Court File and Parties

COURT FILE NO.: FC-13-2819 DATE: 2016-12-16 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: LISA SHOULDICE Applicant – and – ROBERT ROLAND SHOULDICE Respondent

COUNSEL: Wade L. Smith, for the Applicant Carol J. Craig, for the Respondent

HEARD: September 26 – 30; October 3, 5, 6, 7, 2016

REASONS FOR JUDGMENT

J. Mackinnon J.

[1] This trial is the culmination of three years of litigation between spouses who are the parents of three children. As parents they sought advice, first through the local co-ordinated case management program, subsequently through a sophisticated voice of the children report. Their common refrain for not following the advice given was that it cost too much. The mother testified she could not afford an amount of $350 to take New Ways for Families, a course designed to improve communication between separated parents. The father ceased his pursuit of family counselling necessary to repair his relationship with his two sons, when he could not obtain it free of charge. As spouses, the parties have already had to sell two of their four real properties to cover debt and legal fees. The Respondent’s plumbing business has gone into bankruptcy. Neither spouse is currently employed. Both explain this in some part by reference to the stressful and time-consuming litigation.

[2] “Penny wise and pound foolish:” to be extremely careful about small amounts of money and not careful enough about larger amounts of money.

[3] “For want of a nail the kingdom was lost:” a failure to correct some small dysfunction, a seemingly unimportant act or omission, leading by successively more critical stages to an egregious unforeseen outcome or consequence.

[4] Cost is a word with many meanings. Most importantly, has the litigation been at the children’s cost? From their perspective would a cost – benefit analysis show that the cost of this undertaking has exceeded the resulting benefit? These questions may be asked another way: have the parents been acting in the best interests of their children throughout this litigation? The Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) s. 16 (8) refers to the best interests of a child as the only factor relevant to parenting orders.

[5] The Supreme Court of Canada referred to the best interests test in Gordon v Goertz, [1996] 2 S.C.R. 27, stating as follows:

20. The best interests of the child test […] stands as an eloquent expression of Parliament’s view that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake. […] Parliament has offered assistance by providing two specific directions – one relating to the conduct of the parents, the other to the ideal of maximizing beneficial contact between the child and both parents.

21. […] Parental conduct, however meritorious or however reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child.

22. […] The “maximum contact” principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J.

[6] Sadly, the cost of this litigation has been very high for all concerned, especially the innocent children. The parents’ have not followed the parenting recommendations made for them, and by not doing so, have not acted in the best interests of their children.

Issues

[7] The children in this case are Dalton, who just turned 14, Dylan, who is 12, and Sierra, age 7. All three are active, physically healthy children. The Court is asked to decide between an award of sole custody and primary residence to the mother or joint custody with specified periods of residence to the father. The Court is also asked to require the parents to pursue reunification counselling to repair the boys’ relationship with their father.

[8] The marriage occurred on July 1, 2000, the separation on September 25, 2013. The Court must identify the net family property of each spouse in order to determine whether there is an equalization payment owing from one spouse to the other. Post-separation credits are claimed by both spouses. The Applicant seeks to retain both remaining real properties whereas the Respondent wants both sold.

[9] The Respondent’s income is an issue and requires determination. Child support, section 7 expenses and spousal support claimed by the Applicant must then all be considered. In relation to her claim for spousal support, the Court must also consider whether the Applicant is or has been under-employed.

[10] A divorce has also been claimed.

Credibility Issues

[11] There are important issues pertaining to credibility and reliability in this case.

Mr. Shouldice’s Credibility

[12] Mr. Shouldice admits to telling numerous lies. He acknowledges he has earned cash income, failed to report it to the Canada Revenue Agency, essentially lying by omission. He admits to delivering a misleading affidavit when he deposed that Ms. Shouldice had jumped to the conclusion that he was buying a property on Klondike Road, when in fact he had made an offer to purchase it, subject to financing which he was unable to obtain.

[13] The Klondike property was then purchased by his common law spouse’s mother. Mr. Shouldice submitted a mortgage application seeking approval to guarantee her mortgage. He admitted that he overstated his income by providing his corporate gross revenue. The assets shown were only half his, and the cash of $15,000 was non-existent. Unbecomingly, he justified these discrepancies by reference to advice he says he received from the mortgage broker.

[14] The Applicant alleged that the Respondent’s mother-in-law could not have afforded to purchase the Klondike Road property and did not in fact live there. These facts were relevant to the amount of income earned by Mr. Shouldice and whether he had continued to work after November 2015. Mr. Shouldice maintained that his mother-in-law had purchased the property and did live there together with him and his partner, but he failed to call her or his common-law partner as witnesses at trial. Those were important issues and one would expect the Respondent to have called this available helpful testimony.

[15] Mr. Shouldice admitted to lying to an insurance company in connection to a flood at one of the rental properties. He had an employee confirm that he had been living in the premises at the relevant time, when in fact, he was not, as was well known to Mr. Shouldice.

[16] The Respondent also admitted to many breaches of court orders. He admitted to failing to comply in a timely way with court-ordered support and awards of costs against him. He was ordered on consent to pay for a clinical investigation into custody issues, but he did not do so. He was ordered to pay the monthly lease payments on the vehicle driven by the Applicant. He admitted that he had wanted the judge to order the vehicle sold and that by not complying with the order, he was able to accomplish this goal. After three months arrears accumulated, the vehicle was repossessed. The Respondent had arranged for a purchaser who funded him to pay off the arrears and deliver the vehicle to him.

[17] He also failed to comply with disclosure in accordance with a court-imposed timetable.

[18] The Respondent demonstrated very poor judgment in ways that gave rise to the appearance of preferring himself over his legal obligations to his family. He traded in a $7,000 recreational vehicle in August 2014 as part of a purchase of smaller vehicles for the children to use when they visited him, rather than apply the $7,000 towards support obligations. In similar vein he purchased a Cadillac for $4,000 for his current partner, although she already had a vehicle. He had $36,154 of renovations done to the jointly owned Gallagher Road property where he was residing at the time, in the hope he could retain that property for himself.

[19] Two rental properties jointly owned by the parties were sold with closing dates in January and June 2015. A joint line of credit at the Laurentian Bank was paid off from the proceeds and the line was to have been closed. Unexpectedly, in August, Laurentian Bank advised that the line had been re-extended. The Respondent jumped at the chance, borrowing more than $100,000 in his personal capacity, yet using most of it to pay off corporate creditors to whom he had no personal liability. He testified he was trying to keep the business afloat but it went bankrupt in May, 2016.

[20] The lack of wisdom in this decision is underscored by the advice the Respondent says he had already received and acted on, namely to incorporate his plumbing business after the business valuation concluded the business was in a negative position and had zero fair market value.

[21] Assuming there was any merit in personally borrowing more money at that time, hindsight shows it would have been better used for arrears of child support, section 7 expenses, an outstanding costs award and to retain a clinical investigator for advice on the parenting issues.

[22] Mr. Shouldice’s decision-making is also called into question by his conduct in removing the Applicant from his health and medical coverage in 2014 and the children in 2015.

[23] Mr. Shouldice he admitted to these misdoings, missteps, and poor decisions during his testimony. With hindsight, he said he had many regrets.

Ms. Shouldice’s credibility

[24] The testimony of Ms. Shouldice revealed a preoccupation with proving that her negative feelings towards Mr. Shouldice were justified and a lack of insight into how easily these feelings would affect the children. She devoted considerable efforts to following the Respondent, checking into his partner’s Facebook account, and following and photographing his mother-in-law. It also appeared that she had a sizeable cadre of friends who were willing to help her out in these efforts.

[25] Ms. Shouldice also seemed unaware of her tendency to apply different standards to herself than to Mr. Shouldice. She maintained that she had been unable to return to work because of the time commitment and stress of the litigation, but did not at all acknowledge that these same factors may also have applied to Mr. Shouldice. She knew the Court had given her possession of the Gallagher Road property as of April 1, 2016, but showed no recognition that in entering the property on March 29 and in changing the locks on March 30 she herself was in breach of that order and of the prior order granting him exclusive possession.

