CITATION: Maharaj v. Wilfred-Jacob, 2016, 2016 ONSC 7925

COURT FILE NO.: FS-14-81765-00

DATE: 2016 12 15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Aryann Shalini Maharaj

G. Deokaran, Counsel for the Applicant

• and -

Lincoln Wilfred-Jacob

R. McQueen, Counsel for the Respondent

Heard: May 27, 30, 31, June 1, 2, 3, 6, 7, 8, 9 and 10, 2016

REASONS FOR JUDGMENT

Trimble J.

INTRODUCTION:

[1] Jayden Lincoln-Wilfred-Jacob is a lucky boy. He has two parents that love him, dearly, and want nothing but the best for him; so do his parents’ families. All the evidence indicates that both parents meet all of his material needs. He attends school. He does well. He has friends. He is well adjusted. He is a normal boy. His parents should be proud of the boy that they have raised, and hopeful that if they put differences aside and stop airing their dispute in front of him, Jayden will grow into a respectful, responsible young man able to make his way in the world.

ISSUES:

[2] In this application, I am asked to decide custody of and access for Jayden Wilfred-Jacob (born 8 January, 2008), spousal support, child support, and certain property issues.

AREAS OF AGREEMENT AND DISAGREEMENT:

[3] In this case, the parties agree that they met in December, 2006. They agree that they were married on August 3, 2008. They agree on Jayden’s birthday – January 8, 2008. They have no choice but to agree. These facts are verified by independent records.

[4] The couple cannot agree on anything else including separation date, whether they had periods of separation during the marriage, or when they began living together as a couple before they married. It is no coincidence that they cannot agree on these facts. These events cannot be verified by independent records. They have a direct and serious impact on equalization and support.

[5] The parties’ inability to agree extends to agreements they made at trial. The parties asked that I determine certain property issues. I asked the parties to submit a joint NFP Statement, in spreadsheet format, outlining each party’s position, and highlighting the issues I was to determine. Instead, they reached an agreement that I needed to determine only three questions or issues regarding property: 1) the date of separation, 2) whether $25,000 of Ms. Maharaj’s should have been listed in her NFP Statement and 3) whether savings of $30,000 was Ms. Maharaj’s or Jayden’s and should have been listed as her asset on her NFP Statement. The parties thought that they could calculate equalization if I decided those issues.

[6] As the evidence progressed, however, the property issues changed, notwithstanding the parties’ agreement limiting the issues to the three identified. Mr. Wilfred-Jacob conceded that the $30,000 was Jayden’s and did not have to be listed as Ms. Maharaj’s asset. The value of the matrimonial home became an issue. There were disputes over the value of several assets. It became clear that the parties could not agree on equalization but for two or three items. As well, Mr. Wilfred-Jacobs wants unequal division of family property. Accordingly, I determined equalization.

[7] At trial, each party said that the other was a good parent. The evidence suggested, however, a high level of contempt, one for the other. The parties’ contempt for each other plays out in front of Jayden. The parents, especially Mr Wilfred-Jacobs, indicate to Jayden by word and deed that the other is less than a fit parent. Access for Ms. Maharaj, even when agreed to and made a Court order, has not been followed. It remained a persistent problem up to the date of the trial. Access is Jayden’s right, yet the parents squabble over it.

[8] The parents squabble over everything, no matter how small. For example, there are squabbles over the clothes Jayden is sent with in one direction or not returned with: jackets, hats, shoes, trousers, backpacks. Implicitly, each thinks that the other is using the things that the other purchased for Jayden as part of their fight with the other. They squabble over who Jayden’s dentist and doctor should be. They squabble over who went to what appointment with Jayden.

[9] As a result of this unrelenting situation, Jayden has emotional issues, largely anxiety and behavioural, which arise when he is with Ms. Maharaj, or near time for him to go back to his father’s care.

[10] The clouds of alienation loom.

A NOTE ON THE EVIDENCE:

[11] Because this couple cannot agree on facts and dates that most other divorcing couples can agree on, I must look to their evidence, principally, to make most of the decisions they have asked me to make. Independent evidence that can corroborate the evidence of the parties is sparse. Therefore, the credibility of both of the litigants is crucial to the findings I have to make.

1. Independent Evidence:

[12] What independent evidence was there?

[13] Ms. Maharaj called Linda Mann, the Peel Children’s Aid Society (CAS) worker involved with the family, and Terry Majewski, the Office of the Children’s Lawyer (OCL) worker assigned to the family. I will speak of their evidence later. She also called her mother, Judy Maharaj. Her evidence was helpful with respect to Jayden’s overall behaviour when he was with Ms. Maharaj, the three short video clips (of which I will speak in a moment), the separation date, and an incident involving changing the locks to the matrimonial home. The remainder of her evidence comprised what Ms. Maharaj or others told her.

[14] Mr. Wilfred-Jacob called Christine Eccles, Vida Gooden, and Harry Heeraman. Each of these witnesses spoke of the wonderful relationship it appeared to them that Mr. Wilfred-Jacob and Jayden enjoyed. This fact is not in dispute. Beyond that, their evidence was of little assistance. Each was Mr. Wilfred-Jacob’s friend. None had better than a passing acquaintance with Ms. Maharaj. They all said or implied that Ms. Maharaj was never around. Ms. Gooden said that Ms. Maharaj drank and took drugs, but could only give one instance when she saw Ms. Maharaj intoxicated. Ms. Gooden is a deeply religious woman, and suggested that anyone who interfered with Mr. Wilfred-Jacob’s relationship with Jaydon was going to have to answer to a “higher power”. Mr Wilfred-Jacob wanted to enter statements from others who were available to testify, which I refused to receive as hearsay.

[15] Because independent evidence (except that of the CAS and OCL workers) was sparse, much turns on the evidence of the parties and their credibility.

2. Credibility Of The Parties:

[16] In assessing credibility, I direct myself to the following considerations:

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

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

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

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

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

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

[17] I have grave concerns about both parties’ credibility. Each spouse’s views of and dispute with the other have clouded their vision. Each spouses’ evidence was coloured by emotion generated by the breakdown of their relationship. Each party has shown, in some way, his or her contempt for the other, in front of Jayden. In this case, each party’s evidence must be considered carefully in light of what they now feel for and think about each other.

[18] The parties’ evidence is diametrically opposed on all issues in dispute. As a rule, I accepted the evidence of one party over the other where there was corroborating evidence from another source. Where I was required to make a finding based solely on the contradicting evidence of the parties, I favoured that of Ms. Maharaj over Mr. Wilfred-Jacob, but only by a whisker. More than with Mr. Wilton-Jacob’s evidence, Ms. Maharaj’s made sense in light of other evidence. In most areas, however, I was able to base my decision on the evidence of the parties, corroborated by third party information.

[19] As examples of things that diminished Ms. Maharaj’s credibility, consider the following:

1. After she began living with Mr. Wilfred-Jacob, Ms. Maharaj provided several updated reports to Ontario Works (OW) in order to continue to receive benefits (see for example Ex. 8, T. 12, pp. 89 to 105 of 110). In each of these, she declared to OW that she was still living alone and paying rent. In the example listed above, she said that she was living in her own apartment. As she was cross examined on several of these update reports, Ms. Maharaj gave different responses for repeated false statements about her living arrangements. At first she said she did not read these sections of the update. An OW worker filled out the form which she merely signed. She admitted in cross examination that she verified this information as if it were made under oath. She admits that she lied. She says that Mr. Wilfred-Jacob told her to do this so she could keep receiving OW benefits while they lived together. Even were I to accept this explanation, the only reasonable conclusion is that Ms. Maharaj knew or was willfully blind to the fraud she and Mr. Wilfred-Jacob were perpetrating on OW.

2. In her update of August 2, 2007 (Ex. 8, T. 12, pp. 38 to 57 of 110), she told OW (again, verifying the statements in the form as though the statements were made under oath) that she was single and paying Mr. Wilfred-Jacob rent of $350 per month. When asked what her relationship was to Mr. Wilfred-Jacob, she said “other” (as opposed to spouse or co-vivant). She gave the same explanations for these incorrect statements: a) she didn’t read the form. The OW worker filled it out and printed it. She merely signed it, and b) it was all Mr. Wilfred-Jacob’s plan.

3. In her Affidavit of April 21, 2015, (Ex. 8, T. 10, para. 23) and her examination in chief, she said that she endorsed her OW cheques or payments and gave them to Mr. Wilfred-Jacob who he cashed them. In her application and updates to OW, however, she provided direct deposit information. She did not produce the account statements from that account from the relevant time. She admitted in cross examination that she had an active bank account. In her cross examination she said that her affidavit and her statement in evidence amounted to the same thing. This is not believable.

4. Ms. Maharaj did not tell the OCL or the CAS that she was in an abusive relationship with Danni Ali a fact that the Ms. Mann said that anyone in Ms. Maharaj’s circumstances (alleging previous abuse by Mr. Wilfred-Jacob) would have known was important to CAS and the OCL. Ms. Maharaj said she did not mention it as no one said she had to, and because the abuse Mr. Ali gave her did not affect Jayden. Ms. Mann said that Maharaj “withheld” that information. I find that she did, knowingly. I reject her explanation as knowingly untrue.

5. Ms. Maharaj was vague about financial disclosure. She said that in 2010, she received $25,000 from her father after her parents sold their house. She gave it to Mr. Wilfred-Jacob to hold because she had no bank account. In fact, she did have a bank account. In 2012, during one of the alleged separations, she asked for the money back. Mr. Wilfred-Jacob gave it to her. She put $10,000 in a GIC, gave $ 5,000 back to her father, put $2,000 into Jayden’s account (to replace money Mr. Wilfred-Jacob admitted he took from that account,) and spent the rest she used for “living expenses” which were not itemized. Records indicate that she opened a bank account on June 22, 2011 with $20,000. I was referred to no evidence concerning the $2,000 put into Jayden’s account. This is important as Mr. Wilfred-Jacob said that while he “borrowed” $5,000 from Jayden’s account, he repaid $2,000 or $3,000. There is no evidence of this repayment.

6. She was cross examined on her accounts. First, she said she only had one, then admitted that she had at least one more.

7. On her Financial Statement of April 21, 2015, and September 30, 2014 she listed an account with only $10,000 in it. She said in evidence that before August, 2014, she had an account of $30,000, which she said she was holding for Jayden, funded from the child tax credit and gifts of cash relatives gave to Jayden. It was in her name. In August, 2014, she transferred the money to her mother. This was never disclosed to Mr. Wilton-Jacob until just before trial.

8. In September, 2014, when asked about the $10,000 GIC and the $30,000, she denied that the GIC existed (it did, but it was Jayden’s money), and she denied the $30,000 (although it existed, but she transferred it to her mother less than a month before her lawyer denied the existence of the money). Her denial of the existence of these two pools of money is untrue. The real answer (assuming one accepts her evidence at trial) is that they existed, were Jayden’s, and the $30,000 was transferred to Ms. Maharaj’s mother to hold for Jayden. Ms. Maharaj was paying fast and loose with the truth in order to avoid a fight with Mr. Wilfred-Jacob. In doing so she created the impression in his mind, and the possible inference in mine, that she was hiding assets to avoid equalization.

[20] I find that Ms. Maharaj was evasive when it benefitted her. When an answer to a question was inconvenient, she was forgetful. When revealing information might imperil her position, she chose to not disclose the information then rationalize her lack of candour at trial by saying “no one told me I had to tell.”

[21] As examples of things that diminished Mr. Wilfred-Jacob’s credibility, consider the following:

1. He told the Court that from October 2012 to July, 2014, he co-parented with Ms. Maharaj, but in five affidavits or statements filed in the record in support of his desire for sole custody, he said he was in effect the sole or majority care-giver to the child.

2. In 2012, Mr. Wilfred-Jacob was charged with assaulting Ms. Maharaj. He told me that the charges were withdrawn. In his July 9, 2014 Affidavit, para. 18, sworn in support of his urgent motion to terminate Ms. Maharaj’s access and custody, he said the pleaded guilty for the reasons stated, including to avoid legal fees. When cross examined, he admitted he made up the story about the guilty plea. However, I was directed to no evidence that the charges were withdrawn, a fact that was within his power to prove. Mr. Wilfred-Jacob had been charged with, and convicted of assaulting his first spouse. I find that he knew the difference between pleading guilty and withdrawal of charges, and was merely being evasive.

3. He pleaded, and repeated in several affidavits, and told the OCL and CAS that Ms. Maharaj was mentally unstable, often suicidal, and her mental instability posed a danger to Jayden. He made the same accusation in his examination in chief. He admitted in cross examination that he has no professional opinion in this respect. The CAS and OCL investigated these allegations several time but could find nothing that corroborated them.

4. He pleaded, repeated in several affidavits, and said in examination in chief that Ms. Maharaj regularly used alcohol and marijuana to excess, and while caring for Jayden. He also said that she had an addiction issue. He was concerned for Jayden’s safety. He had no evidence to back this up except for one neighbour who said she saw Ms. Maharaj drunk on one occasion. He admitted in cross examination that he has no professional opinion in this respect. The CAS and OCL investigated this allegation but could find nothing that corroborated it. Ms. Maharaj admitted to smoking marijuana from time to time. In the face of Mr. Wilfred-Jacob’s allegations placed before the court, she agreed to urine and hair follicle drug tests. Setting aside the evidentiary value of follicle tests, she passed all but two on marijuana. Mr. Wilfred-Jacob never established that the two failed test result meant that a) she used marijuana while she was with Jayden, or b) that she was impaired or unable to care for Jayden while with him. Her family doctor told CAS a test result might be positive as long as one month after use, and the values on the tests were not very high.

5. In his Affidavit of August 17, 2014 (Ex. 5 T. H), para. 7 to 10, and August 25, 2014 (Ex. 5 T. N) para. 21 and 22, Mr. Wilfred-Jacob swore that Ms. Maharaj kidnapped Jayden and took him to Trinidad without his permission or knowledge. In cross examination, when presented with Ms. Maharaj’s passport, he said, initially that some had tampered with the Applicant’s passport. After further questioning, he admitted that the passport was accurate and admitted that he signed a consent to travel.

