De Matos v De Matos, 2016 ONSC 5138

COURT FILE NO.: FS-12-76328-99 DATE: 2016 08 15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Marcia De Matos P. Bateman, Counsel for the Applicant Applicant

• and -

Nelson De Matos S. Philbert, Counsel for the Respondent Respondent

HEARD: May 10-13 and 16-20, 2016 Written Submissions Completed June 8th, 2016.

REASONS FOR JUDGMENT

LEMAY J

[1] This is an unfortunate case primarily involving the access and custody arrangements for two children, Sierra (age 13) and Ethan, who turned 11 very shortly after the trial concluded.

[2] The parties were married on June 17th, 2000. They separated on August 18th, 2012, and there was a final consent Order relating to custody and access issued by Ricchetti J. on June 26th, 2013. This Order stated that the parties would have joint custody of Sierra and Ethan, and that they would share access according to a schedule. It also makes interim provision for child support. The parties have now come back to Court, and are both of the view that they can no longer share custody of their children. The support issues also remain outstanding.

[3] As will be seen from the issues, there is some urgency to the decision on custody as it affects where Sierra goes to high school in September. As a result, I promised the parties a decision promptly after they completed their evidence and written submissions. This is that decision.

[4] At the conclusion of the trial the parties asked for permission to file written submissions, which I granted. Those submissions are each in excess of thirty pages (exclusive of replies). I have reviewed all of those submissions in reaching my decision.

[5] The parties also provided me with extensive authorities, which I have reviewed. Given the seriousness of the issues in this case, I also provided the parties with some case law that I thought might be relevant to the issues in dispute in order to provide them with an opportunity to comment on that case law. I have reviewed all of this case law, and the parties submissions on it, in making my decision.

[6] The issues that present themselves in this case are:

a) Has there been a material change in circumstances? b) If there has been a material change in circumstances, is joint custody appropriate in this case? c) If sole custody is appropriate in this case, who should have custody of each of the children? d) What amounts should be paid on a retroactive basis for child support? e) What amounts should be paid going forward for child support? f) What should be done with Section 7 expenses? g) Is Marcia in contempt of Court?

[7] The issues in this case were vigorously contested by the parties, and it is obvious that the parties do not get along at all. For the reasons that follow, I have concluded that there is a material change in circumstances, and that joint custody is not appropriate in this case.

[8] However, I have also concluded that it is not yet appropriate to make final Orders respecting custody. The conduct of both parents leaves me with serious questions about how they will manage the access rights flowing from a final Order. As a result, I have determined that the parties should be subject to my supervision with respect to custody and access issues, at least for a period of time.

[9] I come to this conclusion because the issues were hotly contested and the parties both left me with the impression that they were seeking to “win” in Court. As will be seen from my reasons neither party has won. Unfortunately, however, their children have both lost.

[10] In the sections that follow, I will set out some background facts, outline the most relevant facts about each of the children, and address the issues that I have set out above.

Background Facts

[11] Mr. Nelson De Matos (“Nelson”) and Ms. Marcia De Matos (“Marcia”) were high school sweethearts. They were married in June of 2000, and separated in August of 2012. They were divorced on October 9th, 2014.

[12] They have two children, Sierra, now age 13, and Ethan, now aged 11. Both Sierra and Ethan have Individual Education Plans (“IEP’s”), and they both have learning disabilities. Ethan also has a developmental delay.

a) The Order of Ricchetti J.

[13] The parties commenced litigation in 2012 and attended at a number of conferences. Ultimately, a final Order was issued on consent by Ricchetti J. This Order covered all issues in the litigation except for the child support issues.

[14] The key terms of this consent Order are as follows:

a) The parties were to have joint custody of the children. b) Nelson would have care of the children for alternate weekends, and for four weeks of holidays. c) Both parents had equal rights to contact the children’s educators and health care providers. d) The parties must consent to all non-emergency medical treatment, including dental and vision care and counselling. e) The parties must consent to all educational and religious decisions regarding the children.

[15] There were also ongoing proceedings relating to the quantum of child support, and Nelson’s income. Those proceedings were never resolved on a final basis. As a result, I have jurisdiction to resolve those issues on a final basis.

[16] In addition, on June 30th, 2014, Marcia brought a motion to change the terms of the consent final Order, on the basis that there had been a material change in circumstances. She is seeking sole custody, a schedule of visits for Ethan and Nelson and visits between Sierra and her father as arranged between the two of them.

[17] Nelson responded to this motion and sought sole custody of both children, with some visitation rights for Marcia. I will return to the question of whether there has been a material change in circumstances giving me the jurisdiction to revisit the Order of Ricchetti J. below.

b) Family Circumstances Since the Final Order

[18] Since the final Order was made approximately three (3) years ago, both parties have entered into new relationships. Nelson remarried in 2015 to Ms. Suzy De Matos, while Marcia is in a long term relationship with Mr. Wayne Lockhart. Marcia lives with Mr. Lockhart and his sister, Jennifer Lockhart. I will use first names for all of those witnesses as well, as they share last names.

[19] The children are also older. They both attend St. Lucy’s Catholic Elementary School in Brampton, although Sierra will be going into Grade 9 and changing schools next year.

c) The Current Situation

[20] At this point, Sierra has not had any significant access with her father for approximately eight (8) months. In October of 2015, Nelson had planned a two week vacation with his new spouse, Suzy. Sierra was supposed to travel with them, but refused to go. As a result, there was a dispute at the school on the Friday before the vacation was to start. I will review that dispute below. Since that time, Sierra has not been having weekend overnight access with Nelson.

[21] In addition, Nelson was picking up the children after school when he was available, and keeping them between 3 and 7 pm. At the end of November, 2015, Nelson voluntarily stopped picking Sierra up after school. He has not seen her for any significant access since.

[22] Access with Ethan has continued as scheduled since October of 2015.

Evidence and Credibility

[23] I heard detailed testimony from both Nelson and Marcia in this case. They both have frailties as witnesses. One example for each will suffice to demonstrate those frailties.

[24] In Nelson’s case, it is his address. He has advised the school and the government that he resides with his parents at 10 Bushcroft Trail in Brampton, as this address is within the catchment area for the school the children attend, St. Lucy’s. He testified that he had only moved into another property, at 7 Prada Court, after he married Suzy last year.

[25] There are two problems with this testimony, as follows:

a) There were clear text messages from Nelson to Marcia in October of 2013 that stated that he had moved on and was living in Mississauga with someone else, who the evidence revealed was Suzy. b) Nelson’s testimony was also internally inconsistent. He owns 7 Prada Court, and has owned it for some considerable time. He also testified that Suzy moved into 7 Prada Court some considerable time before Nelson moved in.

[26] I reject Nelson’s evidence on this point, and conclude that he has not lived at 10 Bushcroft Trail since at least 2014. More importantly, this is one example of the problems that exist with Nelson’s evidence in this case. I approach his testimony with caution because of these concerns.

[27] I turn now to the example of the frailties in Marcia’s testimony. I will focus on her comments about Sierra’s ability to choose whether she goes on access with her father when she turns 12. Marcia’s testimony was very clear that Stephen Granger, a case-worker from the Peel CAS had advised Marcia that Sierra was old enough to make her own decisions, but that he was not a lawyer. However, in cross examination, Marcia conceded that no one from the Children’s Aid Society has confirmed that she is old enough to make this decision.

[28] Mr. Granger was quite clear in his evidence that he would never have told Marcia this, and that he could not recall anything that he had said that Marcia could have misconstrued to mean that Sierra could make the decision.

[29] I reject Marcia’s evidence on this point. She has either misunderstood what the social workers said or deliberately overstated what they have said in order to advance her desire to have Sierra remain with her instead of seeing Nelson on a regular basis. Given Mr. Granger’s testimony, I am of the view that it is the latter.

[30] I conclude that neither witness was entirely candid with the Court about what has transpired, and I have weighed their evidence against the other evidence and the 46 exhibits (at least two of which had more than 300 pages) that the parties filed with the Court.

