Citation and Court Information

CITATION: Krasaev v. Krasaev, 2016 ONSC 5951 NEWMARKET COURT FILE NO.: FS-14-45751-00 DATE: 2016-09-21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SERGEY KRASAEV Applicant

– and –

SABINA KRASAEV Respondent

COUNSEL: S. Lawrence Liquornik, for the Applicant Susan Sack, for the Respondent

HEARD: August 3, 2016

RULING ON MOTION

DOUGLAS J.

OVERVIEW

[1] On this motion the Respondent mother seeks the following relief:

(a) Joint custody of the children of the marriage namely Michael Krasaev born March 2, 2002 (hereinafter “Michael”) and Rachel Krasaev born February 27, 2007 (hereinafter “Rachel”) and each party to have access with the children in accordance with the residency schedule and terms recommended by Dr. Irwin S. Butkowsky in his Assessment Report dated May 12, 2016, being more particularly set out in Schedule A to the Notice of Motion;

(b) an order that the Applicant father reimburse the Respondent mother the amount of $15,795.00 for the cost of Dr. Butkowsky’s report; or in the alternative, an order requiring the Applicant to pay to the Respondent the sum of $4,738.00 representing the adjustment amount based on the parties’ sharing the total cost of Dr. Butkowsky’s report proportionately to their respective incomes;

(c) an order that Rachel remain at Dr. Roberta Bondar Public School, Maple, Ontario until grade eight graduation from that school;

(d) an order dispensing with the Applicant’s consent to permit the Respondent to select and obtain professional counseling for Rachel for as long as the Respondent and the counsellor deem appropriate, and that the Applicant share the cost of Rachel’s counselling in an amount proportionate to the parties’ incomes;

(e) an order that the Applicant submit the costs of counselling for Rachel to his medical health plan for payment and that he reimburse the Respondent for any costs paid by her and not covered by his medical health plan in proportion to their respective incomes;

(f) an order that the Applicant pay child support to the Respondent in the amount of $555.00 per month based upon the Applicant’s income of $77,575.00 in 2015 and the Respondent’s income of $41,081.00 in 2015, based upon the children’s shared residence as recommended in Dr. Butkowsky’s report;

(g) an order that the Applicant pay to the Respondent child support arrears owed for the period August 1, 2014 to July 1, 2016;

(h) an order that the parties share the children’s special or extraordinary expenses proportionately to their respective incomes;

(i) an order that the Applicant pay spousal support to the Respondent in the amount of $503.00 per month based upon the Applicant’s income of $77,575.00 in 2015 and the Respondent’s income of $40,421.00 in 2015 retroactively from April 20, 2014;

(j) an order that the Applicant maintain coverage for the Respondent and the children under his employer’s group health insurance plan, and to provide disclosure to the Respondent of the plan details and information regarding expenses submitted to and reimbursed by the plan;

(k) an order relieving the Applicant of her obligations under paragraph 14(a) and 14(b) of the order of May 12, 2014 to make RESP contributions in the amount of $197.20 per month and to pay for her share of the life insurance premium for TransAmerica policy number 080593916; and

(l) costs of the motion.

[2] The Applicant father brings a cross-motion seeking the following relief:

(a) An order establishing a parenting schedule for the children whereby Michael will preside primarily with the Applicant and Rachel shall reside equally with both parents;

(b) an order fixing the parties’ respective support obligations retroactive to August 2014;

(c) an order that the Respondent irrevocably designate the Applicant as beneficiary of her life insurance policy so as to secure her child support obligation;

(d) costs on a full recovery basis.

[3] The father does not oppose the relief sought with respect to Rachel’s schooling, Rachel’s counselling, benefits and the Respondent’s RESP contributions.

[4] Similarly, the father does not dispute the mother’s entitlement to spousal support. Quantum is the issue on this motion.

Background Facts

[5] The parties were married of February 8, 1999 in Israel. They emigrated from Israel to Canada in 2003. They separated on April 20, 2014.

