to an assessment for M.R. In these circumstances, I agree with Dr. Goldstein’s recommendation that Ms. Wencel’s unilateral decision-making be stopped immediately to prevent harm to Mr. Rocki’s relationship with his sons.

[175] Turning to Mr. Rocki, I find that he has the capacity to be reasonable and to consider various options when it comes to decision-making. He is able to articulate his thoughts and there is no evidence that he has any interest to marginalize Ms. Wencel from her relationship with the boys. The strongest evidence in support of this finding is Mr. Rocki’s insistence that the equal parenting regime in place pursuant to the November 29, 2012 court order continue such that the children have equal time with both him and their mother. His focus in his approach was his children’s best interests.

[176] At the same time, I am concerned that he can be absolute in his views and, on some issues, be inflexible or unwilling to consider the views of others. This became evident in his spontaneous but firm view that M.R. did not need any tutoring and that he was entirely capable of meeting M.R.’s learning needs.

[177] I find that Mr. Rocki could have explored different approaches to some of his disputes with Ms. Wencel. For example, having learned that Ms. Wencel had gone ahead unilaterally with M.R.’s psychoeducational assessment, Mr. Rocki could have considered some proactive steps such as a request to meet the assessor in advance of completing any questionnaire. Or he could have suggested a preliminary consultation between the assessor and the parents, without M.R. being present, to identify possible parameters for the assessment or even to verify its need. There is no telling if such approaches would have yielded better results, but it would have cast Mr. Rocki in a far better light.

[178] Similarly, on the subject of a tutor, I found Mr. Rocki’s absolute and abrupt dismissal of the idea to be rather surprising. I fail to see why Mr. Rocki might not have explored the idea in order to have a third party view on the true nature of M.R.’s needs. Such a step would have also gone a very long way to bolstering his credibility and enhancing the quality of his judgment.

[179] To be clear, there was no evidence before the court that a tutor was actually needed, much less that he or she would have made a difference. However, even in the very junior school grades, where a child receives a number of Cs, it cannot be said with any credibility that some support or intervention should not at the very least be explored. I do note Mr. Rocki’s evidence that he took charge of M.R.’s learning and gave him some additional support with extra reading at home. While the significance of that initiative is not to be minimized, Mr. Rocki would have stood in a better conciliatory light if he were not so absolute and harsh in his views.

[180] Given my findings on the particular high conflict dynamics between the parties, the approach to the decision-making for the children’s major issues relating to education, health, religion and extracurricular activities must be measured and balanced to avoid a situation where one parent is controlling the other. Following Dr. Goldstein’s direction that Ms. Wencel’s marginalizing conduct be stopped immediately, it is appropriate that the final decision-making rest with Mr. Rocki. However, it is essential that Mr. Rocki be flexible and take a reasonable approach to the decision-making such that Ms. Wencel’s views are recognized and taken into account.

[181] Having regard for the difficulties in the parties’ e-mail communications, the parties are to use the following approach and template to engage in a discussion about a major decision concerning the children. The template is designed very deliberately so as to cultivate a collaborative spirit and to maintain a leveled playing field:

1. Decision-making with respect to major issues that relate to the children’s education, health issues, extra-curricular activities and religious activities shall operate on the premise that Mr. Rocki and Ms. Wencel shall make best efforts to work towards a mutually agreed upon decision.

2. Either one of Mr. Rocki or Ms. Wencel may raise with the other any one of the noted major issues for consideration. Such communications are to be in writing, in an e-mail, and they are to address the specific questions using the following template:

a. what is the issue and what is decision to be made?

b. what are the concerns?

c. what are the options? and

d. what is the recommended course of action?

3. The recommended course of action shall be supported, if the seriousness of the issue requires it, by any relevant third-party arms’ length advice and recommendations.

4. Unless a decision is needed urgently, the parent receiving the communication shall have up to ten days to respond to the communication. The response shall be succinct and limited to the subject at issue. If there is agreement with the proposed course of action, that may communicated in a couple of sentences. If there is disagreement, the responding parent shall:

a. Identify the corresponding concerns;

b. Identify alternative options; and

c. Propose an alternative course of action and explain why it is preferred.

5. The parties may consider whether the assistance of somebody like a family doctor, a teacher or a school principal, as a situation might require, would help them reach an agreement where they are unable to identify an appropriate course of action. Any recourse to expert advice will be proportional to the nature of the decision to be made.

6. If a disagreement persists, the final decision shall rest with Mr. Rocki. Where that occurs, he shall explain his decision in writing, and expressly with reference to the best interests of the children, as the case may be. Mr. Rocki shall have to demonstrate that his reasons for a particular decision are well-informed, reasonable, take into account Ms. Wencel’s concerns, and are supported where the nature of the decision requires it, by professional advice.

7. In the event of a medical emergency that does not lend itself to a detailed exchange of views, both parties will ensure that they both know about the problem that has emerged. They will seek the guidance of the appropriate medical practitioner who might be involved to come to a decision. In the event of a disagreement between the parties, Mr. Rocki will have the final say.