[26] There was no glimpse of the irony in advising the Court at the start of a two-week trial that she had been unable to afford $350 for the New Ways for Family Program, twice recommended to her. There was no insight on her part in the dichotomy between her statement that she was not the type of mother who would interfere with a child’s relationship with his or her father and her actions in having the children deliver adult messages to their father, her deference to their stated wishes to see him or not, her Facebook page posted with deadbeat dad images, her personal celebration of Father’s Day, and the times when she unreasonably interfered with his scheduled access.

[27] Ms. Shouldice’s perceptions at times led her to make statements about the Respondent that were not really accurate. As one example, she testified that “No arrangements were made for support” immediately following the separation. But the Respondent did continue to deposit his draw as usual into the joint account for her use in September, October, and November, and a further amount in December that had been agreed to between counsel.

Gallagher Road

[28] A most contentious issue relates to the turnover of Gallagher Road from the Respondent to the Applicant as ordered by the court to occur by April 1, 2016.

[29] There is no doubt that between March 29 and April 1 2016 the premises at Gallagher Road were trashed. Photographs taken by a friend of the Applicant show the premises in a dirty state of disarray with garbage strewn, patio stones upturned, tire ruts driven across the lawn, and damage to doors and walls. Hardware was removed, a water line was cut, hard wood flooring and light fixtures removed. The oil tank was empty, refilled then apparently drained and oil spilled outside in a garden. Some rooms smelled of urine. Wall paper was torn. Toilets were jammed with paper and plastic.

[30] The Respondent testified that he was working towards vacating the premises on April 1. He says when he went out on March 29, he left the place locked and looking fine. On March 30 he received a phone call from a friend who was at Gallagher Road taking down the rink for him, advising that people were going in and out of the house. The Respondent called the police and headed over to Gallagher Road. On arrival he saw the Applicant, with three other people. He says the tire ruts were already driven into the ground, and Mr. Crawford was there with his truck.

[31] The police arrived. The Applicant had changed the locks. The police required her to turn the new keys over to the Respondent, and leave. On entering the house, he says he could tell people had been in, kicking stuff around and in particular, he said he found photos of him and Sierra thrown in the garbage.

[32] The Respondent finished moving out on March 31. He did not clean up. He says he left the garbage because someone else had strewn it around. He did take the refrigerator, stove and air conditioner because he had purchased them. His testimony was that on March 29 there was a bit of oil in the tank, but not much. He did not intend to refill it for the Applicant’s benefit. He did not siphon oil. He admitted to removing the hardwood flooring but says this was done much earlier after a flood had ruined it.

[33] Despite these admissions, he denies the malicious parts of the allegations. He thinks he was set up.

[34] The Applicant alleges that the Respondent trashed the premises to get back at her for having him removed from the premises. I had some difficulties with her evidence in relation to these events. She jumped the gun in entering the premises before she was entitled to. She says someone told her he had moved out but she did not check first with her lawyer, knowing he had until April 1, 2016. Even after she was advised he had not finished moving she went ahead and changed the locks before she was entitled to.

[35] She also explained that someone told her the oil had been siphoned out of the oil tank. She justified her entry by her concern that the pipes might freeze. It was not clear how anyone could have observed the oil tank in the basement being emptied; the alleged informant did not testify. I do not believe she received this information or that this was why she went to Gallagher Road when she did. I find that she discovered the tank was nearly empty and called Mr. Crawford for help.

[36] Mr. Crawford testified she had already called him to say there was no oil and to ask him to deliver oil for her, before he attended at the premises.

[37] The Applicant testified that she, Sharon Ebbers and Terry Crawford went together on the afternoon of March 29 and entered through an unlocked door. Ms. Ebbers did not testify. Mr. Crawford also said they entered through an unlocked door. However the next day they returned, with Sylvie Stewart. She said the doors were locked and Mr. Crawford entered through the basement window.

[38] Neither the Applicant nor Mr. Crawford were fully candid in Court. Neither disclosed gaining access to the property via a basement window. Mr. Crawford simply said when they could not enter through the doors on March 30, he called a locksmith to change the locks. Mr. Crawford also made a curious comment about the man in the back letting them in with a key but when asked to clarify, he said he didn’t know why he had said this.

[39] I was not satisfied that the Applicant and Mr. Crawford had told the full story about their attendances at Gallagher Road. I do not find that she wilfully damaged the premises. She was taking them over with a view to generating rental income. I do find she wrongfully entered the Respondent’s home, earlier than she was entitled to, bringing several friends with her. I suspect this group did things while they were there that added to the overall disarray. This disrespectful behaviour provoked the Respondent to at least some of the destructive behaviour evidenced in and on the property. I also find that he left the premises in shambles, making none of the usual efforts normally extended on vacating premises.

[40] The events surrounding the turnover of possession of Gallagher Road are revealing. Neither party was fully candid with the Court. I find the Applicant’s credibility impacted by omissions. I find the Respondent’s credibility impacted by omissions and inaccuracies. I suspect he did remove shelving, light fixtures, door knobs and that he did plug the toilets. Both parties engaged in bad behaviour. The Applicant’s bad behaviour smacked of entitlement and disregard for the Respondent’s rights of private possession. The Respondent’s bad behaviour smacked of pay back.

Parenting Issues

Factual Context

[41] Prior to separation, this was a very busy active family. Both parents were very involved with their children. Post-separation, the father had flexible ad hoc contact with the children. He says this changed after the Applicant saw him driving in a car with Ms. White, now his common-law partner. She then restricted him to alternate week-ends. Later on, the Court added Wednesday evening visits.

[42] Fairly early on, the Shouldice children, especially the boys, began to feel they were less important to their father than his partner’s son Tyler, and their baby son Kingsley, born in June 2015. The Respondent did not appear to be aware of this. He thought the visits were positive. No doubt, in some ways they were but nonetheless he did not notice that his children were feeling put aside.

[43] The children were also upset when their father did not let them telephone their mother. Regardless of his reasons, the Respondent was wrong to deny them this contact. The father also discontinued his Wednesday visits with his children during the summer because he did not want to have to interact with the Applicant twice in the space of a few short hours. This had a negative impact on his relationship with the children. At the same time, the Applicant was unreasonable in her refusals to agree to a neutral exchange location or for a third party to transition the children. The Respondent was justified in asking for these arrangements after he was arrested, held in jail for 8 hours, then released without charge in connection to Ms. Shouldice’s allegation that he had threatened to kill her.

[44] In May 2015, the father was driving the children. He mistakenly thought Dylan was about to kiss Sierra in the backseat. He shouted at them to stop. He does not know why but he told them to “stop acting gay”. He went on to tell the children then ages 12, 10 and 6 that he had been sexually abused as a boy, cautioning them to act protectively of themselves. The father testified he felt the children had not been upset by these events.

[45] The mother testified that the children were distraught when they got home. She contacted the family physician. The Children’s Aid Society (CAS) was notified. Access was stopped. The CAS did a quick investigation and then said access could resume. Despite this, the mother waited more than two weeks before she would let Mr. Shouldice see the children.

[46] The Respondent asked for but did not receive summer holiday access in 2015. When he agreed to the children spending March break with their mother, he proposed the following year would be with him. The mother’s response was that she could not plan that far ahead.

[47] I find that the Applicant’s anger towards her husband impacted on some of her parenting decisions. I have no doubt that her feelings were contagious and were picked up by the children.

[48] The Applicant testified the children felt abandoned when the Respondent did not pick them up for their one week summer access in July 2014. What actually happened was that Ms. Shouldice had told the Respondent to bring his mother as witness to the pickup and instead he sent his mother on her own. The Applicant refused to let the children go. Even when the Respondent asked for an extended week-end at the end of that week to make up for some of the lost time, the Applicant refused. This was unreasonable. Her refusal to let the children go contributed to the let down the children felt and was harmful to their relationship with their father.

[49] The Applicant took the children to Mt Tremblant on an access Wednesday without notice to the father. She had Dylan call him from Tremblant to say they would not have access that day. She also refused the father’s several requests to make up this access.

