COURT FILE NO.: 35525/13 DATE: 2016-09-15 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
WILLIAM HART Applicant – and – SAMAR KRAYEM Respondent
Counsel: William Hart, Self-represented Nicole Matthews, for the Respondent Adrian Baker, for the Office of the Children’s Lawyer
HEARD: April 8, 9, 10, 13, 14, 15, 16, 17, May 28, June 12, 15, August 24, 25 & 26, 2015, April 18, 19, June 20, 2016
REASONS FOR JUDGMENT
Gray J.
[1] This matter was heard over the course of 17 days in 2015 and 2016. In the final analysis, there are two main issues: custody of and access to the parties’ youngest child, Adam; and equalization. Depending on the ultimate timesharing arrangement, there may be an issue as to child support.
[2] This case has been incredibly difficult for all concerned. Emotions have run high throughout the proceedings. To some extent, both parties have demonstrated a lack of judgment.
Background
[3] I will not attempt to summarize the evidence of every witness. I will outline in general terms the gist of the main evidence.
[4] Mr. Hart, the applicant, described the parties’ early relationship as being good. Ultimately, however, he described the respondent as a vindictive, destructive, and evil person. He alleged that the respondent abused the parties’ four children. Indeed, two of the three adult children refuse to have anything to do with the respondent.
[5] The parties have four children – Amanda, born April 11, 1989; Sarah, born July 8, 1991; Kareem, born March 7, 1993; and Adam, born January 25, 2004.
[6] It is Adam over whom the custody and access battle is taking place. He will be 13 years old on January 25, 2017. While he was nine years old when this proceeding was commenced on March 14, 2013, he is rapidly approaching the age at which he will have a major say in his custodial and access arrangements.
[7] The Office of the Children’s Lawyer was requested to provide assistance, and the OCL appointed counsel and a clinical investigator. Ultimately, Adrian Baker was appointed as counsel, and Roy Reid was the clinical investigator. Mr. Reid filed three affidavits in the course of these proceedings. They were sworn on January 19, 2015; March 15, 2015; and March 16, 2016. Mr. Reid was cross-examined by Mr. Hart, and by Ms. Matthews on behalf of the respondent, at the trial.
[8] The parties separated at the end of December, 2012. There was a meeting of the family, not including Adam, in early January, 2013. It was hoped that that meeting would be civil, and would set the stage for an orderly transition to the parties living separately. Instead, matters went rapidly downhill thereafter. There were allegations of abuse, violence, theft, destruction of property, assaults, and other allegations of a similar nature. The respondent began videotaping interactions between the parties and their children. The police were called on many occasions. The Children’s Aid Society was involved.
[9] Only one criminal charge was laid, against Mr. Hart. It was resolved by way of a peace bond. No convictions were ever registered.
[10] The Children’s Aid Society investigated on more than one occasion, but failed to verify any allegations of child mistreatment.
[11] Shortly after the separation, Mr. Hart closed all of the bank accounts, including joint accounts, and moved them to the Royal Bank of Canada where accounts were opened in his name. Ms. Krayem used Mr. Hart’s credit card to purchase a car for approximately $13,000. She did not advise Mr. Hart that she would be doing so.
[12] Mr. Hart’s mother gave evidence, and essentially confirmed Mr. Hart’s view that Ms. Krayem was an abusive person.
[13] All three adult children prepared affidavits which were filed at the trial. Each of them testified at the trial.
[14] The two oldest children, Amanda and Sarah, testified that their mother, Ms. Krayem had been abusive for many years. The abuse included insults and physical assaults. Each of them testified that she wanted nothing further to do with Ms. Krayem. Each testified that Adam would be much better off living with his father. Indeed, Sarah testified that in her view Adam would be much better off if he did not see Ms. Krayem at all.
[15] Kareem, in his affidavit and in his testimony, was less categorical about his mother. In fact, he is attempting to have a relationship with her. He did testify that his mother had been somewhat abusive in the past, but he now believes it is important that he have a relationship with her. He is takings steps to visit with her and to attempt to understand her viewpoint. Like his sisters, he believes that Adam would be better off living with his father.
[16] For her part, Ms. Krayem testified that Mr. Hart had always been abusive to her throughout their marriage. Indeed, she testified that Mr. Hart had threatened to kill her if he did not marry her.
[17] Ms. Krayem’s hatred of Mr. Hart was palpable. She acknowledged that she had written a letter to Mr. Hart’s brother, in Lebanon, in which she used vitriolic language to describe his behaviour, and accused him of being gay and engaging in affairs with both men and women. She referred to Paola Migliozzi, Mr. Hart’s current partner, as a “whore”.
[18] There seems little doubt that Mr. Hart had an affair with Ms. Migliozzi while he and Ms. Krayem were still living together. The affair likely started sometime in 2009. While the affair is not directly relevant to any of the issues in this case, it may go some way to explaining the hatred that Ms. Krayem has for Mr. Hart, and which clearly commenced on the date they separated. In my view, it is likely that it is particularly galling to Ms. Krayem that Ms. Migliozzi is now being put forward by Mr. Hart as a stabilizing person that should cause me to favour Mr. Hart as the custodial parent.