[6] At the time of arguing the motion, Michael is 14 and Rachel is 9.

[7] On May 12, 2014 the parties consented to an order including the following salient provisions:

6. The parties agree to participate in counselling with Stella Kavaukin of Family Connections Child and Family Counselling, to start immediately, which counselling will, at Stella’s direction, involve the children and shall be closed.

7. The parties agree that there shall be facilitated access on an entirely without prejudice basis, for Sergey and the children…using the services of Brayden Supervision Services for five occasions. The facilitated access shall also include note taking which will be used by the court, and the parties, the cost of the facilitated access with Brayden shall be paid from the joint account.

8. After the initial facilitated access, and the receipt of the notes from Brayden, the parties shall further negotiate whether ongoing facilitated access is required failing which either party may advance a motion to determine the issue of a parenting schedule and whether supervision is required.

9. The parties agree to retain Dr. Irwin Butkowsky to conduct an assessment pursuant to s.30 of the Children’s Law Reform Act which shall be paid jointly by the parties and the initial retainer shall be paid out of the joint account in an amount not to exceed $10,000.00.

10. Pending the commencement of the assessment, the parties shall endeavour to arrive at a resolution of a custody and access issues so as to not require the assessment.

11. Sergey shall pay Sabina, on a without prejudice basis, the sum of $1,053.00 on account of temporary child support commencing May 1, 2014 and every month thereafter, based on an income of $71,124.00 in accordance with the Child Support Guidelines. The parties shall try to resolve the s.7 expenses.

12. (a) …the parties agree to equally pay the cost of the RESP for the kids with Canadian Scholarship Trust Plan ($394.40 per month) on a temporary, without prejudice basis;

(b) the parties agree to continue to pay the life insurance on their own policy of insurance with TransAmerica and not alter the existing amount or terms other than each party may change the beneficiary designation provided that the life insurance policy of each (policy 080593916) shall be for Michael and Rachel, each as to 50%, as beneficiaries with the grandparents as trustees. For clarity, Sabina may name either or both of her parents as the trustee and Sergey may name either or both of his parents as the trustee.

[8] In August of 2014 the parties agreed informally to implement a schedule whereby they equally shared care and control of the children. They have taken no steps to change the May, 2014 order excerpted above until now.

[9] Since late January or early February 2015, Michael has resided primarily or exclusively with the father and Rachel has continued to reside with each parent on an equal shared schedule as follows:

(a) Week one: Sunday to Wednesday, with Sabina, Thursday to Sunday with Sergey;

(b) Week two: Sunday to Tuesday with Sabina, Wednesday to Sunday with Sergey.

[10] The parties had deferred commencement of Dr. Butkowsky’s assessment in the hope of resolving the outstanding issues; however, it was clear in January 2015 that a negotiated resolution would not be forthcoming.

[11] On January 19, 2015 the parties attended a case conference before Nicholson, J. In his endorsement from that attendance he directed that the “order re assessment must be complied with”.

[12] In June 2015 Dr. Butkowsky was jointly retained to conduct a custody/access assessment pursuant to s.30 of the Children’s Law Reform Act, to be paid jointly by the parties as ordered by the court on May 12, 2014.

[13] Dr. Butkowsky conducted a disclosure meeting in early November 2015. Soon thereafter he was requested to commence completion of his formal report given that the parties were unable to resolve the outstanding issues.

[14] Dr. Butkowsky’s formal report was completed on May 12, 2016.

The Report

[15] Dr. Butkowsky’s report is 90 pages long. It was appended to an affidavit sworn by Dr. Butkowsky which also addressed his qualifications. It was received in evidence by the court.

[16] The report sets out exhaustively the information considered by Dr. Butkowsky including approximately 20 hours of individual interviews with the mother and 19 hours of individual interviews with the father, two observations of interaction between mother and the children lasting a total of two hours and similarly for the father with the children, individual interviews with the children’s paternal grandmother, the children maternal grandparents, two individual interviews with each child totalling approximately two hours each, medical records for the children and the parties, police records with respect to police involvement with the parties, child protection records with Jewish Family and Child Services (hereinafter “JFCS”).