[50] She denied access on another occasion when Ms. White’s sister, known to her at least as a tenant at Gallagher Road, and likely also as Ms. White’s sister, came to get the children. This person was not a stranger as she claimed. At most a simple inquiry of the children or the Respondent would have sorted this quickly.

[51] In September 2015, the Applicant started to interfere with Wednesday access. The Respondent would arrive at school for the pick up only to find she had taken the boys out half an hour early. Her excuse was that the Respondent had said he would pick them up but someone else would deliver them to her home. Occasionally, the boys were still at school and would chat with him or show him their class room or a special project but they would not come with him.

[52] The Respondent has had virtually no access to his sons since the fall of 2015. He testified that he slips in to hockey games after they start and leaves before they are over, that he tries to stand where the boys can see him but knows they don’t always know he is there. He explained that he did not go to Dalton’s graduation out of fear it might put pressure on him and spoil his day.

[53] The Respondent ought to have taken other more direct steps to try to keep in contact with Dalton and Dylan. It was up to him to continue to demonstrate his love and commitment to them, regardless of what they were saying or doing.

[54] It appeared from the Applicant’s testimony that she often left it up to the children to decide if they called or went with their father. It was clear from her testimony that in her mind she was not interfering in the children’s relationship with the Respondent. Her actual words were revealing. She said she did not “block them from calling him.” She said they had “access to phones all over the place.” She said referring to Sierra, “she wants to go and if she wants to go I want her to go.” She often referred to what the children wanted in relation to seeing their father.

[55] I find that the Applicant did not do enough to assert her parental authority in support of this vital relationship. Not blocking them is very different from requiring them to phone their father. She did not keep them from going but that is not the same as exerting parental authority to see that they do go. And in this case, it was necessary for the mother to go farther and to give the children permission and approval to go with their father including into his new family environment.

[56] The tendency to defer to the children started as early as January 2014 when the Respondent reminded her of what he thought had been an agreement to alternate tournaments. Her reply was, there was no agreement, “it’s what the kids want.”

[57] In January 2015, Dylan had a hockey tournament out of town on the respondent’s weekend. The Applicant told the father Dalton would not be going because he had his own local game. The father asked for make-up time with Dalton, which he never got. He was still asking in March when he suggested a visit over the March break. The mother replied, “the kids have already made their plans.” She also told him, “You have to be discussing this with Dalton.” At the time, Dalton was 12 years old.

[58] It is illustrative of Dalton’s predicament that the Respondent did speak to him and says Dalton said he would come anytime his mother let him. The Applicant then asked Dalton if he had said this which Dalton denied. This is a clear example of why the mother ought to have arranged the make-up visit herself and not created the situation where Dalton found himself caught between his parents.

[59] In August 2015, the Respondent arrived for scheduled access but the boys said they did not want to go because he had not returned a phone call. The mother said she encouraged them to go, but they wouldn’t. That is an insufficient response.

[60] Other disagreements arose in relation to hockey. If the boys had overlapping games or tournaments on the Applicant’s week-end rather than agreeing that the Respondent could handle one, as he requested, she would have one of her friends do it. It would have been much better for the children to facilitate the father’s participation.

[61] The Court of Appeal has made it very clear in Godard v Godard, 2015 ONCA 568, 337 O.A.C. 9, that compliance with court ordered access cannot be left up to the child. The Court held at paragraphs 26 to 31:

[26] The appellant argues there was insufficient proof to satisfy the motion judge beyond a reasonable doubt that she wilfully disobeyed the access order. Specifically, the appellant argues that once the motion judge accepted that S. did not want to see the Respondent and that the appellant was making some efforts to encourage S. to see him, it was inconsistent to then find deliberate and wilful disobedience beyond a reasonable doubt.

[27] We reject this argument.

[28] Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order”: Quaresma v. Bathurst, (2008), O.J. NO. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt; and Hatcher v. Hatcher, [2009] O.J. No. 1343 (Ont. Sup.Ct.).

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

[30] As the motion judge noted, the appellant had been put on notice in prior proceedings that more than mere encouragement was required. For example, in response to the submission of her counsel on November 28, 2014 that “any type of a forced provision I don’t think is going to help at all”, MacDonald J. asked:

[W]hat does the mother do when this child doesn’t want to go to school or doesn’t want to go to the dentist? What are her mechanisms? Right? … Does this child have an allowance? Does she have a hockey tournament that maybe she’s not allowed to go to if she doesn’t go to see dad before? Are there things she could do to force her to go short of the police attending at her house and physically removing her?

[31] Despite this, it is clear from her affidavit that the appellant took no further steps. She did not go beyond mere encouragement to attempt any stronger forms of persuasion.

[62] Posts on the Applicant’s Facebook also revealed a negative attitude towards the Respondent. Her evidence was that friends sent these to her, although she did comment and share some of them. Common themes were “deadbeat dads” and what should be done to them, and mothers who were both “mothers and fathers.” Friends congratulated her on being an “awesome father and mother.” The Applicant actually celebrated one Father’s Day herself. She posted “Best Father’s Day ever.” These postings are indicative of her personal view towards the Respondent. I have no doubt the children became well aware of them.

[63] The Respondent described the most recent time he saw his son Dylan at school. Dylan hugged him then said he never wanted to see him again because “you do not do enough for us.” At age 12 these are unlikely to represent independently formed views. Certainly, they correspond exactly to the mother’s sentiments.

[64] In November 2015 the parties attended a case conference and agreed to retain Nadine Crowley to prepare a report reporting the views of the children. Even though there had not been problems in the father’s access with Sierra, the mother decided he should not see Sierra until the report was released.

[65] The father asked to see all three children at Christmas but was only permitted two hours with Sierra the following week. Although he had purchased presents for all of the children, he made the mistake of choosing not to deliver the boys’ Christmas presents to them. They remain in a closet at his home.

[66] When the Crowley report was released, it recommended immediate reinstatement of access. The Applicant moved slowly and has never restored the Respondent’s full alternating week-ends with Sierra, rather, has limited them to one overnight only. She testified that she didn’t believe Sierra wanted to go more than this because she was away from her brothers. The father suggested keeping her overnight on the Wednesday’s instead, but the Applicant did not agree.

[67] In May 2016 the Respondent called the CAS because Sierra had some bruises which she attributed to her brothers bullying and hitting her. He called the CAS rather than speaking directly to the Applicant. He chose the wrong approach. The parents ought to have sorted this out without involving the boys in a CAS interview. The boys would not have appreciated the approach their father took.

Decision Making

[68] The Respondent father is seeking an award of joint legal custody. He submits there is a reasonable measure of communication and cooperation between the parents, or that it is achievable in the reasonably near future. I disagree. These parents have next to no communication. He relies on Alden v. Thomas, 2011 ONSC 7003, [2001] O.J. No. 5374 to submit that an award of sole custody to the mother would actually serve to continue or even increase the conflict between the parents. Alden was a very unusual case. The dynamic there is not present here. Paragraph 47 of Alden states:

And, in my view joint decision making is more likely to promote the best interests of the children because it will restrict the mother’s ability to continue to act unilaterally, which marginalizes the father and prompts his adverse response of fighting in negative ways to protect his relationship with the children. It is more likely to reduce the conflict between the parents because it will restrict the operation of the dysfunctional dynamic that has developed between them. …

[69] Alden is further distinguished by the fact that the specific dysfunctional dynamic had been documented by the clinical psychologist who had conducted a full custody assessment, and had recommended shared legal decision-making as a solution.

[70] The Respondent also submits a joint custody award is appropriate or necessary to preserve his relationship with the children. I do not find that the Applicant’s decision-making or the father’s inability to obtain information about his children is at the root of his contact problems. The Applicant has not been as supportive of the Respondent’s relationship with the children as the Court expects and the law requires, but this is not a case of single factor causation. The Respondent’s own acts and omissions are also significant contributors to the contact difficulties.

[71] The lack of trust and communication between the parents makes the current prospects for shared decision-making poor.

[72] I conclude that the mother should have sole custody of the children.

[73] The Applicant shall provide the Respondent with colour photocopies of the children’s birth certificates, passports, Health cards and Social insurance cards, and any renewals thereof.