6. He over-stated his involvement with Jayden in order to improve the optics of his parenting. He said that he took the child to, or accompanied Ms. Maharaj to doctors’ and other appointments. In cross examination he insisted that this was true. He later admitted that on at least one occasion he remained in the car in the parking lot. He later admitted that he did not take Jayden, or accompany Ms. Maharaj to all the appointments and in some instances, remained in the car while Ms. Maharaj went to the office. In respect of the Dentist’s letter confirming that Ms. Maharaj took Jayden to all the appointments (Ex. 4, T. E), Mr. Wilfred-Jacob said that the Dentist was not being truthful. He never called the dentist.

7. In the summer of 2014, after an argument, Ms. Maharaj drank bleach, at the time, she said, intending to kill herself. She said it was really an act of desperation. She was in hospital briefly. He said in an affidavit and in evidence in chief that the hospital told her to seek counselling, which she did not do. Hospital records (Ex. 3 T. A) show no such recommendation.

8. He said in two affidavits (Ex. 5, Tabs H and N) that the CAS took the child from Ms. Maharaj’s care because of safety concerns and placed the child in his care. After the cross examination of the CAS worker, who denied this, Mr. Wilfred-Jacob admitted that his statement was not true.

9. He said that he had never physically harmed Ms. Maharaj (Ex. 3, T. 1) but admitted in cross examination that he had been violent with her.

10. The OCL’s report (Ex, 1, p. 8) notes that Mr. Wilfred-Jacob denied Ms. Maharaj access over Christmas and New Year’s Day 2014-15. He said in an affidavit and in examination in chief that the OCL was wrong. He shared access, as required. He reacted to cross examination by saying, loudly and forcefully “that’s insane”, when confronted with a letter from his then solicitor that said that Jayden did not want to go to his Mother’s for the holiday access, so Mr. Wilton-Jacob did not take him. He said repeatedly that Jayden went to his Mother’s care regardless of what the CAS, Maharaj and his own lawyer said.

11. The OCL recorded Ms. Maharaj’s report (as she said in evidence) that Mr. Wilfred-Jacob cut off Ms. Maharaj’s access to Jayden at school. He denied this in his April 27, 2015 Affidavit (Ex. 5, T. N), para. 278, but admitted in his evidence in chief that this statement in his Affidavit was not true. He asked the school to prevent her from seeing Jayden in the playground before school.

12. He made a complaint to the police against Danny Ali that Ali had threatened Jayden. Mr. Wilfred-Jacobs said that this was what Jayden told him. The police and the CAS could find no evidence to support this. Jayden said only once that he was only afraid of Mr. Ali, when he slammed his hand on the dinner table when Jayden refused to eat some of his meal.

13. His position at trial was that the joint custody/equal time order should remain in place. Until the outset of trial, his position was that he was to have sole custody. His evidence filed at every motion dealing with access was directed at sole custody. The weight of his evidence is that Ms. Maharaj is not a fit mother because of her use of alcohol and marijuana, and her mental instability, which is inconsistent with his position of joint custody. I find he changed his position at the last minute in order to appear more reasonable at trial.

14. With every complaint Mr. Wilfred-Jacob made to the CAS or police (except one) he said that they were based on things Jayden told him. Every time he denied access, he used Jayden as an excuse. The two most popular excuses were that Jayden did not want to go to his mother’s care, and they were doing something else at the transfer time, Jayden was enjoying it, and he did not want to stop.

[22] I find that Mr. Wilfred-Jacob’s view of the truth is situational. His evidence at any point in time, including at trial, was tailored to suit his objective at that time. Throughout this litigation, Mr. Wilfred-Jacob persisted in making allegations to the police, CAS and this Court that Ms. Maharaj is an unfit mother and danger to Jayden, that she is mentally unstable, consumes alcohol and marijuana to excess, and that she engages in personal relationships with violent characters who threaten to Jayden. He continued to make these allegations at trial despite there being no evidence to support them other than his evidence that Jayden said things to him. None of them were supported by CAS, OCL or police investigation. Few were supported by Jayden. When they were, Jayden’s reports used language not usual for a boy of his age and were strikingly similar to what Mr. Wilton-Jacob said. When asked to explain what he said, Jayden could not give details, avoided eye contact, and changed the subject. Notwithstanding that nothing Jayden said to anyone else supported Mr. Wilfred-Jacob’s evidence, he kept saying that all of his statements were based on things Jayden told him and that even if no one else believed Jayden, he did.

3. Video Evidence:

[23] Ms. Maharaj introduced into evidence 3 video clips taken on a cell phone on September 13, 15 and 29, 2014. I admitted these recordings with great reluctance, as some evidence of Jayden’s views. Why did I do this?

[24] Everyone carries a cell phone with a camera. Every warring parent seems to record the children and each other for litigation purposes.

[25] As a matter of law, video recordings of events are admissible if they are relevant, unless there is prejudice that outweighs their probative value. In family cases, video recordings are not as freely admissible. They are a breach of the child’s trust in the parent, and an abuse of the parent’s access to the child. More often than not, they are the result of manipulation of the child (see: Sheidaei-Gandovani v. Makramati, 2014 ONCJ 82, 2014 ONCJ 82 (OCJ); Hameed v. Hameed, 2006 ONCJ 274, 2006 ONCJ 274 (OCJ); Jackson v. Mayerle, 2016 ONSC 72, 2016 ONSC 72 (SCJ), and Whidden v Ellwood, 2016 ONSC 6938).

[26] The policy reasons for not admitting or severely limiting admission of such videos are obvious. As Pazaratz, J. put it in Whidden v. Ellwood, supra:

96. Parents in custody disputes really need to stop taking photographs and videos of one another during access exchanges.

a. They should stop pretending they’re assisting the court by assembling important evidence.

b. The obvious reality is that taking videos is a strategic act of aggression and escalation. The situation never improves when people pull out cameras. Usually it gets worse. Indeed, often that appears to be the intention.

c. Access exchanges in high conflict files are already tough enough for children. Pointing a camera – or multiple cameras – at the interaction merely heightens the child’s unease and worry that something bad is expected to happen. That someone they love is about to misbehave. That one parent is trying to get the other parent in trouble.

d. Videos recklessly and maliciously transform an ideally brief, benign transition into a horribly unhappy and frightening experience for the helpless child. The unpleasant confrontation may last only minutes. But the emotional devastation for the child can extend for hours, both before and after the exchange.

e. Talk about spoiling a happy moment. (Again, perhaps that’s the intention.)

97. How do we stop this epidemic of smartphone nonsense in Family Court?

a. Presumably parents only take these videos because they think it will help them win their case. They think it will make the other parent look bad.

b. We need to make it clear to parents that taking videos is not likely to help you win your case. It’s more likely to backfire. To cause the judge to worry about your parental judgment.

c. Because taking videos raises doubts about how a loving and caring parent could be so insensitive as to place an innocent child in the middle of a needlessly inflamed and volatile situation.

d. What message is the videographer conveying to the child? “Look how bad your father is!” “I’m going to record this so everyone will see what a horrible mother you have!” “Be careful, the parent you love can’t be trusted!”

e. Perhaps the more cynical and prophetical message: “Showtime!

f. Do children really need to receive such hurtful and destructive messages, at an already tragic time in their lives?

g. When parents routinely pull out their cameras, ready to “click” at the slightest false move -- like gunslingers squaring off at the O.K. Corral – are they doing it out of love for a child? Or hate?

h. No matter what image they hope to record, it can’t be as harmful to the child as the fear and apprehension automatically instilled as soon as one parent points a camera at the other.

98. Perhaps we can borrow from social media to coin a term which suitably describes judicial disdain for this type of behaviour:

a. We’ve all heard of the “SELFIE”: A self-portrait, usually intended to make the subject look good.

b. How about a “SELFISHIE”: A parent taking a disturbing video to try win in court, oblivious to the emotional trauma they are inflicting on their child.

[27] In this case, in all three clips, Jayden was aware he was being recorded. He often looked directly into the camera.

[28] Why did I admit them? Initially, they are relevant as they were part of the factual matrix the OCL relied on. Ms. Majewsky had reviewed them before writing her report and giving her evidence. She was cross examined on them. They were introduced after that, through Ms. Maharaj.

[29] Under ordinary circumstances I would have admitted them but given them no weight. However, later evidence indicated that they were of greater relevance that I originally contemplated. It became clear as I heard Mr. Wilton-Jacob testify that turns of phrase that Jayden used in those video’s, down to the inflection of his voice, were identical to those of his father. The clips became relevant to the issue of the influence that Mrs. Maharaj says Mr. Wilfred-Jacob has on the child.

[30] I accept these recordings only to the extent that they record Jayden and as an example of his behaviour, at its worst, and knowing that it is recorded with ulterior motives. To the extent that the recordings record an adult’s voice, I have given them no weight. Adults’ statements recorded are usually self-serving. Both Maharaj and her mother are recorded. The both took the videos. In their evidence they remark on how Jayden’s behaviour has changed and offered these recordings as examples of his behaviour. They were taken, however, shortly after separation. No recordings were offered of any time after September, 2014. They are isolated in time and place, and tainted by the intentions of the adults in making the recordings. I have no independent evidence about what transpired before or after the recordings, or what might have prompted the behaviour. I will say more about these videos and their effect.

FAMILY FACTS – Two Different Stories

[31] Aryann Maharaj was born on July 28, 1985 and Lincoln Wilfred-Jacob on July 7, 1969. When they met in December, 2006, she was 21 and he, 37.

[32] According to Ms. Maharaj, when they met, she was living on social assistance in a one bedroom apartment in Toronto. She met Mr. Wilfred-Jacob at a relative’s Christmas party. Once she met Mr. Wilfred-Jacob, the relationship progressed quickly. He pursued her aggressively. He called her and texted her incessantly. Within a week they began having sex at Mr. Wilfred-Jacob’s insistence. She insists that the first time that they had sex it was because he raped her.

[33] By January, 2007 Mr. Wilfred-Jacob pressed her to move in with him, mostly so they could save money while she continued to receive her social assistance. She began living with him, although reluctantly, in January, 2007 and gave up her apartment by the end of February. She says that from the outset, the lived together as a couple. They shared the same bed. She gave her monthly social assistance cheque to Mr. Wilfred-Jacob. Mr. Wilfred-Jacob worked, and she stayed home and maintained the house.

[34] As time passed, Mr. Wilfred-Jacob became more controlling and abusive. He would not give her money, except for specific things like groceries and clothes for Jayden. He would not let her socialize. He would not let her go to school. He would not let her obtain her driver’s licence. He accused her frequently of being drunk and smoking marijuana to excess. Eventually, she did enroll in her old school in Toronto. During this time, she stayed with her mother as it was closer, but returned to the marital home every weekend. By 2014, Ms. Maharaj had enough. She began seeing a counsellor. She left the marriage on July 7, 2014.

[35] Mr. Wilfred-Jacob agrees that they met in December, 2006 at a relative’s Christmas party, but says that they did not cohabit until just before Jayden was born. He denies that he pursued her. Between December, 2006 and just before Jayden was born they had only 6 or 7 phone calls and a few texts.

[36] When Ms. Maharaj moved in, she lived in the basement apartment for a month. She was a tenant. Ms. Maharaj, however, must have been a tenant “with benefits” because by April, 2007, she was pregnant. Mr. Wilfred-Jacob says that Ms. Maharaj moved upstairs once she was pregnant, and from that point, they lived together as a couple. He admits the marriage was not smooth. They had several separations because she left the home: April to December, 2010; January 2011 to April, 2012. From July to September 2012, Maharaj ‘came and went’ from the home, leaving finally on September 25, 2012.

CUSTODY AND ACCESS:

[37] There is no doubt, on all of the evidence, that both parents love Jayden immensely. Both are able to and do care for Jayden very well, when each has him. Both seek to secure his best interests. Jayden does well at school. He has a cadre of friends. He is a normal kid.

[38] There is no doubt, on all of the evidence, that the parents’ conduct is causing Jayden emotional harm. He has anxiety and anger management issues. The CAS saw early signs that Mr. Wilfred-Jacob was alienating Jayden from Ms. Maharaj. The question I am asked by each to determine is who should have custody of Jayden, and what should be the parenting regime. I am governed by the best interests of Jayden.

1. What is the current regime?

[39] By consent order of Baltman, J. dated April 30, 2015, the parties have joint custody and share the child on a two week schedule which gives Jayden equal time with each. This has not always been so. On November 28, 2014, Lemon, J. gave Ms. Maharaj access for 10 hours a week (Wednesdays and Saturdays) with no overnight stays. This was based on Mr. Wilfred-Jacob’s false statements about Ms. Maharaj, some of which I outlined under my credibility discussion.

[40] Access has not proceeded according to Baltman, J.’s consent order, either. Based on the evidence, I conclude that Mr. Wilfred-Jacob has treated access as his to mete out. He has interfered with it unilaterally. He has denied access because he said that Jayden does not want to go. He has been inflexible with access when he has been asked to accommodate Ms. Maharaj for birthdays, Mother’s Day, holidays and family events with Ms. Maharaj’s family. He was examined, and cross examined about one incident where he refused to grant extended access so Ms. Maharaj could take Jayden to a family wedding. He responded “tit for tat” when he said that she had done the same thing to him. He neglected to say that Ms. Maharaj would not accommodate his taking part of her access time because he would not allow her any make up access time when he took more than contemplated. His frequent complaints to the CAS and police, none of which have been verified, interrupted access while the complaints were investigated. He says that all of these complaints were made because of things Jayden told him, and even though no one else believes Jayden, he does. It is difficult to accept this, in light of the other evidence. I conclude that Mr. Wilfred-Jacob has used the CAS, OCL and police as tools to interfere with Ms. Maharaj’s access.

2. Positions of the Parties for the Future:

[41] Ms. Maharaj seeks sole custody. She says that Mr. Wilfred-Jacob is controlling. He is alienating Jayden from her. He disparages her in front of Jayden such that Jayden now says terrible things to Ms. Maharaj and her family. Jayden has denied that they are related to him. He has accused them of stealing his gold and for stealing his father’s money. Mr. Wilfred-Jacob frequently involves the police and CAS, on fabricated complaints, in order to block her access. None of his complaints is verified. Mr. Wilfred-Jacob continues to say that Ms. Maharaj drinks and smokes marijuana to excess, and is under the influence of one or both when with Jayden. He also says that her family and various partners have been violent, involved in drugs, and threatened Jayden. Mr. Wilfred-Jacob, Ms. Maharaj says, will never stop this behaviour until Jayden has rejected her completely.