[17] Basis for serious concern is identified in Dr. Butkowsky’s report:

a. Both children are at high risk for both short and long term psychological and behavioural adjustment difficulties.

b. The children’s continued exposure to such high levels of instability heightens the risk of long term psychological and behavioural adjustment difficulties.

c. Michael’s identification with his father appears to have been intensified by his historical exposure to incidents of domestic violence, likely identifying with the more dominant and powerful parent, his father. Such identification places a child at higher risk of emulating such behaviour in their own relationships. There is evidence he may already have begun to imitate Sergey’s inappropriate and maladaptive behaviour patterns.

d. Sergey was, at least at the time, arrogant, condescending, critical and demeaning of Sabina in the presence of the children. In the absence of intervention, such a pattern likely heightens the risk of the children becoming alienated from their mother, to their detriment.

e. The limited time with Sabina preferred by Michael would not be consistent with his needs.

f. Sergey demonstrates significant difficulty in fostering and facilitating the children’s relationships with Sabina. The risk of alienation appears prominent.

[18] After receipt of Dr. Butkowsky’s report the father communicated his concerns regarding the content of the report in writing to Dr. Butkowsky.

[19] Dr. Butkowsky responded with some changes to his report in an effort to correct factual inaccuracies and acknowledged omissions. The factual inaccuracies do not appear to have been material. The acknowledged omissions resulted in Dr. Butkowsky offering two additional recommendations to his recommended parenting plan as follows:

a. It is recommended that neither parent expose the children to any first, second, or third hand smoke.

b. It is recommended that neither parent sleep with either of the children in order to foster their respective independence and sense of emotional security.

[20] On January 5, 2016 Dr. Butkowsky corresponded with the mother’s counsel confirming that he did not intend in his recommended parenting plan to stipulate that the mother’s parents should not reside with the mother due to the impact on both of the children and in particular Michael. He confirmed that he did not indicate that the implementation of the recommended parenting plan was conditional on the mother having a separate residence from her parents.

Positions of the Parties

[21] It is the mother’s position that the court should make an order implementing the recommendations set out in the assessment report of Dr. Butkowsky on an interim basis pending trial.

[22] It is the father’s position that there are no exceptional circumstances that require the court to take immediate action in the best interests of the children. In the absence of such circumstances it is not appropriate to implement the recommendations of an assessor on an interim basis without the benefit of cross-examination and viva voce evidence on the parenting issues particularly where aspects of the assessment are being disputed.

Custody and Access

[23] This is a divorce application; accordingly, s.16 of the Divorce Act applies with respect to custody and access orders.

[24] Pursuant to s.16(2) the court may “make an interim order respecting the custody of or the access to, or the custody of and the access to, any or all children of the marriage pending determination of the application” for divorce.

[25] Pursuant to s.16(6):

“The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.”

[26] Pursuant to s.16(8):

“In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child.”

[27] Section 16(9) provides:

“In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.”

[28] Section 16(10) provides as follows:

“In making an order under this section, the court shall give effect to the principle that the child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.”

[29] There is ample authority to support the proposition that courts are highly reluctant to disrupt the existing status quo on interim motions, particularly where there is conflicting affidavit evidence and the court does not have the benefit of viva voce testimony and cross-examination (see Miranda v. Miranda, [2013] ONSC 4704 para.26, Grant v. Turgeon, [2000] 22565 (ONSC) para. 15 and Papp v. Papp, [1969] 19 (ONCA)). I note that the father has not sought adjournment of this motion to permit out of court cross-examination of Dr. Butkowsky; nor was cross-examination pursued before attendance upon the motion. This was an option open to the father and his failure to pursue it undermines his complaint that the court should not consider implementing Dr. Butkowsky’s recommendations until he has been subjected to the rigors of cross-examination. I would therefore not reject consideration of Dr. Butkowsky’s report on this basis.

