Court File and Parties

Court File No.: FS 15-264 BRT Date: September 14, 2017 Ontario Superior Court of Justice

Between: Sherry Lynn Brown, Applicant And: Sean Thomas Ryan Elliott, Respondent

Counsel: Lisa DeLong, for the Applicant Lloyd St. Amand, for the Respondent

Heard: January 10, 11, 12, 13, 16 and 17, 2017 Before: The Honourable Justice R. J. Harper

Judgment

Issues

[1] Custody and Access to the children, namely Nycholas Damian Joseph Brown-Chandra, born April 30, 2003 (14) (Nycholas) and Abygal Eve Brown- Elliott, born October 24, 2008 (8) (Abygal). [2] Spousal and Child Support; [3] Ownership and division of property.

Background

[4] The Applicant, Sherry Lynn Brown (Sherry), is 37 years of age. She attended Mohawk College and trained as an environmental technician. Immediately after receiving her diploma, she secured a job with Orlick Industries in Hamilton, Ontario. Her goal was to work in the field of the environment. She worked in that field for approximately one year before taking maternity leave with the child, Abygal. She did not return to that field after she was laid off due to her former employer downsizing. She worked in her own craft business for a short period in 2009. She has been employed by Walmart since approximately November 16, 2013. She works in Cambridge, Ontario although she resides in Brantford.

[5] The Respondent, Sean Thomas Ryan Elliott (Sean) is 37 years old. He attended Sheridan College and took computer programing. He worked for IBM in Toronto for 10 years and Manulife in Kitchener for one year. He has been employed by Sunlife International since January, 2012.

[6] Sherry and Sean started to cohabit in 2007. Sherry had a child from a previous relationship, Nycholas. Sean had a child from a previous relationship, Matthew. Nycholas moved in with his mother to reside with Sean in 2007. Matthew had access to his father on alternating weekends. Abygal was born on October 28, 2008.

[7] Sherry and Sean separated on April 10, 2015. When they separated, they agreed that the children Nycholas and Abygal would spend equal time with each of them. The following became the residency schedule:

(a) the children would be with Sean from Fridays at 9 a.m. until Monday at 9 a.m.; (b) the children would be with Sherry from Monday at 9 a.m. until Wednesday at 9 a.m.; (c) the children were then with Sean from Wednesdays at 9 a.m. until Friday at 9 a.m.

[8] The parties entered into temporary minutes of settlement on December 11, 2015 that was made into a court order that provided as follows:

1. The parties shall share the parenting of Nycholas Damian Joseph Brown- Chandra, born April 30, 2003 and Abygal Eve Brown- Elliott, born October 24, 2008 as follows: (a) with the Applicant every Tuesday and Thursday from 9 a.m. to 9 a.m. the next morning; (b) with the Respondent every Monday and Wednesday from 9 a.m. to 9 a.m. the next morning; (c) with each parent on alternate weekends from Friday at 9 a.m. to Monday at 9 a.m. with the Applicant’s weekends commencing Friday, December 18, 2015 and the Respondent’s weekends commencing December 11, 2015.

[9] That order also provided for specific days in which the children would reside with either parent over the Christmas holidays for 2015.

[10] On October 15, 2016 Justice Kent ordered the appointment of the Office of the Children’s Lawyer. The OCL conducted an investigation pursuant to the Courts of Justice Act s. 112. The report of the OCL is dated April 1, 2016. Pursuant to s. 112, that report has been filed in evidence. Sherry disputes the recommendations of the OCL.

The OCL Recommendations

[11] The OCL recommendations include the following:

1. Joint custody of the children Nycholas and Abygal.
2. In the event of a disagreement on major decisions the parents should seek the assistance of a professional proficient in mediation to resolve their differences prior to seeking litigation.
3. The parent with whom the children are residing with from time to time is responsible for the day to day decisions involving the care, wellbeing and activities schedule during their parenting time.
4. The residency schedule shall be shared on a 5-5-2-2 basis. The alternate weekends when Abygal and Nycholas are with Sean should coincide with the time that Sean has his son Matthew residing with him.
5. The holiday and special day designations are also detailed in the OCL recommendations with specificity and clarity.

[12] It was also recommended that communication between the parents be by way of a web based program such as “Our family Wizard”.

[13] A recommendation was also made for Nycholas to participate in therapeutic counselling to address issues related to his biological father.

[14] Sean and Sherry were recommended to attend the program “Caring Families”, in order to learn about child development and effective communication and discipline strategies along with cooperative parenting.

[15] Each parent was recommended to attend parent coaching to learn skills such as flexible thinking, managing emotions and responding with moderate behaviours so that they can use the skills in communicating respectfully with each other regarding parenting and model such behaviours to the children.

[16] Individual therapeutic counselling was recommended for Sherry to work on personal growth and development and to learn strategies to support cooperative parenting with Sean.

[17] It was recommended that both Sean and Sherry ensure that Nycholas and Abygal are not exposed to adult conflict and not exposed to anyone making negative comments about either parent or significant adults in the children’s loves.