[182] Ultimately, both parents must understand that their decision-making as it relates to their children cannot ever be about them or their own differences. Nor can such decisions ever be used as a controlling device between the parties. At all times, the central focus of their decisions must be the best interests of the two boys.

[183] Insofar as the mode of communication is concerned, I noted Ms. Wencel’s reservations with the use of e-mail and her preference to hire a parenting co-ordinator. Still, I accept Dr. Goldstein’s view that such a resource would not be helpful. The reality is that if used properly, the parties should not have any problem with e-mail communications. The additional benefit of e-mail is that it allows for a recording of the parties’ respective positions and attitudes. In the event of a dispute that has to be brought back to the court, the record will be available to the court for its examination. Ms. Wencel may not like such scrutiny but it is the only way to import some discipline and direction on the parties’ communications.

[184] The objective of this approach is to rehabilitate the parties’ communication and decision-making skills. Both parties are highly intelligent and educated. They do not lack the ability to engage in effective communication. They have to regain the will to engage in effective communications for the benefit of their sons. In this regard, they are reminded that whatever the real reasons for the family break-up, they will always be connected through their sons. They must accept that the only way to go forward is to stop being stubborn and to make the well-being of their sons’ their number one priority.

[185] On a final note, at the conclusion of the trial, the parties asked the court to make an order regarding M.R.’s First Communion and S.R.’s baptism. The court made an order with respect to M.R.’s First Communion because it was anticipated that the dates for that event would occur before the release of this judgment. The court reserved on an order concerning the scheduling S.R.’s baptism.

[186] Having regard for all the evidence and the dynamics in this family and as a way of introducing some collaboration between the parties, each party shall identify a godparent for S.R. such that S.R. shall have two godparents. With input from both godparents and the parish priest, the parties shall identify an appropriate date for S.R.’s baptism in the next six months. The families from both parties shall be invited to witness the sacrament. Each party shall be responsible for inviting his or her family and friends.

[187] In light of the religious significance of a baptism and the religious values associated with the parties’ faith, it would be ideal for S.R.’s sake if both families could enjoy one joint reception / celebration immediately following the baptism. Such a celebration would offer everyone involved the opportunity to turn a page and move forward in a meaningful way. If that could be accomplished, the parties would also have to agree on the location for the reception and they would share those expenses equally.

[188] If a joint reception remains impossible, then one family will have a reception immediately following the baptism and the other family will have its own celebration at a separate time. In such a case, each parent will undertake the arrangements for the respective receptions. If the parties cannot decide on whose family will have “the first” reception, they can raise that with me and I will decide.

I. Child Support and Spousal Support

[189] Since neither of these claims are made, there is no need for any finding or decision. Insofar as claiming the children for income tax purposes is concerned, as long as that is something permitted by the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.) (Income Tax Act) and the Canada Revenue Agency, it is entirely reasonable for each parent to claim one child on their income tax returns.

[190] It is appropriate that since Ms. Wencel claimed the children on her income tax returns for the years 2012, 2013 and 2014, Mr. Rocki shall claim the children in his 2015, 2016 and 2017 returns. If in the 2015 filings Ms. Wencel claimed the children in her returns, Mr. Rocki shall claim the children for 2016, 2017, 2018 and 2019. Thereafter, each parent shall claim one child, in accordance with the applicable legislative requirements. If that is not possible, then Mr. Rocki shall claim the children in even years starting in the year 2020 and Ms. Wencel shall claim them in odd years starting in 2021. This arrangement is also subject to the applicable legislation. It is also appropriate that the parties exchange their income information annually on June 1.

[191] Finally, with respect to s.7 expenses, I accept Mr. Rocki’s proposal that such future expenses be shared equally until June 1, 2017 and thereafter in proportion to the parties’ respective incomes. The parent who incurs such expenses shall give the other parent reasonable notice of the proposed activity and its expense.

II. Equalization of Net Family Property

[192] On this issue I have concluded that although Mr. Rocki would have had to make an equalization payment of $21,022.45, such obligation is waived on account of Ms. Wencel’s failed disclosure and her conduct with respect to the disposition of the household items.

[193] Specifically, beginning with the funds from Ms. Wencel’s parents, I am unable to accept Mr. Rocki’s submission that the funds were a gift. On a balance of probabilities, I find that the funds were a loan. Even though there was no formal arrangement concerning the repayment of said funds, I find that there was an expectation of repayment at some later point. Although I am prepared to conclude that Mr. Rocki may not have been privy to all the conversations between Ms. Wencel and her mother, I find it hard to believe that he did not know that the Wencels would be drawing down on their own line of credit to finance the parties’ loan.

[194] In coming to this conclusion, I am guided by the analysis outlined by Justice Fitzpatrick in Barber v. Magee, 2015 ONSC 8054, at paras. 38 to 46. I note in particular the reference to Foley (Re), 2015 ONCA 382 where the Ontario Court of Appeal, at paras. 26 and 27 stated that equity presumes bargains, not gifts, even if a financial arrangement is between a parents and an adult child. The onus shifts to the adult child to rebut the presumption of a loan by proving the contrary intent on a balance of probabilities.