[19] While I understand Ms. Krayem’s perspective, this feature can play no part in my decision-making, other than as a circumstance that currently may impact on the best interests of Adam.
[20] The sale of the jointly-owned matrimonial home proved to be problematical. After the parties separated, a number of attempts were made to sell it.
[21] Offers of $785,000 and $745,000 were not accepted. Ultimately, an offer of $715,000 was accepted, and the deal closed in July, 2015.
[22] Mr. Hart alleged that Ms. Krayem was uncooperative in listing the property and in getting it sold. Mr. Ross, the real estate agent, was called as a witness and he confirmed that Ms. Krayem was, in some respects, uncooperative. As an example, she declined to have a lock box on the front door. She cancelled appointments to see the property.
[23] After the closing of the transaction, there was a confrontation with the purchaser over the condition of the property. The grass was not cut, some items, such as a sink, were left in a damaged condition, and there was a good deal of junk left in the home that had not been removed. The purchaser threatened to sue for the cost of fixing the problems.
[24] Ms. Krayem was generally unwilling to accept responsibility for the problems. She thought the real estate agent was unreasonable. She did not think the property was left in an untidy condition, although she conceded that some items were left in the house that should have been removed.
[25] Mr. Hart claims that Ms. Krayem has made it difficult for him to have a relationship with Adam. She has been uncooperative in keeping him informed about medical appointments and educational issues, and she has been dilatory and difficult in access exchanges. For her part, Ms. Krayem denies these allegations.
[26] Since the date of separation, Mr. Hart has moved from Milton to Maple, where he shares a home with Ms. Migliozzi. He also purchased a separate home for his adult children.
[27] Under a temporary order, Adam resides primarily with Ms. Krayem. He spends alternate weekends with his father; if a Friday is a professional development day, that day will be included in a weekend visit. He also spends each Wednesday overnight with his father.
[28] Each party claims custody of Adam. A temporary order of Donohue J. was made on July 11, 2013, granting Ms. Krayem temporary custody of Adam.
[29] As noted earlier, Roy Reid prepared three affidavits. They reflect a number of interviews with the parties and with Adam. He and Mr. Baker also interviewed the adult children and Ms. Migliozzi. Mr. Reid reviewed the involvement of the police and the Halton Children’s Aid Society.
[30] Mr. Reid interviewed the principal of the school at which Adam is in attendance. The principal described Adam as doing well at school, from an academic, behavioural and social standpoint. Adam fits in well socially and has very strong friendships at the school. He is a strong B student. Adam’s report cards show that he is doing well.
[31] Mr. Reid interviewed Dr. Kamouna, the family physician. Dr. Kamouna indicated that Adam has presented as a very normal child, and has never raised any issues regarding either parent. There is no indication that either parent has neglected Adam’s medical health. Dr. Kamouna indicated that Adam has presented as happy regardless of the parent who brought him to appointments.
[32] Interviews were conducted with Adam on April 23, 2014, June 9, 2014, and June 19, 2014.
[33] Adam said he was very contented and settled in his school in Milton. He seems to like his teachers, and he has lots of friends. He is very comfortable in his current surroundings.
[34] Adam talked about how he has two homes, lives with Dad at Dad’s home and sees his siblings on a regular basis, and as well he lives with his Mom at Mom’s home. His school is closer to his mother but it doesn’t bother him when his dad drives him to school to Milton in the morning even if it means getting up early in the morning.
[35] Adam doesn’t know why his parents are not together, he sees it as something which he feels he doesn’t need to know about, he is not going to ask and he doesn’t want to know. He doesn’t like the fact that his parents are separated. Now that they are separated he is not exposed to the arguing and as a result of that, the separation is better.
[36] Adam really enjoys his time with his father. He also very much enjoys time with his mother. His description of the discipline style of both parents was very similar. He was very clear there was no physical discipline, and that discipline was described in terms of both parents sitting down with Adam, speaking to him and explaining what he had done wrong.
[37] A worry Adam has is if he was spending more time with his dad he would miss his mom and if he is spending more time with his mother he would miss his dad. Adam is very loyal to both his parents. He loves his parents equally. He indicated there is nothing he would improve about either parent. He feels that the imbalance of time spent with one parent over the other is unfair.
[38] At the third meeting, Adam expressed a stronger preference for a shared schedule, and he was very keen to see the access schedule split down the middle. This did not mean he was unhappy in his mother’s care, it’s just that he loves his parents equally and feels that should be reflected in the living arrangement. When asked about living with his father primarily, Adam was clear that he would not like that long term and worried about missing his mom.
[39] Mr. Reid and Mr. Baker had disclosure meetings with each parent on August 25 and 28, 2014. They advised that the OCL’s recommendation would be that there should be an equal sharing of time with Adam by each parent. In terms of custody, there appeared to be no particular reason to prefer one parent over the other. However, the parents are not ideal candidates for a traditional joint custody regime. Thus, the OCL proposed a parallel parenting regime, such that major medical decisions would be made by Mr. Hart, and any major educational decisions would be made by Ms. Krayem. Regular day-to-day decisions would be made by the parent with whom Adam is residing at any one time.