Factual Findings Relating to Both Children

[31] There are a number of events that have taken place since the separation that involve both children. In dealing with the access and custody issues, I am generally limited to considering events after the final Order of Ricchetti J. in June of 2013. These events are best considered by categories rather than chronologically over the approximately three years since the final Order of Ricchetti J.

a) Counselling

[32] It is clear to me that this is a high conflict case, and that both children could benefit from counselling. Indeed, both parents recognize this fact because both of them had been seeking to have the children attend for counselling at the Peel Children’s Centre.

[33] In fact, the parties were supposed to arrange for a consent to be signed so that the children could attend at the Peel Children’s Centre for counselling in October of 2014. This consent was never signed. Marcia testified that Nelson refused to sign it because he wanted to ensure that the children’s primary address was his house. It is not entirely clear to me why the form was not signed and counselling not completed.

[34] However, the children have had some counselling. They attended at Tangerine, which is a walk-in centre run by the Peel Children’s Centre in August of 2015 with Nelson. Marcia was not aware that the appointment took place until after it had happened. Tangerine provides some immediate counselling for children and their parents to try and resolve immediate issues.

[35] During the course of the visit, both children identified that they did not like the fights that their parents engaged in. Both children also stated that they wanted their parents to be friends and not argue, and that they wanted to talk to someone else about it.

[36] This counselling visit was a step in the right direction for the children. However, there were two problems with the visit. First, Nelson failed to consult Marcia about the visit. Given that there was a joint custody arrangement in place, I would have expected Nelson to consult with Marcia about this visit. Second, one counselling visit is a haphazard and incomplete way to go about trying to solve some of the problems in this case.

[37] Finally, in terms of counselling, Nelson has also enrolled (with Suzy, his current partner) in a number of parenting courses that are designed to assist him with anger management and with managing what has been described as his passionate personality. The third party witnesses who gave evidence (from the CAS and other agencies) noted at most small improvements in the way that Nelson handles situations.

b) The Sibling Relationship

[38] The relationship between the siblings is important, as it is often a source of strength. I heard evidence from both the parents that the children get along, and I heard the same evidence from the witnesses from the CAS and from other organizations who testified.

[39] While the sibling relationship is a significant factor in my deliberations, I am of the view that other factors are equally significant.

c) Conduct of Nelson and His Family

[40] I heard a number of witnesses testify about Nelson’s passion for his children. I also heard a number of witnesses frankly acknowledge that this passion could often be seen as aggression. A couple of incidents will illustrate the problems:

a) With Marcia, there was an incident in January of 2015 after a soccer game. During the course of the soccer game, Marcia bought the children some fried food. Nelson sent Marcia a three page e-mail about this incident, castigating her for her food choice and saying that she had been “irresponsible and [made] a very bad choice” for the children. Although I acknowledge that Marcia did make a bad choice, the e-mail was completely disproportionate to the issue. b) In June of 2014, Nelson had an interaction with the CAS in which he was trying to figure out why the counselling between the parties had ended. Rather than calmly looking for explanations, Nelson became combative and angry, and it was recognized that his passion for his children causes this. This is merely an example of the problems that Nelson has with remaining calm when it comes to his children.

[41] In terms of the rest of Nelson’s family, I did not hear any concerns about the children’s exposure to any of them.

d) Conduct of Marcia and Her Family

[42] In terms of Marcia’s behaviour, the third party witnesses who testified stated that she tended to be the more passive of the two in the conflict. I do not entirely accept that explanation. I am of the view that Marcia’s conduct could best be described as passive-aggressive, with elements of outright hostility.

[43] In terms of passive-aggressive behaviour, one incident stood out. Normally after school the children would go home with Nelson, as Marcia was not available to pick them up. However, Nelson and Marcia were both attending at an appointment for the children. As they left the appointment, Marcia was holding hands with both of the children. She testified that Nelson angrily yanked Ethan’s hand away from her because he had plans with the children. She blamed Nelson for misconduct and miscommunication, stating that the Order was clear that the children were supposed to go with her and that Nelson’s behavior was inappropriate

[44] I do not agree with Marcia’s statement that Nelson is entirely to blame for this incident for two reasons. First, Nelson’s expectation that the children would be going with him after the appointment was not unreasonable. Second, Marcia herself admitted in cross-examination that she was holding their hands to make sure that the children went with her. It is clear that she knew a confrontation was coming, and it was clear that she knew that they disagreed on the interpretation of the issues. The way in which she approached this incident was clearly designed to provoke a confrontation, and the fact that she cannot see that she might be partially to blame for this incident illustrates her lack of understanding of how her own behaviour has contributed to the problems the children have and the difficult relationship she has with Nelson.

[45] In terms of Marcia’s hostility, two incidents stand out for me, as follows:

a) During the course of a telephone call with the children, after separation, Marcia said to Nelson “why don’t you hang yourself”. This comment was witnessed by two other witnesses (the Hirbirneks) who testified in this case. It is not clear to me whether this incident was before or after the final order of Ricchetti J. in June of 2013. b) On or about May 5th, 2016, after a visit to the dentist, Nelson and Marcia got into an argument about benefits. On the way back to the car, Marcia said “other people die in car accidents. Why can’t your father.” Ethan overheard this comment. It is not clear to me that Sierra overheard this comment.

[46] In both of these cases, I find that Marcia was not concerned about whether or not the children heard her say these things about their father. She despises Nelson and is not concerned if the children are aware of that fact. I specifically reject Marcia’s evidence that, in the case of the comment about the accidents, she said it under her breath and did not intend to be heard. If that were true, she would not have called Nelson “your father”.

[47] This brings me to Marcia’s family. I was made aware that there was a criminal proceeding of some sort between Nelson and Jennifer Lockhart, the sister of Marcia’s new partner. I did not hear sufficient evidence about that proceeding to draw any conclusions one way or the other about what happened.

[48] However, I heard evidence about two incidents involving Marcia’s parents.

a) In June of 2013, right around the time that the consent Order was agreed to, Sierra wrote a note to her mother saying that she wanted to live 50/50 between Marcia’s house and Nelson’s house. When Macia’s mother found out about this note, she pulled Sierra out of the car, called her a spoiled brat. Sierra then went and hid upstairs. Marcia’s mother went upstairs, found Sierra and pulled her downstairs by her hair. Marcia’s mother then made Sierra apologize to Marcia for writing the note. b) At some point, Marcia’s father said to Ethan “I hate your father I want to kill him”. It was unclear to me when this incident took place.

[49] Marcia testified, in reply, that when her parents said inappropriate things about Nelson she would talk to them about these things and tell them not to say inappropriate things about the children’s dad. This evidence is useful in that it supports my conclusion that the incidents described above took place even though Marcia’s parents denied to the CAS that they took place. Otherwise, Marcia would not have had to talk to her parents about their comments about Nelson and their conduct towards the children.

[50] However, given Marcia’s own comments about Nelson and her indifference about whether those comments were heard by the children, I reject Marcia’s testimony that she was trying to prevent her parents from saying and doing these things to the children.

e) School Registrations

[51] Since Ricchetti J.’s final Order, there has been a dispute between Marcia and Nelson about Nelson’s address and where the children should go to school. At some point in the past, Marcia attempted to change the school that the children were registered to without telling Nelson. It was the children who told him, mostly because they were upset about moving schools.

[52] This year, Nelson attempted to register Sierra for high school at St. Edmund Campion, which is where students from St. Lucy’s attend. He attempted to complete this registration without telling Marcia.

[53] This is a small issue in terms of the problems that these children face. However, it is an example of some of the serious problems that exist in the relationship between Nelson and Marcia.

f) Involvement of the CAS

[54] The Peel Region CAS has been involved with this family since 2013. I heard evidence from the two case workers who have had primary carriage of this family’s file, Owen Reed and Stephen Granger. Mr Reed was involved with the family up to 2014, and became involved again in the couple of weeks before the trial. Mr. Granger was involved with the family from 2014 to 2016.

[55] In addition, I had the advantage of reading a great many case notes from the file. Each side wanted to bring to my attention to different aspects of the file. In reviewing this file, it is clear to me that the CAS workers have characterized their primary involvement in the file as being to protect the children from the adult conflict between their parents.