[195] Mr. Rocki has failed to meet this onus. The parties wanted to buy a house, they were short of funds and Ms. Wencel’s parents could obtain better loan terms. Complementing these circumstances was the expectation that another property owned by Mr. Rocki and Ms. Wencel would sell such that Ms. Wencel’s parents would eventually be paid. The requirement that Ms. Wencel pay the interest on account of her parents drawing on their line of credit is a further indicator that her parents’ assistance was in the nature of a loan. Mrs. Wencel may not have considered this in the parties’ first discussion, but her husband did and that gave shape to Ms. Wencel’s second discussion on this issue with her daughter, and possibly Mr. Rocki. Whether or not Mr. Rocki was aware of every particular detail does not matter; he had sufficient knowledge that the funds from the parents amounted to a temporary arrangement in the nature of bridge financing.

[196] On the whole, I found Mrs. Wencel most credible on this issue. Of the three witnesses who testified on this issue, she gave the most logical explanation of the arrangements. Accordingly, the said sum is not to be included in Ms. Wencel’s NFP.

[197] The valuation of Ms. Wencel’s car proposed by Mr. Rocki is accepted and included in the NFP analysis.

[198] The other significant variable in this analysis relates to the treatment of the household contents. I was not satisfied with Mr. Rocki’s estimate of the value of household contents. The figures provided were his own market value estimates, unsupported by any valuation. Used household items rarely attract the kind of figures proposed by Mr. Rocki. One need only visit garage sales to obtain a practical sense of what household items might be worth.

[199] In any event I did not see any basis for a post NFP adjustment for Ms. Wencel’s handling of the contents. On the evidence before this court, whatever the value of the household items, it would have been appropriate to share that figure equally between the parties. That would have had a net cancelling effect on the determination of the NFP differential. I therefore see no need to consider any type of imputation.

[200] Ms. Wencel did not show her best behavior in the dispersal of the household items. In these circumstances, it is appropriate that Ms. Wencel’s conduct on this issue be included as a consideration in my decision to waive Mr. Rocki’s obligation to make an equalization payment to Ms. Wencel.

[201] More specifically about the said waiver, having regard for my findings concerning the Wencel loan, the household contents and Ms. Wencel’s car, Mr. Rocki would have had to pay Ms. Wencel an equalization payment of $21,022.45. Given Ms. Wencel’s express and deliberate decision to withhold her disclosure of two bank accounts it is only appropriate that there be some consequences. Mr. Rocki has not asked the court to draw any negative inferences or go as far as to suggest that assets in those two accounts might have resulted in a debt obligation from Ms. Wencel to him. However, a waiver of his obligation ought to send the message to Ms. Wencel that there are consequences to defiance. She cannot have the benefit of a payment in the face of her disrespect for her legal obligations. The waiver is therefore appropriate.

III. Post-Separation Adjustments

[202] The post-separation adjustments below, claimed by Mr. Rocki were not contested by Ms. Wencel:

Rent owing to Mr. Rocki for Millhouse Mews: $3,009.50

Rent owing to Mr. Rocki for Parkhaven: $3,441.74

Tax arrears paid by Mr. Rocki to be

reimbursed by Ms. Wencel: $10,110.71

Mortgage arrears paid by Mr. Rocki

to be reimbursed by Ms. Wencel: $20,580.48

Total Adjustment $37,142.43

[203] Accordingly, Ms. Wencel shall pay to Mr. Rocki the sum of $37,142.43 out of her share of the net proceeds currently held in trust by the real estate counsel. This award attracts pre-judgment interest of 1.16 percent based on the Courts of Justice Act, s. 127. There is no reason why this debt to Mr. Rocki could not have been settled at an earlier stage. The interest rate is to be calculated from the date of the default for each payment.

CONCLUSION

[204] In light of the above analysis and findings, the Court makes the following orders:

1. Roman Jan Rocki and Paulina Elzbieta Wencel shall be divorced. The divorce shall take effect 31 days after the date of this order.

2. Mr. Rocki and Ms. Wencel shall have shared parenting of M.R., born October 30, 2008 and S.R., born April 21, 2011 . Final decision-making concerning major decisions about education, health, extra-curricular activities, and religion shall be with Mr. Rocki, subject to reasonable input from Ms. Wencel. Communications about such decisions shall follow a communications protocol as outlined below.

3. For the regular residence schedule, the children shall reside with Mr. Rocki and Ms. Wencel equally. The children shall be in Mr. Rocki’s care every other week. Since this arrangement has been in place since the court’s order of November 29, 2012, the parties will continue with the same schedule already underway. The transition in residence shall commence on Fridays at 3:30 p.m.

4. The exchange of the children shall occur directly at St. Julia’s Catholic School. The parent about to receive the children for the week shall pick them up from school or have their designate pick the children up from school. When there is no school on Friday or during the vacation schedule set out below, the exchange shall take place at a Tim Hortons, a library or a community centre. The particular location is to be identified and mutually agreed to by the parties. If they cannot agree, each party will provide me with three options and I will identify the location.