[42] Mr. Wilfred-Jacob seeks to maintain the “current regime” which he referred to as a co-parenting regime with equal access as set out by Baltman, J.’s order. He has exhibited a consistent commitment to having Jayden maintain an ongoing relationship with Ms. Maharaj. Family is important. Jayden needs both parents in his life. Both are capable of providing a stable loving relationship with Jayden, and meeting his needs and protecting him. Mr. Wilfred-Jacob says that Jayden is also happy with the “current co-parenting regime”. Altering the status quo would be harmful to Jayden. Mr. Wilfred-Jacob admits that his relationship with Ms. Maharaj is bad. However, that is an issue between them, and is irrelevant to the discussion of custody as it does not affect his or her ability to co-parent Jayden.

THE BEST INTERESTS OF THE CHILD:

[43] Section 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) sets out the criteria to consider when determining the best interests of the children. These considerations have been adopted under section 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (see Allen v. Wu, 2011 ONSC 6813, 13 R.F.L. (7th) 284, at para. 74).

[44] The Court must decide the best interests of the children on all of the evidence and the appropriate legal principles, and not abandon that decision to an assessor (see Dunnett v. Punit, 2006 ONCJ 442, 32 R.F.L. (6th) 446, at para. 7). The best interests of the children are not necessarily the same as the wishes of the children or of the parents (see Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), 10 R.F.L. (6th) 373 (Ont. C.A.). Rather, the Court must consider what is best for the children in the long run.

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

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

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

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

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

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

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

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

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

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

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

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

[46] Section 24(3) permits the Court to consider the parents’ past conduct only to the extent that it relates to the parent’s ability to act as a parent (see Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at 48, para. 23) An party’s actions that reflect poorly on a party as a spouse may not affect that party’s ability to parent (see Somerville v. Somerville, [2007] O.J. No. 1079 (Ont. C.A.)

[47] Other relevant considerations concerning the best interests of the child include:

• the parent’s willingness to expose the child to the other parent’s family and the parent’s willingness to follow professional advice as to the care of the child (Holt v. Gordon, 2001 CarswellOnt 2662 (O.C.J.) and B.M. v C.M., [1998] O.J. No. 1432 (Ont. Fam. Ct.);

• When one parent alienates the child from the other or denigrates the other in front of the child, emotional harm to the child caused by this activity (see. P. v. P.B.D., 2007 31787 (Ont. S.C.J.), and Rogerson v. Tessaro. 2006 15126 (ON CA), [2006] O.J. No. 1825 (Ont. C.A.), Winter v. Carpenter, [1985] W.D.F.L., 1979 (Ont. Prov. Ct.).

[48] This case engages all factors in s. 24(2), but more significantly paragraphs (d), (e), and (f).

DETERMINING JAYDEN’S VIEWS:

[49] In this case, Jayden did not testify. I was not asked to speak to Jayden. His evidence came from reports from his parents, the OCL and CAS workers, the January 21, 2015 report of the Children’s Lawyer ordered under s. 112 of the Courts of Justice Act, and video clips admitted into evidence.

[50] All evidence indicates that generally, Jayden is a wonderful boy. He is pleasant, polite and respectful with others. He does his homework and does well in school. He plays well with others. He loves his parents. In other words, he is a normal boy raised by loving parents.

[51] There is a divergence between the parents’ evidence concerning Jayden and his views.

[52] The impression from Mr. Wilfred-Jacob is that Jayden is only modestly affected by his parents’ divorce. He says that Jayden is a normal 8 year old boy. When he is with his father, Jayden goes to school and does his homework. He does his chores around the house. He loves to play with his friends and enjoys his time with his father. He is well cared for. He has no unusual behaviour issues; if he does when he is with his mother that is because of problems between Jayden and his mother, or circumstances that arise when he is with his mother. Mr. Wilfred-Jacob says that Jayden wants to live with his father. At various times, Jayden has said he wants to spend less time with his mother. Mr. Wilfred-Jacob has insisted, however, that he spend the time with his mother as contemplated by the co-parenting regime.

[53] Ms. Maharaj paints a different picture. She also says that Jayden is a good boy. She disputes that Mr. Wilfred-Jacob does homework with Jayden. Jayden says that Mr. Wilton-Jacob does not sign his homework and other reports. He asks Jayden to do it for him. More important, however, Ms. Maharaj says that when Jayden first comes to her, he is physically and vocally violent. He settles down. As the time with her nears its end, and Jayden knows that it is time to go back to his father, he becomes verbally and sometimes physically violent again. He sometimes hits and kicks Ms. Maharaj and her mother. He is disobedient (more so than any other small boy). He swears at them, calls them names, and denies that Ms. Maharaj is his mother and her family is related to him. He insists on returning to his father’s care. He accuses them of stealing from him and Mr. Wilfred-Jacob. He says he will kill her and her family. On a few occasions, Jayden’s behaviour has been so extreme that Ms. Maharaj has relented and sent Jayden back to his father before her access time is complete. Usually, however, Ms. Maharaj perseveres and Jayden calms down.

[54] For reasons discussed in due course, I accept that Jayden behaves when he is with his father. I accept that when he is with his father his needs are being met and that Mr. Wilfred-Jacob provides a healthy, loving environment for Jayden.

[55] All of the other relevant evidence supports Ms. Maharaj’s version of what occurs when Jayden is with her. All of the other evidence supports Ms. Maharaj’s evidence and points to the conclusion that Jayden is badly affected by the end of his parents’ relationship and what has occurred since.

[56] What other evidence is there other than the parents’ reports of Jayden’s views and preferences?

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

[58] In family litigation, children’s evidence may be admitted as hearsay if it is necessary and reliable. Necessity is met when it would be inappropriate to call the child as a witness. In this case, it would not have been appropriate to receive oral evidence from Jayden, directly, even if the request had been made. The conflict between the warring spouses has played out in front of Jayden. It appears that at least one of the parents is informing him of things happening in the litigation. Exposing him to the stress of being examined in Court or in a judicial interview at his young age would compound the emotional trauma the boy experiences, already.

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

[60] These cases also indicate that the weight given to the statements of children depends on such things as the mental and physical age of the child, the circumstances of the taking of the statement, the risk that the child was influenced or manipulated, the risk that the recording was edited or manipulated, and the desire of the child to please the parent taking or requesting the statement. Where influence is likely, the statements or recordings should be given little weight (see cases cited in the paragraph above and Norland v. Norland, [2006] O.J. 5126 (S.C.), Kennedy v. Sinclair (2001), 2001 28208 (ON SC), 18 RFL (5th) 91 (Ont. S.C.), and A.G.L. v. K.B.D. (2009), 2009 943 (ON SC), 93 O.R. (3d) 409 (S.C.).

[61] There is a risk that Jayden’s evidence would have been unreliable, in any event, as it is heavily influenced by Mr. Wilfred-Jacob.

[62] The best expression of a child’s views and preferences is that elicited through and by trained professionals (see Woodhouse v. Woodhouse (1996), 1996 902 (ON CA), 29 O.R. (3d) 417 (C.A.), Forte v. Forte, 2004 7631 (ON SC), [2004] O.J. No. 1738 (S.C.).

[63] In this case, Jayden was between 6 and 7 when the OCL and CAS were interviewing him. He was not old enough for any preferences he expressed to have much weight. I have not accepted as accurate what his parents say he said to them. There is a high risk in the circumstances of this family, that he was being influenced by one or both of his parents. Therefore, I have relied primarily on what skilled interviewers with the CAS and OCL have reported Jayden to have said.

EVIDENCE OF THE OFFICE OF THE CHILDREN’S LAWYER AND THE PEEL CHILDREN’S AID SOCIETY:

[64] In this case, the OCL prepared a report on January 12, 2015. Terry Majewski, who wrote the report, gave evidence.

[65] Mr. Wilfred-Jacob disagreed with every aspect of the OCL’s report: the facts and information it contained, and its conclusions. He took the same position with respect to the Ms. Majewski’s evidence. More important, Mr. Wilfred-Jacob took the position that the evidence of the CAS and the representative of the OCL should be given no weight as they were outdated by the time of trial, and biased, being based on evidence favouring only Ms. Maharaj’s position.

[66] Linda Mann, a case worker with the Peel CAS also gave evidence. She was involved with the family from the beginning of 2015, although Ms. Kaur of the CAS had been involved since October, 2014 after Mr. Wilfred-Jacob alleged that Jayden reported Ms. Maharaj used inappropriate discipline on Jayden. The CAS notes were admitted into evidence, on consent, for the truth of their contents.

[67] Usually, courts give great weight to evidence and reports from the CAS and the OCL. These institutions employ people who are highly trained in determining the views of children, interviewing adults, and conducting impartial assessments to protect children. The reports are not binding on the Court, but a report that provides extensive investigation with first-hand information deserves serious consideration (see Fawcett v. Richards, 2009 CarswellOnt 3229 (S.C.J.) and Collier v. Campbell, 2013 BCSC 825). The Court often gives little or no weight where the evidence or report is a) outdated such that the conclusions reached have been made unreliable because of events transpiring since the report was released, b) is biased, c) uses poor methodology, d) uses incorrect or improper assumptions, e) contained limited or incorrect evidence, or f) reached conclusions that are inconsistent with objective evidence.

1. Office of the Children’s Lawyer Report and Evidence

[68] In this case, Mr. Wilfred-Jacob says that the OCL’s report is outdated, biased, and contained selective facts. Notwithstanding this position, he urges to Court to accept the OCL’s report insofar as it speaks favourably about him. Mr. Wilfred-Jacob did not attack the writer and witness on her credentials or expertise.

[69] Ms. Maharaj relies on the report saying that it is correct, and that the events that have occurred since it was written, support the report’s conclusions.

[70] While I acknowledge Mr. Wilfred-Jacob’s concerns that the report is stale, having been prepared in January, 2015 (the trial commenced in May, 2016), I reject his position with respect to the report and Ms. Majewsky’s evidence. I accept the report prepared by, and the evidence of Tracy Majewsky, the OCL worker who prepared the report. I say this for the following reasons:

1. Ms. Majewsky is highly qualified. She has a B.So.Sci. in psychology and sociology (1986) and an MSW (2005). She is trained in interviewing, especially children. She is experienced in performing investigations. From 1986 to 2005, she worked in the child protection field for the Peel CAS. Since 2005, Majewski has worked with the OCL performing investigations, making assessments, and preparing reports. She has had post degree training in family mediation, domestic violence, alienation and interviewing children. She has performed investigations and prepared reports for the Court, CAS, police and OCL. Mr. Wilfred-Jacob did not challenge her credentials or expertise.

2. Ms. Majewsky recognized that her duty was to the child and to the Court to investigate and assess the file, and prepare a fair, unbiased report and recommendations concerning the best interests of Jayden based on the evidence.

3. At all times in her evidence, including while being cross examined aggressively, Ms. Majewsky responded professionally and thoughtfully. She explained herself and held to her investigation and recommendations for cogent reasons.

4. She reviewed her investigative techniques and the results of her investigation thoroughly. Her methodology was appropriate. She conducted interviews with all the parties that went beyond the OCL’s standards, both in number and depth. She spoke to and obtained records from reasonable collateral sources.

5. Ms. Majewsky conceded that the collateral sources she spoke to were predominantly those Ms. Maharaj recommended (setting aside the pediatrician, Jayden’s doctor, dentist, teacher and principal). However, Mr. Wilfred-Jacob did not identify many collateral sources. In any event, Ms. Majewsky said that the most significant collateral source was Ms. Maharaj’s mother. Ms. Majewsky appropriately tested the information received in interviews with Mr. Wilfred-Jacob, Ms. Maharaj and Jayden against the more independent evidence available.

6. She did not exaggerate, nor was she dismissive. She had reviewed her report and notes before testifying and did not exceed them.

7. She acknowledged that her report was one year and four months old by the time of trial. She was cross examined on developments since her report. She said that she could not reach any firm opinion or make any recommendation on more recent events as she had not investigated them. These included the shared custody order in 2015, and Ms. Maharaj’s involvement with an abusive partner in 2015. She did agree that these facts were significant.

8. Ms. Majewsky’s cross examination on events since her report strengthened her recommendations, rather than weakened them.

9. When the suggestion was made that her conclusions and recommendations were bases solely on evidence from Ms. Maharaj, and not on any balanced view of Mr. Wilfred-Jacob’s she carefully indicated where she had verified the parties’ evidence by reference to other sources. She admitted that sometimes Ms. Maharaj was the sole source of information. She also indicated what she had done to try to verify Mr. Wilfred-Jacob’s information from other sources, and was usually unable to do so. She agreed that at times, the information from Ms. Maharaj was inconsistent.

10. Mr. Wilfred-Jacob’s position throughout the trial was that Jayden’s behavioural issues (if he had them) were transient, and caused by Ms. Maharaj seeing a new, abusive partner who threatened Jayden. When cross examined on this, Ms. Majewski agreed this might be a factor. She also said that the tantrums she saw on the video clips were clear indication of a child in distress, and could have been related to changes in access that Mr. Wilton-Jacob had imposed.

[71] In addition, the evidence of the CAS representative, Linda Mann, who has been involved with the family since the OCL report was prepared, supports the conclusion that Ms. Majewsky’s findings, conclusions and recommendations remain appropriate and relevant. I now turn to the CAS’s evidence.

2. The Peel Children’s Aid Society Evidence

[72] Mr. Wilfred-Jacob urged me to give the evidence of the CAS worker, Linda Mann, no weight, especially as it pertains to comments about alienation. She is not an expert in the area. Her opinion is based on incomplete facts, in that she did not know about Ms. Maharaj’s relationship with the abusive Danni Ali. Ms. Maharaj relies on Ms. Mann’s evidence.

[73] I accept Ms. Mann’s evidence, in the main, for the following reasons:

1. She is an experienced child care worker. She received her B.S.W., and for 16 years before the trial, worked with Peel CAS. She has had training in parental alienation, although she readily conceded that she was not an expert in it.

2. She conceded that she received no formal training in parental alienation. She relied on her experience of 14 years (at that time) with respect to her comments on alienation.

3. She became involved in this family in December, 2014. Only since then has she done the investigations into this family for the CAS. The CAS, however, has been involved with this family constantly since October, 2014, and sporadically from 2012 to 2014, when Mr. Wilfred-Jacob complained to the CAS.

4. In cross examination, Ms. Mann conceded her limitations. For example, when she was cross examined on her comments regarding parental alienation, she said that she did not diagnose it. She merely said that Jayden was shown the early signs of parental alienation.