[56] Although there have been other issues that have arisen, it is primarily the conflict between Nelson and Marcia that has resulted in the involvement of the CAS. Some conclusions can be drawn from the evidence and from the clinical notes that I have reviewed:

a) These two parents have significant difficulties in getting along with each other. b) Neither parent is blameless in this case. As described above, Nelson tends to be more overtly aggressive in his dealings with Marcia and with other individuals involved in this case. Marcia tends to be more passive-aggressive in her dealings with Nelson and with the other individuals involved in this case. As a result, the third parties that testified tended to prefer Marcia, at least unconsciously. c) The conflict between the parents is having a significant negative effect on both children.

[57] Having set out these facts that relate to both children, and the conflict between their parents, I will now set out the relevant facts unique to each child.

Factual Findings Relating to Sierra

[58] Sierra likes dance and swimming and spends time on her nails, hair and makeup. She has been described by many of the third party witnesses as being confident, mature for her age and outspoken.

a) Sierra’s Aptitude and Educational Path

[59] I had the advantage of reading significant portions of Sierra’s Ontario Student Record (“OSR”) as well as her Individual Education Plans (“IEP”) and some psychological assessments. I also heard testimony from Susan Steer, the Superintendent responsible for St. Lucy’s, Christine (“Julie”) Comand-Tollis, the Principal of St. Lucy’s and Sandra Oliveira, the Special Education Resource Classroom (“SERC”) teacher who has taught both Ethan and Sierra.

[60] Sierra has an IEP because she has been identified with a learning disability. Under this IEP, Sierra had been in the SERC classroom for approximately half the day until February of this year. Since Sierra is going to Grade 9 in the fall, it was decided (at the most recent parent-teacher interviews in February) to transition her out of the SERC classroom.

[61] It was not clear to me on the evidence how this transition is working out for Sierra.

[62] In addition, the IEP makes it clear that Sierra has difficulty with higher level thinking skills. One example that was used was if Sierra was given a story about a girl wearing red boots. Afterwards, she would be able to tell you that the girl was wearing red boots, but she would not be able to tell you why the girl was wearing the red boots.

[63] I also heard testimony from Dr. Kao about both Sierra and Ethan. Dr. Kao had also completed a T2201 Disability Tax Credit Form for Sierra. In both this form and in his evidence, Dr. Kao stated that Sierra had difficulties in focus, attentiveness, auditory processing and other issues. He also testified that Sierra would be lacking in self-awareness. In his view, Sierra’s problems were sufficient that she should qualify for the disability tax credit. This has been being received by the parents for some time.

[64] Dr. Kao also testified that negative comments made about a parent would have affected Sierra’s willingness to see one parent, as would angry behaviour.

[65] All of this evidence suggests a girl who is confident in what she wants, but who does not have the analytical strengths to understand either why she wants certain things, or whether those things are actually what she needs.

b) The Confirmation Incident

[66] One of the more significant incidents in this case surrounds Sierra’s confirmation sponsor. Sierra was in Grade 8 in 2015-2016 and, as a result, she was being confirmed as a Catholic. As part of the ceremony, each candidate for confirmation must have a sponsor who is also a Catholic.

[67] Sierra originally asked Jackie Hribernik, who is a close family friend (and now only a friend of Nelson’s) to be her confirmation sponsor. Based on the evidence I heard, it was clear that Sierra asked and Jackie accepted. This discussion took place in September of 2015.

[68] Shortly after, however, Sierra allegedly changed her mind and asked Jennifer Lockhart, the sister of Marcia’s new partner, to be her sponsor. This change of heart took place right around the time that Sierra refused to go on the vacation with Nelson. At the time, Jennifer Lockhart was not yet qualified to be a sponsor as she had not yet become a full Catholic herself.

[69] Nelson challenged Jennifer Lockhart’s bona fides as a Catholic by twice visiting the parish at St. Anthony Padua, where Jennifer was taking her classes. He met Pauline Murphy, whom I heard testimony from. Ms. Murphy confirmed that Jennifer’s desire to become a Catholic was genuine.

[70] Ms. Murphy also testified that Nelson was rude, abusive and confrontational in his two encounters with her. Indeed, Ms. Murphy testified that these encounters were so concerning to her that she contacted the police after the second one. I accept her version of events, as Nelson acknowledged that these encounters did become a bit heated. Nelson’s conduct in these incidents was inappropriate, to put it mildly.

[71] However, my criticism on this incident is not limited to Nelson. Marcia testified that Sierra changed her mind about who her sponsor would be. I reject that evidence unreservedly. Given Marcia’s conduct in this case, I am of the view that the far likelier explanation was that Marcia was not happy with Jackie as a sponsor, as Jackie no longer had a relationship with Marcia and did have a relationship with Nelson. In addition, I am cognizant of Sierra’s difficulties with higher level reasoning. Finally, the excitement with which Sierra announced her original choice of sponsor (as described by Jackie) leaves me in no doubt that she was originally pleased with her choice. As a result, I find that Sierra changed her mind about the confirmation sponsor at Marcia’s urging.

[72] The problem that flows from this incident is that Sierra has not wanted to face Jackie or Nelson after her decision, as it would be difficult for her to explain the decision. As a result, I am of the view that it is a significant reason for Sierra’s desire to reduce her access.

[73] I should also note that Nelson has not made this easier on Sierra. He has been insistent, even up to trial, that Sierra acknowledge that she did something wrong over the choice of a confirmation sponsor. I disagree with that view. Sierra simply got caught in the middle of yet another conflict between her parents.

c) The Incidents at School

[74] I have briefly alluded to an incident at school where Sierra decided not to go with her father for access. There are actually three incidents at school where there were disputes about who was taking Sierra home. These incidents are as follows:

a) October 9th, 2015- Nelson came to the school to pick Sierra up for a two week vacation that was his access. Marcia was also present at the school. Sierra was given the choice by Ms. Tollis, the Principal, as to whether she would go with her mother or her father and asked to express her preference in front of both parents. Sierra left with Marcia without incident. b) October 30th, 2015- on this date, both parents arrived at the school shortly before 1 pm. Nelson met with Ms. Tollis and insisted that he should be the one to take Sierra home as this was his access weekend. Marcia was also on the school property. Nelson attempted to have Sierra come home with him, but Marica left the school building with Sierra in her company. Nelson then stood in front of Marcia’s vehicle and prevented her from leaving. The police were called, and arrived at the scene. Eventually, Sierra left with her mother. It is clear that this incident embarrassed Sierra, and that she blames her father for it. It is also clear that Nelson was unable to control his emotions in this incident. However, it is also clear that he was legally correct that it was his weekend for access. c) March 10th, 2016- as I have noted above, in late November, Nelson had stopped picking Sierra up from school for access. On March 8th, 2016, he advised Marcia by e-mail that he was intending to recommence his Court mandated access. Marcia’s response was that Sierra did not want to be picked up by Nelson, that Marcia’s father would continue to do the pick-ups and that she hoped Nelson would not cause another scene at the school. Marcia sent her new partner to pick up Sierra on March 10th, 2016, and Nelson attended at school as well. Ms. Tollis, the principal, made sure that Sierra was able to express her views that she wanted to leave with her mother’s partner, and not Nelson. Nelson became confrontational with Ms. Tollis, yelling at her and pointing out that he had a Court order that permitted him to take Sierra.

[75] Neither parent is blameless in this sequence of events. Marcia deliberately set up confrontations at the school where she could have Sierra “choose” where she wished to go on Nelson’s Court directed access time. Nelson, in turn, escalated conflicts while making arbitrary decisions that damaged his relationship with Sierra. For example, Nelson arbitrarily decided not to pick Sierra up after school at the end of November. This was designed as “punishment” for Sierra and had the effect of pushing Sierra further away from Nelson.

[76] Marcia argues, with some force, that Nelson’s passion for his children is perceived by the broader community as anger and aggression. Marcia also argues that this means that Nelson will be less able to function as a parent because his anger and aggression make him less able to advocate for what his children need. I agree that Nelson’s anger and aggression have been inappropriate. In considering this argument, I also note that Nelson’s anger and aggression has often arisen in situations where Marcia is failing to adhere to Court Orders or where other third parties are failing to adhere to Court Orders.