5. When the children are with one parent, they may, if they wish, they may have daily phone contact with the other parent. Such contact is to be arranged using Skype or Facetime. The parents shall facilitate the communication at a time between suppertime and bedtime. If an activity prevents a call on a particular day, one parent shall advise the other by e-mail and make alternate arrangements. The children are to be given privacy over these calls. Both parents are to refrain from any interrogations of their children regarding the content of their conversations. If there is a concern about a particular call, one parent may e-mail the other regarding that concern. The other parent shall provide a succinct and reasonable response.

6. The following vacation schedule shall override the regular residence schedule set out above:

i. Vacation Travel Time

Each parent may take two (2) periods of two week vacations (not consecutively and with not less than two weeks between vacation periods) during any time of the year, with the exception of Christmas and Easter holidays, Father’s Day, and Mother’s Day. Mr. Rocki shall have first choice in even years and Ms. Wencel shall have first choice in odd years. Selections shall be made in writing no later than May 1 of each year by the parent with first choice and by May 8 by the other parent.

ii. Christmas Holidays

In even years, M.R. and S.R. shall spend December 24 at noon overnight to noon on December 25 with Mr. Rocki. M.R. and S.R. shall spend December 25 at noon overnight to noon December 26 with Ms. Wencel. This shall reverse in odd years.

iii. Easter Sunday

The parent who has the children on this weekend shall have them from Sunday at 5:00 p.m. until they return to school on Tuesday.

iv. Father’s Day

If Mr. Rocki does not have M.R. and S.R. in his care on this weekend, Ms. Wencel shall provide the children to Mr. Rocki on Saturday at 7:00 p.m. and they shall remain in his care until they return to school on Monday.

v. Mother’s Day

If Ms. Wencel does not have M.R. and S.R. in her care on this weekend, Mr. Rocki shall provide the children to Ms. Wencel on Saturday at 7:00 p.m. and they shall remain in her care until they return to school on Monday.

vi. March School Break

Mr. Rocki and Ms. Wencel shall share the school March Break week in alternate years such that Mr. Rocki shall have the March Break week in even year and Ms. Wencel shall have the March Break week in odd years.

7. M.R. and S.R. shall be permitted to travel with either parent for the purposes of vacation. The travelling parent shall provide the other parent with a detailed itinerary at least thirty days before the travel begins, including the name of any flight carrier and flight times, accommodation, including addresses and telephone numbers, and details as to how to contact the children during the trip. Such itineraries shall also be provided for road-trips and train trips.

8. In instances where M.R. and S.R. travel on vacation outside of the country with one of their parents, the other parent will provide a “Travel Letter” authorizing M.R. and S.R. to travel outside the country with the accompanying parent. The requesting parent shall provide a copy of the proposed itinerary together with a copy of the “Travel Letter” to be executed by the authorizing parent and the authorizing parent shall signed and return both within 48 hours of it being provided.

9. Both parties will provide each other with their e-mail address(es), current addresse(s) and a phone number where they can be reached at all times.

10. Mr. Rocki and Ms. Wencel shall be permitted to attend extracurricular activities and scheduled school events, regardless of their parenting time or week. They are to stay away from each other and refrain from any conversations between them that might trigger any plausible confrontation. Both Mr. Rocki and Ms. Wencel are reminded that these events relate to the children’s achievements and activities. They are to ensure that the children have the benefit of their parents’ full support and attendance.

11. Both Mr. Rocki and Ms. Wencel may attend medical, dental or other health care appointments with the children regardless of whose time it is with the children.

12. Both parents may attend special religious celebrations. As with extra-curricular activities, the parties are reminded that the children must be able to appreciate such celebrations with both parents present. The parties shall stay away from each other and refrain from all sources of confrontation.

13. Specifically with respect to S.R.’s baptism, it is to occur as follows:

i. Each parent will identify a godparent and S.R. shall have two godparents for his baptism.

ii. With input from the godparents and the parish priest, the parties shall identify a date for the baptism within the next six months.

iii. The families from both parties shall be invited to the baptism. Each party will be responsible for his or her family’s invitations.

iv. If the parties can agree, the celebratory reception is to be attended jointly by the two families and all associated arrangements and expenses shall be shared equally. If the parties cannot agree on such a celebration, then one family shall have a reception immediately following the baptism and the other family shall have its own celebration at a separate time. As well, in the event of separate celebrations, each will undertake their own reception arrangements. If the partes cannot agree on whose reception will follow the sacrement, they shall bring it to my attention for a decision.