[30] The onus is on the party who seeks to depart from the status quo (in this case the mother) to demonstrate that there are compelling reasons to do so (see Miranda at para. 26). Courts should be very cautious about relying on conclusions and recommendations set out in an untested assessment report upon an interim motion pending trial and about implementing recommendations from the report at the motion stage as there is no opportunity to undertake a thorough analysis and evaluation of all aspects of the assessor’s report, including the assessor’s credentials, methods, observations, findings, theories and recommendations (see Batsinda v. Batsinda, [2013] ONSC 7869).

[31] Neither party offered a challenge to Dr. Butkowsky’s qualifications at the motion before me. This does not appear to be an issue.

[32] The leading line of authorities suggests an assessor’s recommendations should not be acted upon without a full trial except in “exceptional circumstances where immediate action is mandated by the assessor’s report.” (see Genovesi v. Genovesi, 1992 8562 (ON SC), [1992] O.J. 1261, Grant, supra, Stuyt v. Stuyt, [2006] 41001 (ONSC) at para. 9 and Bos v. Bos, [2012] ONSC 3425 at para. 17). In cases in which immediate attention is required, the court must assess whether the existing arrangement is actually or potentially harmful to the child as well as whether the child’s best interest requires an immediate change. In such exceptional cases, an assessor’s recommendations should be acted upon immediately before there is a full and thorough investigation provided by a trial (see Sv v. Hc, [2009] ONCJ 136).

[33] In the Butkowsky report nowhere does the author express the explicit view that immediate intervention is required in the best interests of the children. While there is an urgency to Dr. Butkowsky’s overarching message that these children are at significant risk of psychological harm without appropriate intervention, the report falls short of offering a mandate for immediate action.

[34] I find therefore that while there is serious basis for concern, such falls short of the “exceptional circumstances” referenced in the authorities cited above.

[35] Having found the absence of “exceptional circumstances” where immediate action is required, the court may nonetheless consider an assessment report on an interim motion. The specific criteria to be addressed when a court is being asked on an interim motion to consider an assessment report in the absence of a finding that there are exceptional circumstances are:

a. How significant is the change being proposed as compared to the interim de jure or de facto status quo?

b. What other evidence is before the court to support the change requested?

c. Is the court being asked to consider the entire report and recommendations, or is it necessary for the purpose of the motion only to consider some aspects of the report, including statements made by the children, observations made by the assessor or any analysis contained in the report which may be of assistance to the motions judge?

d. Are the portions of the recommendations which are sought to be relied on contentious and, if so, has either party requested an opportunity to cross-examine the assessor? (see Bos, supra)

[36] Adopting the approach utilized in Bos, supra, consideration should be given to the significance of the change being proposed to the status quo. It is submitted by the father that the mother seeks a very significant change in the status quo of the children; however, the status quo for Rachel is an equal sharing of care and control and that is what mother seeks to continue in accordance with Dr. Butkowsky’s recommendations. The de facto status quo with respect to Michael has been established since early 2015 such that he has been under the primary care and control of the father. There can be no doubting that the implementation of Dr. Butkowsky’s recommendations with respect to Michael (being an equal sharing of his care and control) would represent a significant change to the established status quo.

[37] Continuing consideration of the factors outlined in the Bos case, the next consideration is: what is the evidence to support the change requested? The father submits that the only evidence relied upon by the mother in her motion is that contained in Dr. Butkowsky’s report. I disagree. Her affidavit evidence also supports her motion in this regard. In particular I find Dr. Butkowsky’s observational evidence relevant, reliable and compelling.

[38] The next component of the Bos analysis: is the court being asked to consider the entire report and recommendations or only specific evidence? Certainly the mother is asking the court to implement Dr. Butkowsky’s recommendations almost in their entirety; however, in the absence of exceptional circumstances I do not consider the report’s recommendations. I note that the caution that applies with respect to the weight to be given to assessment reports at the interim stage of proceedings applies primarily to the conclusions and recommendations of the assessor, rather than the evidence and observations set out in the report. Information such as statements made by children to the assessor, the assessor’s observations respecting the parties and their impressions regarding the parties’ interactions with the children may be of considerable value to the motions judge in their attempt to reach a decision respecting the best interests of the children, provided that the evidence appears to be probative (see Batsinda, supra and Bos, supra).