[77] This observation leads me to one further issue with these incidents. In the testimony of Ms. Tollis, she stated that the school was remaining neutral in this dispute. I disagree. I find as a fact that the school took Marcia’s side in this dispute, and contributed to the deterioration of Nelson’s relationship with his daughter. An analysis of the October 9th, 2015 incident will illustrate the reasons for my conclusion.

[78] It is clear to me that the school board was well aware that there were Court Orders in place relating to this matter. These Orders were part of the evidence that Ms. Steer brought to Court with her. It is also clear that the Board was well aware that, on October 9th, 2015, the Court orders clearly indicated that it was Nelson’s time for access, and that he would be picking Sierra up for two weeks of vacation.

[79] Earlier in the day Marcia dropped by the school to drop off things for Sierra. At that time, Marcia made sure to tell both Ms. Tollis and Ms. Oliveira that Sierra did not want to go with her father for the vacation that was scheduled to start later that day.

[80] When Nelson arrived to collect Sierra, Marcia was also there. Instead of telling the parents that the school would simply be leaving it to the parties to work this issue out, or would be expecting everyone to adhere to the Court Order, Ms. Tollis asked Sierra for her opinion, knowing what it would be. She then enforced Sierra’s (and Marcia’s) wishes on Nelson and left him with the choice to either accept a violation of the Court’s Order or initiate a confrontation.

[81] The proper, neutral course of action in this case would have been for Ms. Tollis to tell Marcia that it was not her day to pick Sierra up and that she should not be present at the end of the day. Instead, Ms. Tollis intentionally embarked on a course of action that resulted in Nelson losing rights that had been given to him by the Court. She adopted the same approach in both the October 30th, 2015 and March 9th, 2016 incidents.

[82] Nelson’s approach to the school has been aggressive from well before this incident. His behaviour towards the school has been inappropriate and unjustifiable for some time. The school has also acted inappropriately in addressing these incidents, as it has not been neutral in this dispute. In particular, I note that Nelson’s insistence that the police should be called did not happen until the second incident where the school ignored the custody Order, and his attempts to videotape Ms. Tollis did not happen until the third time the school ignored the custody Order. In the end, the parties were involved in an ever deepening conflict that did not serve the children’s interests.

[83] It is frustrating when publicly funded bodies that are supposed to be neutral ignore the Orders of this Court, do what they think is best and choose sides in a dispute. That is what Ms. Tollis did in this case, and it makes the work of the Court, especially in family cases, more difficult. Courts make Orders in family cases to give the parties certainty, prevent conflict and preserve the relationship between the child and the parents so that the child is not required to choose between parents.

[84] In this case, the actions of the Dufferin Peel Catholic District School Board have contributed to the damage that has been caused to Nelson’s relationship with his daughter. While it is clear to me that both parents are responsible for some of the damage, the school also made a contribution by permitting Sierra to make a choice that was not hers to make. This damage limits the remedies that the Court can consider, and may have lasting effects on the relationship between all three parties. For example, after the first incident in October, Nelson was more frustrated with the school and Marcia was emboldened to push her interests forward. This is clearly illustrated from the two subsequent incidents.

[85] I should also note that I was critical of Ms. Tollis in the last paragraph. This should not be taken as singling Ms. Tollis out from the other Board administrator (Ms. Steer) in this case. It is clear to me that Ms. Steer was supportive of Ms. Tollis’s “neutral” approach, and was supportive of the decision to ignore Court Orders. It is important for the Dufferin-Peel Catholic District School Board’s management as a whole to understand that Court orders are to be followed. This case illustrates the problems that flow when Court orders are not followed in contentious family cases.

[86] Given the concerns I have outlined above, I am directing that a copy of this decision be delivered forthwith after its release by both counsel to the Board’s counsel who appeared in this matter, Ms. Jennifer Treloar.

d) Access With Nelson

[87] Throughout these reasons, I have made some findings about Sierra`s access with Nelson since the summer of 2015. Those findings include the fact that, in the fall of 2015, Nelson unilaterally limited some access that he was having with Sierra.

[88] However, there are other issues that need to be addressed. First, Marcia has testified that she sometimes scheduled activities when it was Nelson’s time for access, but she did not do this maliciously. I find that Marcia did schedule activities that Sierra would want to participate in (such as a trip to the salon) during times when Sierra was supposed to be having access with Nelson, and she did so for the purpose of making it more attractive to Sierra to skip the access with Nelson.

[89] Second, Nelson has not facilitated the redevelopment of his relationship with Sierra. In particular, I note that after the October incidents at the school, Nelson was offered the opportunity to have dinner with Sierra on some Tuesday nights. He rejected this suggestion on the basis that this was Marcia’s time. This demonstrates Nelson’s rigidity when it comes to these matters.

[90] Another concern that has arisen is Nelson’s view that Sierra is lying on a regular basis. This was a theme in his testimony and in his e-mails throughout the fall of 2015 and spring of 2016. Nelson withheld permission for Sierra to go on her Religion Retreat as well as on a skating trip in November of 2015. He did this as punishment for Sierra’s behavior towards him. Again, this had the effect of pushing Sierra further away from Nelson.

[91] Marcia, however, also contributed to the problems that flowed from this incident by blaming Nelson for the Religion Retreat, and taking Sierra skating the day after the class skating trip. This was done in part to undermine Nelson’s authority as Sierra’s father. Again, both parents are at fault over these incidents.

e) Sierra’s Preferences

[92] Marcia testified that Sierra was unhappy with Nelson’s new wife, and felt like a fly on the wall. She testified that these problems arose in September of 2015, around the time that Nelson and Suzy got married. However, in cross-examination Marcia testified that Sierra had been complaining about access with her father since 2012 when she would have been less than ten years old. Marcia’s evidence on this issue is inconsistent and I reject it.

[93] Instead, I note that Sierra had a happy relationship with Suzy, and was content to have access with her father until the fall of 2015. Then, a number of factors intervened. First, Nelson was away on a honeymoon for a couple of weeks. Second, Sierra was entering grade 8 and starting to focus more on makeup and nails. Nelson did not approve of this, and Marcia was prepared to allow Sierra greater latitude. Third, there was the incident with the confirmation sponsor.

[94] The key moment in terms of access was the October 9th, 2015 incident at the school. I find that Marcia encouraged Sierra in her desire not to go on the planned and agreed-upon two week vacation with Nelson and Suzy. The manner in which this played out empowered Sierra to believe that she could refuse access with Nelson if she had something else she wanted to do, and embarrassed her because Nelson was so aggressive in his approach to the school and Marcia.

[95] From there, the relationship deteriorated quickly, through a combination of conduct on the part of Nelson, Marcia and Ms. Tollis that left Sierra feeling embarrassed by her father’s conduct. Sierra has also stated that as her body goes through changes, “a girl needs her mom.” I do not view those as Sierra’s words, but as words and thoughts that come from Marcia.

Factual Findings Relating to Ethan

[96] Ethan is a quiet child who likes soccer. He has problems with impulsivity, he has a learning disability and is developmentally delayed. More of the time in the trial was focused on Sierra. It appears to me that Ethan can sometimes get overlooked.

a) Ethan’s Aptitude and Educational Path

[97] I have had the opportunity to read the same materials for Ethan as I had for Sierra, and I have also heard the same testimony about Ethan.

[98] Ethan has an IEP because he had a learning disability, and because he has a mild developmental delay. As a result, he faces challenges with basic academic skills, behaviour management, relationships with peers and concentration.

[99] Ethan spends just over half of his day in the SERC classroom with Ms. Oliveira, and she has indicated that she believes this will need to continue for the foreseeable future. Ethan has some aggression issues at school, and Marcia blames these entirely on Nelson and his aggression.

[100] In terms of the extent of his developmental delay, Dr. Kao testified that this delay put Ethan three to four years behind his peers. As a result, he would have a much harder time with things, and processing would take a great deal of time.