5. She conceded that Ms. Maharaj did not tell her about the fact that she was pregnant and had an abortion, that she was seeing an abusive man, or that in February, 2016, Wilfred-Jacob reported to the police that Danni Ali had threatened Jayden. She discussed these things with Ms. Maharaj once she received copies of the police report. She agreed that these facts would have raised serious concerns that would have been investigated. Notwithstanding that these events raised concerns, when Ms. Mann interviewed Jayden about them, he did not express concern. He said that he liked the current arrangements. Jayden said that he only feared Mr. Ali once because he pounded the table at dinner in anger. In any event, by the time Ms. Man was aware of it, the relationship had ended.

6. Ms. Mann weighed all the information in her file before expressing opinions. She collected information from others than the parties.

THE PARTIES’ BEHAVIOUR RE CUSTODY:

[74] Baltman, J.’s order of April 30, 2015 provided that the parties have joint custody and share the child on a two week schedule giving each equal time. Mr. Wilfred-Jacob has not followed that order.

[75] The central question in the litigation lies between the two positions of the parties, namely his (that she is not fit because of her marijuana and alcohol consumption, her mental stability and her choice of partners who pose a threat to Jayden) or hers (that Wilfred-Jacobs is trying to alienate Jayden from her).

[76] The weight of the evidence supports Ms. Maharaj’s position. I conclude that Mr. Wilfred-Jacob is a controlling individual. I also conclude that Ms. Maharaj is a passive individual, unable to confront Mr. Wilfred-Jacob for most of their marriage. As indicated elsewhere in these Reasons, Mr. Wilfred-Jacob insists that Ms. Maharaj drinks and smokes marijuana, to excess, in Jayden’s presence. He will tell this to anyone who will listen, including the Court, while under oath, because it suits his purpose. He persists in making allegations against Ms. Maharaj when he knows no one, and almost no evidence supports him. His complaints activated the authorities. Their investigation into Mr. Wilfred-Jacob’s repeated complaints about Ms. Maharaj were never verified. Part of his purpose in making the complaints, no doubt, was that he knew access could be suspended while investigations were ongoing.

[77] The evidence supports the conclusion, and I so conclude that Mr. Wilfred-Jacob has manipulated Jayden, telling him that his mother drinks and smokes marijuana, wants to take Mr. Wilfred-Jacob’s property and money, and has stolen Jayden’s money and Jayden’s gold. He has manipulated access to suit himself. He has treated access as his property, to mete out according to his assessment of Ms. Maharaj’s behaviour.

[78] Mr. Wilfred-Jacob defends his actions by saying that every complaint he has made is based on something Jayden has told him, and that if no one else believes his son, he does. He defends his frequent phone calls with Jayden while he is with his mother on the basis that Jayden is “free to call” Ms. Maharaj any time when Jayden is at Mr. Wilfred-Jacob’s, and Jayden should have a reciprocal freedom when Jayden is at Ms. Maharaj’s. There is no indication that he ever told Jayden to hang up and spend time with his mother. There is no evidence that Mr. Wilfred-Jacob exercised his parental responsibility to require Jayden to go to his mother during his access time, and stay there until it is over. There is no evidence that Mr. Wilfred-Jacob ever spoke of Ms. Maharaj supportively. All the evidences points to the opposite. In this and other respects, he has abandoned his parental responsibility regarding access to a child of between 4 and 8.

[79] These are strong findings concerning Mr. Wilfred-Jacob, but supported by the evidence. Consider the items listed below:

1. The Marriage.

[80] I accept that the marriage was difficult and that Mr. Wilfred-Jacobs was controlling. Ms. Maharaj says that she was emotionally and financially controlled. She could do nothing without his permission. She could not go to school or take driving lessons. She was not given any cash, unless it was for groceries or Jayden. She had no freedom. She was not allowed to socialize or see her family. How controlling Mr. Wilfred-Jacob was, is difficult to say, however. In fact, Maharaj did continue to go to school. She had a credit card, albeit only a proprietary store card. In some respects, at trial Ms. Maharaj hid behind her passive personality.

[81] Mr. Wilfred-Jacob denies all of this. There was always $250 to 300 in the house for emergencies. He says that he was required to replenish this cash every couple of weeks, implying that Ms. Maharaj was spending it on other than emergencies. She denies this.

[82] I prefer her evidence to his on this issue. Mr. Wilfred-Jacob is fixated in this litigation by material things, as is indicated by the above and other evidence I will review. He discusses litigation issues with Jayden, and blames Ms. Maharaj. Both Ms. Maharaj’s parents indicate (she in her evidence and in CAS notes, and he in CAS notes) that Mr. Wilfred-Jacob often locked her out of the house after a fight. She often had to stay with them. Mrs. Maharaj confirmed that Mr. Wilfred-Jacob was controlling. The OCL report and CAS notes confirm that Mr. Wilfred-Jacob has asked the school to assist him in isolating Jayden from his mother by restricting Ms. Maharaj’s access. The school notes confirm that Mr. Wilfred-Jacob has asked the school to prevent Ms. Maharaj from seeing Jayden in the playground in the morning before school starts. He has asked them to call CAS because Jayden says that is afraid of his mother or unhappy after he sees her. Jayden does not confirm this to the school.

2. The Bleach Incident

[83] On September 27, 2012, the couple had a particularly bad fight over her choice of and playing music. Ms. Maharaj says that she finally told Wilfred-Jacob that she wanted to leave the marriage and take Jayden. He responded by saying that she could not, and that he would get full custody of the boy if she left the marriage. She said that they were yelling, and that Mr. Wilfred-Jacob punched her in the back of the head. She felt hopeless because she thought she might lose Jayden. She locked herself in the laundry room and swallowed bleach in a half-hearted and histrionic attempt to kill herself. She admitted that this was not really her intention but was a cry for help. He forced the door and knocked the bleach from her hand (for which she is grateful). She says, however, that as she lay on the floor choking on the bleach she had swallowed, he stood and looked at her for 10 minutes before he called 911, notwithstanding her pleas that he do so. She was in the hospital for 2 days. She presented with bruising on her arms, scratches on her chest, and a bump on the rear of her head. The hospital told her that she was being abused. She reported the matter to the police, which resulted in the charges Mr. Wilfred-Jacobs pleaded guilty to.

[84] Mr. Wilfred-Jacob’s version of the bleach-drinking incident is markedly different. He says that they had an argument because Ms. Maharaj was playing reggae music (to which he objected because it contained foul language and Jayden was in the house) and also smoking marijuana. The next morning she started to play reggae again, through the computer. They argued. They swore. He pulled the computer cord from the wall. She went to the basement and began playing the music from a computer in the basement. He tried to pull that computer cord from the wall. She punched him in the face. When she took another swing at him, he grabbed her arm and told her they were finished.

[85] Because of the charges, he could not immediately go home. When he was next able to go home, Mr. Wilfred-Jacob said that Ms. Maharaj had taken her things, and Jayden, and left the home.

3. Mr. Wilfred-Jacob’s Conduct

[86] Ms. Kaur reported that Mr. Wilfred-Jacob asked Jayden about his access time with Ms. Maharaj, and wrote everything down. Mr. Wilfred-Jacob denied this in his evidence that he grilled Jayden about his access time or wrote anything down. When pressed, he admitted only to writing down serious things, but denied that he asked Jayden. This is not true. On June 2, 2015, he produced a diary in front of the CAS worker from which he read a series of things that he noted Jayden to have said. This included the allegation of Mr. Ali slamming the table, his mother putting him in a closet, and his maternal grandfather forcing Jayden to allow him to touch Jayden’s penis.

[87] Mr. Wilfred-Jacobs also photographed Jayden every time Jayden came home with a bruise. He showed these photos to the CAS (I have already mentioned Ms. Maharaj taking 3 video clips). He reported to the CAS continually that Ms. Maharaj is abusive.

[88] Interrogating a child about access time with the other parent, no matter how nicely done, is always harmful. Writing down what the child says is doubly harmful, as is taking photographs. What message does interrogating a child and recording the answers send the child? How about:

• I don’t trust the other parent.

• You should not trust the other parent.

• I will go to the police or the CAS about the other parent.

• You should record everything the other parent does.

• You should go to the police or the CAS about the other parent.

• Nobody loves you like I do.

• Your other parent doesn’t love you.

[89] In this case, Mr. Wilfred-Jacob’s interrogations were often followed by a report to the CAS or the police.

[90] Ms. Maharaj’s used her video recordings in this litigation. What message does this send to the child? How about:

• Please me by performing for the camera.

• Your other parent is not a fit parent.

• You are in danger when you are with him/her or his/her family.

• Only I know what is good for you.

• Only I can protect you.

• Only I really care about you.

[91] I do not accept Mr. Wilfred-Jacob’s evidence. As is seen in some of the examples I have described elsewhere in this Judgment, regardless of his evidence, he firmly believes Ms. Maharaj is not a good parent. His actions and speech say this. I have no doubt that Jayden picks up on this.

[92] Ms. Maharaj must shoulder some of the blame for inappropriate recording of Jayden. I deal with this under my comments on the September, 2014 tantrums and video clips.

4. Changing the Locks

[93] On July 6, 2014, the couple had a fight. She left the home with Jayden and stayed with a friend. She said that when she went back to the matrimonial home on the 7th to get clothing, Mr. Wilfred-Jacobs had changed the locks. He reported to the police that Ms. Maharaj had kidnapped Jayden. He denied to the police that he had changed the locks, and said that Ms. Maharaj was welcome home any time. It was fine with him if Jayden stayed a night or two with Ms. Maharaj, but he indicated to the police that he would have custody of Jayden. Ms. Maharaj thought that Jayden should return to the home and stay in his own room. She is reported to have yelled at Mr. Wilfred-Jacob in the parking lot when he came to pick up Jayden. She explained in her evidence what she said and why.

[94] I find that Mr. Wilfred-Jacob did change the locks. Ms. Maharaj’s mother says that on the 7th, when they went to get some clothes for Ms. Maharaj and Wilfred-Jacob, they found the locks changed. Ms. Maharaj’s father (her parents were temporarily separated) was a tenant in the basement apartment. He let them in to the home. Ms. Maharaj’s mother said that the old lock was sitting inside the vestibule, on a shelf or stool.

5. The Boiling Water Incident

[95] In August, 2014, Mr. Wilfred-Jacob took Jayden to 21 Division of the Peel police and reported that Jayden told him that Ms. Maharaj grabbed him aggressively, tried to put his hand in or over a pot of boiling water, and hit Jayden with a pillow. He told the police that Jayden was afraid of her. Jayden reported to the CAS that his mother held his hand over a pot of hot soup, pushed him on the bed and grabbed him by the arms and legs numerous times throughout the visit. He said he was scared of her.

[96] Ms. Maharaj said that she was making lunch and let Jayden stir the soup. They ate. After dinner, as it was time for Jayden to go back to his father, he began to act up. He wrote on the walls with a pen and was disciplined. He began to have a tantrum saying he wanted to back to his father’s home. She grabbed him by the hands to calm him down. He broke away, ran to his room and began to throw things around. She put him on her lap and gave him a bear hug to calm him down. When Mr. Wilfred-Jacob arrived to pick Jayden up, he ran from the house to the car, still upset.

6. The September Tantrums

[97] Three short video clips, taken by Ms. Maharaj on 13, 15 and 29 September, 2014, were introduced. These were taken by Ms. Maharaj and her mother to illustrate Jayden’s extreme behaviour while having a tantrum. As indicated above, I have treated these clips with the utmost skepticism. I have accepted them only as evidence of Jayden’s behaviour during the time of the clips, not being aware (aside from evidence from Ms. Maharaj) as to what preceded, prompted or came after his behaviour as recorded.

[98] Even treating the clips with skepticism, they are disturbing.

[99] Clip #1 – September 13, 2014 (9 minutes) - Ms. Maharaj said that she and Jayden had been playing at the park. Just as they got back to the house, Jayden said he wanted to go home (i.e. before the end of the access time). She asked why. Jayden did not explain. The tantrum started as they entered the home.

[100] Ms. Maharaj holds the camera. Jayden is shown hitting his grandmother in the legs, arms and back. He attempted to jump up to hit her in the face. He called both his mother and grandmother “fing ahole” and “st ahole”. He stormed around the living room hurling more abuse at his grandmother and mother and became hysterical. He threw over a chair then ran to his room. By the time the adults got there, Ms. Maharaj’s mother was filming. Jayden was hysterical. He hugged his mother yet continued to hurl abuse at his mother and grandmother, repeating his earlier epithets and adding “fing idiot”. He struck out at his grandmother many more times. After Ms. Maharaj released Jayden from his hug, she sat on the bed with Jayden trying to comfort him, and sometimes to restrain him as he tried to strike her. When she let him go, he struck and kicked her. She said that he hated her, she is not his mother and that the grandmother is not his family. As grandmother ask why he is swearing, he tells her to fk off, and says “shut up you fk a**”, and repeats his torrent.

[101] Clip #2 – September 15, 2014 (9 minutes) – Jayden and his grandmother had been outside playing peek-a-boo, according to Ms. and Mrs. Maharaj. They came in and Jayden started acting up.

[102] When he is asked what he was doing, Jayden said “shut up ahole” and called them “f*ing ahole.” He hit and kicked his grandmother and said he wanted to go home. They ask him why he said things like that but every time they tried to say something Jayden told them to shut up. Jayden called his mother a liar. He accused them of wanting to take his father’s property and money. When they asked where he heard this, he said that he heard it from a lawyer. He said he loved his mother but not grandmother. He said that his grandmother lies. Jayden said “you guys want property and money – how come you took all my money – vacation money”. Asked about who said this to him, he would not respond. Later, he said he heard it “from my dad” then said that he heard it from no one because his mother and grandmother were aholes.

[103] Clip #3 – September 29, 2014 – (29 Minutes) Ms. Maharaj said that Jayden and she had been playing a video game when Mr. Maharaj came and began to put groceries away. Ms. Maharaj went to help. Jayden took Maharaj’s phone, ran to the bathroom and then came out laughing as he had put her phone in the toilet. She asked him why he did that. His tantrum started.