[74] Either parent may travel with the children or any one of them outside of Canada for the purpose of attending sports tournaments or brief weekend trips to the United States within the scope of the travelling parent’s residential time. The consent of the other parent is not required, but at least 48 hours’ notice must be given including an itinerary. Each party shall provide the other with a standard travel consent to this effect. The children’s passports shall be exchanged between them for this purpose.

[75] Parental consent is required for longer trips outside of Canada with the children, consent not to be unreasonably withheld. A travel consent for such a trip shall be provided within 7 days of receipt of a detailed itinerary including the name of any flight carrier, flight number and contact details for the children during their absence.

Crowley report

[76] Nadine Crowley, BSW, M.Ed., RSW, is a very experienced social worker and counsellor. She was first retained by these parents in December 2014 for assistance in establishing a parenting schedule. On that occasion she gave them a verbal report.

[77] She was retained again in November 2015 due to the protracted litigation and the ongoing access problems. Her report dated February 5, 2016 is included in the Trial Record. She also provided oral testimony. Ms. Crowley was an impressive and helpful witness.

[78] In her report, Ms. Crowley wrote that Dalton appears to be the Applicant’s “confidante.” He acknowledged to her that his mother talks to him about the problems with the father and has shown him some of the e-mail communication between them. Ms. Crowley said that Dalton is protective of his mother and appears to take on the mother’s emotions about his father.

[79] Dalton also told Ms. Crowley that he does not feel heard by the Respondent and is fearful of his father’s temper. Dalton described a few incidents when his father yelled and reprimanded him.

[80] Dalton reported to Ms. Crowley that he felt “confused” as one parent tells him one story and the other tells him another. He wonders which parent to believe and trust.

[81] In terms of his father’s new family, Dalton told Ms. Crowley he avoids seeing his father because it is too painful to watch him with his new family. He felt his father spent more time with his new family and treated his new children better than him and his siblings. He said he would like to spend some time with his father without the “new family” being there.

[82] Dalton provided another reason for not going on access visits, namely to avoid having to answer his mother’s questions afterwards. He said this creates a great deal of stress for him. Dalton also pointed out that his mother leaves it up to the children to decide whether to go on visits; he finds this stressful at times.

[83] Ms. Crowley reported that Dylan described many instances where his father had hurt his feelings. Some were related to his father’s involvement with Ms. White’s son, Tyler. Dylan said his father sometimes made him feel invisible. He also said his father has yelled on the telephone, made them sleep in the basement and made promised he doesn’t keep.

[84] In her report Ms. Crowley described Dylan as sad, scared, angry, and hurt over how his father has been treating them. He admits to crying over his situation but feels better when he goes to counselling, watches television or plays hockey. Dylan expressed a desire to have a better relationship with his father however, to do so he believes that his father would have to be a “better Dad.”

[85] Sierra told Ms. Crowley that she gets along with Trish (Ms. White), but that her mother does not like her. She is aware that her parents do not get along. She wishes they would. Sierra described enjoying spending time with her father and his family. When her father calls, Sierra’s mother asks her if she wants to go or to stay with her. Sierra said to Ms. Crowley, she does not know what to answer. Sierra also said she feels “bothered” when her mother asks them what they do at their father’s home. She said her father does not ask what they do at their mother’s house.

[86] Sierra states that her mother told her that her father “lies.” When asked about what, Sierra was unable to answer.

[87] The key conclusions in the Crowley report are as follows. First, the conflict between the parents continues to impact their ability to focus on the needs of the children. The children have observed and heard many negative comments about each parent. The overall interaction pattern between parents remains highly conflictual which results in a lack of trust and an inability to get along and share parenting. Both are capable parents when they focus on their own skills and the needs of the children, however, they seem to be so invested in their conflict, that the needs of the children are being ignored. The conflict and the ongoing stress have impacted the entire family for over two years.

[88] Second, the mother has been the parent left with the responsibility of dealing with the emotional fallout to the children when they are disappointed by or have a disagreement with their father. This has created a great deal of stress for her. It contributes to her lack of awareness as to how she is projecting her own feelings about the Respondent onto the children and how Dalton and Dylan mimic her feelings and opinions of him. This has created some anxiety within the boys and may contribute to them experiencing some difficulty in forming a secure relationship with their father. The mother makes the children uncomfortable when she questions them after they see their father. She has also had them carry messages to him (forms to sign) which keeps them caught in the middle of the adult conflict.

[89] Third, allowing the children to decide the access and to make decisions about what they want to happen is not healthy for them. Children do not like to disappoint or hurt their parents. They will go with what is easiest and what they think will please the parent asking the question. The adults should make these decisions for them. At present the boys are aligned with their mother as a result of some of the adult information she shares with them and as result of the issues they have had with their father. Sierra also feels pressured to have to make decisions about access.

[90] Fourth, both parents have work to do. The father needs to make more of an effort to listen to the concerns of the children and invest greater time and energy into his relationship with them apart from his new family. He must demonstrate that he genuinely cares and loves them, through words and actions. Counselling should take place to provide the father the opportunity to listen to Dalton and Dylan, to acknowledge their feelings, apologize for his behaviour and work with them towards strengthening the relationship.

[91] The mother needs counselling to learn to curtail her overt reactions to the father’s actions and to stop speaking to the children about the ongoing conflict. She needs to give the boys permission to attend for visits and to have an ongoing relationship with their father.

[92] Fifth, the family needs to engage in a reparative process with a mental health professional. Ms. Crowley also made specific recommendations for access to resume for all children, gradually for the boys, in connection with the specific forms of counselling she recommended.

[93] The parents did not take the recommended steps. Not surprisingly the parental conflict at the root of the parenting problems remains unabated. Progress has not been made in the contact between the father and children. For these reasons, I made a number of orders at the conclusion of the trial.

[94] I ordered the Applicant to enroll immediately in the first available New Ways for Families at any of the three Family Service agencies in Ottawa. Instead, she took a 12 hour online version of the program between October 11 and 16. I do not accept that as compliance with my order. Perhaps my order was not clear. The Applicant shall now forthwith comply with it.

[95] The father has already completed the New Ways program.

[96] I also ordered the Applicant to arrange individual counselling for herself at one of those same agencies for assistance in supporting the children’s relationship with their father, including removing the children from the sphere of decision-making in relation to access to him. Rather than following my order, she arranged counselling with Dr. Weinberger I am puzzled why she would retain a more expensive but highly qualified clinical psychologist rather than comply with my order, which was made in part to be responsive to her financial circumstances. If she has no prior connection to Dr. Weinberger, then I will accept her counselling relationship with him. The Applicant shall now deliver a copy of these reasons to her individual counsellor so that he may understand more fully the requirements for it.

[97] At the conclusion of trial, I also ordered the mother to forthwith reinstate and/or arrange for confidential counselling for the children with Mr. McKnight (or his designate) at the Youth Services Bureau. The purpose of this counselling is to address the emotions and pressure all three children have felt arising from their parents’ separation and the conflict between the parents in relation to their contact with their father. Dylan has attended on three occasions. Dalton appears to have attended once.

[98] My intention was for both boys to have ongoing individual counselling sessions to assist them in a confidential forum. I chose the YSB because they had attended there previously and I was informed the services were free of charge. I did not intend this to be optional for them. It may be that for this reason the YSB is not appropriate. The parents shall arrange alternate individual counsellors for their sons, provide the counsellors with a copy of these reasons, and ensure that the children each attend in accordance with the counsellor’s advice.

[99] I ordered the father to write a letter of apology to Dalton and Dylan. The letter was also to say that he would like to do something with them soon, such as to drive them to a game or practice. The letter was to be copied to the mother, Mr. McKnight and both counsel. Counsel would assist their clients in agreeing on the specifics of what the father would do with each son, a one-on-one activity.

[100] These steps have been taken.

[101] Additionally I ordered the parents to jointly apply for family counselling at one of the three Family Service agencies. The purpose of the counselling is twofold: to ensure that both parents are supportive of the other parent’s relationship with the children and to repair the relationship between the father and the children. I am told they have each done so at the Jewish Family Services, but that they have been told counselling will not commence until a final court order is issued.