[40] Ms. Krayem took no formal position in response to the OCL proposal. Mr. Hart rejected the proposal and maintained that Adam’s views and preferences as expressed to counsel and Mr. Reid were not Adam’s true views and preferences. He wanted Adam to be re-interviewed.
[41] Subsequently, Mr. Reid learned that Mr. Hart had placed a call to the Halton CAS on September 4, 2014 expressing protection concerns for Adam in Ms Krayem’s care. The CAS investigated but closed its file.
[42] Mr. Reid spoke with Dr. Kamouna on November 12, 2014. Dr. Kamouna said that Adam had been brought to his office by Mr. Hart and one of Adam’s sisters. Dr. Kamouna said Adam came to tell him of incidents he had been inappropriately physically disciplined by his mother. Dr. Kamouna wondered about the timing of this disclosure.
[43] Mr. Reid conducted two further interviews with Adam at the school. At the first interview, Adam advised that his views and preferences had now changed and that he wanted to live with his father and visit his mother. For the first time, he advised that his relationship with his mother could be conflicted and that there had been some historical incidents where she had been physically aggressive with him. Adam was asked what might account for his change in position, but he struggled to articulate it. Towards the end of the interview, Adam conceded he needed some additional time to think through why he wanted to spend more time with his father rather than his mother.
[44] At the second interview, after some discussion, Adam indicated that he loves both his parents equally, he is strongly attached and is loyal to both. His first choice would be to change the current schedules so that he would spend Monday overnight, Tuesday overnight with one parent and Wednesday, overnight, Thursday overnight with the other parent, with weekends alternating and holidays being shared. His second choice would be to flip the current schedule and live more time with his father than his mother.
[45] By the time Mr. Reid’s affidavit was sworn on January 19, 2015, Mr. Hart was supporting the implementation of an equitable shared parenting arrangement as well as the implementation of a parallel parenting regime. At that point, Ms. Krayem was insistent that she have sole custody and primary residence with her. Subsequently, Mr. Hart changed his mind and insisted on sole custody and primary residence with him.
[46] In a subsequent interview on March 13, 2015, Adam advised that things were going well at school and at home. He confirmed that he likes his school and that if he has a choice he would prefer to stay at his current school.
[47] Adam advised that the time he gets to see his father is not enough and that he wants to see his father more. The schedule he prefers and wants is an equal shared schedule between mum and dad. Adam wants the court matter to come to an end as he wants both his parents to use their time to focus on spending it with him rather than being focused on court.
[48] In Mr. Reid’s third affidavit, sworn on March 16, 2016, he deposed that he had attended at each party’s new residence. He deposed that Mr. Hart’s residence in Maple, Ontario, is comfortable and spacious. Adam has his own room. Ms. Krayem’s new residence in Milton is a townhome. It is comfortable, spacious and Adam has his own bedroom. The home is located within walking distance of Adam’s current school.
[49] On February 28, 2016, Mr. Reid and Mr. Baker attended at the school. They met with the school principal, who advised that in the past year the parents appear to have found a way to support Adam without the school being brought into the mix. Both parents have kept their focus on Adam. The principal noted that Adam has formed strong friendships at school and that there is a strong peer influence. There are no concerns regarding Adam’s performance academically and Adam is described as a great student.
[50] Mr. Reid and Mr. Baker met with Adam privately in the office of the vice-principal. Adam said that things were going well. He plays soccer and represents the school team in volleyball. He enjoys music class in particular because he is getting to learn a new instrument.
[51] Adam was asked about the current schedule with his parents. Adam described the schedule as “fine” but noted he would like to spend an additional day with his father, perhaps on a Tuesday overnight to Wednesday which would be in addition to the time he currently spends with his father. He said it is annoying that he has to wake up extra early to get to school on time but regardless of that inconvenience he still wants that additional time with his father.
[52] Adam did not disclose any concerns about either parent.
[53] Adam was asked what changes he would like in his life and what things he would like to stay the same. Adam advised the changes he wants are to be able to play soccer and spend more time with his father and the things he would like to stay the same are to continue seeing his mother and to maintain his friends. Adam noted he would be happier seeing his dad more and if court was over.
[54] Mr. Reid was not shaken on cross-examination.
[55] Both parties filed financial statements and Net Family Property statements. Under Mr. Hart’s NFP statement, he claims that Ms. Krayem owes him $27,079.63. In her NFP statement, Ms. Krayem claims that Mr. Hart owes her $999,103.31. I am constrained to say that the material in support of each party’s claim is less than adequate. For the most part, each party simply threw a pile of financial material and documents at the court, and hoped that I would be able to make sense of them. If the result is a less than perfect calculation, much of the blame can be ascribed to the way in which the parties treated the evidence.