[101] Ms. Oliveira, the SERC teacher, testified that Ethan is a friendly student and that if he moved schools he would make friends again. Based on the fact that the IEP lists one of Ethan’s difficulties as “relating to peers” and based on Dr. Kao’s testimony that it takes Ethan a great deal more time to process things, I reject this assertion. I find that moving Ethan out of St. Lucy into another school would likely cause problems in his development. As Ms. Tollis noted during her evience, the reason that she was prepared to accept these children at St. Lucy’s even though they were supposed to be in another school district was because they had been through too much already.

b) Access

[102] Ethan’s access has not been affected by the events relating to Sierra. He continues to follow the same schedule of access as before. However, each of his parents believes that the access should be changed.

[103] Nelson wants to move to sole custody for Ethan, and that Marcia’s access to Ethan be substantially curtailed at the beginning, and then gradually increased in accordance with his best interests.

[104] Marcia wants sole custody for Ethan, with some access for Nelson. She wants to transfer Ethan to a school that is closer to her home.

[105] In her testimony, Marcia provided two pieces of evidence that are of some concern to me. First, she testified that Ethan would be fine if his school location was changed. She testified that he was “adaptable” and was capable of change. However, in response to the very next question, she testified that there was no way that Ethan could handle week about access because “he is used to being with his mother.”

[106] I reject this testimony as it is self-serving. It does illustrate, however, that Marcia has limited insight into the various challenges facing Ethan and that she will tailor her approach to Ethan to suit what is convenient to her.

c) Ethan’s Preferences

[107] Sometimes, Ethan has stated that he would like to live with his parents on a 50/50 basis, and sometimes he has taken different positions.

[108] In his most recent interactions with the CAS, he told one of the case workers in a private visit on May 9th, 2016 that he wanted to go and live with his father.

Issue #1: Has There Been a Material Change in Circumstances?

[109] In this case, both parties agree that there has been a material change in circumstances, and that the test in Gordon v. Goertz is met. However, I was not satisfied with that agreement. In my view, the Court must inquire into whether a material change in circumstances exists.

[110] Section 17 of the Divorce Act sets out the test that must be applied in this case, as follows:

17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

A support order or any provision thereof on application by either or both former spouses; or

A custody order or any provision thereof on application by either or both former spouses or by any other person.

Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

[111] That test has been elaborated on in Gordon v. Goertz (1996), 134 D.L.R. (4th) 321, at para. 13, where the Supreme Court stated:

It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[112] In assessing whether there has been a material change in circumstances, the party seeking the change normally bears the burden of proof. In this case, both parties agree that there has been a material change in circumstances. As a result, in the discussion after the evidence was all in, I invited them to advise me as to why they were asserting that there was a material change in circumstances in this case.

[113] In essence, both parties took the same position on this issue, which is that the conflict between the parents has escalated to such an extent that it amounted to a material change in circumstances.

[114] In response to a question I posed about whether this conflict was foreseeable, counsel directed my attention to the decision of Gray J. in Kerr v. Easson (2013 ONSC 2486, aff’d 2014 ONCA 225) where he stated (at paragraph 58):

I do not accept the applicant’s argument that some of what is complained of here was known at the time the order was made, and thus cannot be relied on. Taken to its extreme, such an argument would preclude the court from making adjustments to an order, even where the welfare of the child is at stake and changes are clearly in the child’s best interests.

[115] I find that observation applicable to this case. The conflict that exists between these parents has increased to a substantial degree since Ricchetti J. made his final Order. Such an escalation was unforeseeable, and it would not be in the best interests of the children to leave the current arrangements in place. Therefore, I agree with the parties that there has been a material change in circumstances in this case. As a result, I will answer questions 2 and 3.

Issue #2: Is Joint Custody Appropriate in This Case?

[116] No.

[117] In Kaplanis v. Kaplanis ((2005), 249 D.L.R. (4th) 620 at para 11), the Court of Appeal considered the question of joint custody, and stated:

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.

[118] In this case, I have spent some time reviewing the communications problems that exist between these parties, and they are considerable. Suffice it to say that a party who suggests to her ex-spouse in front of the children that he hang himself, or suggest in the presence of the children that she wished her ex-spouse would die in a car accident has communication problems that preclude joint custody. Similarly, a party who says “you are the pathetic one and a gold digger”, “your a fucken joke from hell” [sic] or “Are you so stupid. Don’t make me laugh your full of shit…” [sic] to his former partner also has communications problems that preclude joint custody. These are just a sampling of the various communications problems that these parties have.

[119] This is particularly true in a case where these communication problems have been ongoing, have led to police interventions and have resulted in the children being exposed to needless and nasty conflict. Requiring the children to continue with joint custody would not be in their best interests as it would very likely continue to expose them to this conflict.

[120] I am also required to balance the maximum contact principle. Part of my responsibility is, to the extent that it is in the best interests of the children, ensure that they have the maximum amount of contact with both of their parents. When parents with this level of conflict have joint custody, managing maximum contact becomes very difficult. The relationships between all of the parties will work better if Nelson and Marcia do not have to share decision making responsibilities.

Issue #3: Who Should Have Custody?

a) The Genesis of the Problems

[121] The children each have challenges, including learning and developmental issues, which will undoubtedly affect their relationship with their parents. However, the genesis of the problems flows from the fractured relationship between the parents.

[122] Marcia is critical of Nelson’s approach to parenting and argues that it is both controlling and overbearing. In short, Nelson wants to impose his views on everyone else. Marcia states that this behaviour interferes with Nelson’s ability to do what is in the best interests of the children.

[123] Marcia also spent a considerable time in her argument asserting that Nelson engages in “controlling” behavior. In particular, she says that Nelson has anger management issues when anyone questions his authority or his approach. Marcia characterizes the behavior as bullying and overbearing.

[124] Nelson himself acknowledges that he is passionate about the children, and this was obvious to me from his testimony at the trial. It is also clear to me that Nelson’s behavior has been inappropriate on a regular basis. For example, there are the incidents at the school. Although I understand (and have accepted) Nelson’s frustration with the manner in which Marcia and the school officials behaved, he needlessly and inappropriately escalated these incidents. His refusal to allow Sierra to go on the school confirmation trip was also not helpful.

[125] However, I do not entirely accept Marcia’s characterization of Nelson’s behaviour because she has overstated that behaviour, and has refused to acknowledge that Nelson’s behaviour has been in many cases responsive to her own poor behaviour.

[126] Nelson is critical of Marica’s approach to parenting. He states that Marcia’s permissive approach to parenting Sierra has created an environment that pits Sierra against Nelson, as he tries to impose rules on her. I am of the view that this criticism is well founded. I also find that this approach was intentionally adopted by Marcia in order to draw Sierra closer to her and to push her away from Nelson. That being said, however, Nelson has engaged in conduct that has pushed Sierra away from him.

[127] In short, I reject Marcia’s argument that she has not had a negative influence on the relationship between Nelson and Sierra. I accept that there are other elements in this case that have made it difficult and complex, but I am of the view that that Marcia has engaged in conduct that has negatively affected Sierra’s impression of, and relationship with, Nelson in this case. I reach this conclusion for the following reasons:

a) Marcia encouraged Sierra in her desire not to see her father by scheduling activities that Sierra enjoys during Nelson’s access time. b) Marcia has made disparaging and inappropriate comments about Nelson in front of the children. c) Marcia has undermined Nelson’s attempts to discipline Sierra. d) Marcia has undermined Sierra’s relationships with Nelson, his friends and his family. The confirmation incident is simply one example of this.

[128] In short, both Marcia and Nelson have engaged in inappropriate conduct. However, Marcia’s conduct is more concerning to me as she has been engaged in a course of deliberate conduct that has included enlisting the school staff to assist her in reducing Nelson’s access time and interfering in his relationship with his daughter.

[129] Either way, however, the root of the problems in this case is in two parents who are unable to communicate properly, who dislike each other intensely, and who have very different parenting styles. As a result of these facts, both Nelson and Marcia believe that they are the “better” parent. In my view, however, both of them are flawed as parents and both could benefit from reflecting on their own flaws rather than pointing out the other parent’s flaws.

b) Sierra

[130] Nelson argues that I should award custody to the parent who has the better parenting style. That is not the question I must ask. Instead, I must determine what is in the best interests of Sierra.