[102] These orders were made at the conclusion of trial to avoid further delay in starting to implement the recommendations made by Ms. Crowley on February 5, 2016.

Residential Arrangements

[103] Since separation the children have resided primarily with the mother. The current strained relationship between the father and the boy’s augers against a change in that arrangement. The children shall continue to have their primary residence with the mother.

[104] Sierra shall reside with her father every Wednesday from after school until her return to school the next morning. She shall also reside with her father during alternate week-ends from after school on Friday until noon on Sunday when she shall be returned to her mother’s home. Week-end access for Sierra is reviewable when one or both of her brothers is also attending some week-end access with the father with a view to deciding whether her visits should be extended to Monday mornings at school.

[105] Each of Dalton and Dylan shall have one visit with their father each week, which shall occur on Tuesday for one child and on Thursday for the other. The father will pick up the child from school and he shall be returned to the mother’s home at the conclusion of a 1.5 hour visit. No one other than the father and child shall be present at these visits.

[106] In addition, the father shall attend a sports game or practice pertaining to each son once per week and shall visit the child before or after the game in the locker room.

[107] The father shall enroll in and complete a parenting program focused on parenting teenagers, ideally in a blended family situation. If he is unable to locate a course of this description he may arrange individual counselling to address these issues.

[108] After the parenting program is complete, or after four sessions have taken place with the family counsellor, then the father’s access with Dalton and Dylan may be reviewed to decide whether it is appropriate to reinstate regular alternating weekend access with them.

[109] Each parent shall be entitled to have the children with him or her for one half of the Christmas school holiday, to be organized such that the time from December 24 at 3:00 PM until December 26 at 7:00 PM is evenly shared and alternated between parents yearly. The five days of the March school break shall be alternated yearly between the parents, commencing with the father in 2017. The parents shall ensure that each child attends regularly scheduled activities during the March break unless the parent is travelling out of town with the children. During the summer months, each parent may have a one week vacation with the children in each of July and August. The weeks shall be determined by May 15 on the basis that the father has first pick in odd years and the mother shall have first pick in even years.

[110] The children shall spend Father’s Day with their father and Mother’s Day with their mother every year.

[111] Other special days, including long week-ends, shall be governed by the regular schedule.

Other terms of the Parenting Order

[112] The Applicant will have sole custody of the three children of the marriage, namely Dalton Shouldice, born October 21, 2002, Dylan Shouldice, born February 26, 2004, and Sierra Shouldice, born May 13, 2009.

[113] The Applicant and the Respondent are each entitled to make inquiries of and to be given information by the children’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or other individuals involved with the children. The parties shall cooperate and execute any authorization or direction required to give effect to this provision.

[114] The parties shall communicate with respect to parenting matters using the internet based program “Our Family Wizard.” Each party shall pay for their own use of the program. In the event of an urgent situation with respect to a child requiring immediate notification, the parties may communicate by phone or text.

[115] As often as possible, the children shall be picked up and dropped off at school. If the children are not in school, exchanges will take place at the Applicant’s residence. The Applicant will remain in the home during the exchange.

[116] The Respondent’s partner, Patricia White, or any member of the Respondent’s and Ms. White’s extended families known to the children, may pick up or drop off the children on the Respondent’s behalf if he is unable to attend.

[117] A review of access provided by this order shall be conducted by me or in my absence by a judge assigned by Justice Doyle, LAJ Ottawa Family Court.

Net Family Property

[118] A net family property statement is attached to my reasons. I will address the items that were disputed. Many of these were items of personal property, with and without admissible evidence as to value. I will give brief reasons to explain my conclusions in this regard.

[119] The Applicant sold the Ford truck in September 2015 to a third party through Campbell Ford, for $2,500. The Respondent relied on the midpoint book value of the vehicle as of January 1, 2014, namely $7,500. Having regard to the passage of time from the separation to the date of sale, I valued this vehicle at $5,000.

[120] The Applicant valued her jewellery at $16,000. She testified that she sold her most valuable piece for $9,000 in October 2015, but had no proof of sale. I accepted the Applicant’s stated value in preference to the insured amount, which is not market value, and in preference to an unsigned letter ostensibly from the original vendor as proof of value. Similarly, I accepted the Respondent’s stated value for his jewellery.

[121] I valued the Polaris Ranger at its trade in value of $7,000. I relied on the evidence I had from the Respondent for the various ATVs, dirt bikes and for the Polaris snowmobile.

[122] I was not satisfied with the evidence with respect to market value of the used sports equipment, TVs and computers. I was unable to reach a conclusion on value of other household items. For these reasons, I did not include any value under these headings.

[123] I accepted that the respondent’s professional tools were included in the business valuation.

[124] I accepted the $1,800 purchase price as the value of the industrial pressure washer.

[125] The Applicant kept the lawn tractor and said but did not prove that it was worth $1,000. The Respondent provided a Kijiji posting asking $1,500. I chose $1,250.

[126] I was unable to value the artificial ice rink and above ground pool located at the matrimonial home. I order that both be sold and the net proceeds of sale equally divided between the parties.

[127] I was not persuaded as to the ownership or value of the pieces of granite. I did not include them in the NFP statement.

[128] I find that the Applicant owned the Shouldice Junk bank account containing $684.07.

[129] Shouldice Plumbing was valued by JC Desnoyers at zero. He actually calculated it to a negative value of ($66,283) and rounded it up to zero. The Applicant argued for a value of $66,352 because business debts in that amount were paid post-separation from the sale of a jointly owned rental property. I disagree with that approach. It is akin to using hindsight to value an asset. The business valuation was jointly undertaken and was not challenged in cross-examination. I do not find a double accounting because even removing those debts from the business would only bring it to an actual zero value. At best the Applicant might have argued for a post-separation accounting in respect of her contribution to the debts. Adjustments were claimed in respect of both the Laurentian line of credit and the MBNA account. If this aspect was not pursued by the Applicant under that head of relief, it could have been.

[130] There was no evidence of notional tax costs associated with registered accounts and none have been allowed.

[131] The Applicant claims traced property of $42,000. She inherited money from her father. She testified she used $42,000 of her inheritance as the down payment on the Main St property. The down payment was only $21,000 according to the trust statement for the purchase. The balance of the purchase price was paid by mortgage. Faced with this, the Applicant said she gave the rest in cash to the vendor. This was unproven and highly unlikely. I allowed the claim to the extent of $21,000.

[132] As shown in the attached NFP statement, the Respondent owes an equalization payment to the Applicant of $12,256.89.

Post Separation Accounting

[133] Both parties claimed an accounting for post-separation transactions. Many were agreed to. There were small discrepancies between the amounts claimed by the Applicant for school and activity expenses and those acknowledged by the Respondent. I have based my determination on the amounts proven in exhibit 21 with respect to school milk and hot lunches, baseball as well as medical and dental expenses. I have accepted that $2,322.74 was released to the Applicant from the sale proceeds as was ordered. Accordingly, I find $193.51 is the balance owing for hockey expenses. I only allowed the Respondent credit for one half of the proven amount of $1,600 he paid for the joint appraisals. Nor was there proof of the balance he says he paid to Mr. Desnoyers. I did not allow the additional claim. I did accept the Respondent’s accounting of the MBNA MasterCard and find he owes the Applicant $17,351.46 in that respect.

[134] I disallowed the amounts claimed by the Applicant with respect to utilities, truck payments, and personal overdraft charges as either paid from joint funds, pre-dating the separation or her sole responsibility.

[135] I pro-rated the legal account paid to Agueci & Calabretta between the parties according to post-separation use of the line of credit with the result that the Respondent owed the Applicant $3,725.

[136] Subject to the claim for rent, I find the Respondent owes $54,013.68 to the Applicant, and she owes him $12,756.21, by way of post-separation accounting.

[137] The final contested post-separation adjustment claimed was by the Applicant for rent and notional rent related to the Gallagher Road property. The Applicant bases her claim on a period of 29 months, from October 2013 to and including March 2016. As of April 1, 2016 the Applicant was in possession of Gallagher Road by court order.