Submissions
[56] Mr. Hart submits that he should be awarded sole custody of Adam, and that Adam should live with him primarily, with reasonable access to Ms. Krayem. He submits that an equalization order should be issued in his favour as set out in his Net Family Property statement.
[57] Mr. Hart submits that Ms. Krayem has been vexatious, manipulative and disrespectful in her treatment of Mr. Hart, the children, law enforcement officials, the court and the legal system. Her actions have driven her older children away and she has created a stressful, unstable environment for Adam.
[58] Mr. Hart submits that Ms. Krayem’s main concerns were around material things, with no rational thought as to how her actions were impacting people. She mistreated her children, who testified against their mother at this trial.
[59] Mr. Hart submits that it is clear that communication will be very difficult. Ms. Krayem has shown an unwillingness to communicate. He submits that Ms. Krayem has lied at every opportunity.
[60] Mr. Hart submits that the OCL recommendation for joint custody with parallel parenting is not warranted. He notes that the recommendation that Ms. Krayem be given decision making power regarding education for Adam was based on the assumption that Ms. Krayem would continue to reside in Milton. He submits that Ms. Krayem is not qualified to make decisions about Adam’s education. Mr. Hart, on the other hand, is well educated and studied at Boston University. Mr. Hart submits that the school that Adam would attend in Maple is an excellent school.
[61] Mr. Hart submits that Ms. Krayem has not adequately attended to Adam’s health and wellbeing. She has fed him moulded bread for lunch and neglected to obtain prescribed medication for him.
[62] Mr. Hart notes that his home in Maple provides a good deal of space and a separate bedroom for Adam. He will have the full support of two adults, namely Mr. Hart and Ms. Migliozzi, and will have full access to his adult siblings. Adam has developed a warm, open, and trusting relationship with Ms. Migliozzi, and with her two children who also reside in the home.
[63] Mr. Hart submits that if Adam were to attend school in Maple, he will quickly and easily make friends, as he did in Milton.
[64] Mr. Hart submits that Adam’s relationship with his father has been strong. They have a close bond.
[65] Mr. Hart notes that while he originally supported the OCL’s recommendation, on reflection he became convinced that Ms. Krayem would create more conflict in a parallel parenting regime, and thus an order for sole custody in his favour would be in the best interests of Adam.
[66] Mr. Hart submits that the court should take into consideration that Ms. Krayem has constantly lied and not taken any accountability for the demise of the marriage and of the relationship with her adult children.
[67] Mr. Hart submits that if he were granted custody of Adam, he would encourage Adam to further and nurture his relationship with Ms. Krayem, but it is clear that Ms. Krayem would not do the same if custody were granted in her favour or under a parallel parenting regime.
[68] With respect to equalization, Mr. Hart submits that Ms. Krayem has done little except attempt to divert and confuse the court by filing lots of paper that was not substantiated by any facts. By contrast, Mr. Hart has provided full disclosure. Mr. Hart has made many attempts to settle the financial issues, but all such attempts have been rebuffed. Instead, Ms. Krayem has attempted to destroy all she could.
[69] Mr. Hart notes that the sale proceeds of the matrimonial home are currently being held in trust, and as of March 31, 2016, had a value of $233,533.
[70] Mr. Hart notes that Ms. Krayem registered a second mortgage on the home to cover Legal Aid’s costs, in the amount of $20,142.60. This must be deducted from Ms. Krayem’s share.
[71] Mr. Hart notes that Ms. Krayem removed all household contents with her, and only a partial list of the contents has been provided.
[72] In addition to equalization, Mr. Hart requests an order that Ms. Krayem pay occupation rent from March 11, 2013 to May, 2015. He also requests various other expenses. He also requests the amount charged by Ms. Krayem on a credit card to purchase a car.
[73] Mr. Hart requests an order for child support and section 7 expenses.
[74] Ms. Matthews, counsel for the respondent, submits that Ms. Krayem should have sole custody of Adam, with regular access to Mr. Hart. She proposes that Ms. Krayem consult with Mr. Hart regarding major decisions concerning Adam’s education and health. If the parties cannot agree, Ms. Krayem would have the final decision. She proposes that there be detailed time-sharing provisions regarding March Break, summer vacation and holidays. She proposes that the respondent be responsible for Adam’s passport. She requests an order for spousal and child support. She proposes an equalization payment to Ms. Krayem as set out in Ms. Krayem’s Net Family Property statement.
[75] Ms. Matthews submits that credibility of the parties and their supporting witnesses is an important factor.
[76] Ms. Matthews submits that it is clear from the evidence that joint custody and any attempt at cooperative parenting will not work.
[77] Ms. Matthews submits that some of the evidence called by Mr. Hart was highly problematical. For example, he called his elderly and frail mother as a witness, and he called the parties’ older children to testify against their mother. This demonstrates Mr. Hart’s lack of insight, compassion and thoughtfulness, and raises grave concerns about his decision-making.
[78] Ms. Matthews notes that when the facts were not to Mr. Hart’s liking, he repeatedly demanded that the OCL interview people he wanted, including Adam, Dr. Kamouna, and others. Mr. Hart was so focused on discrediting the respondent that he lost sight of what was in the best interests of his child.