[131] Although I accept Nelson’s concerns about Marcia’s parenting style, I am of the view that Marcia should have interim sole custody of Sierra for the following reasons:

a) Sierra has spent very little time with her father in the past year, and is at a critical stage of her development, starting high school. b) Given Sierra’s challenges at school, ensuring that she has a smooth transition to high school will be essential for ensuring her success later in life. c) Nelson is partially responsible for the issues that have arisen in this case, as his behaviour has contributed to Sierra’s unwillingness to participate in access.

[132] In addition, I have considered the decision in Supple (Cashman) v. Cashman (2014 ONSC 3581). Cashman was also a case where there had been some alienating behaviour on the part of the mother, as well as some inappropriate behaviour on the part of the father. In deciding that the mother should have sole custody, Sheffield J. stated (at paragraph 17):

In making my order, I am also aware that the children in this case are entering adolescence. They are forming and voicing their own opinions and they are gaining the ability to enforce their opinions, as evidenced by their adamant refusal to see their father despite the efforts of several adult relatives. It is a simple reality that, despite a court order, teenagers are likely to seek out residency as it suits their desires and to “let their feet do the talking”: Probe v. Grohs, 2013 SKQB 360, 430 Sask. R. 236, at para. 4, and Aalbers v. Aalbers, 2006 SKQB 530, at para. 14. It is for this reason, among others, that judges often refuse to transfer custody in cases involving older children, even when there is severe alienation: G. (N.) v. E. (R.), 2010 NLTD(F) 18, at para. 110.

[133] In the circumstances, I am not concerned that Sierra will be at risk of running away if Nelson is given sole custody of her. However, I am concerned that she is reaching an age and a stage in life where her views need to be taken into account. As a result, Sierra’s views are also a factor favouring granting Marcia interim sole custody. This is a lesser factor, however, as I acknowledge Sierra’s difficulties with analysis and critical thinking, and have concerns that her views are not entirely her own.

[134] I reach my conclusion that Marcia should have interim sole custody of Sierra very reluctantly. My reluctance stems from the fact that Marcia has engaged in some behaviour that has negatively affected the relationship between Nelson and Sierra, and I am concerned that awarding her sole custody will only serve to encourage that behaviour. As a result, further steps need to be taken to prevent any further alienation from happening.

[135] First, as part of this sole custody arrangement, I am also directing that Sierra and Nelson participate in reunification therapy forthwith. Given my conclusions about Marcia’s conduct, I am of the view that she should pay half of the costs of this therapy.

[136] In addition, the School Board is directed to provide Nelson with all information in Sierra’s file that a custodial parent would be entitled to. The Board is to provide this information to Nelson directly.

[137] Nelson is to be given weekend access for the day (being 10 am to 4 pm) on Saturdays commencing immediately. Until Sierra and her parents are prepared to move to access from Friday to Monday every second weekend, this Saturday access is on a weekly basis. This is not optional, and Sierra is expected to attend.

[138] In addition, Marcia is expected to ensure that Sierra attends on this access. As noted by Mossip J. in Reeves v. Reeves ([2001] O.J. No 308 (S.C.J)) at paragraph 38:

Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent's inability to act in the best interests of their children. Children do not always want to go school or want to go to the dentists or doctors. It is the responsibility of good parents to ensure that children go to school, go to doctors, and go to dentists. Good parents manage their children's health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place.

[139] My expectation is that Marcia will facilitate this access going forward. As discussed below, I will be revisiting the success of the access visits with the parties in the fall.

c) Ethan

[140] As I have noted above, Marcia has demonstrated a lack of insight into Ethan’s needs, and has defined those needs in terms of her own convenience (see paragraphs 105 and 106). Nelson, on the other hand, understands that there is a need for Ethan to receive more attention and that the conflict that the parents have had has had an impact on Ethan. In addition, Nelson has at least a limited understanding that both parents are to blame for this conflict.

[141] In the circumstances, I am (again reluctantly) persuaded that Nelson should have interim sole custody of Ethan. I reach this conclusion reluctantly because of Nelson’s conduct and his anger management issues. We will be revisiting this issue at the case conference in the fall.

[142] In the meantime, however, Ethan will move to a week about schedule, where he will be with each parent for one week, from 4 pm on Sunday to 4 pm on the following Sunday. The parties may negotiate the time of the transfer, but not the day of the transfer.

[143] Marcia is to be given the same information directly by the school that Nelson receives about Sierra.

[144] There are a couple of other matters that I should touch on. First, I was also concerned about Marcia’s conduct with respect to her family event and the Ottawa Senators game that Nelson had the opportunity to take Ethan to. On a weekend when Ethan was supposed to be with Marcia, Nelson had been given hockey tickets for a Senators game in Ottawa on the Saturday night.

[145] Marcia testified on cross examination that she required that Ethan be returned at 12 noon on the Sunday as they had a family party that day, starting at 1 pm. As a result, Nelson did not feel he could travel to the hockey game in Ottawa and return to Mississauga in time and did not go to the hockey game.

[146] In cross-examination, when it was put to Marcia that she did not get to the party until 3 pm, she testified that it was actually 2 pm when she arrived at the party. I then clarified the time with the witness and counsel, and Marcia changed her answer back to 1 pm. I did not find her evidence on this point credible and I reject it. I find that Marcia intentionally required Ethan to be home earlier than necessary in the hopes that it would prevent Nelson from being able to take him to Ottawa for the hockey game without Ethan being able to blame Marcia for this.

[147] I have also considered the relationship between Ethan and his sister in reaching my conclusion. This is an important factor for the Court to consider. However, in the circumstances of this case, it is not a factor that should override the other issues in this case. I reach this conclusion for the following reasons:

a) It is clear from reading the counselling and CAS notes that Ethan is getting lost in the shuffle between the parents. I am of the view that, given Marcia’s focus on Sierra over the past couple of years (and in her evidence in the witness box), this problem will continue if she has sole custody. b) Ethan has a preference for living with his father. Given his age and his challenges, this is a factor that should only be given modest weight in my considerations, but it is still a factor that I should consider.

[148] I also note that the week about schedule that I have ordered (combined with Nelson’s access to Sierra) will result in Ethan and Sierra spending three out of every four weekend days together, which will assist in the preservation of the sibling relationship.

[149] In terms of Ethan’s schooling, I cannot make any Orders binding the Dufferin Peel Catholic District School Board in this case. However, I do note (and repeat) Ms. Tollis’s evidence that she was prepared to accept these children into her school even if they were not within its boundaries because they had enough in their lives. I would hope that Ethan would be allowed to remain at St. Lucy’s. I can, and will, Order that neither parent may move Ethan from St. Lucy’s.

[150] In terms of who is to pick Ethan up at school, each parent will be responsible for pick ups during their access week, and the other parent is not to attend at Ethan’s school within a half hour of the dismissal time.

[151] In terms of Ethan’s tax credit, it is my expectation that an application will be made by Nelson forthwith and that Marcia will support said application.

[152] Finally, I would be remiss if I did not note that Ethan also needs counselling. The parties are to forthwith ensure that he is enrolled in counselling with the Peel Children’s Centre or some other organization. I retain jurisdiction to deal with any disputes over counselling until I make a final custody order in this matter.

d) Extent of the Orders

[153] In addition to the custody and access orders, the parties are to agree on standard terms for medical appointments, travel, moving and the like. These agreements are to be on an interim basis and, if the parties cannot agree on these other terms within twenty days they can advise me and I will fix those terms.

[154] For the reasons that I have outlined above, these Orders are interim in nature. They will be revisited at a further case conference to be scheduled in the late fall of this year. The parties are to contact my judicial assistant to make arrangements for this conference, which should be scheduled in the first two weeks of December. We will deal with Christmas access at that time if the parties are unable to agree on it.

[155] At that time, the parties will provide me with Affidavit evidence outlining the following:

a) The final report cards for each child from the 2015-2016 school year. b) A copy of the most recent IEP for the children. c) A copy of the report cards for the 2015-2016 calendar year, if any are available. d) Any and all notes and reports from the reunification counselling. e) Any and all reports from Ethan’s counselling. f) Proof that Ethan has been enrolled in counselling. g) Any and all reports, documents or communications generated by the Children’s Aid Society since the CAS workers testified at this trial. h) Their proposal for access and custody for each child going forward, along with the basis for that proposal. This should include the proposal for Christmas access. i) All steps that have been taken, and remain to be taken, in respect of applying for Ethan’s disability credit.

