Editor’s note: Addendum released on March 3, 2016. Text of addendum appended.

CITATION: X v. Y, 2016 ONSC 545

COURT FILE NO.: 36539/14

DATE: 20160205

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

X

Applicant

– and –

Y

Respondent

Martha McCarthy and Jenna Beaton for the Applicant

Y, Self-Represented

HEARD: November 23, 24, 25, 26, 27, 30, December 1, 2, 3, 4 and 16, 2015

Reasons for Judgment

Amended March 3, 2016

Trimble J.

Table of Contents

INTRODUCTION.. 3

BEST INTERESTS OF THE CHILDREN.. 4

FAMILY BACKGROUND.. 5

DIVORCE.. 8

CUSTODY & ACCESS. 8

a) Background. 8

b) The Position of the Parties. 9

i. X.. 9

ii. Y.. 9

iii. The Views of the Children. 11

iv. Determining the Views of the Children. 13

c) Is there Alienation or Justified Estrangement in this Case?. 15

d) Evidence re Alienation/Estrangement 15

i) Lay Evidence. 16

ii) Expert Evidence. 16

iii) Audio & Video Recordings. 17

iv) Credibility of the Parties. 20

e) Why do I find that there is Alienation in this Case?. 25

WHAT IS THE REMEDY?. 39

Custody and Access. 39

MOBILITY.. 43

SUPPORT. 44

a) Imputation of Income. 44

b) Child Support 46

c) Spousal Support. 47

d) Section 7 Expenses. 47

e) Annual Adjustment of Support Payments and Section 7 Expenses. 48

e) Review of Y’s Support Entitlement and Imputed Income. 48

NET FAMILY PROPERTY ISSUES. 48

a) Matrimonial Home. 48

b) Cottage. 49

i) X’s Position. 49

ii) Y’s Position. 51

iii The Law.. 52

c) Cottage Valuation. 54

d) Y’s car brought into marriage. 55

OFFSETS OR ADJUSTMENTS TO NFP. 55

a) Line of Credit 55

b) 2265559 Ontario Ltd. Business Expenses and Fees. 56

c) Professional fees. 60

d) Vesting order Re Cottage: 61

NFP PAYMENT AFTER OFFSET FOR INCIDENTAL EXPENSES. 63

ORDER.. 63

COSTS. 66

INTRODUCTION

[1] I am asked to decide custody and access of the three children: A, B and C. This decision is complex as it requires me to make decisions about whether Y alienated A from X (and whether the other children are also at risk), or whether A is justifiably estranged. Once I answer that question I am asked to determine what the remedy should be.

[2] Y says that A needs to enter into psychotherapy to address the psychological issues identified by, Olga Henderson a psychologist. Mr. Hurwitz asked to see A, and only after that is completed, begin reintegration therapy with her father at a time and at the speed A sets.

[3] X says that Phase II of Howard Hurwitz’s Section 30 Assessment’s recommendations should be imposed immediately. This plan includes a 90 day period in which the children live with X and have no contact with Y or her family. After that period, Y would begin access on a graduated basis, as directed by the therapists. The aim is to achieve equal time with each parent.

[4] In an inquiry such as this I must be guided by the best interests of the children. The parents agree with this proposition. Both of the parents are caring, loving parents, but like most caring loving parents involved in a high conflict divorce, their vision of what is best for the children is clouded by issues arising in the disentanglement of their lives. X and Y differ on what the best interests of the children are. They ask the Court to help them.

[5] Other issues in this case that I will address are spousal support, child support, Section 7 expenses, certain property issues, and deductions from or offsets to Net Family Property (“NFP”).

[6] In deciding this case, I will:

• outline the legal principles guiding me in my determination of the best interests of the children,

• provide some family background to provide context,

• address the parties’ claim for a divorce,

• outline the parties’ positions on alienation/estrangement and the children’s views with respect to custody and access,

• give and explain my decision on alienation/estrangement/custody/access,

• give and explain my decision on what must be done to help A and X restore their relationship,

• address spousal support, child support and Section 7 expenses, and

• give and explain my decision with respect to the ancillary property and financial matters I was asked to decide.

BEST INTERESTS OF THE CHILDREN

[7] Section 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) sets out the criteria to consider when determining the best interests of the children. These considerations have been adopted under section 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.): see Allen v. Wu, 2011 ONSC 6813, 13 R.F.L. (7th) 284, at para. 74. The Court must decide the best interests of the children on all of the evidence and the appropriate legal principles, and not abandon that decision to an assessor: see Dunnett v. Punit, 2006 ONCJ 442, 32 R.F.L. (6th) 446, at para. 7. The best interests of the children are not necessarily the same as the wishes of the children or of the parents: see Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 10 R.F.L. (6th) 373 (Ont. C.A.). Rather, the Court must consider what is best for the children in the long run.

[8] Under CLRA, s. 24(2), the factors to consider in determining the best interests of the child are:

The court shall consider all the child’s needs and circumstances, including:

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

[9] Section 24(3) permits the Court to consider the parents’ past conduct only to the extent that it relates to the parent’s ability to act as a parent.

[10] This case engages all factors in subsection (2), but more significantly paragraphs (b), (d), (e), and (f).

FAMILY BACKGROUND

[11] X and Y met on February 7, 1998 and were married on May 1, 1999 after what appears to have been a short, intense courtship. From the evidence, taken as a whole, each of X and Y is highly intelligent, competitive and driven to succeed. This intensity and drive affected how each approached their separation and this litigation.

[12] The couple has three children: A (d.o.b. […], 2002), B (d.o.b. […],2005) and C (d.o.b. […], 2007). From all of the evidence, in total, the children are intelligent, well-rounded, polite and educated, successful at school and in extra-curricular activities, compete in sports, and, like their parents, appear driven to succeed.

[13] X graduated university with a B.Sc. He began working for Bayer in August, 1995, in sales, eventually becoming director of marketing. He left Bayer in February or March 2005. In 2002, X received his M.B.A., which the company funded.

[14] The couple moved several times during their early marriage to accommodate X’s employment changes. He was relocated from Toronto to Ottawa, where he met Y. After they married, they moved to Toronto, then to Ottawa, then Moncton, then back to Ottawa.

[15] In 2005, the couple, now with A, relocated to Oakville. X. became director of marketing for Ortho Biotech. He stayed there for 1 ½ years then moved to Rx Media, becoming a 50 per cent owner. In September, 2012 he sold his stake in Rx Media but remained a consultant for the new owners for 1 ¼ years. He provided his services to Rx Media via 2265559 Ontario Inc. which he and Y owned on a 55/45 per cent basis, respectively. Once his consultancy with Rx Media ended, X joined Orphan Canada, another pharmaceutical business. It was taken over by Knight Therapeutics who let him go on February 1, 2015. After a period of unemployment, X started his current a job in marketing with the Canadian branch of Pro Bono Bio, a U.K. based company which was expanding into North America. He is paid $300,000 per year.

[16] Y, too, is well educated, having received her B. Comm. in 1995 and her M.B.A. in 1998. Y worked in various management positions after 1995 but ceased working when A was born. She stayed at home to care for the children.

[17] The marriage lasted 14 years. X was a very good provider. The family was very comfortable. The matrimonial home is located in an affluent area in Oakville. The family acquired a leased cottage lot on an island on Charleton Lake (on Whitefish First Nation’s land) and built an up-scale cottage (more of this, later). Shortly before separation, they purchased a time share in the Turks and Caicos. They travelled frequently. At the time of separation, she drove a Land Rover and he a BMW. They owned a boat and a motorcycle.

[18] Y was the main care-giver to the children. She was active in their school and school-related activities. The home is five blocks from the junior school. They discussed hiring a nanny, but did not do so. X says that Y agreed to do so, but later rejected the suggestion. Y says they spoke about getting a nanny but decided, jointly, that it would not be in the best interests of the children.

[19] There is a dispute between the parties as to the level of X’s involvement in the children’s lives. Y agrees that X was a devoted and loving father. Both agree that he was busy building the career that provided the affluence that the family enjoyed. Y paints the portrait of X as a loving, but largely absent parent. She suggests that his absence was due not only to his career building efforts but also due to his training for triathlons or Iron Man competitions, his pursuits of other sports such as squash, and his near obsession with acquiring the lease of the cottage lot on Charleton Lake and building the cottage. She said or implied at several points that X was a near stranger to the children. She took the position that he preferred the cottage to his children.

[20] X admits that he was not the primary care giver. He insists, however, that he was involved with the children as much as he could, and as much as Y would permit. When he was home he did homework with them, and took them to sporting or other events.

[21] According to X, to the outside world their marriage was ideal. Both spouses said, in fact, the marriage was frequently rocky. X said that the pair struggled to find mutually agreeable roles. Y would not let him care much for A or the other children as they came along. She permitted his involvement only when the children needed discipline.

[22] According to X, Y was controlling. A recurring theme in the marriage and at trial was that Y insisted that her family (and in particular, her parents) could care for the children, but that his family could not. Their door was open to her family, but not his. All major holidays were spent with her family, not his. She blocked his attempts to involve his family. She criticized his housekeeping skills. She re-made beds he made. She re-did laundry he did. She criticized his meal preparation. Eventually, he acquiesced. His main roles were in discipline, homework, and the children’s extra-curricular activities. During the marriage, X received counselling to assist him with these issues.

[23] Y admits that the marriage was often rocky and that they struggled from time to time. She said that while they discussed hiring a nanny, they ultimately decided, jointly, that it was not in the best interests of the children to have a nanny. She said that the couple discussed all important decisions. She would gather the necessary information, then, after the decision was made jointly, she would execute the decision. One such jointly made decision was the decision not to move to Windsor, where Y’s parents lived. They discussed the issue, but because it would involve X being absent through the week and being only a weekend father, they couple decided that it was not in the best interests of the children to pursue this option. Y denies that she denied access to X’s family. She pointed out her involvement with holidays and special occasions with X’s family.

[24] Y says that X is controlling. She said that he pursued his goals with single-minded purpose.

[25] They separated on January 7, 2014. In March, 2014, X moved out of the matrimonial home, taking a condominium nearby.

[26] Since the couple separated, as Y said repeatedly in her evidence, in her view, this family has been traumatized by X’s actions, and has been in a state of perpetual crisis.

DIVORCE

[27] The couple separated on January 7, 2014, but lived in the same home until mid-March, 2014 when X moved out to his own rented condominium near the matrimonial home. Both agree that there is no hope of reconciliation. Since I was not provided with a clearance certificate, I cannot grant the Divorce. Either party may proceed over the counter for a Divorce. The Divorce is separated from corollary issues.

CUSTODY & ACCESS

a) Background

[28] On January 7, 2014, X said that the marriage was over and he wanted a divorce. From that point, the parties lived separate and apart in the family home. They had joint custody of the children until February 22, 2014. From February 22 to mid-March, 2014 X had de facto sole custody because of the release conditions imposed on Y following her being charged on February 22 by the police. From mid-March to December 2014, the couple had joint custody, and reached an access arrangement whereby the children would spend time equally between the parents on a 2/2, 3/3 day rotation. In mid-March, 2014, X moved to a condominium close to the family home. Y moved back into the matrimonial home.

[29] By consent order of Gray J. dated March 6, 2014, the Court ordered a Section 30 Assessment by an assessor to be agreed upon or appointed. By consent order of Gray J. dated December 3, 2014, Phase I of the CLRA Section 30 Assessor’s recommendations was put into effect. One of those recommendations was that X would have sole custody of the children. That order remains in effect.

[30] Since separation, A’s relationship with her father has deteriorated. He effectively has no relationship with her now. X initially saw A on the 2/2, 3/3 access rotation schedule. From May, 2014 to February 14, 2015, A refused to visit her father. When she did go, she withdrew from others, completely. Following February 15, after an intense “therapeutic weekend”, A stayed with X for a week. Again, she withdrew completely. On his access weekend of April 26, A ran away from his home, and went to the family home. X and A have no meaningful contact now.

[31] The central issue in this trial is why A has no relationship with her father, and what, if anything, can be done about it.

b) The Position of the Parties

i. X

[32] X says that A has withdrawn from him because Y has engaged in a campaign of parental alienation. Her alienation tactics began January 7, 2014 and continue unabated. Through her behaviour and words, she casts him in a negative light, undermines his authority with the children, and eliminates any respect the children have for him. A is completely alienated. While B and C maintain a good relationship with him, they are at risk of alienation. B began showing signs of alienation in mid-2014, although this stopped with intervention of therapists. X asks the Court to impose Phase II of Howard Hurwitz Section 30 Assessment, immediately. Phase I did not work. Y’s behaviour continued notwithstanding the extensive counseling and assistance given between October, 2014 and February 15, 2015 under Phase I.

ii. Y

[33] Y says that A is justifiably estranged, not alienated, and suffers from post-traumatic stress. A’s negative views of her father arose from her having witnessed Y’s arrest at his behest. A’s estrangement and post-traumatic stress was misdiagnosed as alienation, resulting in two years of forced, misguided reconciliation programs. The diagnosis was wrong and the treatment was wrong.

[34] Y denies that she did anything, intentional or otherwise, to alienate A. As reaction was a natural and understandable reaction to Xs having Y arrested and handcuffed in front of the children. Y says that her conduct was appropriate under all the circumstances. She reacted as anyone would: emotionally, and with denial, anger and sadness.

[35] Y says, alternately, that if her conduct was not appropriate after her arrest that is because she was traumatized by the arrest, which occurred at the same time her mother was undergoing treatment for a recurrence of cancer. Y says that she was further traumatized in the summer of 2014 with when she was diagnosed with a stage 1 cancerous polyp in her uterus for which she underwent a hysterectomy. She relies on the opinion of a Psychiatrist, Dr. Weir, retained by Mr. Hurwitz to assess Y for any psychiatric pathology, who said that after the separation and arrest, Y suffered from an adjustment disorder. Y says that any of her actions after that, if inappropriate, were as a result of the adjustment disorder. Her actions were reactive behaviour to trauma. She agrees with Dr. Weir that after early December, 2014, the adjustment disorder was no longer an issue. Y says that after that, the family made progress because she did what was expected of her.

[36] Y concedes, to her credit, that her adjustment disorder does not excuse her behaviour completely. She admits that there were situations that she could have, and should have avoided. Insight she has gained since the end of 2014, she says, has made this better.

[37] Y says that Phase I (even though it was not a correct approach given the incorrect diagnosis of alienation) was working, albeit slowly. She and A did what they were asked to do throughout Phase I, although it was painful. They participated in extensive counselling. They went through assessments by Ms. Geraldo and Mr. Hurwitz. Y used the parenting coordinator and learned many valuable lessons in parenting skills from her. The success of the program was borne out. The seeds planted in late 2014 were bearing fruit in early 2015, when A, with Y’s encouragement, began asking her father to come and visit.

[38] If Phase I failed (a proposition with which Y does not agree) it failed for three reasons. First, Mr. Hurwitz misdiagnosed the case as one of alienation.

[39] Second, X torpedoed it. It was part of his overall plan to obtain sole custody, move to Toronto and alienate the children from their mother. It is part of “X’s view that the children do not need their mother”. Y sees evidence of this plan in all of X’s actions in this divorce, but none more so than his introducing the children to his new girlfriend at a time that they were still traumatized, the divorce was still high conflict, and when he ought to have been focussing on reunification.