[79] Ms. Matthews submits that the preponderance of evidence is in favour of Ms. Krayem who has maintained a stable home for Adam that is in line with his views and preferences as discerned by the OCL.
[80] Ms. Matthews notes that Ms. Krayem was able to secure housing close to Adam’s school so that he could continue at that school uninterrupted. By contrast, Mr. Hart relocated to Maple, with no care for any person other than himself.
[81] Ms. Matthews submits that access to Mr. Hart should continue, but that the mid-week access should be discontinued. She submits that the commute from Maple to Milton is unreasonable.
[82] Ms. Matthews submits that an order for spousal support is appropriate. During the marriage, the respondent largely stayed at home and cared for the children. Mr. Hart was the breadwinner for the family, and was able to improve himself during the marriage.
[83] While Mr Hart claims to be unemployed, an income of $70,000 per year should be imputed to him. The appropriate range for spousal support would be between $1,288 and $1,617 per month. The mid-range is $1,450. Ongoing child support would be $639 per month.
[84] Ms. Matthews submits that Ms. Krayem should receive retroactive spousal support to the date of separation, December, 2012, in the amount of $66,470. Retroactive child support would be $29.394.
[85] Ms. Matthews submits that the equalization payment calculated in Ms. Krayem’s Net Family Property statement is reasonably based on the disclosure that has been made to her. She submits that it is Mr. Hart’s duty to refute with evidence that her calculations are wrong.
[86] Mr. Baker, counsel for the OCL, submits that the only consideration on custody and access issues is Adam’s best interests. Mr. Baker submits that Adam’s views and preferences are entitled to significant weight. He notes that Adam’s views and preferences have been strong, consistent and independent.
[87] Mr. Baker submits that rather than concentrate on the best interests of Adam, the evidence submitted by the litigants tended more toward each parent’s need to exert control and be validated.
[88] Mr. Baker submits that notwithstanding all of the testimony given by both parties questioning the parental competency of the other party, there was no corroborative evidence from any independent professional source that Adam had suffered abuse or neglect from either parent.
[89] In fact, Adam is a healthy, highly functioning child. He does not suffer from any mental health challenges, and he does not have any special needs. His report cards show that his academic performance is generally consistent from year to year. He is not suffering any difficulties from an academic, social or behavioural point of view. Information from the Halton CAS did not verify or validate any child protection concerns. None of the professionals involved in Adam’s life validated any abuse. This would include the police, the CAS, the school, and Dr. Kamouna.
[90] There was only one instance of a disclosure of any concern to Dr. Kamouna, when Adam was brought to an appointment by Mr. Hart and one of Adam’s sisters. Once again, the allegations were not verified or validated. The timing of the disclosure is suspect.
[91] Mr. Baker submits that Mr. Hart has contributed to the conflict by calling the adult children as witnesses, involving the police on multiple occasions, engaging Adam in discussion about the litigation, having Adam interviewed and re-interviewed by Dr. Kamouna and CAS workers, all of which was to generate support for his narrative.
[92] Mr. Baker submits that Ms. Krayem has contributed to the conflict by making unfounded allegations about Mr. Hart to the police, insisting that access exchanges take place at a police station, withholding Adam’s lunch box on access days with his father, and resisting Mr. Hart’s requests for sharing of March Break, Christmas, summer, Easter and PD days until motions were brought.
[93] Mr. Baker notes that pursuant to s.64 of the Children’s Law Reform Act, the court is obliged to take into consideration the views and preferences of a child.
[94] Mr. Baker notes that Mr. Hart and the three adult children testified that Adam’s wishes were consistent with what Mr. Hart wanted. Mr. Hart believes that the third parties professionals do not understand what Adam’s wants and needs, and Mr. Hart is in the best position to know what his son wants and needs.
[95] Mr. Baker notes that Ms. Krayem gave evidence of what Adam told her were some negative experiences of living his father’s home, suggesting that Adam’s wishes were more consistent and corroborative with her narrative.
[96] Mr. Baker notes that Adam’s views and preferences as communicated to the OCL are distinct from those of his parents. He loves and is loyal to both. He wants to share his parents and does not value one above the other.
[97] Mr. Baker submits that the views and preferences as communicated to Mr. Reid should be given more weight than the views and preferences of Adam as perceived by the adult family members. He notes that Adam was interviewed by the OCL on seven separate defined occasions over a period of two years; all interviews were conducted in a neutral setting; in interviews with the OCL, Adam had the benefit of solicitor-client privilege; the interviews were conducted by Roy Reid, who has considerable professional experience interviewing children; the testimony of the adult family members was given under the background that they have been consumed by the drama of the conflict, which compromises their ability to view and report on Adam’s views and preferences in a detached and objective manner.
[98] Mr. Baker notes that Adam was described in a similar way by all witnesses. He was described as loving and caring, and a child who is conflict-averse. He cares immensely about the feelings of those he loves. Because he knows how the adult family members feel about each other, Adam tells his family members what they want to hear.