Sherry’s Dispute of the OCL Report

[18] Sherry filed a dispute to the OCL report. She testified that the written dispute in no way covered everything that was wrong with the report. She stated that the report was full of misrepresentations and did not consider a significant number of relevant events.

[19] Sherry objected to joint custody on the basis that the Brant Family and Children’s Services and the Brantford Police and the Nova Vita Women’s Shelter has been involved with this family before and after separation, there is much verbal abuse between Mr. Elliott toward Ms. Brown such that joint custody is not feasible. For reasons set out below, I reject Sherry’s assertion in this regard. The mere involvement of the above noted institutions is only evidence that Sherry made reports to them. No action was taken by either CAS or the Brantford Police.

[20] Sherry stated that the relationship between her and Sean became intolerable. She claimed that he became so controlling that he isolated her completely from her family and friends. According to Sherry, although Sean was not physically abusive to her (“he did not slap me around or anything”), he would shove her and “get in her face”. She also stated that he would wake her up in the middle of the night and argue with her.

[21] Sherry stated that Sean would pull the shower curtain back when she was showering and start to scream at her. She asserted that he always followed her around the house and would “hover” over her. She stated that he threatened that if she ever left him she would be left with nothing.

[22] She never called the police. She never told her doctor that she was being abused in any way. However, she did seek out counselling and attended group sessions at Nova Vita in Brantford. Nova Vita is a Domestic Violence Prevention Service in Brantford, Ontario. She also contacted the Brant Child and Family Services and had numerous meetings with Meredith, a social worker at that agency.

[23] Sean denied that he ever woke her up in the middle of the night and had arguments with Sherry. He also denied that he was ever physically abusive. He denied pulling the shower curtain aside and screaming at her.

[24] With respect to her family, he admitted that he did not get along with her cousin. Her cousin had an argument with Sean’s father when Sean’s father backed into her cousin’s car while backing out of their driveway and that caused bad feelings between Sean and her cousin. After that Sean did not want her cousin to come around and certainly not to be used as a babysitter.

Allegations of Sean’s physical and emotional abuse of Nycholas

[25] Sherry stated that Sean would continuously degrade Nycholas and use inappropriate forms of punishment. She stated that he would punish him for his bed wetting problem. He would smack him on the back of his head and, at times, spank him. She claimed that Sean would not allow her to use the clothes washer and dryer at times and she had to wash her son Nycholas’ clothes and her own clothes by hand often. He would provide her lists of how much it costs to live.

[26] On one occasion she claimed that Sean shut off the air conditioning in their home. The day was extremely hot and when she returned home her son Nycholas had sores that looked like bubbles all over his body. She claimed that she did not call anyone. She alleged that she did not know who to call. She claimed that she was afraid to call. Sean was a member of Crime Stoppers and she couldn’t call them.

[27] Sherry started to discuss her concerns about her relationship with her employment worker, Erin Alnzo. According to Sherry, it was Erin who told her to call the Children’s Aid Society. Sherry contacted the Society in the summer of 2014. She was assigned a worker, Meredith. She saw Meredith approximately once per month until she finally separated on April 10, 2015. After that Meredith would come back to see her once in a while just to check to see how things were going.

[28] Sean was not aware that Sherry was having group and then individual counselling sessions at Nova Vita. Sherry stated that, by the time of her leaving on April 10, 2015, she was “terrified of Sean.” She set up a “safety plan”. She rented a house in Brantford without Sean’s knowledge and when he was on a business trip in Asia, she moved into that home with Nycholas and Abygal. She sent Sean an email that she had done this while he was in Asia.

[29] When Sean returned from Asia at the end of April, Sean and Sherry immediately entered into an agreement that each would have the children on a 50-50 basis. Sherry testified that she agreed to that because her lawyer was away and Sean was insisting that was his right and that I should learn what my rights were.

[30] Sherry signed the application in this matter, among other things, claiming sole custody of the children, on May 5, 2015. She did not serve and file the application until August 2015. The parenting scheme of 50 – 50 time share residency remained in effect until December 11, 2015. At that time, the parties entered into temporary minutes of settlement, once again providing for joint custody and a 50 – 50 time share of the children. Sherry stated that she did not agree that arrangement was in the best interest of the children, however, that was the status quo so she went along with it.

[31] The above temporary minutes of settlement was made into a court order signed by me on December 11, 2015. At that time, Sherry did not make most of the claims that she testified at this trial.

[32] The only claims that were in the pleadings were that Sean was controlling and was emotionally abusive to her and her son, Nycholas. There were no pleadings that claimed that Sean was physically abusive to the child, Abygal.

Sherry’s Allegations of Abuse of Abygal

[33] At trial, Sherry testified, for the first time, that Sean was physically abusive to the child Abygal. Sherry stated that on one occasion, Sean picked Abygal up by the back of the neck and threw her across the room. She also claimed that on another occasion, Sean hit her so hard he split her lip. She claimed that this occurred sometime in 2014. According to Sherry she has not seen Sean physically lay a hand on Abygal since separation. However, Abygal allegedly told Sherry that her father has been physically abusive to her. Sherry stated that when she tells her of his treatment of her she has a physical melt down.