14. The parent residing with the children at the relevant time will make the daily decisions affecting their welfare.

15. Decision-making with respect to major issues that relate to the children’s education, health, extra-curricular activities and religious activities shall operate on the premise that Mr. Rocki and Ms. Wencel shall make best efforts to work towards a mutually agreed upon decision. In the event that the parties cannot agree, Mr. Rocki shall have the final say for such decisions. The decision-making shall follow the following template:

i. Either one of Mr. Rocki or Ms. Wencel may raise with the other any one of the noted issues for consideration and a decision. Such communications are to be in writing, in an e-mail, and theya reot address the specific questions using the following template:

a. What is the issue and what is the decision to be made?

b. What are the concerns?

c. What are the options?

d. What is the recommended course of action?

ii. The recommended course of action shall be supported, if the seriousness of the issue requires it, by any relevant third-party arm’s-length advice and recommendations.

iii. Unless a decision is needed urgently, the parent receiving the communication shall have up to ten days to respond to it. The response shall be succinct and limited to the subject at issue. If there is agreement with the proposed course of action, that may communicated in a couple of sentences. If there is disagreement, the responding parent shall respond in the following way:

a. identify the corresponding concerns;

b. identify alternative options; and

c. propose an alternative course of action and explain why it is preferred.

iv. If the parties are unable to identify an appropriate course of action, the parties may consider whether the assistance of somebody like a family doctor, teacher or a school principal, depending on the situation, would help them reach an agreement. Any recourse to expert advice will be proportional to the nature of the decision to be made.

v. If a disagreement persists, the final decision shall rest with Mr. Rocki. Where that occurs, he shall explain his decision in writing and expressly with reference to the best interests of the children. Mr. Rocki shall have to demonstrate that his reasons for a particular decision are well-informed, reasonable, take into account Ms. Wencel’s concerns and are supported, where the nature of the decision requires it, by professional advice.

vi. In the event of a medical emergency that does not lend itself to a detailed exchange of views, both parties will ensure that they both know about the problem that has emerged. They will seek the guidance of the appropriate medical practitioner who might be involved to come to a decision. In the event of a disagreement between the parties, Mr. Rocki will have the final say.

16. Mr. Rocki and Ms. Wencel may make inquiries and be given information by the children’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with the children. Schools, extra-curricular providers, medical providers and the appropriate religious representatives are to be advised that Mr. Rocki’s consent shall be required for all of the children’s major activities, in addition to any consent that Ms. Wencel might provide.

17. Except in the case of an emergency, all communication between Mr. Rocki and Ms. Wencel shall be by e-mail.

18. If a party proposes to change their home residence, the moving party will give particulars of their new address and telephone number to the other not less than 30 days in advance of the proposed move.

19. Mr. Rocki and Ms. Wencel shall not move the children’s permanent residence outside the City of Mississauga without the other parties express written consent or court order. This restriction on moving the children's permanent residence does not limit the parties' ability to take the children out of the jurisdiction of the court for the purposes of travel with the children.

20. Mr. Rocki shall apply for a Canadian passport for each child. Ms. Wencel shall sign and return the passport application to Mr. Rocki within seven days of receiving the same, failing which Mr. Rocki may obtain passports for the children without Ms. Wencel’s consent. Mr. Rocki shall keep the passports and give them to the Ms. Wencel when she needs them for travel. Ms. Wencel shall return the passports to Mr. Rocki the next time the children return to his care.

21. Mr. Rocki shall retain all of the children’s identification including, but not limited to, their birth certificates, health cards, Social Insurance Number Cards, baptismal certificates and Roman Catholic sacramental records. Ms. Wencel shall forthwith provide Mr. Rocki with any of these documents in her possession. Mr. Rocki shall provide Ms. Wencel with notarized copies of these documents within 30 days of receiving each of them.

22. The children shall be raised in the Roman Catholic faith.

23. Every June 1, for so long as one or both of the children are defined as a child under the Divorce Act, commencing June 1, 2017 Mr. Rocki and Ms. Wencel shall provide to each other the documents required in s. 21(1) of the Child Support Guidelines that have not previously been provided.

24. The net after tax cost of all section 7 expenses shall be shared equally between Mr. Rocki and Ms. Wencel until June 1, 2017. Thereafter, they shall be shared in proportion to the parties’ respective incomes. The party that incurs the initial cost shall give the other party reasonable notice of the intended expense. The decision to undertake a specific extra-curricular activity ought to be cleared through the decision-making plan. Any s. 7 expenses, not previously discussed between the parties shall be an exclusive expense to the parent who incurs it without the required notice.

25. Subject to compliance with the requirements of the Income Tax Act and the Canada Revenue Agency, Mr. Rocki shall be allowed to claim both children on his tax return for the 2016, 2017, 2018 and 2019 tax years. If Mr. Rocki claimed the children in 2015, then this arrangement will be rolled back by one year.

26. Commencing in 2020 and going forward, each parent shall claim one child for dependent credits on their tax returns provided that doing so is permitted by the applicable legislation. If that arrangement is not possible, then Mr. Rocki shall claim the children on even years starting in 2020 and Ms. Wencel shall claim them in odd years, starting in 2021. This arrangement is also subject to the requirements of the applicable legislation. If Mr. Rocki claimed the children in 2015 then this arrangement shall commence in 2019 instead of 2020 and Ms. Wencel shall therefore claim them in even years.

27. Mr. Rocki and Ms. Wencel shall both maintain the children as beneficiaries of extended health insurance through his or her employment. Each will sign documentation authorizing the other to make claims directly to his or her insurer. A party who is reimbursed for a medical expense paid by the other will immediately forward the reimbursed amount to the other.

28. Medical expenses not covered by either party's extended health insurance are special or extraordinary expenses and will be shared equally on a net after tax basis.