[99] Mr. Baker notes that Adam’s views and preferences were most consistently expressed to the OCL, that he wishes to share his parents and spend approximately equal time with both. During one interview, he appeared to adjust his position to say he wanted to live with his father. This was shortly after a meeting during which the OCL position was revealed and rejected by Mr. Hart, following which Mr. Hart requested on a number of occasions that Adam be re-interviewed.
[100] Mr. Baker notes that testimony was given by Ms. Grewal, a CAS worker who indicated that Adam did not express a preference for either parent. This is consistent with the information obtained by the OCL.
[101] Mr. Baker notes that Adam has lived in Milton his whole life. He is living with his mother in a home close to his school. The OCL supports Adam remaining at his current school.
[102] Mr. Baker submits that the OCL supports an adjustment of the current living schedule to a more equitable arrangement where in addition to sharing weekends, each parent will have two mid-week overnights with Adam, or alternatively Adam can reside with each parent on a week-about basis.
[103] Mr. Baker submits that awarding sole custody to either parent may heighten the risk of further conflict. Further, a sole custodial order may lead to the non-custodial parent being excluded or marginalized from the decision-making process.
[104] Mr. Baker submits that the court should consider an order for joint custody with a parallel parenting arrangement.
[105] In this case, the two professional service providers for Adam have been the family physician, Dr. Kamouna, and the school. Both parents have taken an active role in engaging with these service providers.
[106] Mr. Baker proposes that Ms. Krayem should have decision-making authority over education while Mr. Hart should have decision-making authority over health. The court should assign decision-making authority in these respective spheres for major or significant decisions only, and for the other parent to be consulted prior to a decision being made. All day-to-day decisions should be made by the parent with whom Adam is residing at any point in time.
Analysis
[107] It is trite that decisions respecting the custody of or access to a child must be made in accordance with the best interests of the child. The interests of the parents are entirely secondary.
[108] I fully support the recommendation made by the OCL. My reasons follow.
[109] Having heard 16 days of evidence, it is quite clear that each party is, for the most part, concerned with his or her interests first and foremost. The hatred of these parties for each other is palpable. Control is of paramount importance.
[110] Both parties have behaved unreasonably.
[111] Ms. Krayem has made it extremely difficult for Mr. Hart to have a relationship with his son. She has forced confrontational proceedings regarding weekend access, access locations, holidays, Professional Development days, and so on.
[112] Mr. Hart has refused to accept the views and preferences of Adam as expressed to the OCL. Once it became clear what those views and preferences were, Mr. Hart took steps to try to get Adam to change his story. He even advised me that Adam had told him he was sorry he had lied to the OCL.
[113] Adam’s views and preferences as expressed to the OCL have been consistent. He loves both of his parents. There has been no abuse. He wants to spend equal time with each of them if possible. He wants the court process to end. Having heard the evidence of Mr. Reid, I have no doubt that his recitation of Adam’s views and preferences is accurate.
[114] Whatever may have occurred in the past regarding the parties’ adult children, and any alleged abuse that may have occurred, I am convinced that there has been no abuse of Adam. No alleged abuse has been validated by the police or the CAS, and none has been alleged by Adam, notwithstanding that he has been interviewed seven times. None has been observed by Dr. Kamouna.
[115] I am convinced that both parents, when not embroiled in litigation, are good parents and have Adam’s best interests in mind.
[116] If it is possible, I think an equal time-sharing arrangement is preferable. It is what Adam wants, and is consistent with the maximum contact principle.
[117] I agree with the OCL that it would be beneficial to keep Adam in his current school. He is doing well there, he participates in many activities, and he has many friends there. Adam has spent his entire life in Milton. I think it is in his best interests that he continue attending his current school.
[118] The parties live a considerable distance apart. That would make an equal time-sharing arrangement somewhat difficult. In order for it to work, Mr. Hart would have to be prepared to drive Adam to school in Milton and pick him up during the times Adam is living with him.
[119] I do not think such an arrangement is entirely unworkable. Currently, during the Wednesday night access visits, Mr. Hart must pick Adam up from school and deliver him to school in Milton. An equal time-sharing arrangement would mean that Mr. Hart would have to do it every day during times Adam is with him.
[120] I am prepared to order a week-about schedule, provided Mr. Hart is prepared to do the necessary driving of Adam to and from school in Milton. If he is, I see no reason why the week-about arrangement cannot continue through the entire year, including the summer.
[121] If Mr Hart is not willing or able to do the necessary driving, I will continue the current arrangement, but provide some additional time for Adam to spend with Mr. Hart. If the current arrangement is to continue, I see no reason why Adam should not spend the entirety of March Break with Mr. Hart. Furthermore, I think Adam should spend the entire summer period with Mr. Hart, from the conclusion of school in June until the commencement of school in September, except that Adam would spend alternate weekends with Ms. Krayem.
[122] I will give Mr. Hart until the end of September, 2016 to make his election as to which option he prefers. In default of an election, the current arrangement shall continue as amended.