[104] The clip shows boy spitting at his mother and grandmother, who was filming. Most of the clip shows Ms. Maharaj restraining Jayden, who was being violent. He bit, hit, slapped and scratched Ms. Maharaj. As he was doing this Jayden called his mother “ahole” and “sthead”. More disturbing is the maternal grandmother asked Ms. Maharaj if she wanted a witness, spelling the word ‘witness’. I hope Jayden was a poor speller.

[105] Jayden accused mother of doing nothing but smoking weed and drinking. When Ms. Maharaj released Jayden, he knocked over a jigsaw puzzle they had been working on and said he hated the “fing thing”. He called Ms. Maharaj an “ass”, said she took his money - $25,000 - and called her “fer” and “fing bitch”. Every time she tried to correct him, he yelled “shut up” and “shut up bitch”. They tried to distract Jayden by asking him to count. He kept calling her a “fing liar”. He said “You’re a stink head mommy, I mean st head, I will call you fhead from now on”. When she told him not to call her such things, he said “OK fer”. Ms. Maharaj said that Jayden must be learning language and behaviour from his dad. He said he learned it at school. He said “Shut up you fkass” and said “I will shoot you until you’re f***ing dead and cut your head off.” He said the same to his grandmother. He added that he put the phone in the toilet “and pissed on it”.

[106] Ms. Maharaj said (supported by her mother’s evidence) that these clips represent the worst of Jayden’s behaviour. He continues to behave like this (although it is not as extreme), usually as the time draws near to go back to Mr. Wilfred-Jacob.

[107] No 6 ½ year old speaks like this, unless his parents do. No 6 ½ year old boy learns this sort of language on the school yard (as Jayden said he did) and uses it at home like this. If a 6 ½ year old learns language like this at school and continues to use it at home, it because his parents do not correct him when he uses it. There is no evidence that Jayden learned this language at school.

[108] Where did Jayden learn to speak like this? Ms. Maharaj says it was not when Jayden was with her.

[109] What did Mr. Wilfred-Jacob say on the subject? He did not address the issue, at least not directly. He responded to the clips by minimizing them, by saying that Jayden’s conduct as a reaction to Ms. Maharaj’s dating Mr. Ali. However, on August 6, 2015, he remarked to the CAS worker that Jayden was swearing a great deal.

[110] I conclude that Jayden adopted his views and his language from Mr. Wilfred-Jacob. I say this for several reasons. First, Mr. Wilfred-Jacob did not deny that he used this sort of language about Ms. Maharaj.

[111] Second, Mr. Wilfred-Jacob’s own testimony supports this conclusion. In his examination in chief, Mr. Wilfred-Jacob testified that on February 23, 2016, he received two calls from Danny Ali. The first call came at about 3 or 3:30 p.m. Mr. Wilfred-Jacob answered the phone and heard the sounds of people having sex. He knew it was Mr. Ali who made the call. The second call came at about 7:30 p.m. Mr. Ali said that he was looking forward to Jayden’s visit to Ms. Maharaj the next day as he was going to put his finger in Jayden’s anus. Mr. Wilfred-Jacob’s lawyer asked Mr. Wilfred-Jacob what his reaction was. He testified that said that he said into the phone “f***ing idiot and hung up.

[112] Mr. Wilfred-Jacob’s expression and intonation in the witness box was the same expression and intonation that Jayden used in the video clips with the same and similar phrases.

7. Hitting Jayden

[113] Mr. Wilfred-Jacob repeatedly reported that Ms. Maharaj hit Jayden, leaving a mark. One such report was made on February 10, 2016 about an incident on September 8, 2014. He reported it both to police and the CAS. The police referred the matter to the CAS.

[114] Ms. Maharaj denied this occurred.

[115] The CAS interviewed Mr. Wilfred-Jacob and Jayden. Mr. Wilfred-Jacob complained that Ms. Maharaj hit Jayden on the lower back, leaving a mark. He said at that time that he did not take any photos. In February, 2016, however, he was still complaining about this incident and how it showed that Ms. Maharaj was “abusive”. In 2016 he showed the CAS photos of marks on Jayden which he said he took (but which, in 2014, he said he did not have). The worker interviewed Jayden who said that Ms. Maharaj had hit him, although on inspection there was no mark and Jayden said the area did not hurt. Jayden said that he had been at the CNE all day with his mother and had fun, but wanted to go home afterward. That is when his mother hit him. He said she has hit him in the past and she is afraid of him.

[116] The worker had concerns about Mr. Wilfred-Jacob influencing the child, and warned him about it.

8. Jayden’s $30,000

[117] Ms. Maharaj had a bank account or RESP that contained in excess of $30,000. It comprised money Jayden was given since his birth, at Christmases and birthdays. Ms. Maharaj says, and the documents support, that in 2015, Ms. Maharaj gave that money over to her mother so Mr. Wilfred-Jacob would not get to it. As indicated in my credibility analysis, Ms. Maharaj never properly declared this property or how she dealt with it, until after she had transferred it to her mother.

[118] The education money was a constant source of complaint for Mr. Wilfred-Jacob. He raised it with the CAS on September 10, 2014. He wanted to know where it was. The CAS notes that he was worried that Ms. Maharaj had access to the money. Implicitly, he thought that she would spend it. I note that this issue arose in the CAS notes the same week that Jayden raised it with his mother in one of his tantrums. On May 14, 2015, Ms. Maharaj said that Mr. Wilfred-Jacob sent Jayden without a warm hat. She texted him and ask that he drop it off at the police station (the exchange point). His response was “you take your own sons school education money. And give it to your mother. 25000. Dollars. You go now and ask her for money to buy him a hat and a good one that he likes.”

9. Jayden’s Gold

[119] After Jayden was born, relatives gave him gold jewelry which Ms. Maharaj kept in her jewelry box. When she left the home, finally, in 2014, she took with her the gold that her family members gave Jayden. Like the $30,000, it appears that Jayden’s gold was never far from Mr. Wilfred-Jacob’s mind. In November, 2014, Mr. Wilfred-Jacob demanded it so he could take Jayden to a wedding. He did not say how the issue resolved itself. He said this was the only time the gold was an issue. It was not.

[120] On June 29, 30 and July 1, 2015, Ms. Maharaj texted Mr. Wilfred-Jacob about enrolling Jayden in some summer programs and wanted Mr. Wilfred-Jacob’s input into what he thought Jayden would enjoy. When Mr. Wilfred-Jacob finally responded on July 1, he said “Why don’t you send back gold.”

[121] The gold became an issue again. Ms. Maharaj said that in December, 2015, (September 2015 according to the CAS notes) Jayden asked Ms. Maharaj to see “his gold”. She had never discussed it with him. She never said to him that she had any of it. She says that Mr. Wilfred-Jacob must have put it into Jayden’s head. Ms. Maharaj showed it to him and explained who had given what to him. She said that she was keeping it safe for him. The next day, shortly before they were to leave to go to the police station for the exchange, Jayden asked to go to his room for a private call with his father. He came down the stairs later with a large bulge in his pants pocket. It was the gold that he had been shown the night before, along with a cell phone. He said the gold was his and he wanted it. The phone showed a recently completed call with Mr. Wilfred-Jacob. She put the gold away again, and in anger, broke the phone Mr. Wilfred-Jacob had given to Jayden.

10. Danny Ali

[122] Mr. Wilfred-Jacob’s position is that Jayden’s acting out was situational, based on Ms. Maharaj’s relationship with Danny Ali, and that things improved after that relationship ended. He used this as his explanation for Jayden’s tantrums in 2014, as Ms. Maharaj recorded. This cannot be true. Ms. Maharaj says, and the CAS notes support, that Ms. Maharaj dated Mr. Ali beginning in September 2015 and ended the relationship in February 2016. The CAS notes indicate, however, that Mr. Wilfred-Jacob continued to wage war on Ms. Maharaj, and to undermine Jayden’s relationship with is mother by using the police and CAS, as he had done before January, 2015.

[123] Ms. Maharaj admitted that Ali too was abusive, although never toward Jayden. He spent little time with Jayden. They all went to the movies together once and there were a couple of meals together. She realized with the help of counselling that this relationship was abusive and ended it in February, 2016.

[124] Mr. Wilfred-Jacobs tells a different version of Ms. Maharaj’s involvement with Mr. Ali. He only saw Ali once. There is no evidence that he ever spoke to Mr. Ali directly. All of his information about Mr. Ali came from Jayden, he says, aside from his two phone calls with Mr. Ali. Jayden told him that Ali, Maharaj and he all went to the movies. Jayden wanted to go home to his father, so they left. Jayden said that at Christmas 2014 (likely 2015 given Maharaj’s time lines), Ali slammed the table and told Jayden to eat food he did not want to eat.

[125] On February 23, 2016, Mr. Wilfred-Jacob said he received a phone call. He answered and heard people having sex. Later that day, Wilfred-Jacob said he received a phone call from Ali saying that when Jayden came the next day he would “stick my finger up his ass”. Mr. Wilfred-Jacob said that he replied “f***ing idiot” and hung up the phone. He reported this to police. Mr. Wilfred-Jacob gave no reason or context that might explain or support this bizarre behaviour. He also did not explain how he recognized Mr. Ali’s voice, only having seen Mr. Ali. There is no evidence that Mr. Wilfred-Jacob ever spoke to Ali.

11. Access

[126] Mr. Wilfred-Jacob controlled Ms. Maharaj’s access with Jayden and regularly denied it or reduced it, notwithstanding an equal access order from Baltman, J. For example, when she left the marriage in July, 2014, Ms. Maharaj took Jayden. She realized that it was better to have him in his home than in a shelter, and returned him to Mr. Wilfred-Jacob. He denied her access from July 30 to August 30. The limited access granted thereafter under Court order was based on his misrepresentations about her use of drugs and alcohol, and abuse.

[127] Mr. Wilfred-Jacob attempted to block Ms. Maharaj from picking Jayden up at school. He refused access on special days such as Halloween, 2015 and increased access over the Christmas holiday 2015. He refused access on Mother’s Day, 2016 and kept Jayden out of Jayden’s school’s Mother’s Day play without telling her. Mr. Wilfred-Jacob refused to allow any of Ms. Maharaj’s family to pick Jayden up for access, insisting that she do it. For this reason, she missed access with him on Canada Day, 2015. He, held her to exact access terms.

[128] On the other hand, Mr. Wilton-Jacob took access as he pleased, often keeping Jayden into Ms. Maharaj’s access time because they were out of town or doing something. He took time from Maharaj’s access time when it suited him (for example for a family wedding in his family), but denied her extra time at holidays or on Jayden’s birthday. He would not warn Ms. Maharaj in advance. She would only find out through text exchanges on the day of or day before exchanges.

[129] Mr. Wilfred-Jacob acted unilaterally in other ways. He changed medical providers without advising Ms. Maharaj and withheld information about Jayden’s health, notwithstanding a joint custody arrangement. For example, in October or November, 2014, during the minimal access period (but custody was still joint), Jayden was hospitalized briefly for what turned out to be anxiety. Mr. Wilfred-Jacob did not advise Ms. Maharaj. He said that he was too worried about Jayden at the time.

[130] Mr. Wilfred-Jacob’s frequent complaints to CAS and the police also interrupted access.

INVESTIGATION INTO COMPLAINTS:

[131] None of Mr. Wilfred-Jacob’s complaints have been verified by the CAS, the police or the OCL.

[132] Generally, Jayden said that he liked his time with both parents, but liked his time with Mr. Wilfred-Jacob better. He had difficulty saying nice things about his mother. He said that they never do anything, and it is boring when he is at his mother’s. When he registered complaints about his mother, they were vague. For example, he sometimes said that mum did bad things or hit her but he could not give specific details of the conduct of which he complained. When pressed for details, he could not give them.

[133] When Jayden made a specific complaint about someone (for example Ms. Maharaj’s brother aiming a slingshot at him, Ms. Maharaj’s drug or alcohol abuse, the grandfather sexual inappropriate conduct) none of these have been born out. The CAS vocabulary is that the complaints are “not verified”. Ms. Mann conceded that because a complaint is “not verified” does not mean that it did not happen. With all of Jayden’s major complaints, however, there is no evidence from any source other than from Mr. Wilfred-Jacob about it. When Jayden is asked about the issues his father says he raises, Jayden generally reports nothing. When he does report something, when he asks if he was told to say something, he looks at the floor and says “no”.

[134] Mr. Wilfred-Jacob raised repeated concerns with the CAS and police about Ms. Maharaj’s alleged drug use, alcohol, and mental stability. No one found any evidence of any cause for concern.

[135] One of the main reasons that the CAS and police did not take action in respect of Mr. Wilfred-Jacob’s complaints is that each found that the language Jayden used in describing his complaints about his mother and others is atypical of language of children Jayden’s age, such as his foul language in the video clips and his reports that his mother was trying to steal his education money. For example, in July 2015, Mr. Wilfred-Jacob reported that on May 19, Jayden reported that on that day Ms. Maharaj’s father took Jayden’s pants down and touched Jayden’s penis. A CAS worker interviewed Jayden, twice. In both interviews, Jayden was familiar with his own anatomy. He denied that anyone had ever touched him. He said that if anyone did touch him, he would report it to his teacher, or parents. When he was asked if he was told what to say, he broke eye contact and said no. In one of the interviews, he said that he has a grandma and grandpa on his mother’s side but said that he hardly saw them.

[136] Sometimes, Jayden did admit that he was repeating what his father told him. For example, on February 12, 2016, Ms. Mann was speaking to Jayden about a bruise or mark on his angle. He said his mother pushed him and he fell. He said she is abusive. Ms. Mann said in evidence that Jayden admitted that his father told him to say that. In other circumstances, Jayden volunteered things that favoured his father, in situations where it was completely out of context, which suggested that he was told to say them.

[137] The CAS notes indicate that Mr. Wilfred-Jacob continued to use CAS as a weapon against Ms. Maharaj. He complained that Ms. Maharaj had put Jayden in clothes and shoes that were too small. He regularly complained that the CAS was not addressing his concerns fast enough.

ALIENATION CONCERNS:

[138] Ms. Mann gave evidence that based on her investigation; she was concerned that Jayden was showing the early signs of alienation from her mother, caused by Mr. Wilfred-Jacob.

[139] In her report of January 22, 2016, Ms. Mann provided her update which she reviewed in her evidence. Because of Jayden’s inability to provide her with a clear and consistent explanation of his concerns about his mother, she believed he was being influenced by his father. Jayden is very aware of the issues in litigation between his parents. He sides with his father, and never with his mother, never with a clear reason. The complaints he makes about his mother are given with eye and verbal cues that he is being evasive. The language he uses in describing his mother’s conduct of which he complains is not that of a 6 or 7 year old. While Jayden stated uniformly that he feels safe with the mother, he parroted the complaints in the same language of his father.