[138] During the months of October 2013 to February 2014, the Respondent collected and applied the rents as per the normal course during cohabitation. He deposited them into a separate account set up for the mortgages and other standard payments related to the rental properties to be made by automatic withdrawal. The Respondent also deposited his draws from Shouldice Plumbing into the household joint account until the end of December 2013. This account was used by the Applicant.

[139] In March the Applicant collected and retained the rental income.

[140] Neither party provided an accounting of rental income over the entire period in question.

[141] In May 2014, the parties consented to an order that the Applicant would have exclusive possession of the matrimonial home and the Respondent would have exclusive possession of Gallagher Road. No issue as to rent or offsetting payments was raised or reserved at that time. In point of fact, however, the Respondent only occupied what had been up until then rented out as two separate units. He continued to rent the third unit.

[142] I would not allow the Applicant’s claim during this period, except for a share of rent for April 2014, when the Respondent collected the rents but did not deposit them to the usual account, and from May 2014 up to the end of March 2016, during which time he was in sole receipt of rent for the third unit at Gallagher Road.

[143] The Respondent was willing to credit the Applicant with $7,500, representing one half of the rental income for the third unit. He said it was rented at $1,000 per month for 15 months. The Applicant claimed the calculation should be one half of $750 per month, being the amount of the rent at separation, but for 24 months, for a credit of $9,000.

[144] I find $9,000 is the credit due to the Applicant. The Respondent was in the better position to prove the rental income during this period of time and did not do so.

[145] In all, I calculate the Respondent owes the Applicant $63,013.68 in post-separation credits, less $12,756.21, for a net adjustment payable to the Applicant of $50,257.47.

Joint tenancy severed, subsequent encumbrances

[146] The matrimonial home and the rental property on Gallagher Road were owned by the parties as joint tenants. On February 19, 2016 the Respondent registered a transfer of his interest in Gallagher Road to himself. He then registered a mortgage for $80,000 to his lawyer’s firm against that title. On February 23, a construction lien in the amount of $36,154 was registered by Jason Ouellette for work he had done for the Respondent at Gallagher Road.

[147] The Respondent did not transfer his interest in the matrimonial home to himself, but he did register two mortgages, each in the amount of $80,000 in favour of his lawyer’s firm, against this title. These were registered in February and September 2016. Both are noted as being subject to spousal rights of his spouse.

[148] There is no law against severing a joint tenancy. Either joint tenant may do so with the consequence that both owners lose the right of survivorship.

[149] The Applicant asks the court to set aside registration of all three mortgages to the law firm. She also asks the court to lift the construction lien on Gallagher Road. If this relief is granted she would then ask that title to both properties be vested in her.

[150] I will deal with each property individually, starting with the matrimonial home. The Family Law Act, R.S.O 1990, c. F.3, prohibits the unilateral encumbrance of a matrimonial home. Section 21(1) and (2) provide as follows:

21. (1) No spouse shall dispose of or encumber an interest in a matrimonial home unless, (a) the other spouse joins in the instrument or consents to the transaction; (b) the other spouse has released all rights under this Part by a separation agreement; (c) a court order has authorized the transaction or has released the property from the application of this Part; or (d) the property is not designated by both spouses as a matrimonial home and a designation of another property as a matrimonial home, made by both spouses, is registered and not cancelled.

22. (2) If a spouse disposes of or encumbers an interest in a matrimonial home in contravention of subsection (1), the transaction may be set aside on an application under section 23, unless the person holding the interest or encumbrance at the time of the application acquired it for value, in good faith and without notice, at the time of acquiring it or making an agreement to acquire it, that the property was a matrimonial home.

[151] The registration of the two mortgages against title to the matrimonial home contravenes this section. The notation that the registration was subject to spousal rights does not alter that. Nor is it an answer to a clear violation of the section to say that the Applicant has the right to apply to set aside the transaction.

[152] Registration of these mortgages facilitated the client’s breach of section 21(1). It is obvious that these two mortgages contravene section 21(1) and that they cannot be saved by section 21(2). This mortgagee cannot say it did not know the property was a matrimonial home. Nothing would be served by requiring a separate application on notice to the law firm. Accordingly both mortgages are set aside.

[153] The mortgage against Gallagher Road does not encumber a matrimonial home. The submission to set it aside is based on sections 2 and 3 of the Fraudulent Conveyances Act, R.S.O 1990, c. F.29:

2. Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns.

3. Section 2 does not apply to an estate or interest in real property or personal property conveyed upon good consideration and in good faith to a person not having at the time of the conveyance to the person notice or knowledge of the intent set forth in that section.

[154] In Alexander v. Alexander, (2007), 31 R.F.L. (4th) 131 (Ont. C.J.) the Court held that one must attempt to ascertain the intent of the debtor at the time the conveyance occurred by reference to all the surrounding circumstances. It provided examples of “badges of fraud” from which an inference of fraudulent intent may be drawn. These included transfers for inadequate consideration, transactions between near relatives, secrecy of the transaction, and suspicious surrounding circumstances.

[155] The Applicant relies on the timing of the registration and the hostile attitude the Respondent has towards her in support of the allegation of fraudulent intent. I am not persuaded that the Respondent registered the mortgage to the law firm with an intent to hinder or defeat claims of the Applicant. Rather I find he did so at the request of the law firm in order to have its continued representation in these proceedings. It was quite clear in his testimony that the Respondent was not entirely sure what he signed or what had been registered on which title, only that he did what was asked of him by the law firm.

[156] With respect to the lien, the Applicant relies on Sowka v. Sowka, 2014 ONSC 3379, 2014 CarswellOnt 18868, holding that this Court has inherent jurisdiction to engage the rules of equity to lift a writ of execution in circumstances where the principles of equity and fairness apply, and where not to do so would cause prejudice to one or more of the parties.

[157] I make no comment as to whether the ruling in Sowka is applicable to a construction lien. I do note that the lien holder was not provided notice of the request to lift his lien, it was not argued that he did not perform the work or that the lien exceeded the value of his services. In these circumstances. I would not exercise the discretion described in Sowka in any event.

[158] For these reasons, I make no order with respect to the mortgage or the construction lien affecting the Respondent’s share of equity in the Gallagher Road property.

Vesting Orders

[159] Section 100 of the Courts of Justice Act states:

A court may by order vest in any person an interest in real or personal property that the court has authority to order be disposed of, encumbered or conveyed.

Section 9 (d) (i) of the Family Law Act states:

In an application under section 7, the court may order that, if appropriate to satisfy an obligation imposed by the order, property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years.

[160] The leading Ontario case on vesting orders is Lynch v. Segal, 2006 CarswellOnt 7929 (C.A.), where the court held at paragraphs 32 and 33:

32 I do not think any useful purpose is served by attempting to categorize the types of circumstances in which a vesting order may issue in family law proceedings. The court has a broad discretion, and whether such an order will or will not be granted will depend upon the circumstances of the particular case. I agree with the appellants that the onus is on the person seeking such an order to establish that it is appropriate. As a vesting order - in the family law context, at least - is in the nature of an enforcement order, the court will need to be satisfied (as the trial judge was here) that the previous conduct of the person obliged to pay, and his or her reasonably anticipated future behaviour, indicate that the payment order will not likely be complied with in the absence of more intrusive provisions: see Kennedy v. Sinclair (2001), 18 R.F.L. (5th) 91 (S.C.J.), affirmed (2003), , 42 R.F.L. (5th) 46 (C.A.). Thus, the spouse seeking the vesting order will have already established a payment liability on the part of the other spouse and the amount of that liability, and will need to persuade the court that the vesting order is necessary to ensure compliance with the obligation.

33 In addition, the court should be satisfied that there is some reasonable relationship between the value of the asset to be transferred and the amount of the targeted spouse's liability and, of course, that the interests of any competing execution creditors or encumbrancers with exigible claims against the specific property in question are not an impediment to the granting of a vesting order. However, I would not go so far as to say - as argued by the appellants - that the onus to satisfy the court on these matters is at all times on the person seeking the order. I shall return to these issues later in these reasons.

[161] The Respondent owes the Applicant a total of $62,514.36 for the equalization payment and post-separation accounting. The Respondent’s share of equity in the matrimonial home is $152,500, an amount significantly in excess of his liability to the Applicant.