[123] As far as decision-making is concerned, I agree with the OCL that an ordinary order of joint custody is doomed to failure. These parties have no hope of being able to make joint decisions about Adam’s welfare.
[124] I also agree, however, that it would be unwise to award sole custody to one party or the other. The “winner” would likely use such a determination as an instrument of oppression.
[125] On balance, I think an order for joint custody, with a parallel parenting regime, is appropriate. I will order that Ms. Krayem make all significant decisions regarding Adam’s education, and Mr. Hart make all significant decisions regarding Adam’s medical care. All day-to-day decisions will be made by the parent with whom Adam is residing at the time.
[126] Under either option, Adam will be with each parent at least 40 per cent of the time. I see no reason for any child support to be paid by either party. While Mr. Hart will have some increased cost arising out of the driving of Adam to and from school, I do not see that as a reason to impose a child support obligation on Ms. Krayem. Having regard to s.9 of the Child Support Guidelines, I order that no child support be paid by either party.
[127] I see no need for an order for s.7 expenses. Clearly, each party has looked after Adam’s reasonable needs as required. It will likely only be an issue if and when Adam attends a post-secondary institution, and at that time the parties and Adam will have to establish an appropriate cost sharing arrangement as contemplated in Lewi v. Lewi (2006), 2006 ONCA 436, 80 O.R. (3d) 321 (C.A.). If they cannot agree, the appropriate application or motion may be brought.
[128] This is not a case for spousal support. I do not agree that Ms. Krayem has a valid claim for compensatory support. Both parties worked during various parts of the marriage. Both parties contributed to the accumulation of whatever assets they had. Fairness can be achieved through an appropriate equalization payment. Neither party is earning very much in the way of income at present.
[129] As noted earlier, the Net Family Property statements filed by both parties are somewhat lacking. However, having considered the respective NFP statements, and the evidence called during the trial, I think Mr. Hart’s statement is more accurate, at least as a starting point.
[130] The figures Mr. Hart has included under “General Household Item and Vehicles” are reasonable, subject to some adjustments I will mention later.
[131] I accept the figures under Part 4(c): Bank Account and Savings, Securities and Pensions. My difficulty is the figures under Part 5: Debts and Other Liabilities.
[132] I accept the figures Mr. Hart has included for both parties concerning the secured line of credit.
[133] Mr. Hart has included as debts some apparent contingent liabilities based on the assumption that he would immediately cash in his SDRSP and his RRSP. Mr Hart called no evidence to establish this, and I will not allow it.
[134] Mr. Hart has included under “Other Debts” an amount of $208,545.39 that he claims as debts from Ms. Krayem for various things, and the sum of $100,000 that he claims is a loss on the property that he attributes to Ms. Krayem. Assuming their validity, these are not amounts that can be claimed as debts. Rather, they are claims that may or may not be deducted from an equalization payment otherwise owing to Ms. Krayem, if they are established.
[135] To a very large extent, Mr. Hart has not established these claims in any event. I will be prepared to give him some deduction from his equalization payment, as I will discuss in a moment.
[136] Mr. Hart has claimed a gift or inheritance from a third person in the amount of $20,785.34. He called no satisfactory evidence to support that exclusion, and I will not allow it.
[137] After disallowing the amounts I have mentioned, the total debts and liabilities allowed for Mr. Hart will thus equal the amount allowed for Ms. Krayem, namely, $200,438.35. That being the case, Mr. Hart’s Net Family Property is $669,808.65, and Ms. Krayem’s is $337,749.70. Thus, before any adjustments, the amount of the equalization payment owed by Mr. Hart to Ms. Krayem is $166,029.47.
[138] I am prepared to make some adjustments to that figure.
[139] When the house was sold, Ms. Krayem kept the contents. I instructed her to make two lists, and to give Mr. Hart the opportunity to select one of them. I am not persuaded that the lists she prepared are accurate. Thus, I think it is simpler to let her keep the contents and give Mr. Hart credit for approximately half their value. I assume the contents are worth approximately $40,000, so I will give Mr. Hart credit for $20,000.
[140] As noted earlier, Ms. Krayem used Mr. Hart’s credit card after they separated to buy a car, without advising him. The bank has sued Mr. Hart and obtained a judgment for over $21,000. That should be Ms. Krayem’s responsibility, so I will give Mr. Hart credit for $21,000.
[141] When the house was sold, it was discovered that there was a lien in the amount of approximately $20,000 on the title to the property, which was placed there by Legal Aid Ontario. That should be Ms. Krayem’s responsibility, so I will give Mr. Hart credit for $10,000.
[142] Mr. Hart paid all of the expenses for the home for some period after separation. I will give him credit for $15,000.
[143] Mr. Hart claims $100,000 as the so-called loss on the home caused by Ms. Krayem’s intransigence. I am not satisfied that Mr. Hart has established this claim.
[144] I reject all other claims made by both parties, including Mr. Hart’s claim for occupation rent. I have given him credit for some of the home expenses. He will get his share of the equity. There are no grounds for the claim.