29. Mr. Rocki and Ms. Wencel shall maintain a life insurance policy of not less than $250,000. This policy shall name the children as the ultimate beneficiaries for so long as one or both of them is a child as defined by the Divorce Act. If the policy or the full amount of the policy is not in force on either parent's death, the surviving parent shall have a first charge on the deceased parent’s estate.

30. The equalization payment of $21,022.45 that Mr. Rocki would have had to pay to Ms. Wencel is waived on account of Ms. Wencel’s incomplete disclosure concerning two bank accounts and her treatment and disposal of the household items. There shall therefore be no equalization payment by Mr. Rocki to Ms. Wencel.

31. Ms. Wencel shall pay Mr. Rocki $ 37,142.43 from her share of the net proceeds on account of the post-separation adjustments held to be owing to Mr. Rocki.

32. Ms. Wencel shall pay to Mr. Rocki the sum of $1,412.50, representing one-half of Dr. S. Goldstein’s fees to attend court. This is without prejudice to either party claiming reimbursement of this cost in their written cost submissions set out below.

33. Ms. Wencel’s claim for spousal support is dismissed.

34. If Mr. Rocki and Ms. Wencel cannot agree on costs, Mr. Rocki shall complete his written cost submissions. He shall serve and file them within fourteen days of this Order. Ms. Wencel shall complete her written cost submissions. She shall serve and file them within fourteen days of receiving Mr. Rocki’s cost submissions. Mr. Rocki shall complete his reply cost submissions within fourteen days of receiving Ms. Wencel’s cost submissions. The cost submissions shall not exceed four pages excluding Bills of Cost and any supporting case law. The page format shall be in accordance with the formatting prescribed by the Ontario Court of Appeal.

35. This order bears interest at the rate of 1.16% per year on any payment or payments in respect of which there is a default, from the date of the default.

­­­­­­_______________________

Justice Tzimas

Released: June 15, 2016

SCHEDULE “A” TO THE JUDGMENT

FORM 22 AGREED STATEMENT OF FACTS

AS EXECUTED BY THE PARTIES ON JANUARY 11, 2016

1. The parties were married on August 13, 2005.

2. There are two children of the marriage, M.R., born October 30, 2008, and S.R., born April 21, 2011.

3. In June or July 2011, the Respondent provided a draft separation agreement for the Applicant to review. In the separation agreement, the Respondent proposed that the Applicant have twelve-hour access to his children every other weekend.

4. The Applicant is employed as a part-time supply teacher with the Dufferin Peel Catholic School Board, and works as a firefighter at the City of Toronto Metro Hall. His combined income in 2014 was $102,025.49 per annum.

5. The Applicant’s job as a firefighter requires him to work 6-8 days per month, on a set schedule which is provided to him a year in advance.

6. The Respondent is employed as a teacher at the Peel District School Board. Her expected income in 2012 was $87,449.00.

7. After Simon was born, the Respondent was on maternity leave from April 2011 until April 2012. She has been employed full-time ever since.

8. During the parties’ marriage, when both parties were working, their children were frequently cared for by the Applicant’s mother, Zofia Rocki.

9. The parties separated on January 21, 2012.

10. On January 21, 2012, the Respondent called the police and had the Applicant charged with five counts of uttering threats and one count of assault with a weapon.

11. The Applicant’s bail conditions stated that he was to have access to the children “to be arranged in the presence of a mutually agreed-upon third party, or a valid Family Court Order.”

12. After the parties’ separation, the Respondent objected to the Applicant’s mother taking care of or supervising access to the parties’ children because she was in her mid-seventies.

13. Following the parties’ separation, the Respondent refused to accept the Applicant’s brothers, Richard and Ted Rocki, and the Applicant’s parents, as third parties to supervise the Respondent’s access visits.

14. The Applicant did not see his children from January 21, 2012 until August 24, 2012.

15. The Respondent paid the Applicant child support in the amount of $1,258.38/month for the months of January 2012 through November 2012.

16. As of the Order of Justice Skarica made on November 29, 2012, wherein the parties were awarded interim shared custody of their children, the Applicant has paid the Respondent a monthly amount of child support that offsets the amount of child support the parties owe to each other.

17. The Respondent has failed to disclose her rental income, as well as her Notices of Assessment, since the date of separation.

18. The Applicant paid child support to the Respondent in the amounts of:

a. $437.00 for December 2012;

b. $440.00 for the months of January 2013 through August 2013;

c. $290.00 for September 2013;

d. $250.00 for October 2013;

e. $200.00 for November 2013 through July 2014;

f. $185.38 for August 2014 through July 2015.

19. In May 2013, the Respondent refused to provide the Applicant with the children’s passports so that he could take them on a day trip to Buffalo.

20. On June 26, 2013, the Respondent attended a Polish Mass at St. Maximilian Kolbe Catholic Church, where the Applicant was in attendance with his children during his access time.

21. At the Mass, the Respondent took a photo of the parties’ child Michal and attempted to remove him from the Applicant’s custody.

22. St. Eugene de Mazenod is a Polish Catholic Church that is five minutes’ drive from the matrimonial home, where the Applicant was residing at the time of the incident.