[40] X, Y says, was emboldened by Mr. Hurwitz’s recommendation that if Phase I did not work within six weeks, Phase II was to be implemented. X demanded that Phase II be implemented immediately after the expiry of six weeks after Phase I began. Y says that she was left with no choice: force A to attend access and cause emotional harm, or face losing her under Phase II. A did not want to go to see her father. Y, on certain advice, refused to let A back into the house in order to make it clear to her she was to spend time with her father. For this she was criticized by X and Children’s Aid Society (“CAS”) If she let A back into the house, she was criticized by X. Y said that she was caught on the horns of a dilemma: force A to visit her father and cause emotional harm, or not force her to go and be accused of not participating in the reunification plan.

[41] Third, Y says that if Phase I failed, it failed because A’s issues were not addressed. A was traumatized by February 22. A said she would never trust her father again, and would never forgive him. The failure to treat her psychological trauma has made matters worse. Psychologist Olga Henderson (see report dated June 4, 2015, Ex. 63, Tab C) said that A’s issues must be treated before any further reunification can be done. Henderson said that A is anxious. Rather than dealing with issues, A uses avoidant and dysfunctional defences such as denial, repression and withdrawal/avoidance of stressful situations.

[42] Y says that Phase II is inappropriate because it addresses alienation, not estrangement. If it is to be implemented, following the advice of Psychologist Olga Henderson Phase II should not be implemented until A has finished her counselling and therapy for her own issues.

iii. The Views of the Children

[43] All witnesses agree that A, B and C appear to be wonderful individuals. They do well in school. They are involved in sports. Like their parents, they are athletic and competitive. They are all polite and well mannered. They are also greatly affected by their parent’s divorce, especially A.

[44] The impression one gets from the video recording of A’s interview with Ms. Gottlieb Kase is that A was shattered by what happened on February 22, 2014. A said that her mother was taken away by police, as were the other two children. They were at the police station for five hours. Their mother was away from the house for two weeks, and their father was happy about it. People told her that her mother was visiting her uncle, but she knew this was not the case. She was not told why she was away. She is angry at her father for having her mother arrested. He has never apologized to her. A blames X for what has happened to the family and cannot forgive him.

[45] Mr. Hurwitz, Ms. Henderson and Ms. Geraldo report that A says that X does not care about her. He ignores her for up to eight hours at a time. When she goes to his home, he was usually mad. She cannot please him. X criticized her for not coming to the table to eat. She started going to the table at meal times, but he just criticized her for not speaking enough, not trying hard enough. He wants her to be something she does not want to be.

[46] A says to Mr. Hurwitz, Ms. Geraldo, and in her interview with Ms. Gottlieb case that X is angry and strict. He won’t let her eat when she is hungry. He won’t let her have alone time. The only room in X’s home in which she can have time to herself is the bathroom. When she went in there, she had to lock the door. X just broke it down. He eventually took the door handle off. He gets angry if she spends more than five minutes on her iPod.

[47] X says, and is supported by the assessors that from April, 2015, A wanted nothing to do with him. From February to the end of March, she came for access, but isolated herself from X and the other two children. Towards the late summer and fall, A began sending emails to her father asking for access, which she says, through Y, X refused.

[48] Mr. Hurwitz and Ms. Geraldo said that A did not think that her father will ever change. She does not really want to see him

[49] Mr. Hurwitz and Ms. Geraldo, in their reports and evidence provided information concerning B’s and C’s views. They indicated that B is more bewildered and sad than angry with X. He has questions that he wants answered as to why his parents split up, and why things happened on February 22. He has not yet had these answers.

[50] C is sad about her parents’ split. She wants the family to be one unit again.

[51] Both B and C spoke about being worried about their mother. She often cried during their phone calls with their mother. They expressed concern and distress about watching A’s emotional behaviour after and then during time with their father. Both are happy to spend time with their father.

[52] Overall, there was no dispute about the children’s views. The dispute lies in what was behind their views.

iv. Determining the Views of the Children

[53] Throughout the trial, Y stressed that the children’s voices needed to be heard. This is why on November 18 and 21 she asked that this trial be adjourned in favour of the Ontario Court of Justice (“OCJ”) proceedings A brought[^1]. The notes and evidence of Lourdes Geraldo, an experienced family counsellor, indicate that the children’s need to be heard has been one of Y’s themes since at least February, 2015 when Y told A that if she does not attend counselling sessions, the Court will not hear her voice.

[54] While Y said that the children’s voices needed to be heard, she made no specific application for the children’s evidence to be taken at trial. In a discussion on the subject, I told her that she needed to bring a specific request to the Court for the children’s evidence to be taken directly and ask for directions as to how that evidence should be received. I suggested that while the decision was hers, she might want to wait until closer to the end of the trial when she could assess, based on the evidence received to that point, whether it was necessary to subject the children to the stress of being involved directly in the trial process. Y made no application that this Court receive the children’s evidence.

[55] The children’s clear views and preferences were received in this Court, notwithstanding. The views and preferences of each of the children were presented to the Court by X and Y, X’s and Y’s family members who testified, D.H. (children’s therapist), Ms. M. (A’s teacher in 2014), Ms. K. (A’s teacher in 2015), T.K. (B and Cs’ Kumon teacher in 2015), Mr. V. (Principal at B and Cs’ school in 2014), Dr. M (the children’s pediatrician), Section 30 Assessors Lourdes Geraldo and Howard Hurwitz, Megan Seto (Halton CAS worker), Linda Chodos (A’s therapist), Dr. F. (A’s pediatrician), and Michelle Hayes (parenting coordinator).

[56] With some of these people, I received evidence directly (e.g.: X and Y, certain family members, Mr. Hurwitz and Ms. Geraldo). In other cases the information was provided indirectly through Mr. Hurwitz’s and Ms. Geraldo’s notes and records (e.g.: Psychologist Ms. Henderson, Ms. Geraldo, Ms. Hayes) or contained in a report delivered to Mr. Hurwitz and incorporated into his report (e.g.:, Ms. Henderson, Dr. Weir, Ms. Hayes, Ms. Geraldo).

[57] Usually the only evidence that a Court may consider consists of the sworn oral testimony of witnesses, documents proved through a witness, documents the parties have agreed the contents of which are true, and agreed facts. What someone not called at trial has said to a witness is hearsay and is not admissible except to explain or place in context that witness’s later conduct. What is contained in letters, reports, or other documents is also hearsay, and is not admissible.

[58] In family litigation, children’s evidence may be admitted if it is necessary and reliable. Necessity is met when it would be inappropriate to call the child as a witness. In this case, while I was not asked to hear from the children directly, it would not have been appropriate to do so. The conflict between the warring spouses has often played out in front of or with the children. Exposing them to the stress of being examined in Court or in a judicial interview is unnecessary. It is also unnecessary because of B’s and C’s young ages. There is a risk that A’s evidence is influenced by Y.

[59] The reliability test is met when a) the evidence is not objected to, b) the child has said the same thing to more than one lay witness, or c) has made statements who has demonstrated skill in interviewing children. For a discussion of admitting hearsay in the context of children’s evidence see Hartland v. Rahaman (2001), 2001 CanLII 28160 (ON SC), 22 R.F.L. (5th) 310 (Ont. S.C.), S.R. v. M.R., [2002] O.J. No. 1519 (S.C.), Stefureak v. Chambers (2004), 2004 CanLII 34521 (ON SC), 6 R.F.L. (6th) 212 (Ont. S.C.), and Zaidi v. Qizilbash, 2014 ONSC 201.

[60] These cases also indicate that the weight given to the statements of children depends on such things as the mental and physical age of the child, the circumstances of the taking of the statement, the risk that the child was influenced or manipulated, the risk that the recording was edited or manipulated, and the desire of the child to please the parent taking or requesting the statement. Where influence is likely, the statements or recordings should be given little weight: see cases cited in the paragraph above and Norland v. Norland, [2006] O.J. 5126 (S.C.), Kennedy v. Sinclair (2001), 2001 CanLII 28208 (ON SC), 18 RFL (5th) 91 (Ont. S.C.), and A.G.L. v. K.B.D. (2009), 2009 CanLII 943 (ON SC), 93 O.R. (3d) 409 (S.C.). The best expression of a child’s views and preferences is that elicited through and by trained professionals: see Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 29 O.R. (3d) 417 (C.A.), Forte v. Forte, 2004 CanLII 7631 (ON SC), [2004] O.J. No. 1738 (S.C.), at para. 9.

[61] Y disagreed with some of the opinions expressed by those reporting to Mr. Hurwitz and Ms. Geraldo. She did not, however take issue with any of the facts those others reported to Mr. Hurwitz and Ms. Geraldo. Y testified that A thought that Mr. Hurwitz was not listening to her. Regardless of the conclusions reached by Mr. Hurwitz or those others providing information to Mr. Hurwitz, to the extent that anyone reported receiving the information from or the, views and preferences of the children, there was no controversy. Assessors Hurwitz and Geraldo are trained professionals in determining the views of children. Since no one challenged the reliability of their reports of the children’s statements, views and preferences I accept them as reliable and accurate.

c) Is there Alienation or Justified Estrangement in this Case?

[62] I find that Y has alienated A from X, and if the course of events is not changed, B and C are also at risk of being alienated. While there may be elements of justified estrangement in A’s conduct, the evidence overwhelmingly supports the finding of alienation. Phase II of Mr. Hurwitz’s Section 30 Assessment’s plan for reunification must commence as soon as possible. The parties shall appear before me within 30 days of the end of the 90 day Family Bridges Program, but not later than 120 days of the date of these reasons to report on the status of the assessments and the reintegration plan and to determine whether further orders should be made.

d) Evidence re Alienation/Estrangement

[63] The issue of alienation consumed most of the time at trial. In coming to my decision regarding alienation/estrangement, and the appropriate remedy, I have considered and weighed, carefully, all of the evidence put before the Court. The evidence, in its totality, leads me to the conclusion that Y has alienated A from her father.

i) Lay Evidence

[64] Lay witnesses who gave evidence relevant to the issue of alienation/estrangement were X and Y, Dr. P.T., X’s mother and X’s sister. The views of A, B and C were also indirectly entered into evidence through their parents and the various experts and therapists who gave evidence or whose reports were submitted, and also through the video interviews with Ms. Gottlieb Kase. As explained elsewhere in these reasons, these interviews are fraught with evidentiary problems. However, I have considered the children’s statements where Ms. Kase asked appropriate questions and/or the children gave a clear answer.

ii) Expert Evidence

[65] What constitutes alienation/estrangement, whether, and to what extent it is present, requires expert evidence.

[66] Howard Hurwitz and Lourdes Geraldo gave evidence as experts; Ms. Geraldo as an expert social worker in alienation and reintegration therapy, and Mr. Hurwitz as an expert in section 30 custody and access assessments, high conflict family disputes, parental alienation and other parental child contact problems.

[67] I accepted these witnesses as experts notwithstanding Y’s able cross-examination as a self-represented litigant. I also accept their evidence. Their opinions were thoughtful and carefully considered, and delivered professionally. Their opinions were based on all of the evidence available to them at the time of their deliberations, including expert and lay evidence, interviews with relevant people, and visits with the family members in various combinations to observe their interactions in each parent’s home and at school. Neither Mr. Hurwitz’s nor Ms. Geraldo’s evidence was shaken or materially affected on cross-examination. Their evidence was the only direct expert evidence on the issue of alienation/estrangement.

[68] Y says that Mr. Hurwitz’s diagnosis of alienation was not correct. She says that the real problem was justified estrangement. She cross-examined Mr. Hurwitz and Ms. Geraldo based on this theory. Y tendered Ms. Gottlieb Kase as an expert, in order to advance justified estrangement before the Court. For reasons set out in my ruling of December 9, 2014, I declined to qualify her as an expert. She lacked the required independence and objectivity. Therefore, the only expert evidence available to me on the subject of alienation/estrangement was that of Ms. Geraldo and Mr. Hurwitz.

[69] There was other expert and factual evidence for to me to consider, in terms of those who reported to and had discussions with Mr. Hurwitz and Ms. Geraldo. These individuals are listed in Mr. Hurwitz and Ms. Geraldo’s reports, but included D.H. (children’s therapist), Ms. M. (A’s teacher in 2014), Ms. K. (A’s teacher in 2015), T.K. (B and Cs’ Kumon teacher in 2015), Mr. V. (Principal at B and Cs’ school in 2014), Dr. M. (the children’s pediatrician), Megan Seto (Halton CAS worker), Linda Chodos (A’s therapist), Dr. F. (A’s pediatrician), Psychologist Olga Henderson, and Michelle Hayes (parenting coordinator).

[70] The facts and opinions stated in a Section 30 Assessor’s report are prima facie evidence of their truth so long as they are not contested: see K. (L.D.) v. K. (M.A.), 2015 BCSC 226; W. (K.M.) v. W. (L.J.), 2010 BCCA 572, 12 B.C.L.R. (5th) 217; Bramwell v. Bramwell, 2004 BCSC 72; Goudie v. Goudie, 1993 CanLII 1073 (BC SC), [1993] B.C.J. No. 1049 (S.C.); and Hamilton v. Hamilton, [1983] B.C.J. No. 2496 (Prov. Ct.). While Y did not agree with the conclusions Mr. Hurwitz and Ms. Geraldo reached, neither party took serious issue with the facts and reports from others contained in their reports.

iii) Audio & Video Recordings

[71] I admitted into evidence four audio recordings X made, each of which records only a portion of the events that occurred at the specified time and place:

a) February 21, 2014 involving X, Y and A at the family home,

b) May 5, 2014 involving X, Y and A outside A’s school,

c) May 28, 2014 involving X and A (the other children were present) in the car, and

d) April 26, 2015 involving X, Y and A at the family home.

[72] I also admitted a series of four video clips A made on her iPod of an interaction in the driveway of the family home on July 4, 2014 involving X, Y, A and B (C’s involvement or exposure is uncertain since she was in X’s car at the time). Y produced these video clips to X as part of a production request. The clips are not a seamless recording of what occurred that day. There are gaps and omissions.

[73] Finally, I admitted video recordings Ms. Gottlieb Kase made of her interviews with the children.

[74] I admitted all of these recordings as being relevant to the issues of custody, access and alienation, and as evidence of the children’s views and preferences, subject to weight.

[75] To some extent each of the parties relied on these audio and video recordings.

[76] X criticized Y for editing the video of events on July 4, 2014, and not preserving the original recording, or the device on which the video was recorded. Y criticized X for recording only portions of the events of February 21, May 5 and 28, 2014, and April 26, 2015. Both said that they recorded all or parts of most of their disputes with each other. Both can be criticized for being selective in the recordings submitted to the Court. Only four of a larger potential pool of recordings were put before the Court.

[77] The four audio recordings were all recorded by X, he says, in order to record A’s and Y’s statements and reactions to situations. He says that they are only examples.

[78] I accept these recordings to the extent that they record the children. X selected these recordings from a larger pool of recordings. To that extent, their evidentiary weight is diminished as their selection from a larger pool suggests that they may not be representative of a larger situation (unless corroborated by other evidence). To the extent that the audio recordings record X’s voice, I have given them no weight. His statements are self-serving. For example, in his recording of events on February 21, 2014, X says several times, and in a calm, rational voice, that he is afraid of Y. She had in her hand a kettle of recently boiled water she intended to use to heat the children’s thermos bottles. Y said that she did not intend to throw it at X. She had it in her hand and did not put it down when X took her phone. A’s comments suggest otherwise. She is heard to tell her mother to put down “the tea”. However, X instigated this phase of the interaction. He was behind a locked door. I do not think that he reasonably thought that Y would have thrown the hot water at him, once things had calmed down.