[162] Were it not for the two post separation encumbrances against the Respondent’s equity in it I would have vested title to Gallagher Road in the Applicant. As it is he has no equity remaining in that property.

[163] In the result neither vesting order is granted. I order Gallagher Road listed for sale forthwith. The matrimonial home shall be listed for sale by April 1, 2017 with a closing date not earlier than June 30, 2017. The Applicant may remain in exclusive possession of the matrimonial home until it is sold. The divorce will be granted after the matrimonial home is sold.

Income Determination

The Respondent’s Income

(a) Mr. Shouldice, 2013-2015

[164] The Respondent is 37 years of age. He is a plumber by trade. In 2005, he went into business for himself as Shouldice Plumbing. Both parties agree there was a cash component to the business during their cohabitation. They disagree as to how much cash was involved. During cohabitation, the Applicant kept the books for the company. The Respondent says within a few months of separation he began to receive calls from suppliers complaining of missed payments. He says this is why he removed the books and records from the matrimonial home and took over these functions himself. The Applicant says by removing the records from the house he has prevented her from proving how much cash was actually generated by the business. I accept the Respondent’s testimony that corporate bills were going unpaid in the first few months of separation.

[165] The parties obtained a joint income determination report. It concluded that Mr. Shouldice’s available income for 2012 and 2013 was $83,000 and $81,000 respectively. Both parties provided information and submissions in support of their views on the unreported cash component of the Respondent’s income. The joint expert adjusted both submissions based on his own analysis and then adopted the mid-point between the two adjusted positions.

[166] The report was filed on consent. The expert was not cross-examined. The adjustments he made and the reasons given for making them were reasonable. I accept his income determinations for these two years.

[167] Mr. Shouldice requisitioned a second income report from a different expert to address his income for 2014 and 2015. The Applicant had no input into this report. It assumed the cash income findings from the joint report, with one significant adjustment. The second report assumed, based on the Respondent’s statement, that he had discontinued all cash transactions in mid-2014 when he incorporated his plumbing business. I do not accept this as fact. The Respondent has a proven record of misstating facts for his personal advantage (i.e. his mortgage application; his property insurance claim). He did not persuade me on a balance of probabilities that he had discontinued cash transactions.

[168] Adjusting for this assumption, and accepting the balance of the second report, I determine the Respondent’s available income in 2014 to be $95,825.

[169] There was an error in the second report which included borrowed money as revenue in 2015. Correcting for that the witness determined that the Respondent’s available income for 2015 to be $43,231. I have adjusted that figure by adding the cash component as determined by the joint expert, which would produce an available annual income for 2015 of $83,231.

[170] However, as will be seen, I find the Respondent only worked for 11 months in 2015. On a prorated basis I determine his 2015 income to be $76,295.

(b) Mr. Shouldice, 2016 and going forward.

[171] The Respondent testified that he has not worked since November 2015 due to depression and anxiety, inability to focus, and related physical safety issues on the job site. He provided details of problems he had at work that put himself and others at risk of injury. On one occasion, he knocked himself off a ladder by mishandling a piece of equipment. Another time he cut himself. He said he had been sent home as unsafe. He testified he was making stupid mistakes that should not happen.

[172] The Respondent described other symptoms including not sleeping, low energy and poor memory.

[173] He sought medical assistance in late November 2015. He has attended regularly, taken prescribed medication for depression and sleeplessness. He has had counselling and is on a waiting list to see a psychiatrist.

[174] The Applicant submits that the Respondent’s diagnosis is based only on his self-report. She thinks he is “faking it” in order to avoid paying support. She also thinks that he is working “under the table.”

[175] I accept the testimony of his family physician that the Respondent is suffering from depression and anxiety. Part of the foundation of her diagnosis is her clinical observations of the Respondent. Her diagnosis is not based entirely on his self-report. She also testified that the court case, his distress related to his limited contact with his children, and financial stress are significant contributing factors to his condition. She is hopeful that resolution of these issues and the upcoming psychiatrist consultation will help the Respondent’s condition to improve.

[176] The physician did not provide an opinion that the Respondent was unable to work, whether at all or in a part-time capacity or in a less stressful job.

[177] The Applicant called two witnesses in support of her submission that the Respondent was in fact working. Ms. Stewart testified that on March 6, 2016 she saw the Respondent standing on a Mr. Casey’s laneway. Ms. Stewart did not see the Respondent working there.

[178] Mr. Wammes was the second witness. He was working at the Casey property in March 2016. He testified he saw the Respondent there and spoke to him briefly. He did not see him doing any work there, but said that “Shouldice” men were doing the plumbing on the job. Mr. Wammes also testified that the Respondent told him he was going to give his wife a hard time.

[179] The Respondent denied being or working at Casey’s, and also denied the conversation described by Mr. Wammes.

[180] The Applicant also testified that she saw the Respondent driving his Shouldice truck in January 2016. She also photographed the truck in March at Casey’s property. The Applicant had also seen Shouldice Plumbing advertising signs posted around the North Gower area.

[181] The Applicant also relied on a number of Facebook postings made by the Respondent’s partner, Ms. White, looking for a nanny, a TV antenna, a hot tub, a photographer and a guitar teacher. The Applicant submitted these as evidence of a life style requiring employment income to support.

[182] There is no direct evidence that the Respondent has worked since November 2015. He did drive his truck and his signs remained up. The Shouldice truck and plumbers were on site at Casey’s in March 2016. No one testified as to having seen the Respondent actually doing any plumbing work.

[183] Despite the Respondent’s credibility problems, I find he has been a hard worker throughout his adult life until November 30, 2015. He worked hard to obtain his plumbing credentials and to establish his own business.

[184] The Respondent says the business was in trouble from shortly after the separation. There is some support for this in that the business valuation showed the company as having no value or negative value at the date of separation. The respondent could no longer use what had been the company credit card after separation because it was actually the Applicant’s card. His own cards were maxed out. Limited credit would make it more difficult to operate the business. It is puzzling that in August 2015, he personally borrowed over $100,000 to pay off corporate creditors. The Laurentian Bank unexpectedly re-extended the personal line of credit. The Respondent says he “grabbed” the opportunity to try to keep the business afloat. The Respondent says he was not working as much in the fall of 2015 or at all after November, and his business debts mounted and were again unpaid. Although he denied the suggestion that insufficient debt was incurred between August and May when the company went bankrupt to justify bankruptcy, he did not prove those debts or put the bankruptcy file in evidence.

[185] I do not conclude that the Respondent purposely pout his company into bankruptcy in order to avoid his support obligations, but nor was I persuaded on balance of probabilities that he could not have worked in some capacity during 2016. There was no medical opinion that he was unable to work part-time in his trade, or full or part-time in a less stressful job. He has worked for cash in the past. It seems unlikely that he and his partner can support themselves and their two children on their combined disclosed income of about $1,800 per month. The Respondent says they have financial help from family, but called no witnesses to corroborate this.

[186] I have concluded that the Respondent was able to work on a part-time basis in 2016. I impute an income of $30,000 to him as the half time income of an employed plumber.

[187] The Respondent explained that henceforth, he intended to be employed rather than self-employed, to avoid the added stress involved in running his own business. He testified he has a job lined up with a plumbing company he worked for previously, that he can start when he is ready. The employer will allow him to start part-time. He testified that a full-time employed plumber would earn $60,000 per annum.

[188] By now, the Respondent will have had his initial consultation with the psychiatrist, the trial is behind him and the decision released. I find he should be able to return to full-time employment by April 1, 2017. Accordingly, I determine his income for 2017 at $52,500 and thereafter at $60,000 per annum, subject to verification by annual production of his income tax returns and notices of assessment.

The Applicant’s income

[189] At present Ms. Shouldice is 50 years old. She completed high school in 1989, and went on to Carleton University to obtain two degrees in four years, in Sociology and in Law. She obtained a position with Health Canada on graduation in 1994. She went to Sun Life in 1999 where she earned some $48,000 annually. She continued there until 2008, taking a one year maternity leave when each of the first two children were born.