23. In March 2014, the Respondent refused to provide the Applicant with the children’s passports for the purpose of planning a vacation to Florida in April 2014.

24. Since the Applicant’s return from Florida with the children in April 2014, the Respondent has withheld the passports from the Applicant.

25. Since the Applicant’s return from Florida with the children in April 2014, he has made repeated requests that the Respondent provide him with the children’s passports so that he could take them on a trip to Buffalo.

26. The Respondent vacated the matrimonial home in the summer of 2014.

27. Since moving out of the matrimonial home, the Respondent has not informed the Applicant of the address of her new place of residence.

28. The mortgage fell into arrears as of July 1, 2014.

29. In June 2014, the Respondent refused to consent to the Applicant baptizing the parties’ child, Simon.

30. In August 2014, the Respondent transferred the parties’ son, Michal, from Pauline Vanier Catholic Elementary School to St. Julia’s Catholic Elementary School without the Applicant’s consent or prior knowledge.

31. The Respondent planned a vacation with the children during Christmas 2014 without prior consultation with the Applicant.

32. In an e-mail on December 28, 2014, the Respondent described herself as the “primary parent” of the parties’ children.

33. On January 29, 2015, the Respondent received Michal’s report card.

34. To date, she has not provided the Applicant with a copy of Michal’s report card, despite the Applicant’s repeated requests that she do so.

35. In February 2015, the Respondent signed Michal up for soccer without consulting the Applicant.

36. The Respondent refuses to provide any details of when and where soccer practice is taking place.

37. The Respondent has signed Michal up for tae kwon do without consulting the Applicant.

38. The Respondent refuses to provide any details of when and where these lessons are taking place.

39. The Respondent has refused to provide the Applicant with the name and contact information of the children’s dentist.

40. The Respondent has been taking the children to see a psychiatrist.

41. The Respondent did not consult with the Applicant prior to these consultations.

42. The Respondent has refused to disclose the name of the psychiatrist to the Applicant, as well as the reasons for why these visits are taking place.

43. The Applicant wishes to take the children to see a psychologist, but has refused to provide reasons for seeking psychological services for the children.

44. The Respondent has failed to comply with the disclosure orders of Justice Van Melle dated April 2, 2013 and Justice Emery dated March 18, 2014.

45. The Respondent has failed to pay the costs order made by Justice Edwards on October 14, 2014.

Property/Equalization Issues

46. The matrimonial home is located at 26 Edmonton Street, Brampton.

47. On November 19, 2012, two days after the Applicant was acquitted of the charges brought against him pursuant to the January 21, 2012 incident, the Respondent brought an emergency ex parte motion for exclusive possession of the matrimonial home and a restraining order.

48. The Respondent was granted exclusive possession of the matrimonial home by court order made on November 29, 2012.

49. In total, the Respondent has had court-ordered exclusive possession of the matrimonial home from January 21, 2012 until April 2, 2015.

50. The matrimonial home was sold in February 2015 for $785,000.00, with a closing date of April 2, 2015.

51. The sale proceeds from the matrimonial home are to be held in trust with Donald Marlowe LLB pending a court order or the agreement of the parties.

52. The parties jointly owned two investment properties, located at 40 Millhouse Mews, Brampton, Ontario, and 2360 Parkhaven Boulevard, Mississauga, Ontario, from which they derived rental income during their marriage.

53. The properties were sold on July 19, 2013 and August 6, 2013, for prices of $462,500.00, and $375,000.00, respectively.

54. The sale proceeds from the rental properties are being held in trust by Donald Marlowe pending the agreement of the parties or court order.

55. To date, a total of $25,000.00 was released to each party from the proceeds of both rental properties.

56. A further $28,500.00 was released from the Millhouse Mews property to pay off the parties’ joint line of credit on a without prejudice basis.

57. The Respondent has withheld the Applicant’s 50% share in the net rental income for the Millhouse Mews property, amounting to a total of $3,009.50.

58. The Respondent has withheld the Applicant’s 50% share in the net rental income for the Parkhaven property, amounting to a total of $3,441.74.

59. Since she acquired exclusive possession of the matrimonial home since January 2012, the Respondent only paid the first installment in the matrimonial home’s property taxes in 2014.

60. As of the date of sale of the matrimonial home, property tax arrears will total $10,110.71.

61. The Respondent has not made a mortgage payment from July 1, 2014 up to and including April 2015.

62. From July 1, 2014 until the end of April, 2015, the Applicant has unilaterally made mortgage payments on the property to a total of $20,580.48, inclusive of arrears and interest.

63. In August 2014, the Respondent removed household contents from the matrimonial home without prior consent from the Applicant or court order entitling her to do so.

64. The household contents removed by the Respondent constituted the majority of the household contents.

Police and Peel Children’s Aid Society Involvement

65. In April 2006, the Respondent called the police as a result of an argument between the parties regarding the number of cars they would need to take to the gym.

66. The investigating officers confirmed that no assault or threat of an assault had taken place.

67. The parties separated on January 21, 2012, when the Respondent called the police and had the Applicant charged with five counts of uttering threats and one count of assault with a weapon.