[145] In the result, I will give Mr. Hart credit for $66,000 on his equalization payment. The net amount he will owe her after this credit is $100,029.47.
[146] As of March, 2016, the sum of $233,533 is being held in trust following the sale of the home. Out of that, each party would be entitled to $116,766. Presumably, there is slightly more there now as a result of interest accruing since then. I order that Ms. Krayem be paid one-half of the amount in trust. I order that from Mr. Hart’s one-half share, she be paid $100,029.47, and the balance be paid to Mr. Hart. This will satisfy all equalization claims and any other claims each party has against each other, other than for support in the event of a material change in circumstances.
Orders
[147] I further order as follows:
a) Custody and access
I. Option A:
- Adam shall live with each party in alternate weeks, commencing at 6:00 p.m. on Sunday in each week;
- During weeks in which Adam will be living with Mr. Hart and is in school, Mr. Hart will deliver Adam to school and pick him up from school.
II. Option B:
- During weeks that Adam is in school, Adam shall reside with Mr. Hart on Wednesday after school until the commencement of school on Thursday, and on alternate Fridays after school until the commencement of school on Monday; during alternate weeks where Friday is a Professional Development Day, Adam shall reside with Mr. Hart from Wednesday after school until Monday before school; during alternate weeks when Friday or Monday is a holiday, such days shall be considered to be part of the weekend Adam is to be with Mr. Hart, and he shall be with Mr. Hart from Thursday or Friday after school until Monday or Tuesday before school as the case may be;
- Adam shall reside with Ms. Krayem at other times except as hereinafter provided;
- It is Mr. Hart’s responsibility to drive Adam to school and pick him up from school when Adam is residing with him, as appropriate.
- March Break: Adam will spend March Break with Mr. Hart.
- Summer: Adam will be with Mr. Hart from the end of school in June until the commencement of school in September; he will spend alternate weekends with Ms. Krayem from 6:00 p.m. on Friday until 9:00 a.m. on Monday
b) Election for Option A or B
Mr. Hart shall have until September 30, 2016, to elect in writing either option A or option B; notice shall be given to the court, counsel for Ms. Krayem, and counsel for the OCL; in default of election, Mr. Hart shall be deemed to have elected option B.
c) Joint Custody and Decision-Making
Adam shall be in the joint custody of both parties with decision-making to be as follows: all important decisions regarding Adam’s education shall be made by Ms. Krayem; all important decisions regarding Adam’s medical and dental care shall be made by Mr. Hart; all day-to-day decisions will be made by the parent with whom Adam is residing at the time.
d) Mother’s Day
Ms. Krayem shall share time with Adam on Mother’s Day irrespective of which parent Adam is scheduled to be with, from 11:00 a.m.
e) Father’s Day
Mr. Hart shall share time with Adam on Father’s Day from 11:00 a.m. irrespective of which parent Adam is scheduled to be with.
f) Christmas
In even numbered years commencing 2014, Mr. Hart shall share time with Adam from Christmas Eve (December 24th) to Christmas Day (December 25th) at 5:00 p.m.; in even numbered years commencing 2014, Ms. Krayem shall share time with Adam from Christmas Day (December 25th) at 5:00 p.m. to December 27th at 4:00 p.m.; in odd numbered years commencing 2015, Ms. Krayem shall share time with Adam from Christmas Eve (December 24th) at 4:00 p.m. to Christmas Day (December 25th) at 5:00 p.m.; in odd numbered years, commencing 2015, Mr. Hart shall share time with Adam on Christmas Day (December 25th) at 5:00 p.m. to December 27th at 4:00 p.m.; the regular access shall be suspended for the purpose of Christmas access.
g) New Year’s Eve/New Year’s Day
In odd numbered years beginning in 2015 Adam shall be with Ms. Krayem from December 31st, 2014 at 4:00 p.m. to January 1st, 2015 at 5:00 p.m.; in even numbered years starting in 2016, Adam shall be with Mr. Hart from December 31st, 2015 at 4:00 p.m. until January 1st, 2016 at 5:00 p.m.
h) Adam’s Birthday
In each year, on Adam’s birthday, the parties shall share time with him for a period of up to three hours with the exact time period to be agreed upon by both parties, or resolved on motion to the court if they cannot agree.
i) Eid Al-Fitr
In odd numbered years beginning in 2015, Adam shall be with Ms. Krayem; in even numbered years beginning in 2016, Adam shall be with Mr. Hart.
j) Eid Al-Adha
In odd numbered years beginning in 2015, Adam shall be with Mr. Hart; in even numbered years beginning in 2016, Adam shall be with Ms. Krayem.
k) Travel
When either party plans to travel outside Canada with Adam, he or she shall be provided with Adam’s passport.
[148] I will entertain brief written submissions as to costs, not to exceed three pages together with a bill of costs. Mr. Hart shall have five days to file submissions and counsel for Ms. Krayem shall have five days to respond. Mr. Hart shall have three days to reply.
[149] There will be no order as to costs for or against the OCL.
Gray J.
Released: September 15, 2016