[140] The commonly recognized literature on parental alienation and justified estrangement identifies seven common, significant markers of an alienated child.[^1] These include the child:

a) Rejecting one parent and uncritical favouring of the other, without justification. The favoured parent encourages the child’s behaviour. The child’s rejection of one parent often extends to that parent’s family. The favoured parent either creates the child’s view of the rejected parent, and/or facilities or encourages it, or does nothing effective to counteract the rejection.

b) Having no reason for the rejection or a frivolous rationalization.

c) Idealizing one parent without recognition of negatives, while devaluing the other without recognition of positives.

d) Claiming the views are his own, and not influenced by the favoured parent.

e) Reflexively supporting the favoured parent in all conflict.

f) Having an absence of guilt over cruelty to or exploitation of the rejected parent.

g) Spreading the rejection to the rejected parent’s family.

[141] The commonly recognized literature on parental alienation and justified estrangement identifies 16 behaviours in alienating parents common in alienation cases[^2]:

a) Bad mouthing the other parent,

b) Limiting contact with the other parent.

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

d) Telling the child that the other parent does not love the child

e) Forcing the child to choose or express loyalty,

f) Telling the child that the other parent is dangerous,

g) Confiding in the child about adult relationships with the other parent,

h) Limiting photographs of the other parent,

i) Forcing the child to reject the other parent,

j) Cultivating dependency on the favoured parent,

k) Asking the child to spy on the other parent,

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

m) Referring to the other parent by their first name,

n) Referring to someone else as mom or dad,

o) Having the child keep secrets from the other parent,

p) Changing the child’s name.

[142] In her evidence, without referring to specific literature, Ms. Mann echoed these markers and symptoms.

[143] I agree with Ms. Mann. The evidence shows that of the 16 alienating behaviours of alienating parents, Mr. Wilfred-Jacob has done b) and f). I infer from the evidence that of the 16 alienating behaviours of alienating parents, Mr. Wilfred-Jacob has done a) d) to g), i) to l) and o).

[144] In terms of the markers of an alienated child, Jayden’s behaviour contains all markers except c).

[145] In making these comments, I do not hold that Mr. Wilfred-Jacob has alienated Jayden. That requires an expert diagnosis and no one led evidence to this effect. However, based on the evidence before me, Jayden is at risk of becoming alienated from his mother and the process has begun.

WHAT SHOULD BE DONE?

[146] The CAS’ recommendations in January 2015 were as follows:

1. Ms. Maharaj should have full custody.

2. Mr. Wilfred-Jacob should have access from after school until 7 p.m. every Wednesday, and alternate weekends from after school on Friday until the last day of the weekend at 6 p.m.

3. Mr. Wilfred-Jacob should have a week with Jayden in each of July and August, with his selecting those weeks by March 31 each year.

4. Mr. Wilfred-Jacob should have one week of the Christmas holidays, with him selecting the week in odd numbered years, and her selecting the week in even numbered years, the selection being announced by October 31 each year. Long weekends and PA days should be spend with the parent having Jayden that weekend.

5. Mother’s Day and Father’s Day from 10 a.m. to 7 p.m. will be spent with the respective parent being celebrated.

6. March break would be divided on the Tuesday night at 4 p.m., with the parent having that part of the week abutting his/her weekend.

7. Mr. Wilfred-Jacob should be allowed reasonable make up access for any missed.

8. Mr. Wilfred-Jacob should sign any forms required so Jayden can have counselling.

9. Ms. Maharaj should attend counselling to regain emotional strength and deal with the effects of her abusive relationships.

10. Mr. Wilfred-Jacob should have counselling on parenting in a manner that allows children to have healthy relationships with both parents

11. No one should consume alcohol or drugs when with Jayden.

12. The parents should communicate through non-contact means designed to prevent abusive contact such as My Family Wizard, and should only contact each other with respect to Jayden’s schedule, school and health.

13. The parents should not denigrate each other in front of the child or talk to Jayden about the court proceedings.

14. Each parent is responsible for child care during their time with the child.

[147] Even though the OCL’s recommendations are almost two years old, they are still valid. Mr. Wilfred-Jacob’s conduct that gave rise to those recommendations in January, 2015 continued after that date to the present, unabated. In my view, the Jayden’s best interests require that the OCL’s recommendations be implemented immediately, as outlined at the end of these Reasons.

CHILD AND SPOUSAL SUPPORT:

1. Date of Separation and Length of Marriage:

[148] Ms. Maharaj says that the date of separation is July 7, 2014 when she moved with Jayden out of the matrimonial home and into a shelter. Mr. Wilfred-Jacob says that the date of separation is September, 2012 when Ms. Maharaj left the home.

[149] Ms. Maharaj says that there were periods in which she lived in part with her mother and in part in the matrimonial home:

a) 3 months in 2012 when she returned to school;

b) October, 2012 to October 2013.

[150] Ms. Maharaj says that even though she did not live full time at the matrimonial home, it was still the matrimonial home. For three months in 2012, she was absent from the home of a full time basis as she lived with her mother while she finished her high school diploma.

[151] Ms. Maharaj’s explanation for the year-long separation beginning in October 2012 is less clear. She says that following Mr. Wilfred-Jacob’s assault during the bleach drinking incident, there was a no contact order as part of his release conditions. I note that the conditions said that he had to keep away from the family residence too. That meant that he could not see his son. Ms. Maharaj said that she wanted Mr. Wilfred-Jacob to see Jayden so she moved into her mother’s home and let Mr. Wilfred-Jacob back into the matrimonial home.

[152] Notwithstanding the no contact condition and the condition that Mr. Wilfred-Jacob stay away from the matrimonial home, he returned to the home. Both the parties agreed that they were secretly violating Mr Wilfred-Jacob’s bail conditions. Ms. Maharaj said that she did not report the new arrangements to CAS as she was afraid that CAS would alter custody arrangements.

[153] Ms. Maharaj said that for the October 2012 to October 2013 period, she maintained an intimate relationship with Mr. Wilfred-Jacob, spending 2 to 3 nights per week and most of her weekend at the matrimonial home. This reduced from the end of January to May, 2013 when Ms. Maharaj obtained employment and she returned to the home for weekends only. Mr. Wilfred-Jacob was unemployed for this time, which meant they had no child care expenses. In September 2013, Jayden started school.

[154] In addition, Ms. Maharaj continued to receive her mail at the matrimonial home. Her tax returns, prepared by Mr. Wilfred-Jacob’s bookkeeper listed the matrimonial home as her home through to and including 2014. Mr. Wilfred-Jacob’s tax returns through 2014 referred to him as married. Mr. Wilfred-Jacob bought her jewelry in 2013. He listed her as a benefit recipient on his workplace benefit package, at the matrimonial home address. They went to Trinidad together in 2014, as a family.

[155] As for when the couple began cohabiting as a couple, Ms. Maharaj says that they began living together as a couple immediately in December 2007 or January, 2008. She says that the marriage is 5 years, 11 months (Aug. ’08 to July, ’14) but with the cohabitation period (Jan. ‘08 to Aug. ’08) the pair was together as a couple for 6.5 years from date they began to cohabit.

[156] Mr. Wilfred-Jacob says that according to Ms. Maharaj’s OW applications, she was a tenant in his home until Jayden’s birth in January, 2008. He says that they were separated from February, 2011 to April, 2012, and June 2012 to August 2012, and separated permanently September 25, 2012. Therefore, accounting for separations, the marriages is 3 ¾ years. At that time, she left the home. She demanded return of her $25,000 and said it was over. He gave her the money as he considered the relationship over as well.

[157] As to the separation between October 2012 and 2013, he denied that Ms. Maharaj returned to the house and did cooking, cleaning, washing, and that they had any sort of relationship.

[158] I find that the parties separated in July 7, 2014, and do not accept Mr. Wilfred-Jacob’s position regarding the separations. I do so because Mr. Wilfred-Jacob said this to the OCL (see report dated January 21, 2015), and in his OCJ proceedings (see his affidavit July 9, 2014, Ex. 5, Tab C). As to his statement concerning the October to October separation, I reject his position. Just as this couple was prepared to lie to OW by saying Ms. Maharaj lived on her own and/or was a tenant of Mr. Wilfred-Jacob, I find that the both lied to CAS about the arrangements in the October to October year because they both wanted to protect their own interest in seeing Jayden. As to Ms. Maharaj’s returning to the matrimonial home after he alleged date of separation, he does not deny it. He merely says that she came and went.

[159] As I have indicated, Mr. Wilfred-Jacob’s view of the truth is situational. When he is facing a division of his property, he believes that he was married for the shortest time period he can imagine, thereby supporting his request for unequal division of net family property. I do not accept his submission as to separation date or separations during the marriage.

[160] The parties had many separations during their marriage. Theirs was not a conventional marriage, however. It was tumultuous. They may have had times of separation (if I accepted Mr. Wilfred-Jacob’s evidence) but they reconciled. While the marriage was unorthodox, with periods of separation, I accept Ms. Maharaj’s evidence as to the reasons for the various separations.

[161] When the marriage began is easy: August 3, 2008. Therefore the marriage was 6 years duration, based on my findings above.

[162] When they began living together is a more difficult question. In evidence, Ms. Maharaj said that she moved in to Mr. Wilfred-Jacob’s home in December, 2006 or January, 2007. In her submissions however she says “The Applicant testified that she moved in with the Respondent at the matrimonial home as of January 2008….” It appears that she has accepted Mr. Wilfred-Jacob’s position as to the start of the relationship.

[163] Even if Ms. Maharaj had not made this concession, I would have accepted this date for the beginning of cohabitation in January 2008. Ms. Maharaj represented to OW, repeatedly, that she was living on her own and even when she went to live in Mr. Wilfred-Jacob’s house, it was as a tenant. She says that she did this under Mr. Wilfred-Jacob’s direction.

[164] I have no doubt that if the couple were living as a couple, Ms. Maharaj knew that she was defrauding Ontario Works about her status in the home. Having represented that to Ontario Works, she is bound by that representation. Therefore, I find that she and Mr. Wilfred-Jacob did not begin to cohabit as a couple until January 1, 2008, making the cohabitation 6.5 years.

2. Imputing Income:

[165] Ms. Maharaj seeks spousal and child support. She asks that support be based on income for Mr. Wilfred-Jacob of $60,000. The parties agree that for support purposes, in 2015, Mr. Wilfred-Jacob earned $36,310.28 as a T4 employee. She asks that I impute $25,000 additional income to him. She says that he used to run a contractor or handyman business in addition to his job running a printing press, which he stopped.

[166] Mr. Wilfred-Jacob says that Ms. Maharaj is not entitled to any support. If she is, however, Mr. Wilfred-Jacob says income should be imputed to her at $23,400 (minimum wage). With respect to his handyman business, he says he earned minimal amounts.

[167] The main case on imputation of income in a family matter is Drygala v. Pauli, 2002 41868 (ON CA), [2002] O.J. No. 3731 (C.A.), which addressed under what circumstances under section 19 (1)(a) of the Federal Child Support Guidelines a person may be found to be intentionally underemployed or unemployed. In Drygala, the father was a tool and die maker. He did not like the trade and did not do well at it. He decided to become a school teacher and entered university to pursue his certification in teaching. The result was a drop in his income. The Trial Judge found that he could and should have pursued part time work while studying. He attributed to the father income of $30,000 for support purposes.

[168] The Court of Appeal defined “intentionally underemployed” as used in the Child Support Guidelines (“CSG”) as meaning that a voluntary act was required in order to be “intentional”. There was no requirement that the voluntary act have a bad faith component or the specific intention to defeat support.

[169] Even if the payor has a reduced ability to pay support (normally a condition that may qualify as a change in circumstances under section 17(4) of the Divorce Act or section 37 of the Family Law Act) a payor cannot reduce support where the reduced income arises from the events over which the payor had some control. This rule is most pointedly made in cases involving a criminal conviction (see, for example Luckey v. Luckey, 1996 11217 (ON SC), [1996] O.J. No 1960 (Gen. Div), Myatt v. Myatt, 1993 1144 (BC SC), [1993] B.C.J. No. 215 (S.C.), Marucci v. Marucci, [2001] O.J. No. 4888 (S.C.). The rule also applies where the payor is fired for cause.

[170] In imputing income, the following rules apply:

a) A parent’s obligation to support his or her children takes precedence over the parent’s own interests and choices. Every parent has the obligation to earn what s/he is capable of earning.

b) A parent cannot knowingly avoid or diminish, and may not ignore, his or her obligation to support his or her children. There is intentional unemployment or underemployment when a party chooses not to work when capable of earning an income or not to work to his/her full capability

c) A parent must act responsibly when making decisions that may affect his/her ability to pay child support. The CSG does not apply to situations in which the payor, through no fault of his own, cannot work (lay off, termination, or employer reduced hours). The CSG, however, provides flexibility between the obligation to support children, and the need to have “meaningful work”.

d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances. The spouse seeking to reduce support must show that the educational or work decisions or pursuits are reasonable in light of the support obligation.

e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests, nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.

(see: French v. Williams, 2016 ONCJ 105, Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.); Drygala, supra, para.s 35 to 39).

[171] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed, and must establish an evidentiary basis upon which this finding can be made (see: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.). The onus then shifts to the payor to show that he acted reasonably, which he must in a compelling way (see: Riel v. Holland, 2003 3433 (ON CA), 2003 3433 (Ont. C.A.), at para. 23).

[172] In imputing income, the court must have regard to the payor’s employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties’ relationship to determine what income the party could earn if he or she worked to capacity (see: Lawson v. Lawson, 2006 26573 (ON CA). The court may draw an adverse inference against a party for his or her failure to comply with their disclosure obligations and impute income (see: Smith v. Pellegrini, 2008 46927, [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, 2009 25981 (ON SC), [2009] O.J. No. 2140, (Ont. S.C.). However, the court cannot arbitrarily allocate an imputed income. There must be a rational basis for the amount selected and it must be grounded in the evidence. The absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed (see: Jackson v Mayerle, 2016 ONSC 72 Filippetto v. Timpano, 2008 3962 (ON SC), [2008] O.J. No. 417, (SCJ); Gonzalez v. Garcia, supra).