[156] In the meantime, I note that the non-custodial parent will have the authority to address any emergency medical treatment that may arise during their access time. I also note that the non-custodial parent is to be given access to, and immediate notification of, all medical treatment and related information that the children receive.

[157] I note that these Orders are interim in nature for two reasons. First, so that I can ensure that the parties settle into a more productive and proper relationship with each other. Second, to allow the Court to assist the parties in working with Sierra to rebuild her relationship with her father.

[158] I also note that, at the further conference in the fall, I can decide to either make final Orders or to make further interim Orders and to direct a further appearance before me for a further review of this case. To that end, I expressly retain jurisdiction over all custody and access matters in this file until I make a final Order in relation to custody and access in this matter.

[159] For clarity, this means that any and all motions relating to custody and access are to be brought in front of me, and can only be brought in front of another judge with either my leave or with the leave of R.S.J. Daley.

[160] I remain concerned about both the conduct and the approach to parenting that I have seen from the parents in this case. I am not completely convinced that either parent has been acting in the best interests of the children. As a result, I am also expressly reserving the jurisdiction to change these Orders and/or make a final Order that is different from what is set out above, depending on the approach that each party demonstrates going forward. In other words, the custody orders set out above are interim in nature, and can be changed by me at subsequent conferences. I will issue final Orders once we have seen how the parties are able to manage the interim steps I have Ordered.

[161] During the course of final argument, I told the parties that if they felt that my questions of their counsel showed criticism of their conduct, they were right. I am critical of the conduct of both parents (and the school) in this case, which is part of why I intend to remain involved in it for the next while.

[162] Finally, in terms of the Orders I have made, they are very specific in terms of who is (and is not) permitted to attend at school in order to pick the children up as we move through this process. In normal circumstances, I would not be as prescriptive and directive as I have been in this case. However, as I have set out above, I have concerns about the School’s approach to the Orders in this case, and I intend to leave no room for dispute, disagreement or third party decision making.

[163] To that end, I am directing that all Orders relating to access and custody are to be enforced by the Peel Regional Police.

Issue #4: Retroactive Child Support

a) Nelson’s Employment History

[164] Nelson has worked on and off since the date of separation in various jobs. He has qualifications from Humber College in Business Administration.

[165] Nelson was employed by Highrise Window Technology for much of 2013, but left this employ at some point in 2013, and went on Employment Insurance earnings. His Line 150 income was $40,449.00 for 2013.

[166] In 2014, his Line 150 income was $10,230.00, which was exclusively employment insurance earnings. Nelson did not work at all during 2014.

[167] In 2015, Nelson got a job with Alumicor, as of February that year. He worked for Alumicor until sometime in late June or early July when he went off on disability, with anxiety, stress and insomnia. He returned to work in August of 2015 and was almost immediately laid off. He was paid salary continuance for part of 2015. His Line 150 income for 2015 was $58,945.00, at least according to his tax return.

[168] His most recent employment is with TAGG Industries, as a purchasing manager. He obtained this employment effective April of 2016. His annual salary in this position is $73,000.00, and he is eligible for a bonus, depending on performance, at the end of the year.

b) What Amounts Have Been Paid?

[169] Nelson has paid very little in child support. As I understand it, he has paid $904.98 on account of child support.

[170] An order was made in March of 2013 that Nelson pay child support going forward on the basis of an income of $75,000.00. The amount for two children was $1,105.00 per month. No amounts were ever paid pursuant to that Order.

[171] The final Order of Ricchetti J. left the question of child support to be determined once the Respondent provided additional information. I am now required to calculate the amount of child support, if any, owing in this case based on the record before me. I now turn to that calculation.

c) Calculation of Amounts Owing

[172] Marcia argues that I should impute income to Nelson on the basis that he has been deliberately underemployed for the past number of years. She points to the fact that Nelson has been able to get married and travel, even when he has not been holding down a job. She also argues that Nelson has not provided any evidence of job searches during the past three years.

[173] I reject the first argument for two reasons. First, Nelson has been able to hold down a job from time to time, and is currently employed. Indeed, he was employed for a significant portion of 2013 and half of 2015, starting at the beginning of the year. He has also been employed since April of this year. Losing a job happens all the time, and there is no evidence that Nelson voluntarily gave these jobs up.

[174] Indeed, the evidence is to the contrary. In 2015, for example, he was laid off from his position with Alumicor and his last pay stub indicates that he was paid salary continuance, which is pay in lieu of notice on account of a company-initiated termination.

[175] Second, Nelson has provided medical evidence to show that he was suffering from anxiety, stress and insomnia in the summer of 2015. This type of medical condition will make it more difficult for an employee to search for a job.

[176] This brings me to Marcia’s second argument, which is the absence of information on job searches. While I share Marcia’s concern about the lack of any evidence of a job search, I do not agree that Nelson’s income should be imputed at $70,000.00.

[177] Section 19 of the Federal Child Support Guidelines provide the Court with the authority to impute income to a spouse who is intentionally underemployed. In considering Nelson’s circumstances, it is clear to me that he has not demonstrated any basis to conclude that he has conducted a proper job search or sought to earn any income for 2014. As a result, I am of the view that Nelson should have income imputed to him in the sum of $49,000.00 for 2014. This amount represents an average of the amount that he earned in 2013 and 2015.

[178] Nelson argued, on the other hand, that he should not have to pay any support in any event because of the fact that he had the children 40% of the time. I reject this argument as well, on the basis that there is no evidence before me to conclusively establish that Nelson had the children more than 40% of the time for long periods of time.

[179] As a result, I conclude that support should be payable based on Nelson’s Line 150 income for the years 2013 and 2015, and a deemed income of $49,000.00 for 2014. An arrears calculation is included as Appendix “A”, and shows an arrears amount of $22,620.02, exclusive of the agreed upon amounts that Marcia owes Nelson on account of section 7 expenses.

[180] For 2016, I am of the view that no support is payable for the first three months as Nelson had no income and there is no reasonable basis to impute income to him in that time period. However, support should be payable starting in April of 2016. If the parties have any dispute in the calculation of the ongoing amount of support from April of 2016, they can contact me through my judicial assistant and arrange to file written submissions not to exceed two (2) double spaced pages on the issue. If I do not hear from the parties on this issue within thirty (30) days of the release of this decision, then I will presume there is no dispute.

d) Conclusions

[181] This is an area where I am gravely concerned about Nelson’s approach to matters. I acknowledge that he was unemployed for part of the time. However, he was also employed for a considerable part of the time, and there was no reasonable explanation for his failure to pay child support back to the date of separation for the periods when he was working.

[182] As a result, the retroactive amounts are due and payable immediately and are to be collected through FRO in the usual course.

Issue #5: Ongoing Child Support

[183] The calculation of ongoing child support flows from the interim custody and access Orders that I have made above. As a result, a final Order on ongoing child support will be made at the end of my supervision of this case. It will be based on the income numbers as determined in the previous section.

[184] However, on an interim basis, from September 1st, 2016, Nelson will owe Marcia child support on account of Sierra. Again, as noted in paragraph 180, if the parties have any dispute regarding the calculation of these amounts, they may contact my judicial assistant and arrange to file written submissions not to exceed two (2) double spaced pages on the issue. If I do not hear from the parties on this issue within thirty (30) days of the release of this decision, then I will presume there is no dispute.

[185] Once Nelson’s 2016 bonus is known, he is to provide that information to Marcia forthwith. He will then be obligated to pay Marcia an additional amount of child support on account of this bonus.

[186] Ethan is splitting his time between his parents on an equal basis. Given that fact, given the similarities in their incomes, and given the fact that Nelson is paying child support to Marcia on account of Sierra, no child support is owing by either party on account of Ethan at this stage.

[187] As the children age and their circumstances change, these amounts may have to change and I would strongly encourage the parties to avoid litigation over the question of ongoing child support.