[39] The final component of the Bos analysis: are the portions which are sought to be relied upon contentious? There can be no doubting that the father disputes Dr. Butkowsky’s report. He communicated his areas of concern in writing promptly after receipt of the report. In the father’s affidavit filed in opposition to this motion he indicated that he disputed the recommendations of Dr. Butkowsky “except as expressly admitted to herein.” In the balance of his affidavit he did not expressly admit any of Dr. Butkowsky’s recommendations and therefore it can only be concluded that he rejects all of Dr. Butkowsky’s recommendations. The father adopted the same approach with respect to Dr. Butkowsky’s alleged facts. Again, the father did not expressly admit any of the alleged facts. Taken to its logical extreme, this would apply even to those facts which were positive in relation to the father’s parenting of the children. This kind of blanket denial of all alleged facts and recommendations contained in Dr. Butkowsky’s report undermines the credibility of the father’s position as it demonstrates a lack of care and attention to presentation of his evidence. I note again that the father failed to avail himself of the option to cross-examine Dr. Butkowsky on his Affidavit. Through such a process he would have been able to challenge contentious components of Dr. Butkowsky’s report.

[40] The court has a duty to make orders in a child’s best interests and it would be counterintuitive to this principle to impose on the court an inflexible blanket prohibition against considering any aspect of an assessment report (absent exceptional circumstances) on an interim motion, especially when the only independent objective evidence before the court is from an expert assessor (see Bos, supra).

[41] I conclude that this portion of my analysis supports consideration of Dr. Butkowsky’s observational evidence on this motion.

[42] The father objects to implementation of Dr. Butkowsky’s recommendations on the basis that doing so would result in an order that is contrary to Michael’s expressed wishes and preferences. In other words, the father argues in essence that Michael is too old to be told what to do.

[43] It is further argued that such an order may also be contrary to Michael’s best interests if Michael is forced to comply against his wishes.

[44] In Stefureak v. Chambers, [2004] 34521 ONSC at para. 64, Justice Quinn states:

“The views or preferences of a child are not to be confused with the child’s best interests. However, the judge must make an order that is practical. For example, when dealing specifically with teenagers, an order should reasonably conform with the wishes of the child. Although the preference of a teenager may not be in absolute accord with his or her best interests, a court may defer to the wishes of the child, as it would be undesirable to force a teenager against his or her wishes to live with a parent. Attempting to force a teenager may even be futile. Ultimately, the weight to be attached to any expression of preference depends on the facts and is a function of age, intelligence, apparent maturity, and the ability of a child to articulate a view.”

[45] In JLM v. IHM, [2004] 47774 ONSC, Justice Gordon favourably cited the following conclusions from other courts in Ontario and Canada:

a. An order for custody orders relating to children in their teens to be practical they must reasonably conform with the wishes of the child.

b. The courts of this province and indeed recently the Supreme Court of Canada has said that the wishes of the children in custody matters must be taken into consideration. The courts have added the caution that such wishes are only one of the factors to be taken into account. It seems to me that in this case, where the children are 14 and 16, their wishes become a very important factor indeed.

c. In practice it is recognized that there is no point in making custody orders when children get to be about 15 or 16 because they will simply make their own choice and obviously courts cannot supervise these custody orders in the case of older children, with any real degree of effectiveness.

d. A child’s wishes become increasingly more important as the child grows older and would, therefore, be given considerably more weight, the older the child. It is probably futile to ignore the wishes of an older child in his or her mid-teens, who is determined to live with a parent of his or her own choice.

e. In Official Guardian v. Strobridge, [1994] 875 (ONCA), the Ontario Court of Appeal affirmed the lower court decision to make an order compelling children aged 11, 15 and 17 years to see their father. In doing so the Court of Appeal stated:

“It is now well established that access is not to be viewed as a parental right. Like custody, access must be considered within the framework of the children’s best interests. I do not start with the premise that the father in the existing circumstances is entitled to access and I do not think that it is sufficient to say that if access is exercised no harm will come to the children. The central question must be what, if any, access will be in the children’s best interests…even if there is a finding that the mother caused the children to refuse to participate in any type of access, the fact remains that if the father is to have any kind of access, the children will have to be forced to see him.”