[79] With respect to Ms. Gottlieb Kase’s interviews with the children, X criticized them as being unreliable. He said that Y was within earshot of the computer during the A’s interview, Ms. Gottlieb Kase’s interview method was improper (she asked leading questions of the children), and Ms. Gottlieb Kase was not impartial. X says that Ms. Gottlieb Kase’s lack of impartiality and inappropriate methodology renders the interviews of little value. Y said that the interviews were accurate reflections of the children.

[80] The admissibility of recordings of the children depends on the same considerations as the admissibility of other hearsay with respect to children’s wishes, as does the weight to be attached to such recordings: see F.J.N. v. J.L.N. (2004), 2004 CanLII 6247 (ON SC), 9 R.F.L. (6th) 446 (Ont. S.C.). Recordings should be treated even more skeptically than written statements by children. The recordings are done, usually by parents, in high conflict situations. The parents select and put to the Court those recordings that are the most self-serving. The children are susceptible to manipulation. The events recorded may be provoked, for the purpose of obtaining the recording. The parties, or children, may not know that they are being recorded. These recordings were not made by Y, and therefore are unlikely to have been manipulated by her.

[81] To the extent that X’s audio recordings record Y or the children, I accept them as their statements in the situation. The recordings, however, require context from other evidence. I have had to take context from viva voce evidence. I note that Y did not deny what she said in those recordings.

[82] With respect to the video of events in the driveway at the family home on July 4, 2014, I accept that they are true depictions of the events that transpired, recognizing that there are gaps in the video clips, and they do not start at the beginning or end at the end of the events that transpired on that day. I have had to take context for those video clips from viva voce evidence.

[83] I also accept Ms. Gottlieb Kase’s interviews of the children as reflective of their views, although I am cognizant that their statements have to be considered in context of Ms. Gottlieb Kase’s often inappropriate methodology she used in questioning. With respect to A’s interview, I accept her statements as her views, with the same caveat concerning Ms. Gottlieb Kase’s methodology. I also am cognizant that she is the child most influenced by and aligned with Y, and that Y may have been within ear shot while Ms. Kase interviewed A. At the beginning of the interview, we see Y speaking to Ms. Gottlieb Kase. She put A in front of the computer for the Skype interview and left the screen. Ms. Kase asked A to confirm that Y could not hear the interview. A yelled and asked if Y could hear her. Y responded that she could not.

[84] Based on these findings with respect to the various recordings, I have used them to inform myself of the children’s views, as stated elsewhere in these reasons.

iv) Credibility of the Parties

[85] As in all trials, much evidence turns on the credibility of the parties. In assessing credibility, I direct myself to the following considerations:

a) The demeanor of the witnesses. Findings of credibility should not be made on demeanor alone.

b) Does the evidence make sense in light of the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and condition? Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.).

c) Does the evidence have an internal consistency and logical flow? R. v. C.H. (1999), 1999 CanLII 18939 (NL CA), 182 Nfld. & P.E.I.R. 32 (Nfld. C.A.).

d) Is the evidence consistent with the witness’s other statements? How significant are the differences, and are they adequately explained? R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788.

e) Is there independent confirming or contradicting evidence? R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531.

f) Does the witness have a motivation to lie or exaggerate? The witness’s motivation to lie must be greater than his/her interest to win or lose the case. R. v. S.D. 2007 ONCA 243, 218 C.C.C. (3d) 323.

[86] Both X and Y are good parents (individually). They both love their children and want the best for them. They love and are involved with their families. They are responsible adults who have raised wonderful children. Both parties continue to want the best for the children, and acted in what each thought was the best interests of the children. X and Y’s views of and dispute with each other, however, have clouded their vision. As in any family trial, the spouses’ evidence was coloured by emotion generated by the breakdown of their relationship. In this case, each party’s evidence must be considered carefully in light of what they now feel for and think about each other.

[87] On the whole, I find X slightly more credible that Y. Where any aspect of my decision is based solely on a contest of credibility of the spouses, I preferred the evidence of X. More frequently, his evidence made sense in light of other evidence. In most areas, however, I was able to base my decision on the evidence of the parties, corroborated by third party information.

[88] Neither party is wholly without credibility problems.

1. X Credibility

[89] Generally, X was a good witness and his evidence supported by other more objective evidence. In many instances his evidence was not reliable.

[90] Y painted X as a cold, calculating, Machiavellian character who calculated every action to achieve his desired result: full custody of the children, the right to move to Toronto to begin a new life with his new partner, and to exclude Y from the children’s lives. He was often cruel, baiting her by singing to her a song he made up about taking the children from her for half a year. He made a joke and said cruel things to Y’s mother about her cancer while she was undergoing cancer treatment.

[91] This portrait is not correct, in whole, but true in part. For example, X’s explanation as to why he went to the police on February 22, 2014, is not credible.

[92] X says that based on events that occurred following January 7, 2014, he was worried that Y was escalating emotionally, and was not dealing with the separation rationally. He decided that she needed ‘a talking to’. He consulted with his family, in particular his sister, M.F. (who had been a family law lawyer in Ottawa, but for several years had concentrated on reproductive law). He thought that by reporting Y’s assaults and threats to the police, the police would speak to her, the effect of which would be that Y would approach the separation more rationally.

[93] I do not accept this explanation. X is a sophisticated, rational, considered thinker. He is an entrepreneur and has served in executive and management positions. In those positions, he is required to consider actions, weigh risks attached to each, assess outcomes, and then decide on the course of action to be taken. He is required to do this rationally, and dispassionately.

[94] I find that on February 22, 2014, X went to the police with the intent that his wife would be arrested and charged. I find that he did this in order to obtain initial custody of the children, and limit (and later control) Y’s access to the children. X must have known when he went to the police that the likely outcome would be that charges would be laid. He also must have known that release or bail conditions would be set restraining contact with him and keeping Y a distance from the family home. For him to think otherwise, is not believable

[95] There is no credible evidence to support X’s statement that he had any reason to believe the threats his wife made were other than empty threats (e.g. that Y’s brother and father would shoot him with his own guns, and that she or they would burn down the cottage). He admitted, as did she, that Y had a temper, and would react emotionally and spontaneously. In the context of how these spouses react to each other and their admitted rocky and tempestuous relationship, the reasonable conclusion is that Y’s threats were of a benign nature, and not serious.

[96] X must have known that Y would use custody and access against him once he left the marital home. Since A’s birth, Y had been very controlling regarding access to A, and later all the children. Once X announced that he wanted a divorce, Y denied access to the children. She took the children into her bed, where they slept as a group, usually. She tried to exclude X from the children’s lives by planning meals for times when he was not present, or deliberately not setting the table to include him at meals. From January 7 to February 22, he had asked several times for a parenting or custody and access schedule, but was denied it.

[97] X’s actions in planning his visit to the police suggest that he knew Y’s reaction would be emotional and might result in charges being laid. That is why he arranged for his sister, M.F, to be available nearby to take the children while the police were at the home with Y.

[98] His actions at the police station indicate that he wanted Y charged. X said that when the police began to ask him, under oath, about the threats Y made, he felt uncomfortable. He knew that they were going to charge Y, but said that he had to answer their questions as he was under oath. He did not ask the police to only speak to Y. He did not ask them to not charge her. He did not refuse to answer or end his interview. He did not try to retract his statements to the police.

[99] X’s involvement in the argument on February 21, 2014 that he partially recorded also speaks to his carful, calculated nature. He said that a dispute began in the kitchen. Both he and Y began recording on their phones. He took her phone from the table and ran upstairs to the bathroom, locking himself in. He says that he wanted to see if Y had erased a recording of her apologizing to X for two of the incidents in which he says she assaulted him. Y followed him, screaming at him to return her phone. She was carrying a kettle of recently boiled water. This is verified by A telling her to “put down the tea”. Y is heard hitting and kicking the hollow-core door. X is heard saying such things to Y through the door as “I don’t feel safe”. He lied to her about why he took the phone. In context, his statements are self-serving. It appears he made the recording in the event he needed to use it.

2. Y’s Credibility

[100] Y’s conduct informs my views of her credibility. Her evidence was often incorrect, hyperbolic and unreliable. She acts and speaks impulsively. What she says about a specific event differs depending on when and to whom she is speaking. Consider the following examples:

1. She said that X carefully staged the arrest as part of his overall goal to remove her from the children’s lives, and move to Toronto with his new girlfriend. There was no evidence that X intended to remove Y from the children’s lives. His intention was to implement Phase II in order to restore his relationship with A whom Y had alienated, so that the family could move to equal time with the children and each parent.

2. She said in her summing up that Phase II would result in the children losing their mother. There was no evidence of this. To the contrary, Mr. Hurwitz and Ms. Geraldo said that Phase II was designed to address the alienation, and then work toward reintegrating both parents into the children’s lives.

3. At times she implied and at others said that X conspired to remove her from the children’s lives, a conspiracy in which X’s sister, M.F. had participated. There is no evidence of a conspiracy. M.F. admitted that she introduced X to his current girlfriend and assisted X in his decision making about going to the police, but as a sister, not as a lawyer.

4. Y said to assessors and in her evidence that the three children were present and saw Y arrested and placed in handcuffs on the driveway of the home. This is not so. She admitted in cross-examination that the younger two children were in the house at this time. None of the recordings made by Ms. Gottlieb Kase did the children indicate that they saw Y handcuffed. Indeed B and A either denied seeing handcuffing, or do not remember.

5. Y said that her arrest was timed so that it would be done in front of the children, and that she was not given the opportunity to have the children removed from the situation. She admitted in cross-examination that she was given the option to have the children removed from the home so they would not be a witness to police involvement, but declined that option. She justified her decision on the basis that they had no family in the area and did not know the neighbours well enough to ask any of them to take the children. One of the neighbours, however, Kelly, they knew well.

6. She said she was not given the opportunity to see her children for two weeks after the arrest. This is not so. X arranged access (notwithstanding the restrictive bail conditions) through Y’s brother, with the first occurring two days after the arrest. Within three weeks of February 22, X moved out of the family home into his rented condo, and Y returned to the family home.

7. At trial, Y said, categorically, that she never received copies of the audio recordings X played at trial. X said that he gave them to Mr. Hurwitz, who sent them to Y as part of his file. She denied categorically that Mr. Hurwitz provide them to her. Hurwitz said that he put the memory stick in the box for Y, himself. When Y was asked if she searched the whole box he received from Hurwitz she said that she had been through “almost” the whole box.

8. During the discussion concerning admitting X’s audio recordings, Y said that she “never” recorded X. In response to questions from the Court, she admitted that she did, on many occasions.

9. Y, days after she was charged, swore a private information that resulted in charges against X, alleging that he assaulted her at a family wedding seven months before separation. M.F., who was the emcee at the wedding, said that she was a witness to the whole of this fight and that there was no physical contact during this fight between the parties. Before me, Y did not contest this evidence.

10. Y asked X to take the dog while she vacationed with the children. X agreed. Negotiations began with respect to a pick up date, and were difficult. They had to involve Ms. Hayes, the parental coordinator. When X took the dog, Y accused him, in front of A, of stealing the dog, a position she repeated to Hurwitz (Ex. 46, Tab 1, P. 43) and to Ms. Hayes (Ex. 47, Tab 13, p. 13).

[101] Whether any specific one of Y’s acts was intentional, or merely emotional or impulsive acts, is open to debate. All of her actions cannot be dismissed as unintentional.

[102] Y acts in accordance with her own views irrespective of whether she has the authority to do so. For example, pursuant to Gray J.’s order in October, 2014, X had temporary sole custody. Notwithstanding this, Y acted as though she had sole custody of the children. Y, knowing that she did not have custody, allowed Ms. Gottlieb Kase to interview the children. Y, knowing that she did not have custody, encouraged and facilitated A in retaining counsel, Mr. Glass, and in bringing the Ontario Court of Justice application for protection for all of the children, which I held to be a tactic designed to derail these proceedings. She persisted in these behaviours even after X, with custody, asked that they cease.

e) Why do I find that there is Alienation in this Case?

[103] Based on all of the evidence, I accept the opinions of Mr. Hurwitz and Ms. Geraldo that Y has engaged in conduct that has alienated A from her father, and that this alienation is severe. I accept that Y began similar behaviours with B, although his relationship with X remains good. I accept that if Y’s behavior does not change, the remaining two children may also become alienated from their father. While I accept that some of A’s views of her father arise from her participation in the events of February 22, 2014, the overwhelming weight of the evidence supports the conclusion reached by Mr. Hurwitz and Ms. Geraldo that A is alienated from her father.

[104] Mr. Hurwitz defined Parental Alienation as a child’s complete rejection of a parent and uncritical favouring of the other, without justification. The favoured parent encourages the child’s behaviour. Where there is justification for the rejection and no involvement by the other parent in creating or fostering the rejection, the case is one of justified estrangement. Cases of alienation often involve some aspect of justified estrangement. The child’s rejection of one parent often extends to that parent’s family. The favoured parent either creates the child’s view of the rejected parent, and/or facilities or encourages it, or does nothing effective to counteract the rejection.

[105] Mr. Hurwitz and Ms. Geraldo testified, and are supported by the literature[^2], that there are significant clinical features of alienation which include:

• A campaign of denigration of the rejected parent.

• Weak, frivolous rationalizations for the rejection,

• Lack of ambivalence towards both parents; one is idealized without recognition of negatives, while the other is devalued without any recognition of positives,

• The child claims that the thoughts are his own, and not influenced by a parent,

• Reflexive support of the alienating parent in the parental conflict,

• Absence of guilt over cruelty to or exploitation of the rejected parent,

• Spread of rejection to extended family and friends of the alienated parent.

[106] Mr. Hurwitz said that all of these markers are present in this family: see Hurwitz Section 30 Custody and Access Report, September 23, 2014, Ex. 62, page 118 – 120. Ms. Geraldo agreed. At the time of his first report in September 23, 2014, Mr. Hurwitz found that A had rejected her father and aligned herself with her mother. Y had denigrated X, repeatedly, in front of the children. A insisted her views were her own. They were categorical, and without any guilt. She rejected X’s family. She was encouraging her siblings to do the same.

[107] Both Hurwitz and Geraldo said, and are supported by the literature[^3], that there are 16 alienating behaviours common in alienation cases:

• Bad mouthing,

• Limiting contact,

• Withdrawal of love or becoming angry when the child is positive toward the other parent,

• Telling the child that the other parent does not love the child,

• Forcing the child to choose or express loyalty,

• Telling the child that the other parent is dangerous,

• Confiding in the child about adult relationships with the other parent,

• Limiting photographs of the other parent,

• Forcing the child to reject the other parent,

• Cultivating dependency on the favoured parent,

• Asking the child to spy on the other parent,

• Telling the other parent that the child does not love him/her,

• Referring to the other parent by their first name,

• Referring to someone else as mom or dad,

• Having the child keep secrets from the other parent,

• Changing the child’s name.

[108] Mr. Hurwitz found eleven of these 16 behaviours in Y’s and A’s conduct. Ms. Geraldo found many of them as well.

[109] The evidence supports the assessors’ conclusion of alienation, overwhelmingly. All witnesses, even Y, either stated that A’s views of her father and of who was at fault for the separation aligned with Y’s views, or that was the thrust of their evidence.