[190] In 2008, the couple built a house for resale purposes. The Applicant was very involved in this project. They decided she would leave Sun Life. The Applicant was also involved in the Shouldice Plumbing business. She did the invoicing, pay roll and HST. When she left Sun Life, she taught herself how to use a software bookkeeping package so that she could also do the company books.

[191] After the separation, the Applicant worked for about ten hours a week for 8 to 9 months. She was offered full-time by this employer but turned it down because of stress and her other obligations. The Applicant did not perform any work unconnected to the home and children from then until very recently. She did work on the units on Gallagher Road in April 2016 to get them into rentable shape. She has rented the units out and is now receiving rental income.

[192] The Applicant testified she borrowed $5,000 to fund those repairs and that she has been working for the creditor during school hours to pay off the loan. She testified that the balance is now down to $3,500.

[193] In her testimony, the Applicant expressed her intention to return to outside employment. Beyond that she did not present a plan, a date, a type of employment or a potential income range. This is unacceptable. The Applicant is well-educated, experienced, and bright. All of the children have been in school attendance since September 2014. Her explanations that she hasn’t been able to work because of all the interruptions for court, for counselling, to repair Gallagher Road, are no longer applicable.

[194] I find the Applicant should be employed on a full-time basis by April 1, 2017. I am satisfied that she will readily find employment above the minimum wage. In the absence of evidence, I impute a starting income to her in the amount of $30,000 per annum, as suggested by her counsel in the calculations used in support of her claim for lump sum spousal support.

Child Support

[195] The Respondent asked the court to make an order for child and spousal support for the three months in 2013 when the parties were separated. He sought this relief to create an “overpayment” by reference to the total amounts deposited into the family joint account from his business during those months. I decline to make such an order. The deposits are known but there was no testimony directed to the allocation of those funds between the parties. I am unwilling to simply assume that all funds were used only for the support of the Applicant and children, and none of the benefit of the Respondent.

[196] The first support order was made in May 2014. It ordered the Respondent to continue to pay $3,300 per month combined but unallocated child and spousal support. As such the full amount is treated as child support for income tax purposes. That order remained operative until November 30, 2014.

[197] The Respondent has paid $34,608.68 for 2014. He submits he is entitled to have the support for 2014 re-calculated now that his income has been determined. I agree. The order was made on a without prejudice basis pending completion of the joint income determination report. The spousal support order made as of December 2014 used the midrange SSAG for spousal support. Neither party quarrelled with the mid-range. On an income of $95,825, the award for 2014 would have been $1,779 per month child support and $1,102 per month spousal support for an annual total of $34,572. That amount also seems appropriate having regard to the resulting distribution of NDI between the parties, namely 43.6% / 56.4% NDI in her favour.

[198] Accordingly, the Respondent is owed $36.68 for 2014.

[199] The Respondent paid $28,998 for 2015. Based on my income determination he ought to have paid $24,540 by way of $1,467 per month in child support, and $578 per month in spousal support (44.1%/55.9% NDI in her favour, mid-range SSAG). I find the Respondent is entitled to a credit of $4,458 in total for 2015.

[200] I find the Respondent overpaid support by $4,421 for these two years.

[201] The Respondent’s income in 2016 is imputed at $30,000. He owes child support of $591 per month, for a total for the year of $7,092.

[202] In the result the Respondent owes the Applicant $2,671 on account of support to and including the end of 2016, payable as child support with no income tax inclusion or deduction.

[203] Commencing on January 1, 2017, the Respondent shall pay the Applicant the monthly amount of $1,014 for child support based on an annual income of $52,500. Based on her imputed income of $30,000 for 2017, the percentages for section 7 expenses are 62% for the father and 38% for the mother.

[204] When each parent obtains employment s/he shall obtain life insurance and health and medical coverage for the benefit of the children available as a term of employment. If the parties do not agree on the designation of life insurance for the benefit of the children I may be spoken to.

Spousal Support

[205] The Applicant asks for a lump sum spousal support award in the amount of $59,000. She calculated this by reference to the mid-point of the SSAG for an additional 7 years, using the “Without Child Support” formula. In her calculation, she imputed $30,000 annual income to herself and $82,000 to the Respondent.

[206] The leading authority in Ontario with respect to lump sum spousal support awards is Davis v. Crawford, 2011 ONCA 294, 106 O.R (3d) 221. The court articulated a broad discretion to make a lump sum award, not limited to situations where there is a real risk that periodic payments will not be made or other very unusual circumstances. It also cautioned against using a lump sum award for the purpose of redistributing assets or where the payor does not have the ability to make a lump sum payment without undermining the payor’s own future self-sufficiency.

[207] The Divorce Act contemplates the circumstance where the priority given to child support in effect uses up the available money so that even though entitlement to spousal support may be present, the means to pay it is not. Section 15.3(2) and (3) of the Divorce Act provide:

15.3 (2) Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so.

15.3 (3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.

[208] Rather than have recourse to these provisions the Applicant asks the court to assess spousal support now as if there were no dependent children, based on the parents’ current incomes, and to accelerate an otherwise unaffordable periodic payment of spousal support by ordering it payable out of capital. Using those income figures and the SSAG “with child support” formula, no spousal support would be payable.

[209] I do not agree the Applicant’s proposal that I calculate a lump sum award based on the parties 2017 incomes as if child support were not in pay. That is simply not the reality. Her methodology underlines the difficulty in determining an amount of spousal support at this time. Further one expects the circumstances of both parties will change in the future. I am also of the view that the Applicant seeks a lump sum now in order to bolster her hope of retaining ownership of both the matrimonial home and Gallagher Road, i.e. to bring about a redistribution of assets not otherwise achievable. That is not an appropriate reason to award a lump sum.

[210] For these reasons, I decline to award lump sum spousal support. Consistent with section 15.3(3) of the Divorce Act I order that any subsequent reduction or termination of child support shall constitute a change in circumstances for the purpose of an application for spousal support.

Section 7 expenses

[211] The parents shall contribute to the cost of one extracurricular activity for each child in each season in proportion to their incomes. The parents shall agree on the activity in consultation with each child. Proof of payment shall be delivered to the other parent within 7 days of incurring the expense and reimbursement paid within the next 7 days. The Applicant shall also produce her annual income tax return and notice of assessment in any year she is claiming a contribution to section 7 expenses.

Security for Support

[212] Section 15.2(1) of the Divorce Act provides:

A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

[213] Brinkos v Brinkos, 1989 CarswellOnt 252 (CA) briefly addresses when security may be required noting the father’s conduct in relation to his failure to provide support for the children. In Riel v Holland, 2003 CarswellOnt 3828, the Court of Appeal also noted the father had been in arrears of child support from the commencement of the application, had not disclosed relevant financial information and had failed to send proper cheques to the Family Responsibility Office. Security was also ordered in Oates v. Ball, 2014 CarswellOnt 10377 (SCJ) where the payor had dissipated all of his assets except those subject to a preservation order, and had left the jurisdiction for a country that did not have reciprocal enforcement with Canada.

[214] I find there should be security for child support in this case. Arrears of support have accrued and have been subsequently paid from the Respondent’s share of proceeds of sale of rental properties. He is currently unemployed. The Applicant needs child support on a regular basis for the support of the children. The Respondent has demonstrated that he will prefer creditors over support obligations. His track record of complying with court orders is another concern.

[215] I order that the sum of $62,514 owed by the Respondent to the Applicant, and any support arrears then outstanding shall be paid to the Applicant from the Respondent’s share of proceeds of sale of the matrimonial home. From the Respondent’s remaining share of the net proceeds of sale, $75,000 shall be held in an interest bearing trust account to stand as security for child support. The trustee shall pay amounts from the account to the Applicant to the extent necessary to satisfy any arrears of support payments. Any sum remaining together with accrued interest shall be paid to the Respondent when his child support obligations have ended.

Costs

[216] If there is a claim for costs and counsel are unable to resolve it, I will do so by written submissions. These should not exceed five pages plus attachments of offers and bills of costs. The Applicant shall deliver her submissions by January 6, the Respondent by January 27, and a brief reply if necessary by February 3, 2017.

Released: December 16, 2016 J. Mackinnon J.