[46] In DeMelo v. DeMelo, 2015 ONCA 598, the Ontario Court of Appeal affirmed the conclusions of the motions judge that forcing children aged 13 and 15 to have access with their father against their wishes would be “counterproductive, detrimental to their emotional wellbeing, and likely futile in any event.”

[47] In Goodman v. Browne, [2003] 74352 (ONSJ), Justice Spence declined to make an access order contrary to the wishes of children age 12, 13, and 16, noting that “children vote with their feet”. Further: “even if I were persuaded that access between the children and their father was somehow in the children’s best interest, an order forcing them to attend access against their will would not be enforceable if the children simply refused to attend.”

[48] In St. Cyr v. St. Cyr, [1996] 11966 (ONSC) Justice Poupore declined to order that children aged 10 and 12 have access with their father notwithstanding a finding that the custodial mother would do everything in her power to frustrate any court ordered access between the children and their father. Further:

“This court is cognisant of the fact that if possible, the children of separated parents ought to be encouraged to have a relationship with both their mother and father. This is stated clearly in the legislation and precedent. However, such a relationship is only possible if the children, when they are of such an age, agree and there is at least some form of cooperation from the custodial parent. Here, not only do the children, who I find to be intelligent and well adjusted, refuse to see their father, but further their mother absolutely refuses to help them in fostering a relationship with the applicant. In these circumstances, this court has no alternative but to refuse the application for access.”

[49] In L(N) v. M(RR), [2016] ONSC 809 the children aged 16 and 18 did not wish to see their father. Justice Perkins, in declining to order custody and access against the wishes of the 16 year old, made the following observations:

[137] … I have been struggling with how to balance or reconcile the powers and duties of the court under the Divorce Act to make custody and access orders in the best interest of the children, on the one hand, with, on the other hand, the children’s growing entitlement to personal autonomy and respect of their views and preferences.

[138] It is difficult to know when to insist on what parents, or their experts, or the court thinks is in a child’s best interest, and when to leave off, letting the child assert the right to decide and, possibly, decide wrongly. Courts have recognized that older children will often make their own residential choice, regardless of what the court says, and let their feet do the talking…

[141] The wishes of an alienated child may be warped and misconceived, but they are nonetheless real. The father says that the children’s wishes should be disregarded, because they are not truly the children’s own wishes. At this point, does that really matter? The expressed wishes are strong, consistent, and long lasting, and they have been acted on by the children in defiance of the authority of both parents, the arbitrator, the police, and this court’s order. The fact is that the current custody order in favour of the father has not worked.

[50] In this regard I note that this court has yet to make an order for anything other than supervised access by the father with the children. That order is stale and was quickly supplanted by the parties’ own arrangements. Thus, no order of this court has been meaningfully tested regarding custody or access.

[51] I have also been impressed by the content of Dr. Butkowsky’s observational visit between the children and the mother. Notwithstanding Michael’s stated preference to reside with his father and, more recently his reluctance to have contact with his mother, Dr. Butkowsky observed Michael displaying little or no discomfort in his interactions with the mother. I find that Michael’s stated views and preferences are likely not accurately reflective of what he truly wants in his heart as such appear to be contradicted by his observed actions. A more reliable expression of how he feels about contact with his mother is found in the observed interactions of Michael with his mother.

[52] I also note that Michael expressed concern regarding conflict with maternal grandfather. The mother no longer lives with the maternal grandfather and thus this source of conflict for Michael has been removed from mother’s residence.