[110] I will approach my analysis in three phases. The evidence I review comes from the parties themselves, Mr. Hurwitz’s and Ms. Geraldo’s evidence, and the audio and video recordings. As indicated above, where the evidence of the parties conflicts, and absent corroboration for one or the other’s versions of events, I prefer the evidence of X to that of Y.

• January 7 to December 31, 2014

[111] In the months immediately following X’s announcement that he wanted to separate, Y began her alienating behaviour. The effect of X’s announcement must be taken in context. It came at the same time as Y’s mother was going to cancer treatment, followed in the summer of 2014 by Y having to have a hysterectomy because of a cancerous lesion on year uterus.

[112] According to X, Y cried almost constantly during the first few months after X’s announcement, but that this crying continued for long afterward. This conclusion is amply supported in the evidence: see Ex. 53. Y admitted that she cried a lot. She said that she could not hide it all the time. She said that the children felt what she felt. Y admitted that she could have done better.

[113] X said that the two fought frequently, often in front of the children. She had the children sleep with her in her bed on many nights. She and the children watched T.V. most evenings in her room. She timed supper for the children before X arrived home in the evenings. Periodically, when X was in the house, she set the table for four, not five. This played out with and in front of the children.

[114] Between mid-February and April, the crying continued in front of the children. X said that in FaceTime calls between the children and Y during the children’s time with X, Y cried much of the time. The children cried and told Y not to cry. Y usually asked the children if they missed her and questioned them frequently about whether they felt safe with X. Y did not deny this. There is no evidence that Y tried to be stoic, and to not involve the children in her pain following the end of her marriage. There is no evidence of any reason for any concern about the children being safe when with X.

[115] After X moved out and Y returned to the home, alienating behaviours increased. X said that he programmed each child’s cell phones with his and his family members’ contact information. He later found out that all X’s family members had been blocked in terms of texts, emails and phone contact. Y denied that she blocked X’s family’s contacts. She said she did not know how to do this, saying that she was not technologically sophisticated. Y’s use of her smart phone at trial and the evidence support the conclusion that she was fluent in the use of her smart phone for texting and emailing. No one suggested that the children blocked these contacts. The only conclusion is that Y did.

[116] By May, X said that Y called the children during his time with increasing frequency, in order to interfere with his access. She says this was because he was hanging up on her. Based on my credibility findings, I prefer his evidence. It is more consistent with Y’s other actions.

[117] By April, 2014, X says A had withdrawn from him completely such that in May, there was no contact with her. Mr. Hurwitz reports that from March into the summer, 2014, A emailed X and his sister demanding that they stop texting her. Y told Mr. Hurwitz that she would speak to A to stop this behaviour. The behaviour continued. Y said, and Ms. Geraldo reported, that A does what Y tells A to do. That A continued to tell her father and aunt to stop texting her suggests that Y took no steps to correct A.

[118] The events of May 5, 2014 is one example of how A had withdrawn, and Y had alienated her.

[119] X said that he picked up B and C at their school and waited for A to get off the bus from her school, which dropped off at B and C’s school. She was not on the bus. Y arrived, with A in the passenger seat. Thus began a two hour session of during which X tried to get A to come for her overnight visit with X and the other children.

[120] X said that for the first third of this time, X spoke to A through the open front passenger window of Y’s car, while Y sat in the driver’s seat. While they were there, B got into Y’s back seat. A did not want to go with X. Y said she was sick. A was rude and dismissive of her father. Y did not correct or discipline A for her behaviour. X moved to the driver’s side to speak to Y. A was yelling at X. She got out of the car, came to the driver’s side where the parents were speaking. Y was defending A’s refusal to go with her father. A kicked X in the shin three times, to which Y said “good for you” three times. She encouraged A, not corrected her. Y did not deny this.

[121] In the second third of this discussion, X says that Y accused X of abandoning A. She demanded that X put in writing that he asked Y to take A so she was not accused of abandoning A. During this discussion, an issue arose that on a recent access visit, X did not feed B before going to the baseball practice. Y told B that this was child abuse. Y did not deny this.

[122] In the last third of this exchange, X said that A ran into the principal’s office of the school. Y went to get her. A complained of child abuse. The principal came out and reassured A that there was no child abuse. While Y was in the school, X arranged with another parent to take B to his baseball practice.

[123] After the principal left the scene, Y continued to demand a written statement from X confirming that he asked Y to keep A. A continued to yell at him and demand that he do what Y said. Y said that she did not trust X. She accused him of abandoning A. She told A that X is abandoning her.

[124] I accept X’s version of events only in part because of my findings on credibility. I also accept X’s version of events because Y does not deny the events in general, and because one of the recordings X made records the discussion referred to in the paragraph immediately above.

[125] Another example of Y’s alienating behaviour is May 28, 2014, which X described in detail. X said that he arrived at B and C’s school to pick up the children. They all came, only after a negotiation session with A. While they were driving to A’s swimming practice, A said that she did not want to go back to X’s home after the practice. He said that she would, or there would be no swimming practice. That triggered a 25 minute episode. A “snapped”. She said she would not go, A began a tantrum. She repeated she would kill herself. When X insisted, A rolled down the window of the moving car, took off her seat belt and started to climb out the window. X pulled her in and pulled over. A screamed that her arm was numb, that X had injured her and that she would tell her mother. X said he would take her to the hospital, first because of her complaints about injury, and second because of A’s hysterical reaction. X called Y, who said to bring A home.

[126] X said that when he arrived at the family home, he said to Y “we need to end this.” Y’s response was to demand to know who was paying for X’s new Jeep. When A reported to Y that X hurt her, Y told A that if she felt she was not safe in her father’s company, she should call the police. Y handed A a cell phone, A called the police. X left at this point and went to his home with the other two children. Later the police arrived in response to A’s phone call. X spoke to the police in the hall of his condo so the children would not see or hear.

[127] Y does not deny this. She said with candour that in the spring, 2014, she should have done more to encourage the children to go with X.

[128] As with other evidence, I accept X’s evidence in part because of my credibility finding, and in part because the audio clip that X made of A’s conduct in the car after he pulled her back in from the open window, supports his version of events. He taped a portion of this because he wanted doctors and others to hear for themselves A’s reaction.

[129] The audio begins in the middle of A’s reaction. She bangs on the window screaming “help me”, presumably at passing motorists. The other children are crying. B tells X to take A to swimming, presumably to end the episode. A is heard screaming her arm is numb, and that she is going to tell her mother. She refuses the offer to go to the hospital. X asks A to talk about it calmly. She responds “you’re the last person I’d talk to…I hate you. Take me to the hospital. I don’t want your help.”

[130] By March, X said that B started to show signs of alienation. His evidence was corroborated by Mr. Hurwitz. X said that on March 15, X took B to a baseball practice. He was very happy. Y came over, put B on her knee, and kept asking him what was wrong, why was he sad and encouraged him to ‘tell mommy.” X insisted he was not sad. According to X, Y yelled “shut up” several times and persisted with B until he began to cry. He took B and C and left.

[131] After another baseball game at which B did very well and about which he was very happy, X said, and for the reasons expressed above, I accept that Y intervened again. As they were walking back to the parking lot, she whispered into B’s ear, pushed him toward X, and told him to tell his father what he wanted. B said that he did not want to go with X for the balance of his time with his father. Y continued to encourage B to not go. Eventually he did.

[132] Y did not comment on this incident, specifically.

[133] More generally, X said that Y began to withhold B’s sports equipment. This is confirmed by emails and Ms. Hayes’ notes, who had to mediate the issue, and by January, 2015, Ms. Hayes arbitrated the issue. According to X, his phone calls and emails to the children went unanswered. The children said they never got them. On May 24, B tried to negotiate changes in visits with his father, according to X. At other times, he attempted to back out of some baseball practices during his father’s time. He announced in the summer that he didn’t want to go to the cottage, but wanted to stay home with his mother.

[134] The nadir in alienation and in Y’s and A’s conduct (and in some respects, X’s conduct) occurred on the driveway of the family home on July 4, 2014, the first exchange that took place at the marital home. What follows is X’s description of events.

[135] X said that in the three months before July, 2014, he was increasingly concerned that he was “starting to lose” the other two children. He was determined not to give up on B and C. He wanted to use every tool available to ensure his relationship with them. By this time, he thought that A and he might never have a relationship.

[136] X said that he arrived at the home on July 4 to pick up B and C. This attendance turned into a 1 ¾ hour negotiation to try to get B to come with X. A came out first and said that B and C would not go. A held B back. C ran to her father and got in the car. Y joined them in the driveway. Y and A both held B’s hand and said he did not want to go. Y did nothing to encourage B to go; she did nothing to force him to go.

[137] At some point, A began taking footage of events on the drive way. What was produced in this litigation is the last 15 minutes of the event. Y said nothing to A about stopping the recording. She is heard asking A ‘did you get that?’ Y denied that she encouraged A to film events. Y said that A had already been recording by the time Y realized that is what she was doing. She did not tell A to stop recording as she was busy with X and B. She said that she wanted A to film X removing her from the car. I will comment on the recordings shortly.

[138] X said that in frustration he took B by the hand. Y held his other hand. A brief tug of war ensued. In frustration, X picked up B, carried him to the car, put him in the rear passenger side rear seat and buckled him in. Y opened the door, climbed in and tried to undo B. X got out of the car, and picked up Y by the waist and put her on the lawn. X said he had to do this twice more before Y gave up and let them leave. Even their neighbour and friend, Kelly, came out and yelled to them that this is no way to parent children.

[139] Y said that X was being unreasonable and grabbed at B and hurt him. He would not listen to B’s reason for not wanting to go.

[140] The video clips, although incomplete, confirm X’s description of events. I conclude that, overall, his recollection is accurate.

[141] Second, the clips show how alienated A was by July, 2014. A took the video without being asked. She trained the camera on X, capturing Y only when they were close enough to be in the same frame. You hear A openly deriding her father and laughing at him. She told B to stay and told X that B does not have to go. She refused to stop recording when X told her to. She refused to go in the house when X asked her to.

[142] Third, the clips show the extent to which B was now affected. B is seen crying, and saying in a meek way that he did not want to go. Y is seen speaking to him sotto voce, hugging him and stroking his hair. Mr. Hurwitz said that this is protective, sending the message to B that Y supported his refusal to go with X.

[143] Fourth and more important, the clips illustrate clearly Y’s behaviour without misreporting or misrepresentation by either party in the re-telling the story. Throughout the clips, Y held B’s hands and spoke to him sotto voce so A’s camera would not capture it. Throughout the clips, she kept her body positioned between B and X in order to deny X contact with B. She moved her body in order to block X’s attempts to reach B.

[144] Some of Y’s comments are recorded. When X promised consequences if B did not come, she retorted ‘that is not how we raise children’. She then said to B that she would never punish him for having feelings. She accused X of child abuse. She, like A, derided X, openly.

[145] What Y does not do, is also significant. X asks A to go in the house so he can speak to B alone. She does not. X asks Y to tell A to go into the house. She does not. Y never lets go of B’s hand. She never encourages B to go with X, explain why he should go, or invoke a consequence if he does not. She never tells A to go in the house, to stop filming, or to stop speaking poorly of her father. In fact, she encourages A to keep filming. By her actions and inaction Y encouraged B and A’s behaviour. By her actions and inaction, she kept control of the situation.

[146] Mr. Hurwitz and Ms. Geraldo reviewed this tape. They agreed that the clips showed that Y’s description of this event differed significantly from what was on the recordings. Mr. Hurwitz testified that it clarified matters since he was getting conflicting versions of the same event from each parent. This video showed clearly disturbing conduct. The only criticism he had of X was that he picked up Y and carried her away from the car. The video proved to Mr. Hurwitz that Y was probably the main actor involved in creating conflict. It also showed the level to which A was involved. He wondered whether Y’s contribution to A’s alienation was because she was purely passive. This video indicated that Y actively supported and encouraged A’s behaviour and views.

[147] Both parents agreed that this was a low point. It was not the end, however, notwithstanding that the Section 30 Assessment and related therapy was under way. A was to come to X’s for Thanksgiving weekend. She came but was completely withdrawn. After an initial 90 minute crying session after her arrival, X returned her to Y. He requested her help. Y’s response, according to X, was that the professionals were hired to deal with this.

[148] Mr. Hurwitz conducted observed visits with X and the children (Hurwitz Report, September 23, 2014, Ex. 62, page 19 – 24).

[149] The first attempt at such an observed visit was June 14, 2014. X picked up the children. B and C went with him. A walked home. Mr. Hurwitz said that X followed her and politely asked her to come into the car. A refused. They reached the matrimonial home. Y asked her to get into X’s car, and she refused. Privately, A told Mr. Hurwitz that she did not want to go because X did not take her swimming. She added “I don’t trust my dad because of what he did to my mom.” Mr. Hurwitz noted that Y made a point of ensuring that A said this. Y is then recorded that Y indicated that A had a school trip and had to leave early in the morning, adding “… I’m not sure that her father knows this.” X knew it. Y used the excuse to denigrate X in front of A. Hurwitz also noted that while Y told A to go into the car, when she refused, Y put her arm around A in a protective manner, reinforcing A’s position. A did not go for that visit.

[150] On July 14, 2014 he was to observe X with the children in the controlled setting of the office, Y brought the children as A had refused to go with X, to the earlier session. A resisted going into the room with her father. Y convinced her to do so but broke down in tears saying “this is so hard”. Mr. Hurwitz said that it was encouraging to see Y encourage A to join the session.

[151] During the whole time A was in the room with her siblings and X she played on her smart phone. She refused X’s invitations to join in activities. Halfway through the session Y entered the observation room to tell Mr. Hurwitz that A wanted to end the session. At this point Mr. Hurwitz realized that A had been texting her mother all this time, and that Y was responding. Y refused to show Mr. Hurwitz the texts. She wanted to end the sessions. Y, at Mr. Hurwitz insistence, tried to encourage A to stay. She had difficulty doing so.

[152] Mr. Hurwitz considered this event significant. It showed that A and Y had a co-dependent and interdependent relationship, more like friends and equals than parents. It showed that Y could not separate herself from A and she actively blocked X’s time with A. More importantly, Y was interfering with assessments. He asked Y to convince A to stay in part as he wanted to observe her time with X, but in part because Y interference was clinically significant.

[153] On November 8, A ran away after an hour with X. X called Y and said that A was likely on her way home. Y said she was not there. X went out looking for A.

[154] In her visits to her father on November 28 and January 8, Ms. Geraldo participated. She noted no improvement in A. She stayed in a room separate from the family. At dinner she participated only minimally, and usually to enquire when the visit would end.

• January 1 to February 15, 2015

[155] Y says, relying on Psychiatrist, Dr. Weir (see his report, Ex. 59), that if her behaviour was inappropriate before the end of 2014, it was because she was suffering from an adjustment disorder with mixed anxiety and depressed mood. This continued beyond the release of the Section 30 Assessment Report in September, 2014, but was resolved by December 1 when Dr. Weir first saw Y. Y said that with the therapy and parenting assistance that came with the implementation of Mr. Hurwitz’s Phase I reunification plan, she improved drastically. She said that in 2015, she was coping, had acquired insight into her situation and reactions, and had acquired new parenting and coping skills.

[156] The evidence, however, does not support Y’s view. In early February, for instance, X wanted to take the children on a short cruise with X’s parents. A did not want to go. He took the other two. As recorded in the notes of the assessors, Y told assessors and others (including A as A repeated the same story) that X took the children and left A behind.