Issue #6: Section 7 Expenses

[188] During the course of the trial, the parties significantly narrowed the dispute over the section 7 expenses. I was hopeful that this issue would be resolved, and it has been. The parties are both prepared to agree that Marcia owes Nelson $2000.00 on account of retroactive section 7 expenses, and I hereby order that this amount is to be set-off against the retroactive support owing to Marcia.

[189] Going forward, I find that the section 7 expenses are to be shared on a 50/50 basis. In reaching that conclusion, I have considered my findings regarding Nelson’s income. I also find that Marcia’s income amounts to $65,659.00 on the basis of her 2015 Line 150 income, as well as the undeclared rent that she receives from Jennifer Lockhart.

[190] I have not considered the calculation of the disability tax credit in this calculation, or in the calculation of Marcia’s income more generally. If the parties have any issues in relation to that tax credit (or any other of the credits the children may be entitled to) either relating to section 7 expenses or support payments, they may review those issues with me.

Issue #7: Is Marcia in Contempt of Court?

[191] The case law clearly sets out the test for contempt as follows:

a) The relevant order must be clear and unambiguous. b) The alleged contemnor must have known of the existence of the Order at the time it was breached. c) The alleged contemnor must have intentionally done, or failed to do, anything that was in contravention of the Order. d) The alleged contemnor must have been given proper notice of the terms of the Order.

[192] All of these factors must be proven beyond a reasonable doubt, as contempt is a criminal finding that can draw criminal sanctions.

[193] In this particular case, Nelson alleges that Marcia is in contempt because she has knowingly prevented his access with Sierra. In assessing whether there is contempt, I start with the Order in question, which is the consent Order of Ricchetti J. It is clear to me that Marcia knew of this Order, it is clear she was given proper notice of the terms of this Order (as it was a consent Order) and it is clear to me that the Order is clear and unambiguous in terms of the weekend access that it provides to Nelson.

[194] The key question, as it often is, is whether Marcia has intentionally done (or failed to do) something that was required by the Order. I am not satisfied beyond a reasonable doubt that Marcia has intentionally done (or failed to do) something that was required by the Order for a number of reasons.

[195] First, Marcia had a belief that Sierra could chart her own access terms once she reached a certain age. As the decision above notes, I was not convinced that this was a reasonable belief, and I rejected it in the context of the civil issues. However, I am not convinced beyond a reasonable doubt that Marcia’s belief was not reasonable.

[196] Second, Nelson has contributed in a substantial way to the problems in his relationship with Sierra. His lack of access is, in part of his own making. As noted in Fraser v. Logan (2012 ONSC 4087, aff’d 2013 ONCA 93) at paragraph 47:

This Court must take into account the reality of the situation “on the ground”. For whatever reason, Kaelan simply did not want to live with his Father in accordance with the existing Order. Given Kaelan’s age, and the period of time that he has consistently held this view, it would be unreasonable for this Court to expect the Respondent Mother to physically force Kaelan to have gone on the European trip or to participate in week about residency arrangements.

[197] In this case, taking account of the situation on the ground demonstrates that there are complexities in the custody and access issues relating to Sierra. It is not a clear cut case of parental alienation, although there are elements of that present. Nelson has contributed to the problems by unilaterally changing access.

[198] Third, Marcia did not intend to completely wipe out access. Some attempts were made to try and restore access through the suggestion of Sierra and Nelson having dinner on Tuesday nights. This was an idea that emanated from Sierra, and had Marcia’s support. It was Nelson who rejected the idea.

[199] Considering one of the decisions cited by Nelson will serve to illustrate the differences between this case and one where a contempt finding was made out. The decision in Godard v. Godard (2015 ONCA 568) illustrates the steps that are necessary before contempt will be found.

[200] In that case, there was an original contempt motion brought against the Applicant mother in June of 2014. Although the judge dismissed that motion, he noted serious concerns about the applicant’s alienating behaviour. The parties in Godard then had a number of settlement conferences, and agreed on a schedule of access. The Applicant mother did not comply with the agreement because the daughter did not want to attend for access

[201] As a result, a further Order for access was made in November of 2014. The applicant mother did not comply with this Order either. As a result of that final non-compliance, the applicant mother was found in contempt.

[202] In upholding the contempt finding, the Court of Appeal stated (at paragraph 29):

No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant’s failure to do do all that she reasonably could: she failed to "take concrete measures to apply normal parental authority to have the child comply with the access order".

[203] In my view, we are not yet at the stage of wilful disobedience or parental abdication that the Court found in Godard. However, it is clear that we are moving along the spectrum towards such a situation.

[204] The contempt motion is dismissed. However, I would caution Marcia to carefully consider the words of the Court of Appeal as set out above.

Orders and Disposition

[205] In this case, I am making the following Orders:

a) Marcia is to have interim sole custody of Sierra, and her primary residency will be with Marcia. b) Sierra and Nelson are to participate in reunification therapy, the costs of which shall be equally shared between the parties. c) Nelson is entitled to all information in the school file that a custodial parent would be entitled to, and is entitled to receive that information directly from the school. d) Nelson is to be given weekend access to Sierra on Saturdays from 10:00 am to 4:00 pm, commencing on Saturday August 20th, 2016 and continuing weekly until access is changed either by agreement or Order. e) Marcia is expected to ensure that Sierra attends at this access. f) Nelson is to have interim sole custody of Ethan, and his primary residency will be with Nelson. g) Ethan is to have access on a week about schedule, where he is with each parent for a week starting at 4 pm on Sunday. h) Neither parent is permitted to change Ethan’s school, even on consent, without further Order of the Court. i) The parent who does not have access to Ethan is not to attend at school within a half an hour of dismissal time. j) Nelson is to forthwith apply for a disability tax credit for Ethan, and Marcia is to support said application. k) Ethan is to be enrolled in counselling at the Peel Children’s Centre or such other organization as will agree to provide him with counseling, and both Marcia and Nelson are directed to facilitate this enrolment process. l) The parties are to agree to standard terms relating to medical appointments, travel and moving on an interim basis. The non-custodial parent will have the authority to address any emergency medical treatment for either child that may arise during their access time. m) If the parties cannot agree on the terms in paragraph l within 20 days they may advise me and I will fix those terms. n) The parties are directed to contact my judicial assistant to make arrangements for a further appearance in this matter, and are to file the affidavit materials necessary for that appearance at least fourteen (14) days in advance of the appearance. o) At the appearance outlined in paragraph n, I reserve the jurisdiction to make either further interim Orders, final Orders or any other Orders necessary. p) Nelson is to pay arrears on account of child support in the sum of $22,620.02, with these amounts to be collected through FRO in the usual course. q) If the parties cannot agree on the calculation of ongoing support from April of 2016 through the present, they can file written submissions with the trial office within thirty (30) days of the date that these reasons are released. r) Marcia is to reimburse Nelson for $2,000.00 in section 7 expenses, and that amount is to be set off against the amounts set out in paragraph p of this Order. s) Section 7 expenses are to be shared on an equal basis going forward. t) In the event that the parties have any issues over the inclusion of the disability tax credit or any other child credits in their calculations of section 7 expenses or child support, they can address those issues with me. u) Nelson’s contempt motion is dismissed. v) I retain jurisdiction to address the custody and access issues as set out in these reasons, including the question of costs. w) The orders relating to custody and access are to be enforced by the Peel Regional Police.

[206] As I have outlined above, I am of the view that both parties are responsible for the issues that have required the Court’s intervention. I am not inclined to order costs against either party at this stage. As a result, I am retaining the jurisdiction to award costs at the conclusion of my supervision of this process. I do not want to hear from the parties with respect to offers to settle or other facts related to the issue of costs until I have made my final determinations in this matter.

[207] Finally, I would be remiss if I did not observe (as I did during trial) that both counsel conducted this case in an efficient, effective and cooperative way that made the difficult task of making a decision in this case easier. I thank them for that.

LEMAY J

Released: August 15, 2016

COURT FILE NO.: FS-12-76328-99 DATE: 2016 08 15 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Marcia De Matos Applicant - and - Nelson De Matos Respondent REASONS FOR JUDGMENT LEMAY J Released: August 15, 2016