[173] The Court must remember that parents can take jobs which earn less money as long as the decision is reasonable. An employment decision results in a significant reduction of child support must be justified in a compelling way (see: Riel v. Holland, 2003 3433 (ON CA), [2003] O.J. No. 3901 (C.A.); Rilli, supra; G.T.B. v. Z.B.B., 2014 ONCJ 382 (OCJ).

[174] In 2015, Mr. Wilfred-Jacob earned $36, 310.28 as a T4 employee. He operates a printing press at a company that makes calendars. He works 5.5 to 6 months in a year and is on E.I. for the balance. He has a grade 8 education and has been operating a printing press for 17 years. It is seasonal. He tried to find another, less seasonal job but could not. He says he is working as much as he can.

[175] Mr. Wilfred-Jacob said that for about 8 years, he operated a handyman business called “LINCS Renovations”, fixing broken toilets and plumbing, hanging doors, doing small carpentry jobs and other small repairs in evenings and on weekends. He had a business card that had listed on it large jobs he could do like renovating large projects. He said he did not do any of that type of work. He had one or two handyman jobs per month at a price of $50 to 60 per job. He gave this up to look after Jayden.

[176] Unfortunately, we have only Mr. Wilfred-Jacob’s evidence on his income. He did handyman jobs for cash. He kept no receipts or other paper record of his work. He did not report the income. On his evidence his handyman business would generate income of between $1,000 and $1,500 per year. At one point he said to the Court that he thought he might be earning $5,000 gross, $3,000 net in his renovation business.

[177] Ms. Maharaj says that Mr. Wilfred-Jacob’s production has been incomplete notwithstanding orders to produce. He has provided no financial or other documents relating to the company. He has not provided his 2011 assessment. His full EI file including the application(s), have not been provided. He was asked to provide a client profile statement from his bank. He has not. He was asked to provide credit card applications (which would contain income information). He has not. Bank account statements are still incomplete. In short, production deficiency leaves the Court unable to assess Mr. Wilfred-Jacob’s income.

[178] What do we know about Mr. Wilfred-Jacob’s ability to work more? We know that Mr. Wilfred-Jacob works full time for half the year. Aside from a back injury that put him on light duties for a short while, he can operate his printing press, fully, and full time. He has the ability to do fix-it jobs. He has 6 months each year within which he can do more fix it jobs. Based on this, I am satisfied that Mr. Wilfred-Jacob can work more, but decided not to. Since, on his own admission, he is on a 50/50 parenting arrangement, his reason to stop working is not reasonable.

[179] What amount is Mr. Wilfred-Jacobs able to earn that he is not earning by his decision to stop renovations? Because of his failure to make required disclosure, it is impossible to tell what he earned in his renovations business. I do not believe what he says on this subject. As I have said, his view of the truth is situational, tailored to fit the position he advances. It is not reasonable to impute $25,000 more in income to him, given his age and limited transferrable skills. I arbitrarily impute to him $10,000 in income or slightly less than full time minimum wage for the 6 months he is on lay off.

[180] Mr. Wilfred-Jacobs wants me or to impute to Ms. Maharaj income minimum wage, or $23,400 from September 1, 2016, since she finished her education program by the end of the summer. I agree. Ms. Maharaj is capable of working at least minimum wage jobs since the end of the marriage in on July 7, 2014. She is healthy and strong. Her education is poor, but no so poor that she could not perform minimum wage jobs. Since Mr. Wilfred-Jacob is not requesting a retroactive imputation I do not make one. I do impute income to her beginning September 1, 2016 of $23,400.

3. Child Support

[181] Effective January 1, 2017, Mr. Wilfred-Jacob will pay to Ms. Maharaj child support of $415 per month, based on his income at $46,000, as determined by Divorce Mate calculation, attached as Schedule 2 to these Reasons.

4. Spousal Support

a. Entitlement

[182] Ms. Maharaj says that she is entitled to support on a compensatory, contractual and non-compensatory basis, based on Mr. Wilfred-Jacob’s imputed income of $60,000, for a period of 4 years. She attributes no income to herself and says that she is entitled to $1,167 month from the date of separation. Mr. Wilfred-Jacob says that she is not entitled to support.

[183] When they met, Ms. Maharaj had quit school, and was living on social assistance in her own apartment. She did not even have a driver’s licence. She said that Mr. Wilfred-Jacob was getting older and wanted a child. She wanted to finish school, go to college then get married. During the marriage, she finished her high school, graduating in April, 2007. She said that they had an oral agreement that she could return to school once the child was at school.

[184] Ms. Maharaj says that she did the majority of the household chores, including child related activities. Even during their periods of separation, she continued to return to the home several days a week to cook and clean, and be intimate with Mr. Wilfred-Jacob. He prevented her from continuing her schooling. He would not allow her to obtain her driver’s licence. She only continued school after July 2014. She also obtained her driver’s licence.

[185] Mr. Wilfred-Jacob rejects her evidence. He said that Ms. Maharaj lived with her mother for about half of the 7.5 years between January 1, 2007 and July 7, 2014, because of significant periods of separation. When they were together, he did most of the house and child rearing work. For most of the periods of separation, Jayden stayed with him. He was the sole parent and care giver.

[186] I find that Ms. Maharaj is entitled to spousal support for compensatory and non-compensatory reasons. Mr. Wilfred-Jacob has the means (albeit modest) to pay support. Ms. Maharaj delayed continuing her post-secondary education for the period of her marriage. While she was not in school when they met, Ms. Maharaj did complete her high school while they were married. It is not hard to believe that someone of 21 or 22 would not want to and plan to go to college once her child attended school full time. I award support going forward at the low end of the range, and for 4 years. That gives sufficient time for her to establish herself in employment. Further, this level of support takes into consideration the equalization discussed below and income that can be generated thereon.

b. Past Spousal Support.

[187] In terms of past support, I impute no income to either party for the period between July 7, 2014 and January 1, 2017. There was joint custody. Mr. Wilfred-Jacob had child minding responsibilities which probably reduced his ability to work. Alternately, any wages he might earn during his off-season unemployed period would be consumed by child care expenses. Ms. Maharaj was not yet in the position to earn income. It was reasonable that she go to school. It is also reasonable that she would take some time to find work.

[188] I award past spousal support at $826/month, the low end of the range, as it was a short marriage, with several periods of being apart. Therefore, as illustrated by the DivorceMate calculation as Schedule 1 to these Reasons, for the period beginning July 7, 2014 and ending January 7, 2017, Mr. Wilfred-Jacob owes Ms. Maharaj past support of $826 per month for 30 months. The total arrears is $24,780. I am not aware of any spousal support payments made that should be deducted.

c. Future Spousal Support

[189] The marriage was short at 6 years plus 6 months of cohabitation. There were also periods of separation. Ms. Maharaj, while delayed entering the workforce, is now poised to enter it having finished her college course in the summer of 2014. Her entitlement to spousal support is limited to 4 years. Using imputed income for Mr. Wilfred-Jacob of $46,000 and to Ms. Maharaj of $23.400 (minimum wage), according to the DivorceMate calculation attached as Schedule 2 to these reasons, no spousal support is owing to Ms. Maharaj from January 1, 2017 onward, subject to the following segment of these Reasons.

d. Exchange of Income Information

[190] By June 1 of each year, each party shall provide to the other his or her T1 tax return and Notice of Assessment. Child and spousal support shall be calculated for the 12 months beginning the following July 1, based on those incomes. Spousal support shall be calculated on the low end of the SSAG range. Incomes for the parties for support purposes shall be the greater of the imputed incomes stated in these reason, or actual line 150 income.

EQUALIZATION

[191] As indicated at the outset of these reasons, at the outset of trial the parties asked that I determine property issues. I asked for the parties to submit a joint NFP statement, outlining each party’s position, and highlighting the issues I was to determine. Instead, they reached an agreement that I needed to address only three questions or issues regarding property: 1) the date of separation and cohabitation, 2) how to treat the $25,000 that Ms. Maharaj gave to Mr. Wilfred-Jacob, which he gave back to her when he was asked and 3) $30,000 and whether it was Ms. Maharaj’s or Jayden’s money. Each party’s NFP statement was premised, in the main, on that party’s position of the separation date.

[192] From their submissions, the $30,000 is no longer in dispute. They agree that it is Jayden’s education money and that the maternal grandmother now holds it in trust for Jayden.

[193] The issues that I have to determine, the parties say, are a) the length of the marriage and cohabitation, b) unequal distribution net family property and c) how the $25,000 should be treated. I have already dealt with the length and duration of the marriage and cohabitation, already. In addition, from the NFP statements there are some specific assets about which I have made findings, below.

1. $25,000

[194] The parties agree that in 2010, Ms. Maharaj’s parents gave her $25,000 when they sold their house.

[195] Ms. Maharaj says that she gave it to Mr. Wilfred-Jacob for safe keeping as she did not have a bank account. The agreement was that he would give it back when she needed it. When she went back to school and was staying (with Jayden) at her parents, she asked for it back to pay for her education and support herself and Jayden. He gave the funds back. She gave $5,00 back to her father, she lived on $10,000, and bought a GIC for $10,000. At the time of separation, only the GIC remained. She says that the GIC (now valued at $10,100.05) is excluded property on her NFP.

[196] Mr. Wilfred-Jacob says that this is nonsense. She had a bank account. She gave it to him in to put toward family expenses because, at the time, they were having financial trouble. He placed the money in a bank account with other funds in it. Having done so, it is co-mingled and has lost its excluded status. She asked for it back several times. The $25,000 became an issue of contention. Eventually, in February, 2011 he gave her the $25,000 back by way of certified cheque. She then left the home until April 2012 when they reconciled. Mr. Wilfred-Jacob said that he had to refinance to pay that money back. He says, therefore, that the $25,000 is an advancement against equalization.

[197] There is no doubt that the $25,000 was placed into a joint account. Where property, which is otherwise excluded, is comingled with property used for common purposes of the family, it cannot be excluded (Delorme v. Delorme (1993), 1993 16065 (ON SC), 45 RFL (3d) 387 (Gen. Div) and Belgiorgio v Belgiorgio, 2000 22733 (ON SC), 2000 O,J. No. 3246 (S.C.) para. 30). Where a joint account, however, is merely a conduit for the money to flow from one person to another, or when money is merely “parked” in a joint account, there is no comingling (Barrett v. Barrett, 2014 ONSC 857 (S.C.J.) para.75; Paddock v. Paddock, 2009 ONCA 264, para. 10)).

[198] Under s. 14 of the FLA, it is presumed that money deposited into a joint account is owned jointly, although that presumption may be rebutted. Therefore, the issue is what the intent of the parties was at the time Mr. Wilfred-Jacob took the $25,000 (see Belgiorgio, supra at para 32-34). He says that it was for expense purposes. This cannot be correct. He gave it back when it was requested. His act of returning the funds verifies that he considered it to be Ms. Maharaj’s money.

[199] I find that the $25,000 was not co-mingled. It was “parked” in the joint account for safekeeping. Ms. Maharaj asked for it back. Mr. Wilfred-Jacob gave it back. Therefore, he recognized that it was her money. He cannot now say that it was comingled and therefore is not excluded property, and was an advancement against equalization. The GIC is property excluded property.

2. Unequal Equalization

[200] Mr. Wilfred-Jacob says that since the marriage is shorter than 5 years (after deducting separation time), there should be an unequal equalization of net family property. I have found, however, that the marriage was 6 years and the union as a couple, 6.5 years.

[201] Since the marriage is of over 5 years, should I allow an unequal division?

[202] Ms. Maharaj says division should be equal. Mr. Wilfred-Jacob says that it is unconscionable that Ms. Maharaj should receive half of the value of the matrimonial home, notwithstanding that the marriage may have exceeded 5 years, given that she was so rarely there. He relies on Rivers Eshkibok v. Eshkibok in which the parties had no children, had been married for over five years, but also had separations where the Applicant left the matrimonial home for reasons other than abusive behaviour by the Respondent, and did not contribute to the acquisition, disposition, preservation, maintenance or improvement of the matrimonial home. In that case, the Judge ordered that only the increase in value of the house be included in his property for equalization purposes. On appeal, the Court of Appeal refused to intervene, in either the trial judge’s finding on the length of the marriage or unequal division. Given my finding on the length of the marriage, Eshkibok and the remaining cases Mr. Wilfred-Jacobs cites, are distinguishable.

[203] The question remains is whether allowing Ms. Maharaj to keep ½ of the net value of the matrimonial

[204] Section 5(1) of the Family Law Act provides the general rule requiring equalization of net family property upon marriage breakdown:

5.(1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.

S. 5(6) gives the court the power to award an unequal division where an equal division would, in the court’s opinion, be unconscionable, based on eight listed criteria. That section provides:

5(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) The part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.

Section 5(7) explains the purpose and intent of these provisions:

5(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).

[205] The case law has made it clear that the intent of the section is not to alleviate every situation that may be viewed as in some ways unfair or inequitable, because equal sharing should occur in most cases. The test is that equal division is “unconscionable”, a high test, rarely met. The Ontario Court of Appeal has interpreted "unconscionable" to mean "shocking the conscience of the court" (see Macdonald v. Macdonald (1997), 1997 14515 (ON CA), 33 R.F.L. (4th) 75 (Ont. C.A.). The terms, "shockingly unfair", and "patently unfair” or "inordinately inequitable" have also been applied (see Mehmeti v. Mehmeti, [1999] O.J. No. 3534 at para. 12 and the cases referred to therein). Further, since the Family Law Act s. 5(6) uses the word “unconscionable” as opposed to “inequitable” as used in s. 4(4) of the Family Law Reform Act, the test is intended to be higher or more strict that unfairness, harshness or unjust (see Braaksma v. Braaksma, 1992 8623 (ON SC), [1992] O.J. No. 1326 (UFC) app’d 1996 904 (ON CA), [1996] O.J. No. 4097 (C.A.) and Peake v. Peake, [1989] O.J. No. 988 (Ont. H.C.J.).

[206] The Family Law Act creates a scheme for property sharing upon marriage breakdown that is intended to promote predictability and thereby discourage litigation. If courts were to deviate from the scheme of the Act wherever it gave rise to an unfair result, this would have the undesirable effect of encouraging parties to litigate their claims (see Ward v. Ward, 2012 ONCA 462, para. 22 to 25, and Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47 ).