[157] Further, A’s access did not increase in quantity or quality. Ultimately, X decided that Phase I of the Hurwitz recommendations for reunification, had failed. There was no progress.

• February 13-15, 2015 Therapeutic Weekend

[158] The parties decided, on Mr. Hurwitz’s recommendation, to attempt a therapeutic weekend to see of the reunification plan could be put back on track. The purpose was to do intensive therapy, with a view to transitioning into a week with A and X immediately after the weekend. There were two rules: a) no one was to mention to A that the weekend would end in transition to her father’s care for a week, and b) no one was to raise the events of February 22, 2014.

[159] Y thought the weekend was a success and worked. She encouraged A to go and participate in the weekend. She encouraged A to go with her father. A did all of these things. There was no need to move to Phase II.

[160] The consensus of X, Mr. Hurwitz and Ms. Geraldo is that the therapeutic weekend was a failure, in part because of A’s conduct, and in part, because of Y’s.

[161] Most of the evidence regarding the therapeutic weekend came from Ms. Geraldo. She reported that Friday afternoon’s session was difficult. A was angry because B was allowed to go to a hockey game over the weekend, but she was not allowed to go swimming. She was told the reason, but did not accept it. A did not settle until Y left the hotel for the night. She was withdrawn during dinner with the therapist and X.

[162] Ms. Geraldo reported that during A’s end of day phone call with Y, A began to cry and handed the phone to Ms. Geraldo. Y told Ms. Geraldo that A had “figured it out” that she was going with her father at the end of the weekend. Y told Ms. Geraldo that she would not lie to her child, and confirmed this fact to A. This discussion was a clear violation of the rules set for the session.

[163] After handing the phone to the therapist, A locked herself in the bathroom for over an hour. X could not coax her out. The therapist eventually did. She remained upset for the rest of the night, crying periodically, the whole episode disrupted the night for the other children.

[164] The morning was tense. Ms. Geraldo reports that the tone between the parents was hostile.

[165] During one of the Sunday sessions, Y accused a therapist of trying to justify X’s calling the police. A and C reacted to this statement in tears, and left the room. C had what Ms. Geraldo called a “melt down”. It took some time to settle the children down.

[166] In the end, A went with her father, but only after Y told her she had to go. Ms. Geraldo said in her report (Ex. 21, page 9), which she adopted at trial:

“Y was able to tell A that she would enter her father’s care and that she would be successful. Mrs. Y was able to reinforce for A that she had demonstrated over the course of the weekend that she was able to move beyond her difficult emotions to participate in what was required of her. Y reinforced for A that she was required to do this in order that a third party not intervene to make a decision for their family. Y also asserted for A that in doing this, a judge would listen to her voice.”

[167] I note at this time that Ms. Geraldo’s notes (Ex. 20) refer to A discussing the matter with “George”. I inquired as to who this person was. Ms. Geraldo said it was a lawyer hired for A. Y did not challenge this information. It was not clear who retained “George”. What is clear is that by having a lawyer, A was directly involved in the parents’ litigation as early as 12 February 2015

[168] Ms. Geraldo expressed the opinion that both A and Y were of the view that Phase I and the therapeutic weekend were both successes. A had attended and did what was asked of her. Their conclusion about “success” was based an activity based standard. X thought both were a failure. Despite all of the work that therapists had done, as he described it, he had a child who made herself a prisoner in his home. She isolated herself from him, his family, and even her siblings, when she was with X.

[169] Overall, Ms. Geraldo was not happy with the lack of progress. Ongoing therapy was necessary if the family was to build on the therapeutic weekend. Success was contingent on Y’s support for rebuilding the relationship between X and A and X’s ability to respond to her needs. Ms. Geraldo was confident that X would learn to anticipate A’s needs and allow a relationship to develop gradually. She had doubts that Y could stop reinforcing A’s unfounded overly negative views of her father, and could learn to encourage the relationship and support X’s parenting abilities.

[170] Mr. Hurwitz expressed similar views.

• After February, 2015

[171] From the evidence, it appears little changed after February’s intensive therapeutic weekend. Access was difficult. X said that A continued to self-isolate when in X’s care. She ate little. The parents continued in conflict. In the first nine months of 2015, they used the parental coordinator so much that the fees were about $70,000.

[172] Reviewing Ms. Hayes notes indicate that most of the disputes in which Ms. Hayes became involved were petty. There were two issues around sports equipment that Ms. Hayes had to arbitrate. According to Mr. Hurwitz, Y was using the parental coordinator to engage in conflict with X, and X was using her to avoid engaging in conflict with Y. Y is reported to have made inflammatory and unsubstantiated allegations in Parental Coordinator sessions (“PC sessions”). The PC sessions provided a forum for conflict, rather than for ameliorating it. Mr. Hurwitz agreed with Ms. Hayes when she said that X and Y would agree on nothing were there no parental coordinator involved, which would expose the children to more conflict.

[173] X said that on April 26, X came to pick up the children. A went under protest, but after an hour ran away. X called Y to say that A had run and was likely heading home. Y said that A was not home. X went to look for her. After some time, he went to the family home, only to see Y arrive home with A in the car. The two got out of the car carrying several shopping bags. Y had rewarded A’s behaviour with a shopping trip.

[174] Another example of the petty issues that Y exaggerated is that of watching the dog. Y said that she was planning a short vacation to Bahamas with the children and asked X if he could watch the dog. Negotiations as to a day to pick up the dog were protracted. According to her notes, Ms. Hayes was involved in the dog issues several times. At one point near the family’s departure date, X was at the home. He opened the door and the dog jumped in. He took the dog as he had agreed to do. Y said to Ms. Geraldo and Mr. Hurwitz that X had “stolen” the dog. Y must have discussed this with A as A repeated the same view.

[175] After the second assessment, Ms. Geraldo issued her report. She adopted it into her evidence. Her conclusion (Ex. 21, pages 13 – 14) echoed in her viva voce evidence, is:

Despite therapeutic interventions that dealt with the hazards of selective attention and perceptual and memory distortions and the importance of recognizing the multiple perspectives and critical thinking skills and conflict management skills as well as the importance of maintaining compassionate and positive relationships with both parents, A maintained a stance that rejected any contact or relationship with her father. A’s justification for her behaviours is grounded in her father’s actions at the time of separation in February, 2013 (sic). If A is able to avoid contact with her father, it is unlikely that ongoing re-integration therapy will be successful.

It is difficult to place significant weight upon A’s wishes and preferences, given the cognitive distortions she demonstrates in unreasonably rejecting her father, despite the length of time since the incident at the time of separation and despite his ongoing efforts to parent her in line with his parenting of her siblings. It was Y’s view that A is thriving in all other areas of her life, except in her relationship with her father.

A needs assistance to overcome cognitive, emotional and behavioural impairments related to her rejection of her father. X and Y need assistance to cope effectively with A’s behaviour in a way that supports her healthier functioning. This assistance will not come via ongoing traditional re-integration therapy, at least not under the current context. In the absence of an intervention that requires A to be in her father’s care, it is unlikely that A will recover her compromised relationship with her father.

[176] Mr. Hurwitz concluded that despite all the support provided to this family since August, 2014, the family situation has worsened. The “least intrusive approach” adopted in Phase I did not help in ameliorating conditions. A continued to have a severe level of alienation from her father. While she and Y have been compliant with recommendations in Phase I, that compliance was superficial. It was compliance for compliance’s sake. He said that Y could not understand how she is to manage A’s refusal to attend time with her father. She is unable to encourage A to attend her access time with her father, in a way that is supportive of X. Mr. Hurwitz believes that X will be able to foster and promote a healthy relationship between the children and Y if he has custody. He thinks that Y will not foster and promote a healthy relationship between the children and X.

WHAT IS THE REMEDY?

Custody and Access

[177] There are only two options.

[178] Y urges me to adopt the recommendation of Psychologist Olga Henderson, (the psychologist Mr. Hurwitz asked to do assessments of the parents and A see Psychological Report Re: Y, June 4, 2015, Ex. 63, Tab C, page 8) “…to provide A, with therapy that focuses on her needs and feelings, and areas of interest. If eventually she wants to talk about family issues, she should initiate this topic through her own volition.” To put it another way, deal with A’s anxiety and maladaptive avoidant defences before forcing reunification. If we do not pursue this course, says Y, A will be traumatized further. The cure will be worse than the disease.

[179] Ms. Henderson’s report’s recommendations must be tempered by other evidence. First, Mr. Hurwitz is of the view that Ms. Henderson’s recommended treatments can be approached at the same time as his Phase II reunification therapy. Second, Mr. Hurwitz and Ms. Geraldo are both of the view that while Ms. Henderson’s recommendation is implemented, Y’s alienating behaviours will continue.

[180] The evidence is overwhelming that Y, despite all the help offered, has not altered her alienating behaviours. I agree with the assessors.

[181] The last paragraph of Ms. Geraldo’s report, which she adopted in oral evidence, says:

A needs assistance to overcome cognitive, emotional and behavioural impairments related to her rejection of her father. X and Y need assistance to cope effectively with A’s behaviour in a way that supports her healthier functioning. This assistance will not come via ongoing traditional re-integration therapy, at least not under the current context. In the absence of an intervention that requires A to be in her father’s care, it is unlikely that A will recover her compromised relationship with her father.

[182] Mr. Hurwitz agrees:

In summary, this family had a multitude of highly competent clinical support services over the past year, since the recommendations were presented in August 2014. The PC and Family Intervention Therapist interventions were designed to improve the conditions for the children and parents in this family. Because the family situation has worsened for the children, this confirms that the ‘least intrusive approach’ that was advocated in the 2014 assessment as ‘Phase 1’ was not effective in ameliorating the conditions pertaining to reducing the parental conflict and normalizing the relationships between A and each parent. A continues to experience a severe level of alienation from her father.

Y has been compliant, superficially, with all the expectations from the original assessment. However, despite this, it has not served to curb her problematic behaviour and the impact on the children continues to be severe. She also continues to state that she is confused about how to manage A’s refusal to attend her parenting time with her father.

X has continued to demonstrate his commitment to parent co-operatively. His efforts to do so have been met with extreme frustration in attempting to problem-solve day to day parenting issues with Y. Consequently, he and his extended family members have demonstrated behaviours that have also increased the parental conflict, which has impacted on the children. This should cease as it does not lead to improved conditions for the children. As stated in the 2014 assessment, this assessor believes that X continues to demonstrate that he will promote a relationship between the children and their mother, if the children are in his care and custody. This assessor continues to believe this to be true. Y, on the hand, would not do the same thing.

[183] Mr. Hurwitz said that the only remedy now available is Phase II of his reintegration plan found at pages 87-90 of his October 9, 2015 report, albeit with some changes. In his view, Y has not accepted that she must positively encourage A to have a meaningful relationship with her father. She does not understand how her conduct and the post marital conflict have alienated A from her father, and may do so with B and C.

[184] I accept that Phase II is an extreme or last resort, as it is intrusive. It disrupts a family dynamic, as dysfunctional as it is. Its goal, however, is to reintegrate both parents equally in the lives of the children. The evidence convinces me that if A is to enjoy a healthy relationship with her father, Phase II is required.

[185] Phase II must begin immediately to prevent A’s further alienation and alienation of B and C. Y has shown that she is unable or unwilling to change her views of X or her alienating behaviour. She does not understand that her behaviour and open airing of her views of X affects the children’s views of X. As described above, Y’s behaviour has not changed, notwithstanding the help of qualified experts.

[186] Y’s evidence at trial was that she has gained insight and has changed. Her behaviour, however, suggests she has not. She thinks that mere attendance at therapy is success in therapy and reunification. According to both assessors Hurwitz and Geraldo, neither A’s nor Y’s attendance or participation was meaningful. A’s attendance was perfunctory. During the therapeutic weekend, she did not participate in activities with her father in any meaningful way. When she was with her father at other times, she isolated herself from him and her siblings. Y’s participation was equally not meaningful.

[187] Y says that she tried to encourage A to see her father. When her encouragement was observed, however, it was observed to be negative. During the therapeutic weekend, Ms. Geraldo said that her way of encouraging A to participate was to tell her that if she did not participate, a judge would not “hear her voice” and that Y will lose custody. Ms. Geraldo and Mr. Hurwitz tried to give Y direction on how to give A positive affirmations. Y is recorded as telling A that she needed her father in her life. She could not give positive statements about X, commenting to Mr. Hurwitz “this is so hard”. The evidence at trial, even from Y, herself, indicates to me that Y did not tell A in any meaningful way that she was safe with her father, her father loved her and wanted a relationship with her, and that his family did too. Her messaging, both subliminal and overt, was the opposite.

[188] Ms. Geraldo testified that alienated children are more prone to developing poor coping skills, poor problem solving skills, and mental health problems such as low esteem, conduct issues, disregard for social norms and authority, depression and anxiety. According to Psychologist Henderson, she is developing many of these, now. Her issues, both psychological and social, will continue to deepen if matters are not addressed immediately.

[189] What about B and C? Y said many times that they have no issues. The evidence says otherwise. B and C are at risk.

[190] Mr. Hurwitz and Ms. Geraldo said that B and C are at risk. They are confused and conflicted when A acts out. For example, in May, 2014, when A was in the car screaming, banging the window and saying she wanted to kill herself, B and C tried to calm A, and asked X to take A to swimming. Did they ask this because they were siding with A, or because they merely wanted to stop the hysteria? Perhaps it is a bit of both.

[191] B and C are recorded as saying that they did not want A to come with them on access visits. Mr. Hurwitz said that B’s and C’s attachment to their father might not withstand the pressure from Y and A’s views. Ms. Geraldo said that B and C feel they have to cheer A up because they want her to be happy. They are bothered, however, by her emotions.

[192] My conclusions are consistent with the CAS’s position. Mr. LaForet, the Halton Children’s Aid Society supervisor on the file, was called to give evidence on the morning of the day reserved for submissions. He said that if X is given custody of the children the CAS will close its file. If Y is given custody, the CAS will keep its file open and pursue a voluntary service agreement with Y because they have concerns about the children’s emotional well-being with the children in Y’s custody and residence. The CAS worries about the children’s emotional well-being are not enough to warrant proceeding with the OCJ action. The CAS does not support the current OCJ proceeding. As indicated above, A, in early November, brought an application in the Ontario Court to have all the children taken into protection. Mr. LaForet said that he was surprised at this. He was surprised on December 10 when he attended the hearing and saw A there, alone. In his view, this proceeding put A in the middle of the litigation.

[193] CAS has been involved with this family at least three times since February, 2014. The last involvement resulted in the voluntary agreement between CAS and Y. The CAS became active again in November, 2015 when A commenced child protection proceedings. The only evidence before me on that motion from the CAS was a short Affidavit of Jeff LaForet, who responded to X’s affidavit. Mr. LaForet said the CAS did have concerns but did not say what they were. The CAS was waiting until the outcome of this trial before it took any further position. In Mr. LaForet’s view, the family could still deal with its issues.

[194] No one called the CAS at trial. No one sought the CAS’s records until March, 2015, and all were told then that the records could not be produced by the trial date.

[195] On December 16, after the parties had closed their cases and were to make argument, X asked to call Mr. LaForet, saying that there was fresh evidence. I ruled that since no one called the CAS, anything the CAS might say with respect to its views and opinions as they existed as of the beginning of the trial was not new, and therefore not admissible. The only evidence that could be called from the CAS is if something had developed since the beginning of the trial that the parties did not know about, such as what transpired at or subsequent to the OCJ hearing on December 4.