[53] The other concern expressed by Michael to Dr. Butkowsky was conflict between the mother and Rachel. This is something that resonates given Dr. Butkowsky’s observations of Rachel’s challenging behaviour both in the company of the mother and in the company of the father.

[54] I note that Michael has not identified to Dr. Butkowsky any significant direct criticisms of the mother; rather, his concerns focused on the maternal grandfather and his mother’s interactions with Rachel.

[55] I find that notwithstanding some areas of concern, Michael wishes regular and meaningful contact with his mother. I accept the broad concept, supported by the authorities outlined above, that while a child’s best interests must be the paramount consideration, at age 14 his wishes should be given considerable weight in determining what order might be consistent with his wishes.

[56] The father submits that Michael’s residential schedule ought essentially to be trumped by his wishes; however, for the reasons set out above I have found that Michael does wish regular and meaningful contact with his mother and thus the father’s argument fails.

[57] Notwithstanding my finding regarding Michael’s wishes, I am concerned that if left to his own devices Michael may pursue the path of least resistance in his relationship with his father by expressing a disinclination to having contact with his mother.

[58] My preferred approach is to take control of the residential issue away from Michael and free him of the burden of decision making in this regard. There may well be a practical difficulty regarding enforcement of a custody and access order with respect to a 14 year old boy who wishes to do something other than that which is ordered by the court; however, no such order has been made respecting Michael as yet. Any order of this court will bind the parties, and not the children. It falls to the parents to do everything reasonably within their power to ensure the order is obeyed. There will therefore be orders as set out below.

[59] I expect that order to complied with and I expect in particular with respect to Michael that the father will actively and in good faith assertively encourage Michael to respect the order of this court. This encouragement must go beyond mere words and must include withholding privileges from Michael including access to television, video games, cell phones, internet and the like in order to communicate to Michael this court’s expectation that he have regular and meaningful contact with both parents.

Counselling

[60] It is the father’s position that counselling should unfold as directed by JFCS.

[61] To date JFCS has not recommended any counselling.

[62] The father takes the position that Rachel should receive counselling. Father further confirms that Stella Kavaukin was providing Michael with therapy for approximately six months and with Rachel for twelve months. She has experience with both children.

[63] The father also supports Dr. Butkowsky’s recommendation that Rachel receive play therapy with a mutually agreeable therapist.

[64] Rachel has had extensive therapeutic experience with Stella Kavaukin until the father withdrew his support of this process. In my view that was contrary to Rachel’s best interests given the evidence of the parties with respect to Rachel’s behavioural challenges and supported by the observations of Dr. Butkowsky.

[65] There are no child protection proceedings underway and the parties have not entered into a voluntary services agreement with JFCS. I see no basis for jurisdiction to direct that they do so. If they choose to avail themselves of the assistance of JFCS on a voluntary basis, they may choose to accept the direction of JFCS regarding therapeutic counselling for the children, but I am not going to require them to do so in the absence of jurisdiction to do so.

[66] The children should continue in counselling with Ms. Kavaukin or as otherwise agreed or as ordered by the court.

Cost of Dr. Butkowsky’s Assessment

[67] The father takes the position that the cost of Dr. Butkowsky’s assessment should be deferred to the trial judge. He says the report is in part disputed (although he has failed to identify in his affidavit any part that is not in dispute). The father argues that the opinions and findings of Dr. Butkowsky have yet to be scrutinized by this court and accordingly the issue ought to be deferred until such time as his opinion and findings have been scrutinized by the court.

[68] I reject this argument. The fact that a party may disagree with the contents of an expert report is not a basis for refusing to contribute to the cost of acquiring the expert’s opinion.

[69] I find it fair and reasonable that the cost of the assessment be shared by the parties proportionately to their respective incomes.

[70] It is submitted by the mother that a proportionate sharing of the costs of the report would result in the applicant owing to the respondent mother the sum of $4,738.00. This quantum is not disputed by the applicant. So ordered.

Rachel’s School

[71] The father indicates that he supports Rachel continuing to attend Roberta Bondar Public School.