[207] Is it shockingly unfair, and does it shock the conscience of the Court to equalize net family property by requiring Mr. Wilfred-Jacob to list the matrimonial home as his asset? No. I say this for the following reasons:

I. The Family Law Act has made special arrangements with respect to the matrimonial home, as compared to other property, and hence, it is distinct from other property. The Legislature determined by s. 4(1) that in determining equalization, a spouse who owns the matrimonial home must declare its value at the date of separation, WITHOUT deduction for its value at the time of marriage.

II. S. 5(7) creates the presumption that in a marital relationship there is equal contribution of the parties, subject only to the considerations in s. 5(6);

III. S. 5(6)(a to g) have no application to this case;

IV. Mr. Wilfred-Jacob relies on s. 5(6)(h). He says that he bought the matrimonial home before the marriage. During the marriage, he paid all the bills and mortgage, and either paid for or did all the maintenance on the property. S. 5(6)(h) has little application to the matrimonial home because of its different treatment in the legislation.

V. Ms. Maharaj says that she contributed to the marriage by having Jayden, and providing child rearing and housekeeping services during the marriage. When she worked, she put some of that money toward the home expenses. Aside from bringing the marital home into the marriage, the arrangement that these parties had was one of a traditional marriage.

VI. The fact that Mr. Wilfred-Jacob brought the matrimonial home into the marriage and is required to account for it as his property for equalization purposes, and without deduction of the value of it at the time of the marriage, is not, in and of itself, unconscionable. Rather, it is the way the statute intends for equalization to work.

VII. There are no other circumstances otherwise that make equal equalization unconscionable.

3. Miscellaneous Property Findings

NFP Statement, Part 4(b) General Household Items

[208] Under this heading, both parties list the following assets: General household goods and furniture, two cars, and Mr. Wilfred-Jacob’s tools. Mr. Wilfred-Jacob has the onus of proving the value of his items. He lists their values as $500, $5,525 (for two cars), and $300 (saying he only has three tools of note: a power saw, power drill and tile cutter). The total for that category is $6,325. Ms. Maharaj gives their values as $5,000, $6,500 (for two cars) and $5,000 for a large number of tools.

[209] With respect to all of these items, I assign a value of $0 for the following reasons:

a. Mr. Wilfred-Jacob has the legal onus of proving the value of his property. He did not have any of these items appraised. Further, I do not accept that a man, who carried on a handyman business, would have only three tools.

b. Ms. Maharaj has an evidentiary burden to have the items appraised. She did not.

c. All of these items are easily appraised. Used household goods are of nominal value. The value of the cars can be taken from the reference car salesmen use (Red Book or Black Book).

d. It appears that Mr. Wilfred-Jacob brought the furniture (except for Jayden’s bedroom furniture) and tools into the marriage with him. They would likely have depreciated over the marriage. Further, their value would have been declared under Part 6: Property, Debts and other Liabilities on Date of Marriage. Their value would likely have been an “in and out” calculation.

Part 5: Debts and Other Liabilities

[210] The balance of the mortgage as of July, 2014 is not clear. According to Ex. 7, tabs 24, 25 and 29, the CIBC mortgage balance was $140,656.79 on August 11, 2008, $128,190 on August 16, 2012, and $145,759 on June 29, 2015. Mr. Wilfred-Jacob said that the increase in the mortgage in 2015 resulted from having to re-finance to pay lawyers and free up funds for himself.

[211] Ms. Maharaj calculates that the mortgage would have been $104,376.39 as of the date of separation. She arrives at this by deducting 22 mortgage payments from the August 16, 2012 value. This is an incorrect calculation as it reduced the outstanding amount by each payments principle and interest.

[212] The mortgage’s outstanding principle ought to have been ascertained by asking the Bank to provide it. No one appears to have done so. Therefore I am left to calculate the outstanding principle of the mortgage, as best I can.

[213] The mortgage statement at Ex. 7 tab. 25 shows that Mr. Wilfred-Jacob pays his mortgage semi-monthly. The five payments shown on that statement indicate that the principle portion of the semi-monthly blended payment increased by approximately $.30 each payment. The outstanding principle at October 11, 2012 was $126,866.87. The principle portion of the blended payment for that date was $331.31. Therefore, I find that the outstanding principle as of the date of separation is $113,270.86.[^3]

4. Equalization Calculation

[214] Since I accepted Ms. Maharaj’s position on the date of separation, I have used her NFP Statement to recalculate equalization. Applying my findings, above, my recalculation is that Mr. Wilfred-Jacob owes an equalization payment to Ms. Maharaj of $117,132.31 on the following calculation:

NFP Statement Item No.	Description	Ms. Maharaj	Mr. Wilfred-Jacob
4a	House	0	$345,000.00
4b	General Household Goods and Autos	0	0
4c	Bank Accounts	$15,684.13	$5,178.55
Subtotal		$15,684.13	$350,178.55
5	Debts	0	$113,270.86
7	Exclusions	-$13,041.07	0
Total NFP		$2,643.06	$236,907.69

$236,907.69 - $2,643.06 =$234,264.63, x 50% = $117,132.31.

ORDER

[215] Based on the foregoing, the order will be as follows:

1. Custody:

[216] Effective January 1, 2017, the following custody and access arrangement shall apply:

a. Ms. Maharaj should have full custody of Jayden, born January 8, 2008.

b. Ms. Maharaj shall consult with Mr. Wilfred-Jacob with respect to decisions regarding Jayden’s schooling, medical care and other major decision affecting Jayden and Jayden’s welfare, but Ms. Maharaj shall have final decision making power and shall advise him of such decisions with 24 hours of making them.

c. Ms. Maharaj is specifically authorized to obtain any treatment, counselling, and/or psychotherapy for Jayden, as she in her sole discretion deems necessary and appropriate for Jayden’s best interests.

d. Ms. Maharaj is at liberty to travel with Jayden within and outside Ontario and Canada, at her discretion. Mr. Wilfred-Jacob’s consent is not required.

e. Ms. Maharaj is at liberty to obtain or renew Jayden’s passport and Mr. Wilfred-Jacob’s consent for obtaining the same is hereby dispensed with. Mr. Wilfred-Jacoby will provide Jayden’s existing passport (if there is one) to Ms. Maharaj.

f. Mr. Wilfred-Jacob is at liberty to travel with Jayden outside Ontario or Canada only with the permission of Ms. Maharaj, her consent not to be unreasonably withheld. In order to obtain such consent, he must provide details of the trip to Ms. Maharaj at least two weeks in advance, and at least 48 hours in advance, provide a complete itinerary with daily contact numbers for Jayden.

g. Mr. Wilfred-Jacob will begin parental alienation counselling-psychotherapy, at his own expense, immediately, with a qualified person, as approved and agreed to in writing by both parties, or in the event the parties cannot agree, then the counsellor as determined by the Court.

h. So long as Mr. Wilfred-Jacob arranges by January 31, 2017 to take parental alienation counselling/psychotherapy, begins it as soon as practicable, and completes it, Mr. Wilfred-Jacob will have access with Jayden:

i. from after school until 8 p.m. every Wednesday, and alternate weekends from after school on Friday until Sunday at 6 p.m. His first weekend of access shall begin after school on January 6, 2017. If that is not a school day, that weekend will begin at 4 p.m. Long weekends and PA days should be spent with the parent having Jayden that weekend.

ii. Mr. Wilfred-Jacob pick up and drop off shall be at a public place of Ms. Maharaj’s choice, at approximately the mid-point between the parties.

iii. Mr. Jacob will have a week with Jayden in each of July and August. He must select he weeks and advise Ms. Maharaj of his weeks by March 31 each year.

iv. Mr. Wilfred-Jacob will have Jayden for either the first or the second week of the Christmas holidays. He will selecting the week in odd numbered years; Ms. Maharaj will select the week in even numbered years. The selecting party will announce his or her selected week by October 31 each year.

v. Mother’s Day and Father’s Day from 10 a.m. to 7 p.m. will be spent with the respective parent being celebrated.

vi. March break will be divided on the Tuesday night at 4 p.m., with the parent having that part of the week which abut his/her weekend.

vii. Mr. Wilfred-Jacob will be allowed reasonable make up access he misses due to his or Jayden’s illness.

i. If Mr. Wilfred-Jacob does not arrange for and attend parental alienation/counselling as ordered, his access will supervised by a supervisor selected by Ms. Maharaj, and will be limited to every Monday and Wednesday from after school to 8 p.m., until he takes the counselling referred to, above.

j. Jaycob will be enrolled in counselling/psychotherapy as recommended by the CAS or the OCL, to address his issues arising from his parent’s separation and divorce. Such psychotherapy shall be paid for by each party equally, net of any payments made by any employer’s benefit payer.

k. Mr. Wilfred-Jacob will sign any forms required so Jayden can have counselling as suggested by the CAS or OCL.

l. Both parents will sign any release or consent to release information, as required by any counselling professional, within 48 hours of a request being made.

m. Any counselling reports shall be provided to both parents.

n. Ms. Maharaj will attend counselling, at her own expense, to regain emotional strength, learn how to deal with the effects of her relationships, and learn how to meet Jayden’s emotional needs.

o. In order to give effect to the access provisions in this order, Ms. Maharaj may, in her sole discretion, confiscate and prevent Jayden’s use of cellular telephones, pagers, or other electronic communication devices, even if Mr. Wilfred-Jacobs has provided them to Jayden.

p. Ms. Maharaj and Jayden’s counsellors will have unlimited access to Jayden’s electronic devices.

q. Mr. Wilfred-Jacob shall, by January 5, deliver to Ms. Maharaj Jayden’s original health card, original birth certificate, original long form birth certificate, and social insurance card.

r. Neither parent will consume alcohol or drugs when with Jayden, or the 24 hours preceding time with Jayden.

s. The parents will communicate through non-contact means designed to prevent abusive contact such as My Family Wizard or similar service. The parents are to share the cost of such third party communication services, equally. In emergencies, they should only contact each other with respect to Jayden’s schedule, school and health. Such contact should be in recorded writing (email or text) when a third party communication service is impractical.

t. The parents should not denigrate each other in front of the child or talk to Jayden about the court proceedings.

u. Neither parent shall discuss any aspect of this litigation with Jayden, including but not limited to custody or access, and shall make best efforts to stop non-professional third parties from discussing the litigation with Jayden.

v. Each parent is responsible for child care during their time with the child.

w. A copy of this Order shall be provided to and read by any police officer, other law enforcement agency, any child protection agency, if Mr. Wilfred-Jacob or his extended family or friends, or any other third party, report any matter to any of the aforesaid agents or agencies, or attempt to lay criminal charges as against Ms. Maharaj, her family, friends or any school professionals for allegedly assaulting or harming the child, directly or indirectly, in any way.

x. Ms. Maharaj may not change her current address without Mr. Wilfred-Jacob’s consent or a court order.

y. If Mr. Wilfred- Jacob changes address, telephone number or e-mail, he shall notify Ms. Maharaj within 24 hours of such change, and provide the new contact information.

z. Ms. Maharaj may not change Jayden’s school before the end of the current school year.

2. Incomes for Child and Spousal Support

a. For child and spousal support purposes, for the period of July 7, 2014 to January 1, 2017, Mr. Wilfred-Jacob’s income is $36,310, and Ms. Maharaj’s is $0. From January 1, 2017 onward, Mr. Wilfred-Jacob’s income will be the greater of his actual income or $46,000, and Ms. Maharaj’s will be the greater of her actual income or $23,400.

3. Child Support

a. Effective January 1, 2017, Mr. Wilfred-Jacob will pay to Ms. Maharaj child support of $415 per month, based on his imputed income at $46,000. There will be no past child support owing.

4. Spousal Support

a. Ms. Maharaj is entitled to spousal support at the low end of the guideline range, for a period of 4 years.

b. Mr. Wilfred-Jacob shall pay Ms. Maharaj past spousal support at $826 for the period of July 7, 2014 to January 1, 2017. Total spousal support arrears are $24,780.

c. Based on incomes for Mr. Wilfred-Jacob of $46,000 and to Ms. Maharaj of $23.400, using the low end of guideline range for spousal support according to the Divorce Mate calculation attached as Schedule 2 to these reasons, no spousal support is owing to Ms. Maharaj from January 1 to June 30, 2017.

d. By June 1 of each year, each party shall provide to the other his or her T1 tax return and Notice of Assessment. Child and spousal support shall be calculated for the 12 months beginning the following July 1, based on those incomes, in accordance with these Reasons.

5. Equalization

a. The $10,100.05 Ms. Maharaj claims as excluded property in Part 7 of her NFP is property excluded property under s. 4(2) of the Family Law Act.

b. There shall be no unequal division of NFP.

c. Mr. Wilfred-Jacob owes Ms. Maharaj an equalization of $117,132.31.

COSTS

[217] I am pleased to entertain costs submissions, in writing, as to who should pay whom costs, an in what amount. The Applicant’s submissions are to be served and filed by 4 p.m., January 31, 2017 and the Respondent’s by 4 p.m., February 28, 2017.

Trimble J.

Released: December 15, 2016

COURT FILE NO.: FS-14-81765-00

DATE: 2016 12 15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Aryann Shalini Maharaj

• and –

Lincoln Wilfred-Jacob

REASONS FOR JUDGMENT

TRIMBLE J.

Released: December 15, 2016

[^1] See Fidler, B., Bala, N., Hurwitz, H. (2013) “Best Practice Guide: Emotional Harm and Parent-Child Contact Problems in High Conflict Separations”, Toronto, p. 99.

[^2] See Fidler, B.; Bala, N.; Hurwitz, H. (2013), “Best Practice Guide: Emotional Harm and Parent-Child Contact Problems in High Conflict Separations”, Toronto, p. 45 and 99; Warshak, R; “Parental Alienation: What is it; How to Manage it., Innovations – Breaking Boundaries in Custody Litigation, June 12-13, 2014, p. 7; Fidler, B., Bala, N. “Children Resisting Post separation Contact with a Parent: Concepts, Controversies, and Conundrums”, Family Court Review, Vol. 48, No. 1,, January 2010, p. 7. See also X. v. Y. 2016 ONSC 545

[^3] Between October 11, 2012 and July 7, 2014, there were 41 semi-monthly payments. The principle portion of each blended payment increased by $.30. Therefore the reduction in principle is 41 x $331.31 + 41 x .30 = 13596.01. $126,866.87 – 13,596.01 = $113,270.86.