[196] The CAS letters to Mr. Glass (A’s counsel at the OCJ Child Protection Proceedings A brought) of December 4, 2015 and to X’s lawyer of December 8, addressed matters that had transpired since the CAS’s last comments, and contained a changed position for the CAS (see Ex. 76 and 77). Since swearing his affidavit for the motion the Friday before the trial started, the CAS had received and reviewed the Hurwitz reports, and had attended at the OCJ hearing. The CAS was concerned that A was at the hearing without her parents that X did not know about the hearing (at least at the time the CAS asked him), and that Y did not think she should go. The OCJ proceeding put A in the middle of the parents’ dispute.

MOBILITY

[197] X wishes to relocate to Toronto with the children, as soon as he can and has submitted a Mobility Plan (Ex. 4). Mr. Hurwitz considered this in his evidence in his report (Ex. 63) at pages 78 to 80. In his report, he weighed the advantage of putting some distance between Y and the children during the 90 day period in Phase II during which Y would have no contact with the children. A chance encounter at school or the neighbourhood had to be weighed against the disruption of a move before the school year ends. Weighing heavily in Mr. Hurwitz’s analysis is the fact that if Phase II is implemented as he recommends, the Family Bridges Program, (which is to operate in the first three months of Phase II), would also be very disruptive for the children. A move away from school would also be disruptive. In his report, he recommended that Phase II begin as soon as possible, with the move to Toronto in the summer of 2016. The move would reduce the potential for conflict. This move, however, would only be for a year, to be re-evaluated.

[198] In his evidence Mr Hurwitz changed his recommendation slightly. He recognized that this decision is a balance. In cross-examination, he noted that in the children’s minds there is a connection between Y, Oakville and the school. Her influence is very strong there. Her influence is a challenge to changing attitudes and parenting practices. The school is a place where exchanges and dramatic events took place.

[199] Mr. Hurwitz was worried the opportunity for a chance meeting during the blackout period is too high. The school is only five blocks from the house. I am worried that Y will not be able to be separated from the children, and will call the school, call the children, and come to the school.

[200] Ideally, it would have been best to impose Phase II now, and then relocate the children to Toronto in the summer. This would minimize the disruption of an incredibly disrupting process. The risk, however, is that Y’s influence will continue if matters wait until summer. Given Y’s inability to separate herself from A, I am not confident that she will be able to maintain a no contact order, if she is a few blocks from school in X’s condo. Accordingly, Phase II should be implemented immediately and X may relocate to Toronto, with the children.

SUPPORT

a) Imputation of Income

[201] X wants the Court to impute income to Y of $100,000 for support calculation purposes. He says that she is young and intelligent. She has an MBA. Since 2012, she has taught two courses at Sheridan, earning $86 per hour, nine hours per week. X says that she is capable of working full time and of earning $100,000. X points out that over $200,000 has been paid into Y’s bank account in the last two years.

[202] Y agrees that she has taught two college business courses, and earned $86 per hour since 2012. She wants to teach full time but cannot get further teaching time as she does not have a Ph.D. She did not say that she was prohibited from teaching at more than one college at a time, or that she could find no work in the private sector. Her plan is to obtain her Ph.D., which will take four to five years, and then teach full time at a college. Until three years ago, she did not work. She raised the children and kept the house. She has not looked for work since she began at Sheridan. As to the $200,000, Y said that the money comprises loans and gifts from her family to cover living and legal expenses.

[203] Y did not produce an up to date Financial Statement, a recent tax return, or a recent Canada Revenue Agency (“CRA”) assessment. She did not say how many weeks she worked per year. She did not indicate whether she taught her courses in all three academic terms or just two.

[204] What is the independent evidence of Y’s income?

[205] X produced no expert evidence to support his position that Y should be earning $100,000. Y produced no evidence to support her position that support should be paid for at least five years so she could obtain her Ph.D. (i.e. where she could take her Ph.D. if she applied would she have been accepted, the cost of the Ph.D., and the time necessary to achieve it). Therefore, without any evidence as to what alternate work is available to Y, or to support either party’s view as to what future employment scenario I should accept, I am left to speculate.

[206] The only hard evidence as to Y’s income is some pay stubs from between September and December 2015 (Ex. 57) showing her income from teaching two business courses at Sheridan. Assuming that each term in a year is 16 weeks (after deducting Christmas and two term breaks) her per term income is $12,384 (9 hrs. x $89 x 16weeks). Her income for two terms is $24,768, and for three terms would be $37,152. Her income for 2013 was $46,788, $21,500 of which was from the corporation, leaving approximately $25,000 generated from teaching activities. The corporate income ceased in 2013 and, per my Order, below, the Corporation is ordered wound up.

[207] Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), provides guidance in terms of when income might be imputed under s. 19 (1)(a) of the Federal Child Support Guidelines, S.O.R./97-175, because the person is intentionally underemployed or unemployed. In that case, the father was a tool and die maker. He did not like the trade, and did not do well at it. He decided to become a school teacher and entered university to pursue his certification in teaching. The result was a drop in his income. The Trial Judge found that he could and should have pursued part time work in his trade while studying. He attributed to the father income of $30,000 for support purposes.

[208] The Court of Appeal looked at the meaning of “intentionally underemployed” as used in the Child Support Guidelines (“CSG”). It held that while the statue required a voluntary act in order to be “intentional” there was no requirement that the voluntary act have a bad faith component or the specific intention to defeat support. The CSG imposes on every parent the obligation to earn what they are capable of earning. There is intentional unemployment when a party chooses not to work when capable of earning an income, or not to work as much when he is capable of working more. Section 19 of the CSG does not apply to situations in which the payor, through no fault of his/her own, cannot work (lay off, termination, or employer reduced hours). The CSG, however, provides flexibility between the obligation to support children, and the need to have “meaningful work” (para. 35). A parent is not excused from support obligations when they want to pursue unrealistic or unproductive career aspirations (para. 39). The spouse seeking to reduce support must show that the educational pursuits are reasonable, and are reasonably pursued in light of the support obligation.

[209] There is a general paucity of evidence on Y’s income largely because she failed to produce an up to date Financial Statement. I find that she has taken no steps since separation to increase her work, when in the circumstances, this would have been reasonable. She is young, bright, well educated, and very able. For support purposes, I impute income to her of $40,000. If she taught three sessions in a year, her income is approximately $37,000.

b) Child Support

[210] Given my decision regarding custody and access, Y will pay child support to X based on the incomes of the parties. For calculation of child support, Y’s income shall be the greater of $40,000 or her actual income.

[211] I fix child support at $764.00, based on the DivorceMate calculation, attached as Schedule 2 to these reasons.

c) Spousal Support.

[212] X concedes that he is obliged to pay spousal support to Y. Therefore, Y’s entitlement to support is conceded. X says, however, that this should be based on imputed income of $100,000, with a short duration. He says that spousal support should be reviewed in two years. He does not seek a re-calculation of past spousal support.

[213] Y says that support should be paid at the DivorceMate midpoint with no specific review period.

[214] Even if X had not conceded Y’s entitlement to support, I would have awarded it. Notwithstanding her education and ability, she removed herself from the workforce for ten years to raise children, which disadvantages her in the workforce.

[215] In light of my findings on imputing income, spousal support effective January 1, 2016 shall be the midpoint of the DivorceMate range, calculated on X’s current income of $300,000, and the greater of $40,000 or Y’s actual income.

[216] I fix spousal support at $3,538 based on the DivorceMate calculation, attached as Schedule 2 to these reasons.

d) Section 7 Expenses

[217] Section 7 expenses shall be apportioned according to income. Y’s income shall be the greater of $40,000 or Y’s actual income. Beginning January 1, 2016, based on his income of $300,000 and hers of $40,000, they will share Section 7 expenses on an 87/13 per cent split, respectively. X included in his closing brief support calculations listing many s. 7 expenses. While there was evidence before me of the children’s participation in some of these events (Kumon for all children, swimming for A, baseball and hockey for B), there was no evidence provided with respect to their cost. There was no specific evidence of C’s sporting events. All these activities are reasonable.

e) Annual Adjustment of Support Payments and Section 7 Expenses.

[218] By June 1 of every year, the parties will exchange income tax returns and CRA assessments. Child and spousal support and s. 7 expense payments for the twelve months beginning June 1 in any given year will be based on the incomes of the parties as calculated under the Child Support Guidelines based on the Line 150 incomes contained in the CRA assessments from the previous year. Y’s income shall be the greater of $40,000 or her actual income. Spousal support shall be at the middle of the DivorceMate range.

e) Review of Y’s Support Entitlement and Imputed Income.

[219] Y understands her obligation to find work and work to her abilities. It will take some time for her to attain her full work potential. My finding of imputed income and Y’s entitlement to support is open for review after three years from the date of these reasons. As indicated above, Y is well educated and bright. Her skills and education are marketable. She has demonstrated the ability to find work in academia. I expect she will find work reasonably quickly.

NET FAMILY PROPERTY ISSUES

[220] The parties agreed shortly before trial that the Net Family Property Statement (Ex. 5, Tab A1) was correct, except for three items: the value of the matrimonial home, ownership and value of the cottage, and the value of the 1996 Dodge Avenger Y brought into the marriage.

[221] As detailed below, issues related to the matrimonial home and Y’s car owned at marriage, resolved on consent. I have decided the issues of the cottage. The revised NFP statement is Schedule 1 to these reasons. The items altered by my decision in the following sections are bolded: the cottage, and the 2265559 Ontario Inc. expenses.

a) Matrimonial Home

[222] The parties disputed the value of the matrimonial home up to the weekend preceding the trial. X’s position was that the home was worth $1.5 million. Y’s position was that it was worth $1.175 million. I was advised at the outset of the trial that the couple agreed just before the opening of trial that the house would be listed in early January, 2016 for sale, and the matrimonial home is no longer an issue. If issues do arise, I may be spoken to.

b) Cottage

[223] In March, 2005, the couple entered into a lease with the Whitefish First Nation to lease a property on Charleton Lake. The lease was ten years. The parties erected a cottage and out-buildings on the property. X estimated that he spent $230,000 on the new cottage and outbuildings. He admitted freely that he over-spent on the cottage and will never realize this amount on sale of the cottage and lease. The lease was renewed on March 31, 2015 for a further ten years, at first in X’s name alone, later amended to be in X and Y’s names, jointly.

[224] Because both parties are listed as lessees of the cottage, the cottage should be listed as a joint asset on the joint NFP statement. X says, however, that the cottage should be listed as his asset, or a vesting order should be made.

[225] Like most other aspects of this trial, the cottage became a point of friction between the two, disproportional to its importance. Each found reason to criticize the other with respect to the cottage. This issue was hard fought. The parties’ positions were laden with invective and driven by emotion. To illustrate the disproportionality of the cottage as an issue, X’s evidence on the cottage was second in its length only to the issue of custody of, access to, and alienation of the children. He became emotional when discussing both issues. As for Y, during X’s evidence in-chief and cross-examination on the cottage, Y laughed quietly but dismissively, and shook her head.

i) X’s Position

[226] X says that the cottage should be his property, alone, by virtue of a resulting trust, constructive trust, or unjust enrichment. Alternately, X asks for a vesting order placing the property in his name.

[227] X says, in short, that he planned, designed and built the cottage. Much of his evidence, while attempting to reinforce his role in the cottage, was also designed to minimize Y’s role.

[228] While X’s role in the cottage was central, he over-states it. X wanted a cottage. Several members of his family had cottages, some on land leased from the Whitefish First Nation on Charleton Lake. Cottage life was as much a part of his life growing up, as not having a cottage was a part of Y’s.

[229] X heard through a relative, that the Charleton Lake property was available for lease. It abutted properties leased by others in his family. He wanted it notwithstanding it was a five hour drive, and 30 minute boat ride from home. The couple decided, jointly, to lease the land and build the cottage, although Y did not go to the property before construction began.

[230] X was the main inspiration behind the cottage concept and the building itself. He planned the cottage. He designed the cottage, with help from a local builder from the Whitefish First Nation, and engineering input from Y’s uncle, especially with respect to the number and placement of piers for the building.

[231] To say that X built the cottage is also an overstatement. He was the main labourer. He estimated he put between 100 and 150 days into preparing the site and building the cottage. However, he had the help of an army of approximately 130 friends and relatives, all of whom operated under the direction of the local builder. This army included, from time to time, his parents, and siblings, and at least once, the children.

[232] Much of X’s evidence about the cottage was critical of Y. He minimized her contribution, acknowledging only in cross-examination that his ability to do what he did at the cottage was facilitated by Y’s caring for the children while he was at the site. He said that the cottage was not important to her. She was there for only two hours during construction, and once thereafter, on opening week when her family was there. A.P. said that Y told her that the she did not intend to use the cottage. It was too far away. Y did not contest this hearsay evidence. X said that she did not want to renew the lease.

[233] On the opening weekend in the spring of 2013, there was a fire in the outbuilding holding the generator, which spread to another holding two years of firewood. It was a traumatic weekend. Y, the children and Y’s family were present. It took two to three weeks to clear up the debris. X was devastated by the fire. The importance of the cottage to him became his weak spot. Y threatened six to ten times over the next year, to burn the cottage down herself. She used the cottage as a weapon against him.

[234] Much of X’s evidence was directed at pointing out inconsistencies in Y’s position toward the cottage, saying that the cottage has no interest for her except because it is of crucial importance to him. He says that her position at trial (that she wanted to purchase X’s interest in the cottage) lacks all credibility. He referred to emails (Ex. 37) in which she said she wanted it sold and that its sale would have no import for the children. He says that she did not consent to the renewal of the lease and required her equity (See Amended Answer, page 2, para. 6). When she found out that the renewal in March 2015 was in X’s name, alone, she insisted that her name be added, without prejudice to her rights to force the sale (see Ex. 5, Tab C7, pages 12-13). X says that her position with respect to the cottage, up to trial, is inconsistent with her position at trial that she wanted to buy X’s interest. He says, albeit in slightly different words, that her position is driven by spite because his interest in the cottage is so great.

ii) Y’s Position

[235] Y says that since the cottage land is leased in both their names, and is a joint asset, and should be listed as such. In terms of the pleadings, she says the cottage should be sold. At trial she took the position she wanted to buy out his interest.

[236] Y admitted that the cottage is something X loved. Cottages, culturally, are not something her family values. However, she and her family were involved in the cottage. Her uncle, an engineer, provided advice to X on structural aspects of the cottage. Y said that she was involved in providing curtains, bed linens, and the selection of appliances. She also insisted on indoor plumbing.

[237] Y concedes that X did the majority of work on the cottage. She admitted that during the building phase of the cottage, she was rarely there. X was able to immerse himself in the cottage for over a year only because she cared for the children. She criticized X as being obsessed with the cottage. She said that at times, X cared more about going to the cottage than he did about seeing his children.

[238] Y’s position with respect to the cottage, too, is fueled by emotion. Her view is that X intentionally made the cottage a point of contention. He intentionally renewed the lease in his own name in March, 2015, in order to shut her out of the cottage. She was shocked by this. She presented no evidence concerning the cottage renewal. His evidence is that the Whitefish First Nation assumed they were divorced (not separated) and that he was renewing the lease post-divorce. He says that he had to correct this. His correcting this misconception (if that is what it was) was done after Y discovered the renewal. Neither party called the representative of the Whitefish First Nation to give evidence.

iii The Law

[239] X claims that the cottage should be treated as his alone whether by constructive trust, resulting trust, or unjust enrichment.