[72] Therefore, there is no issue in this regard and an order will issue accordingly.

Benefits Coverage and Life Insurance

[73] The father says that he has never opposed maintaining the children under his group medical and dental plan. In submissions he did not communicate opposition to the respondent mother being reinstated as a beneficiary under the plan. So ordered.

[74] The issue of life insurance has been addressed in the May, 2014 order. I see no reason to disturb it.

RESP Contributions

[75] The father agrees with the respondent’s request that she be permitted to stop contributing to the children’s RESP. So ordered.

Child Support

[76] The effect of the order I am making will be an equal sharing of care and control of Rachel and primary care of Michael to the father.

[77] Proceeding on the basis of that assumption, the next issue is the relevant incomes of the parties.

[78] In 2014 the father’s line 150 income was $80,129.00. The mother’s line 150 income was $41,186.00.

[79] In 2015 the father’s income was $77,575.00. The mother’s income was $40,421.00.

[80] There is no significant dispute between the parties with respect to incomes for support purposes.

[81] I did not have sufficient evidence before me to embark upon a meaningful Contino analysis and indeed I have not been invited by the parties to do so.

[82] Adopting a simple set off approach based on the parties 2015 incomes the child support payable by the father to the mother is $119.00 per month.

[83] The child support should commence on October 1, 2016.

Spousal Support

[84] The father does not dispute entitlement. The issues are quantum and date of commencement. On a go forward basis, the Spousal Support Advisory Guidelines suggest a range of low $204.00 per month, mid $499.00 per month and high $794.00 per month.

[85] I find that the mid SSAG figure is appropriate on this motion.

[86] Therefore, on a go forward basis, the father shall pay to the mother the sum of $499.00 per month by way of spousal support commencing October 1, 2016.

Retroactivity

[87] As to retroactivity I note the parties separated on April 20, 2014. This application was commenced on April 15, 2015.

[88] The evidence of the father is that he has overpaid support and there are adjustments owing to him by the mother and thus the issue of retroactivity ought to be deferred to trial.

[89] I am persuaded that given the possibility of overpayment up to this point, I should not make an award retroactively at this time. This will be a live issue for trial where a better accounting of payments made can be considered.

Conclusion and Order

[90] For the foregoing reasons, temporary order to go as follows:

a. Commencing September 30, 2016 Michael shall be the mother’s care 2 out of every 3 weekends from Friday at 5 pm to Sunday at 5 pm subject to such further and other care and control as the parties may agree in writing.

b. Michael shall reside in the father’s primary care and Rachel’s care shall be equally shared by the parties.

c. The parties shall actively encourage the children to adhere to the schedule established herein, such encouragement to include the withholding of privileges from the children as reasonably necessary to secure compliance.

d. If the parties are unable to agree regarding a major decision pertaining to the welfare of the children, such shall be resolved upon motion on notice.

e. Per paragraphs 1(c), (e), (j), (k) above.

f. Commencing October 1, 2016 the Applicant shall pay to the Respondent differential child support in the amount of $119.00 per month based upon the Applicant’s income of $77,575 and the Respondent’s income of $40,421.

g. Commencing October 1, 2016 the Applicant shall pay spousal support to the Respondent in the amount of $499.00 per month.

h. The children shall participate in counselling with Stella Kavaukin or such other professional or the parties may agree upon, or as further ordered by the court. The parties shall make immediate arrangements for the children to commence and continue counselling until the parties otherwise agree in writing or the court otherwise orders.

i. The Applicant shall forthwith pay the Respondent the sum of $4,738.00 regarding the cost of Dr. Butkowsky’s report.

j. The trial of the issues of custody and access at least shall be expedited to the extent reasonably possible and the parties shall both advance these issues to trial as soon as possible.

k. If unable to agree on costs, written submissions as follows:

1. Applicant within 30 days of today;

2. Respondent within 45 days of today;

3. Submissions to be restricted to three pages excluding offers and Bills of Costs.

Douglas J.

Released: September 21, 2016