68. The Applicant had never been previously charged by the police in a domestic or any other incident.

69. The incidents for which the Applicant was charged on January 21st were alleged to have occurred on October 30, 2011, November 23, 2011, and on January 21, 2012.

70. As the incident of January 21 had taken place in the presence of the parties’ child Michal, Lisa McDavid, Child Protection Worker from the Peel Children’s Aid Society (CAS), investigated the matter on January 22, 2012.

71. During the parties’ marriage, the Respondent never notified the CAS of any concerns regarding the Applicant’s parenting skills.

72. In a letter dated June 20, 2012, Lisa McDavid wrote that she had not verified any risk of physical harm to the children as a result of her investigation.

73. The Respondent appeared at the bail hearing held on January 22, 2012, and told the Justice of the Peace that the Applicant should not see the children due to psychological reasons.

74. As a result, the Applicant’s bail conditions stated that he was to have access to the children “to be arranged in the presence of a mutually agreed-upon third party, or a valid Family Court Order.”

75. On June 27, 2012, the Respondent called the police as a result of having encountered the Applicant at the Medissa Wellness Centre.

76. The Applicant was not charged with breaching his bail conditions.

77. On July 25, 2012, Respondent called the police alleging that the Applicant had breached his bail conditions by attending an eye exam at Bella Optical.

78. The Applicant was not charged with breaching his bail conditions.

79. On August 24, 2012, during the first access visit following Justice Hourigan’s interim supervised access order, the Respondent mother called the (CAS) on an emergency basis to report concerns regarding the children residing in the Applicant’s care.

80. The CAS made an emergency investigation, and found no concerns.

81. On September 7, 2012, the Respondent made a complaint to the police that the Applicant was communicating to her via his brother, Ted Rocki’s, e-mails, and was thereby in breach of his bail conditions.

82. The police investigated, and found no breach of bail conditions.

83. On November 17, 2012, the Applicant was acquitted on all the charges related to the January 21, 2012 incident.

84. The CAS next became involved on December 6, 2012, when they investigated a complaint made by the Respondent, and again found no cause for concern.

85. On February 9, 2013, on the day of a parenting exchange, the Respondent submitted a complaint to the Peel Regional Police, stating that the parties’ son Michal had stated that the Applicant had kissed and licked his genitals.

86. The police and CAS investigated the matter and were unable to find any facts supporting this allegation.

87. The Applicant did not have access to his children for the two following weeks until the investigation was completed.

88. In her affidavit dated June 17, 2013, the Respondent alleged that the parties’ child Simon would return with multiple bruises and cuts from access visits with the Applicant.

89. The CAS investigated these bruises and found that they were typical for a child of Simon’s age.

90. The CAS could find no evidence to support the Respondent’s insinuation that the Applicant had been abusive or negligent towards the child.

91. On March 28, 2014, the Respondent called the police, stating that the Applicant was following her. The Applicant was in Florida on that day.

92. On June 15, 2014, the Respondent called the police, stating that the Applicant’s brother, Richard Rocki, was videotaping the Respondent during a child exchange.

93. On June 19, 2014, the Respondent called the police to complain that the Applicant had threatened her and her parents during their son, Michal’s, senior kindergarten graduation.

94. On June 20, 2014, the Respondent was cautioned by the police that she could be possibly charged with mischief if she continued calling the police with unfounded allegations.

95. The Respondent has not contacted the police since she was reprimanded.

96. The Applicant consulted Dr. Niesobska in the summer of 2014 concerning a rash on Michal’s arm, during which the doctor diagnosed the rash as highly contagious.

97. Without the Applicant’s knowledge, the Respondent consulted with Dr. Niesobska regarding a very similar rash that had appeared on Simon’s buttocks on October 28, 2014.

98. The Respondent told Dr. Niesobska that Michal shares a bed with his uncle during the time that he is in the Applicant’s care.

99. The Applicant had independently arranged to see Dr. Niesobska regarding Simon’s rash on November 3, 2014.

100. On November 26, 2014, the Respondent took Simon to see a pediatrician at a walk-in clinic, during which the Respondent suggested that Simon’s rash had been sexually transmitted.

101. Based on these suggestions, the pediatrician consulted with Dr. Niesobska regarding the Respondent’s allegations.

102. The Respondent asked Dr. Niesobska to call the CAS, which she did.

103. Dr. Niesobska failed to advise the CAS of the highly contagious rash on Michal’s arm that she had been consulted about in the summer.

104. The CAS attended the Applicant’s parents’ home on December 5, 2014 to inspect Simon’s rash as well as the children’s sleeping quarters.

105. The CAS has expressed no concern with the Applicant’s continued access visits with his children.

106. The Respondent has requested the CAS’s continued involvement regarding parenting and co-parenting.

CITATION: Rocki v. Wencel, 2016 ONSC 3758

COURT FILE NO.: FS-12-74819-00

DATE: 2016 06 15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Roman Jan Rocki

Applicant

• and -

Paulina Elzbieta Wencel

Respondent

REASONS FOR JUDGMENT

TZIMAS J

Released: June 15, 2016