[240] Under ss. 4 and 5 of the Family Law Act, R.S.O. 1990, c. F.3, the presumption is that property will be equalized according to ownership.

1. Resulting Trust

[241] A resulting trust is an equitable remedy whereby a non-title holder is given an interest in property because of the non-title holder’s contribution to the property. In family situations, the claim is advanced by a non-title holder, usually, where there has been a gratuitous transfer of the non-title holder’s interest to the title holder. In these cases, the concept of common intention resulting trust arose to account for the fact that it was the common intention that the property, although joint, be held by one of the spouses. Kerr v. Baranow 2011 SCC 10, [2011] 1 S.C.R. 269, provides a detailed examination of this concept, but held that the common intention resulting trust no longer applied. Rather, the Courts were to approach the issue as one of unjust enrichment.

[242] In Ontario, however, by operation of s. 14 of the Family Law Act, resulting trusts at common law are preserved, subject to one modification germane to this analysis: that joint title to assets is proof of ownership (which is rebuttable).

[243] Resulting trust is a right, and therefore should be pleaded in the application. The Amended Application claims only that X be given exclusive possession of the cottage (para. 35). A resulting trust is not claimed. The Amended, Amended Application, amended October 20, 2015, likewise asks for no such relief.

2. Unjust Enrichment & Constructive Trust

[244] Unjust enrichment applies where one person receives a benefit from another and retains it, without a juristic reason. Therefore, in order for unjust enrichment to apply, a) the Plaintiff must have given a benefit to the Defendant or enriched the Defendant, b) the Plaintiff must suffer a corresponding deprivation, and c) there is no juristic reason for the Defendant to keep the benefit: see Kerr, at paras. 32, 36 to 45, and Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, at para. 52. A juristic reason for the Defendant to keep the benefit bestowed by the Plaintiff includes a legal transfer or sale, a gift, or in recognition of a contribution to the asset such as by domestic services to the family. Absent one of these juristic reasons, the Court may then look to the moral and policy-based arguments about whether particular enrichments are unjust including the intentions of the parties.

[245] Like with resulting trust, unjust enrichment is a right that should be pleaded. It is not.

[246] In Ontario, the Court of Appeal has mandated that once the test for unjust enrichment has been made out, a constructive trust is a possible remedy, but one applied only when a monetary award is inappropriate: see Martin, supra, para. 48: Korman v. Korman 2015 ONCA 578, para. 40 - 43. In the vast majority of unjust enrichment claims, unjust enrichment is addressed through the equalization process, especially through a claim for unequal division of net family property under s. 5(6): see Martin, at paras. 63-66.

3. Analysis

[247] X’s claim to have the cottage listed as his asset is rejected. With respect to the claim for ownership arising from resulting trust, it is rejected for two reasons. First, X does not plead that he has a resulting trust interest in Y’s 50 per cent share in the cottage.

[248] Second, X has not displaced the presumption in s. 14(a), which provides “the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants…”

[249] The lease names both parties as “permittee”. It makes no distinction between the two. X has the onus to rebut the presumption that both spouses are entitled to the same rights and under the same obligations under the lease for the cottage. He has not done so. X’s evidence is that he intended that the cottage be the family cottage. Y gave the same evidence.

[250] Much of X’s evidence concerned a) the extent of his labour and paucity of Y’s direct labour on the cottage, and b) Y’s dislike of the cottage. Both parties agreed that the general division of labour in the family is that X would work and Y would care for the home and children. Her carrying for the home and children freed X to pursue his building the cottage.

[251] The analysis is the same with unjust enrichment. Unjust enrichment and constructive trust are not pleaded. In any event, there is no loss by X, corresponding gain by Y, and no lack of a juristic reason for her to keep it. The lease was held jointly. The intention of the parties was that it would be held jointly. The fact that the parties put different specific amounts of effort into the cottage, in particular, does not negate the overall agreed upon and understood contributions to the family of what the parties considered, at the time, to be the family cottage.

c) Cottage Valuation

[252] The only evidence as to the value of the cottage was that of certified appraiser, Charles Bell’s appraisal; namely, $198,000. I find that the value of the cottage is $198,000, and that value should be used as the value of the cottage on the joint NFP statement Ex. 5, Tab A1, page 1.

[253] I accept his evidence because a) it is the only evidence brought on the value of the cottage, and b) it is highly qualified. Valuing or appraising a cottage owned by a person, but located on leased land, is difficult for several reasons. First, the land is leased. The value of the property is dependent, in part, on how much of the lease term remains. Second, the cottage, built by the tenant, is a fixture on the land and becomes property of the lessor on expiry of the lease. Third, while leases are usually renewed as a matter of course, renewal is not guaranteed. The price at renewal is not guaranteed.

[254] Mr. Bell’s evidence is well qualified. For over 20 years, he has been appraising such properties as the X and Y’s cottage. Indeed, the Whitefish First Nation, the lessor, retains Mr. Bell to appraise its interest in leased cottage lands.

d) Y’s car brought into marriage

[255] There was some disagreement about this issue, although it resolved on consent. Y thought that the car on date of marriage was worth $15,000. She provided no evidence of this. X’s memory was that the car was traded in shortly after marriage for another vehicle, and the dealer assigned $6,500 to the car. He provided no documentary evidence.

[256] The parties agreed that the value of the car to be inserted at page 5 of the NFP statement at Ex. 5, Tab A1 is $6,500.

[257] Based on the findings above, X owes Y and equalization payment of $62,896.06, subject to offsets discussed, below.

OFFSETS OR ADJUSTMENTS TO NFP

a) Line of Credit

[258] The parties agreed that the Line of Credit (“L.O.C.”) secured against the house as of November 22, 2015 was $564,781, and that the amount incurred on the Line since the date of separation is $227,680. The parties disagreed as to who was responsible for what part of the increase in the L.O.C. since separation. Since the L.O.C. is secured against the matrimonial home, it will be eliminated upon sale of the house.

[259] Y said that she could not determine who added what to the L.O.C., and therefore, the whole L.O.C. should be shared by the parties equally. I find it less than credible that Y, with an MBA and access to banking records, could not make a determination of who drew what amounts from the line of credit.

[260] X’s evidence was only marginally better than Y’s, and is contained in Ex. 5, Tab E8 and 9. He said that as of the date of separation, the L.O.C. secured against the home was $337,101. The L.O.C. was frozen at September 1, 2014. X has made interest payments on the Line since then. The balance as of November 22, 2015 is $564,781. Therefore, the net increase in the L.O.C. since separation is $227,680.

[261] X said that he reviewed the L.O.C. statements between January 7 and September 1, 2014, and was able to determine that he withdrew $60,763 from the Line, Y withdrew $146,379, and that he could not account for a further $20,538. X said that each should bear their withdrawals, plus $10,269 each representing 50 per cent of the post separation withdrawals from the Line that could not be accounted for.

[262] X says that his calculations are based on his review of the statements, and not on any other banking records. As with Y, I find it less that credible that someone with and MBA and as sophisticated a businessman as X, would not have access to better records. However, I accept that he did the analysis he claimed to have done, and accept it as correct.

[263] Therefore, I find that Y shall be responsible for $156,648 of the post separation withdrawals from the L.O.C. and X for $71,032. Therefore, Y owes X $42,808 on account of her post separation spending on the line of credit [($156,648 – 71,032) /2].

[264] X said he made interest payments on the L.O.C. since September 2014. Y is responsible for 50 per cent of those payments. I was given no evidence as to the total interest costs X paid.

b) 2265559 Ontario Ltd. Business Expenses and Fees

[265] X asks in para 23, page 5A of the Amended Amended Application that the Court order 2265 Ontario Inc. wound up under s. 207 of Ontario’s Business Corporations Act, R.S.O. 1990, c. B.16.

Section 207 provides:

Winding up by court

207. (1) A corporation may be wound up by order of the court,

(a) where the court is satisfied that in respect of the corporation or any of its affiliates,

(i) any act or omission of the corporation or any of its affiliates effects a result,

(ii) the business or affairs of the corporation or any of its affiliates are or have been carried on or conducted in a manner, or

(iii) the powers of the directors of the corporation or any of its affiliates are or have been exercised in a manner,

that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer; or

(b) where the court is satisfied that,

(i) a unanimous shareholder agreement entitled a complaining shareholder to demand dissolution of the corporation after the occurrence of a specified event and that event has occurred,

(ii) proceedings have been begun to wind up voluntarily and it is in the interest of contributories and creditors that the proceedings should be continued under the supervision of the court,

(iii) the corporation, though it may not be insolvent, cannot by reason of its liabilities continue its business and it is advisable to wind it up, or

(iv) it is just and equitable for some reason, other than the bankruptcy or insolvency of the corporation, that it should be wound up; or

(c) where the shareholders by special resolution authorize an application to be made to the court to wind up the corporation. R.S.O. 1990, c. B.16, s. 207 (1).

[266] X and Y own 55 per cent and 45 per cent respectively of the shares in this company, through which X provided his consultation services. The parties agree that they are both officers and directors.

[267] X says that the corporation owed the following amounts as of the following dates (documentary support for which is at Ex. 5, Tab A2 and 3):

Date

To

Re

Amount

November 9/15

CRA

Corp Inc. Tax

$14,716.35

November 9/15

CRA

HST/GST

$17,823.13

October 28/15

CRA

Payroll deductions

$ 6,824.90

November 10/15

Accountant

Corp. Acct’g fees

$ 4,915.50

[268] X says that these total $44,279.88. He said that the directors are responsible, in law, for these fees. These fees must be paid so that the corporation can be wound up. He says that since separation, Y has been asked but refused to wind up the company, although it has been inactive for some years. X says that I should wind up the company, and that these expenses should be allocated 45 per cent to Y, reflecting her 45 per cent interest in the company and 55 per cent to him, as adjustments to the amounts owing to or by Y.

[269] Y did not address these issues in any detail.

[270] Based on X’s evidence I make the order that 2265 Ontario Inc. should be wound up. Y’s failure to address the request for winding up of an inactive corporation in which liabilities existed, is an oppressive act under s. 207(1)(a)(iii).

[271] I understand X’s desire that X and Y fund the outstanding company expenses. The relief X seeks with respect to the corporation’s outstanding expenses is not available to him. His request to have them dealt with in the Family proceeding may be logical and the fastest way to deal with them. In the long run, he may be correct. The claims, however, are dismissed with leave to bring a separate proceeding in respect of them. They were not specifically pleaded and lack any sufficient basis in law, as they were presented in this Court.

[272] Why do I say this?

[273] Under s. 207(2), the Court may make any order under s. 207 or 248 as the Court deems fit. The operative section of s. 248 is subsection 3 which reads:

Court order

(3) In connection with an application under this section, the court may make any interim or final order it thinks fit including, without limiting the generality of the foregoing,

(a) an order restraining the conduct complained of;

(b) an order appointing a receiver or receiver-manager;

(c) an order to regulate a corporation’s affairs by amending the articles or by-laws or creating or amending a unanimous shareholder agreement;

(d) an order directing an issue or exchange of securities;

(e) an order appointing directors in place of or in addition to all or any of the directors then in office;

(f) an order directing a corporation, subject to subsection (6), or any other person, to purchase securities of a security holder;

(g) an order directing a corporation, subject to subsection (6), or any other person, to pay to a security holder any part of the money paid by the security holder for securities;

(h) an order varying or setting aside a transaction or contract to which a corporation is a party and compensating the corporation or any other party to the transaction or contract;

(i) an order requiring a corporation, within a time specified by the court, to produce to the court or an interested person financial statements in the form required by section 154 or an accounting in such other form as the court may determine;

(j) an order compensating an aggrieved person;

(k) an order directing rectification of the registers or other records of a corporation under section 250;

(l) an order winding up the corporation under section 207;

(m) an order directing an investigation under Part XIII be made; and

(n) an order requiring the trial of any issue. R.S.O. 1990, c. B.16, s. 248 (3).

[274] None of the subsections of s. 248(3) permit me to make debts of the corporation debts of the shareholders.

[275] I decline to order that the directors are liable for these corporate debts for the following reasons.

[276] First, X has not pleaded this specific relief.

[277] Second, X has failed to meet his onus to prove that these fees are properly due and owing by the officers and directors. He provided no evidence, or statutory or legal authority for the proposition that these fees and expenses are the responsibility of the officers and directors, and if so, when they became the individual director’s responsibility. He merely said that he had been told by someone not brought before the Court that the directors are liable for these fees and expenses.

[278] I agree that if the parties, as directors, had personal liability for any of these expenses and fees before the date of separation, these must be declared on the NFP statement in proportion to the liability of the individual director. There is no evidence that the obligations of the parties, as directors, is crystalized or due and owing, and if so, as of any particular time or in any particular amount.

[279] Third, it is true that officers and directors of a corporation may be personally liable for statutory deductions such as Income Tax, Canada Pension Plan contributions, Employment Insurance, and other statutorily mandated payroll deductions. Likewise, officers and directors may be liable for HST or GST that the corporation has not remitted: see generally Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), ss. 227.1, 238, 239 and 242; Income Tax Act, R.S.O. 1990, c. I.2, s. 38; and Excise Tax Act ss. 96(3), 221, 228, and 323.

[280] With respect to income tax and other statutory deductions, there is no evidence provided that the directors are liable for the failed remittances, and if so, at what point they became liable. Was it before the date of separation or after, for example?

[281] Under s. 323 of the Excise Tax Act, a Director is not liable for HST/GST unless a) a certificate of the corporation’s liability has been registered with the Court and execution for that amount has been returned nulla bona; b) the corporation has commenced litigation or dissolution proceedings, or has been dissolved, and a claim for the amount of the liability has been provided within six months after the earlier date of dissolution, or c) the corporation has made an assignment, or a receiving order has been made under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, and a claim for the amount of the corporation’s liability has been proved within six months of the date of the order or assignment.

[282] No evidence was put before me to indicate whether any of these pre-requisites has been met.

[283] With respect to the accountant’s fees, there is no evidence that the officers and directors of the corporation were liable for those fees. X produced no contract or other documents to establish if the directors had any liability for these fees, or when that liability arose.

[284] If Y refuses to pay her share of any of these liabilities, the action lies against her by the corporation or X as a fellow shareholder under corporate law. X pleaded no such cause of action.

c) Professional fees

[285] By consent order dated March 6, 2014, Gray J. ordered an assessment under s. 30 of the Children’s Law Reform Act into the children’s needs, and the ability and willingness of the parties to satisfy the children’s needs. The parties agreed to Howard Hurwitz as the assessor, Michelle Hayes as the parent coordinator and Lourdes Geraldo as the social worker/therapist, trained to do s. 30 assessments and re-integration therapy. Psychologist Olga Henderson was retained by Mr. Hurwitz to do assessments to assist him in his work.

[286] As of the date of trial, the fees charged by those assessors totaled $204,279.63, broken down as follows:

Hurwitz: $95,106.60

Hayes: $67,427.78

Geraldo: $34,945.25

Henderson: $ 6,800.00

[287] Gray J. ordered that X pay the fees, subject to reapportionment by the trial judge.

[288] The total fees of the s. 30 assessors and those retained by the assessors are not fixed, but are expected to grow once their bills for trial preparation and attendance are rendered. I expect that they will exceed $250,000.

[289] At trial, X took the position that Y should reimburse him for 75 per cent of the fees on the basis that her conduct generated 75 per cent of those costs. At the outset, however, it appears that his position was that the parties should agree that fees should be shared equally (Ex. 5, Tab 5, Letter from Ms. McCarthy October 29, 2014). As time progressed, Y was not prepared to reach any agreement on apportionment of the assessment fees, and the parties left the decision in the discretion of the trial judge (Ex. 5, Tab 5 Letter from Ms. McCarthy October 29, 2014; Letter from Mr. Schmidt April 24, 2015, and Letter from Ms. McCarthy September 15, 2015).

[290] Y says that the fees should be apportioned according to income, as Mr. Hurwitz recommended in his report. His reports however, recommend apportionment to income only of the fees for a) the parenting coordinator (Ex. 62, page 134, Recommendation IV(3)(iv)), b) education and facilitation services (Ex. 62, page 135, Recommendation IV(4)(v)), and c) counsellors’ fees for the children (Ex. 62, page 145, Recommendation 14 f.). Mr. Hurwitz’s report is silent with respect to the fees of other individuals or for other categories of services.

[291] I defer this issue until the parties argue costs. Neither party directed me to any authority or jurisprudence on the issue of apportioning s. 30 assessment fees. Section 30(12) and (13) of the CLRA provide that the parties pay the appointed assessors’ fees, and that the Court “shall specify in the order” the amount each party pays.

[292] When the parties appear to make submissions on costs, I invite them to address the principles I ought to consider when apportioning the assessors’ fees under s. 30(13). Until I decide this issue, Gray J.’s order remains in force.

d) Vesting order Re Cottage:

[293] X claims a vesting order, placing the cottage in his name alone whether under s. 100 of the Courts of Justice Act, R.S.O. 1990 c. C.43, or sections 9(1) or 24(1)(c) of the Family Law Act. This claim is denied for several reasons.

[294] First, absent an order under s. 9(1)(d) or 34(1)(c) of the Family Law Act vesting property in one spouse to secure an equalization payment or for payment of child or spousal support respectively, the Family Law Act equalizes property by a financial transfer, not a property transfer.

[295] Second, a vesting order under s. 9(1)(d) or 34(1)(c) of the Family Law Act is an equitable and discretionary enforcement order, made where the Court is satisfied that the vesting order is “necessary” to secure equalization or support obligations. The vesting order is “necessary” where, based on the conduct of the payor to date, and his or her anticipated future behavior, the Court concludes that the payer will not likely comply with a support order. The onus is on the person seeking the vesting order: see Lynch v. Segal (2006), 2006 CanLII 42240 (ON CA), 82 O.R. (3d) 641 (C.A.), at para. 32; Newton v. Newton, 2014 ONSC 2757, 46 R.F.L. (7th) 66, at paras. 23-27). Such conduct may include the conduct of the party in litigation, such as hiding assets, his or her location, income, etc.: see Bargout v. Bargout, 2013 ONSC 29, 35 R.F.L. (7th) 391, at para. 71.

[296] The conduct usually required of the payor before a vesting order will be made is fairly egregious. For example:

• In Bargout, the payer had actively concealed his location, his income and his assets. His assets were in jurisdictions which were not reciprocal to Ontario. The payer had proved he would not cooperate. On the whole, the Court concluded that the order would be “unenforceable except through the equity in the home belonging to the Applicant.”

• In Lynch, Mr. Lynch had assets in Canada and the Bahamas. Many of his assets were highly mobile. Mr. Lynch took extraordinary measures (such as complex corporate structures and trusts, many held by nominees and many outside of Canada) to isolate his assets from creditors. One such asset was the matrimonial home. The trial Judge found that he used these structures to “whisk away” assets from Mrs. Lynch.

• In Newton, supra, the action was undefended, and Mrs. Newton had defied several orders regarding disclosure and at least two contempt orders. She was arrested and brought before the Court, ordered to return by a set date and produce her financial statement. She did neither. She ignored costs orders amounting to over $45,000.

[297] I am not convinced, however, that a vesting order, while convenient to X, is necessary. The reasons for his request for a vesting order are as follows:

• Y has not paid a costs order of Gibson J. of $7,000 following her failed motion to adjourn the trial.

• She has not paid anything toward the fees of the s. 30 assessment team, most of which were incurred and made necessary because of her behavior.

• Her constantly changing position with respect to the cottage shows that there is a reasonable likelihood that she will not cooperate in marketing the cottage.

[298] In any event, it appears that once the matrimonial home sells (if either of the parties’ estimates is correct) there will be at least $700,000 in equity to be shared between the spouses, which can be used to secure equalization obligations.

[299] Third, the Court has jurisdiction since the Court can make a vesting order in X’s favour in respect of any property the Court has the power to order disposal of.

[300] X has not satisfied me that the cottage is a property “… that the Court has authority to order be disposed of, encumbered or conveyed.” Further, he has not provided any guidance as to the principles that ought to govern the Court’s exercise of its discretion under s. 100.

[301] X seeks a vesting order because it is more convenient for him to receive his equalization payment in this fashion, and because it gives him full interest in the possession he most desires. He knows that Y is not likely to agree to his purchase of her interest.

[302] Neither of these reasons is sufficient to entice me to exercise my discretion to make a vesting order. The Court has no general power to order a redistribution of assets. The appropriate remedy is sale of the interest in the cottage: see Danecker v. Danecker, 2014 ONCA 239. If the parties cannot agree to a transfer of the cottage within 60 days of the release of these reasons, I may be spoken to regarding its disposition.

NFP PAYMENT AFTER OFFSET FOR INCIDENTAL EXPENSES

[303] The parties agree that Y owes X $10,000 for the Land Rover. Y is required to pay Y $10,088.06 (62,896.06 – 52,808) on a net basis per the decisions, above.

ORDER

[304] In light of my findings above, I order as follows:

Custody and Access:

a) Phase II of the Section 30 Assessment recommendations found at pages 87 to 80 of the October 9 2015 Hurwitz report shall be implemented, as amended by these reasons, as soon as practicable. Included in the recommendations is that X should have custody of the children pending further order of the Court.

b) Within 30 days of the completion of Phase II, the parties will attend before me to review the circumstances of this case and to determine whether further orders need to be made.

c) X shall attend at the children’s current residence the day these reasons are released to collect sufficient clothing for the children and other personal possessions for 30 days. He shall complete this task by 5:00 p.m. Y is not to attend the home until that time. Y will pack the balance of the children’s belongings to be available for pick up by X not later than three weeks from the date these reasons are released unless the parties agree to other arrangements. This paragraph is intended to cover clothes, toys, books and other small possessions. It is not intended to cover large property such as furniture.

d) Neither X nor Y is to discuss this decision or any other part of this case with any of the children, except as directed by counsellors. The children’s questions are to be directed to counsellors.

e) A copy of this order will be provided to the Halton Regional Police, Ontario Provincial Police, and any police force in whose jurisdiction either of the parties lives, who will take all reasonable steps to assist in its enforcement if necessary. A copy of this order is also to be provided to the schools that the children attend.

f) Until the review contemplated with respect to support, or after Phase II is completed, all motions except urgent motions brought by X or Y are returnable before me.

g) X shall pay the costs associated with Phase II, but shall be reapportioned according to any decision rendered with respect to reapportioning the fees of the section 30 assessment related professionals.

Divorce:

h) Either of the parties may apply for a divorce, by motion in writing. The Divorce is severed from the corollary relief.

Mobility:

i) X may relocate to Toronto, with the children, insofar as it is compatible with the Family Bridges program.

Imputing Income:

j) Y’s income is imputed to be not less than $40,000 per annum for support purposes.

Future Financial Disclosure:

k) By June 1 of each year, the parties shall make financial disclosure. Support obligations for the twelve months beginning on June 1 of any year will be based on the previous year’s Line 150 CRA assessment income. Y’s income for any given year shall be the greater of $40,000 or her actual income as calculated pursuant to the CSG.

Child Support:

l) Y shall pay X child support from the date of these reasons of $764.00 per month Support Deduction Order (“SDO”) to issue.

m) Future child support for each twelve months beginning June 1 of the year will be calculated on the previous year’s Line 150 CRA assessment income. Y’s income for any given year shall be the greater of $40,000 and her actual income as calculated pursuant to the CSG.

Spousal Support:

n) X shall pay to Y spousal support from the date of these reasons in the sum of $3,538.00 based on the custody and access portions of these reasons, and incomes for X of $300,000 and Y of $40,000. SDO to issue.

o) Future Spousal Support for each 12 months beginning June 1 of the year will be calculated on the previous year’s Line 150 CRA assessment. Y’s income for any given year shall be the greater of $40,000 and her actual income as calculated pursuant to the CSG.

p) Y’s entitlement to spousal support and imputed income may be reviewed without a material change in circumstances on or after the third anniversary of the release of these reasons.

Section 7 Extraordinary Expenses:

q) Y shall pay to X her proportionate share of section 7 Special Expenses from the date of these reasons until June 1, 2016 payable based on the custody and access portions of these reasons, and incomes for X of $300,000 and Y of $40,000, or 87/13 per cent respectively.

r) The parties’ proportionate share of future Section 7 Extraordinary Expenses for each twelve months beginning June 1 of the year will be calculated on the previous year’s Line 150 CRA assessed income. Y’s income for any given year shall be the greater of $40,000 and her actual income.

NFP Issues:

s) The Cottage is a joint asset valued at $198,000. Each party must list 50 per cent of this amount, or $99,000 as an asset on his or her NFP statement.

t) The value of the automobile that Y brought to the marriage is $6,500.00.

u) X owes equalization to Y of $62,896.00.

Adjustments to NFP Calculations:

v) Y owes X $42,808 for his overpayment from the house equity of her share of the Line of Credit.

w) By agreement, Y owes X $10,000 for the Land Rover Y drives.

x) The net payment X owes is $10,088.06 after reducing equalization by offsets. Payment of this sum is deferred until costs and the apportionment of the experts’ fees are determined.

y) 2265559 Ontario Ltd. is ordered wound up. All other issues related to 2265559 Ontario Limited are dismissed, with leave to bring a separate action with respect to them.

z) Professional fees of those involved in the Section 30 Assessment process is deferred to be argued when costs are argued.

aa) Formal approval of the order by Y is dispensed with.

COSTS

[305] I invite the parties to arrange an appointment to argue Costs and address my request above for further submissions regarding professional fees. The Applicant shall serve and file written submissions by April 1, 2016 and the Respondent by April 30, 2016.

Trimble J.

Released: February 5, 2016

Schedule 2

CITATION: X v. Y, 2016 ONSC 545

COURT FILE NO.: 36539/14

DATE: 20160205

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

X

Applicant

– and –

Y

Respondent

REASONS FOR JUDGMENT

Trimble J.

Released: February 5, 2016

CITATION: X v. Y, 2016 ONSC 545

COURT FILE NO.: 31754/09

DATE: 20160303

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: X, Applicant

AND:

Y, Respondent

BEFORE: Trimble J.

COUNSEL: Martha McCarthy and Jenna Beaton, Counsel for the Applicant

Y, Self-Represented

AddENdum to judgment dated february 5, 2016

[306] Subsequent to releasing my reasons of February 5, 2016, by endorsement dated February 9, I invited submissions as to corrections to typographical and non-substantive errors to my reasons. I received submissions from X on February 12, 2016 and Y on February 25, 2016.

[307] By emails dated February 11 and 15, 2016, Y requested that I address certain other items. I invited X’s response to these two emails, which I received on February 25.

Rendering my February 5, 2016 Anonymous:

[308] On February 5, I advised the parties that the copy of my Reasons that would be sent to the electronic searchable database would be sanitized to remove all names and other identifiers that might disclose the identities of the children. X and Y agreed to changes as set out in paragraph 1 of X’s February 12 submission. These changes have been made.

X’s Further Requested Changes:

[309] X requested changes to my February 5 Reasons to reflect typographical and non-substantive errors in paragraphs 2 through 9 of his February 12 submissions. Y agreed to the changes requested in paragraphs 2 through and including 7 of X’s submissions. These changes have been made.

[310] In paragraph 8 of his February 12 submissions, X requested that I add a sentence to paragraph 264 of my February 5 reasons as follows:

“I encourage the parties to work together to determine how much Y owes X on account of interest payments since September 2014, taking into account any interest payments Y may have paid. In the event that the parties are unable to determine the amount prior to making submissions to me regarding costs and professional fees, they may address this issue at that time.”

[311] I decline to make this amendment. If the parties wish to address this matter further, they may, when they address costs and professional fees. Any evidence in respect of interest on the Line of Credit shall be given in Affidavit form.

[312] In paragraph 9 of his February 12 submissions, X requested that I correct paragraph 299 of my February 5 reasons. I agree, and have deleted the balance of the first sentence following the word “Third,”.

Y’s Further Requested Changes:

[313] In her email of February 11, 2016 Y attached an annotated version of the proposed final order pursuant to my Reasons. At the end of that annotated order, she requested that I address four further items. I address these items as follows:

1. “Beneficiary for the Respondent to the Applicant”

[314] I do not understand this submission. It is denied.

2. Respondent to be Beneficiary of Applicant’s Life Insurance.

[315] Y wishes to be maintained as the irrevocable beneficiary of X’s life insurance policy. X said that this claim is not clear. It was pleaded in her October 30, 2015 Amended Answer.

[316] I decline Y’s request. There was no evidence presented that X had life insurance.

3. Respondent to be Beneficiary of Applicant’s Medical and Extended Health Benefits Insurance.

[317] Y wishes that X maintain Y on his dental, medical and extended health care policy. X says that this claim is not clear. It was pleaded in her October 30, 2015 Amended Answer.

[318] I deny Y’s request. There is no evidence that he had such coverage at his place of employment, and if he had such coverage, whether it would be available to her post-divorce, and if so on what terms and at what price.

4. Bonuses and Stock Options.

[319] Y asks that she continue to share in bonuses and stock options available to X. This is denied. It was not pleaded. No evidence was led that he received bonuses or stock options to date. This denial is without prejudice to Y arguing in the future that any such remuneration should be considered as part of X’s income for the purposes of re-calculating spousal support, child support, or s. 7 benefits.

[320] In her email of February 15, 2016, Y posed two questions about child and spousal support. I decline to answer her questions. The dates for commencement of spousal and child support were dealt with in my Reasons and Final Order.

[321] I attach Amended versions of my February 5, 2016 Reasons, both with and without identifying information.

Trimble J.

Date: March 3, 2016

[^1]: In early November, 2015, A commenced protection proceedings in the Ontario Court of Justice seeking protection for all three children on the basis that they were at risk of emotional harm because of the conflict in the Divorce between X and Y.

[^2]: See Fidler, B.; Bala, N.; Hurwitz, H. (2013), “Best Practice Guide: Emotional Harm and Parent-Child Contact Problems in High Conflict Separations”, Toronto, p. 45 and 99; Warshak, R; “Parental Alienation: What is it; How to Manage it., Innovations – Breaking Boundaries in Custody Litigation, June 12-13, 2014, p. 7; Fidler, B., Bala, N. “Children Resisting Post separation Contact with a Parent: Concepts, Controversies, and Conundrums”, Family Court Review, Vol. 48, No. 1,, January 2010, p. 7.

[^3]: See footnote 2.