[34] In addition to the allegations made at trial, by Sherry, of physical abuse, Sherry gave evidence of three incidents that can only be described as seeking to have the court infer that Sean has been sexually inappropriate with Abygal. Once again, there was no pleading that made any reference to such conduct.

[35] Sherry testified that, on one occasion, Abygal told her that she was getting ready for bed one night at her father’s house. She had just had a bath and was in her pyjamas with no underwear on. An adult male whom Abygal said she did not know was at her father’s house and was taking pictures of Abygal in her pyjamas. Sherry testified that she found this conduct completely improper.

[36] On another occasion, Sherry was giving Abygal a massage. She stated that she liked getting a back rub and Sherry would give her back rubs. However, on this occasion Abygal was asking that Sherry rub other parts of her body and Abygal told her that her father does that.

[37] Sherry also complained that Abygal told her that her father would give her underwear to other girls in her class.

Sean’s response to the allegations by Sherry

[38] Sean testified that he may have used inappropriate discipline with the children. At times he would lightly smack them on the back of the head. He also spanked them over clothes on rare occasions. He stated that he stopped doing that when he was told by CAS this was not proper. He also agreed to take a parenting course. Sean stated that he mostly disciplined by taken items or privileges away from the children.

[39] Regarding the allegation that a strange man was allowed to take pictures of Abygal in her pyjamas, Sean state that there was nothing improper about this. A friend of his, whom he had known for over 20 years, came to his house. He had gotten into photography and was showing him his camera. Abygal came down to greet him after she had taken and bath and was in her pyjamas. My friend took a picture of her. There was absolutely nothing improper about this.

[40] In regard to the allegation that Sean gave Abygal’s underwear to other children in her class, Sean stated that, on one occasion a friend of Abygal’s had not planned on staying overnight, however, she did stay overnight. She did not have a change of clothes and Sean gave her a complete change of clothing. There was nothing improper about what Sean did in this regard.

[41] In regard to the allegation that he would give Abygal massages, Sean testified that he has always rubbed her back and her legs. He denied ever touching her front or part of her that might be considered of a sexual nature.

[42] In regard to Sherry’s allegations that he was controlling, Sean denied that he acted in a controlling manner. He stated as follows:

(a) He did not take away the password for the internet. He stated that the password was always located on a sticker on the internet box and that Sherry was well aware of this. (b) He stated that Sherry had use of and did play the Xbox and used the camera whenever she wanted. (c) He stated that he did not make Nycholas pay for the use of the internet. According to Sean he told Nycholas how much it costs and Nycholas went to get some change to give it to him. Sean stated that he took the change and put it back into the family cash jar. (d) He denied that he would only do his laundry and Abygal’s laundry. According to Sean he always did the whole families laundry. He also denied that he ever took away any part of the washer or dryer so as to make them none functional. With respect to the part of the washer shown in a picture taken by Sherry, he stated that was a filter that had to be taken out to be cleaned. At the time of that picture, he had to take it out and clean it as the washer stopped working. (e) Sean admitted that he and Sherry argued and those arguments got progressively more frequent. According to Sean, the arguments were reciprocal and at times they were either in front of the children or the children could hear them. He stated that he recognizes exposure to parental conflict can harm the children.

The Children, Nycholas (14), Matthew (13) and Abygal (8)

[43] Although the child Matthew is not the subject of these proceedings, he figures prominently in the consideration of the best interest of both Nycholas and Abygal. Nycholas and Matthew became extremely close. Abygal was treated as their younger sister and each of the children’s relationship with each other is very important to them.

[44] Sherry testified that Nycholas was a bed wetter. She claimed that Sean would denigrate him and embarrass him as a result of his bed wetting. She stated that Nycholas’ bedwetting mostly occurred when he was either with Sean or after he had been with him. This testimony, by Sherry, is another example of how Sherry was constantly attempting to paint Sean as the cause of most of the problems between them and with the children. I find that Sherry constantly distorted the reality that was taking place within the family. Dr. Moyo, Nycholas’ Paediatrician, testified that the prime cause of Nycholas’ bedwetting was congenital. It was not situational.

[45] Sean denied that he would denigrate Nycholas. He stated that he made every effort to teach Nycholas to be responsible for his bed wetting problem and when he had accidents he wanted him to either clean his clothes or bed or at least to tell someone about the accident. He stated that often Nycholas would hide soiled clothes instead of telling someone about them. According to Sean, on one occasion when Nycholas was having friends over, Sean told Nycholas to make sure his room was clean so he would not be embarrassed with his friends. Nycholas told him that he did clean things up. However, when Sean went to his room to check, the room had a horrible stench of urine. He found soiled clothes and sheets hidden. Sean denied that he would call Nycholas an “idiot” or “stupid”. He also denied that he would treat Abygal and Matthew different than the way he treated Nycholas.

[46] Sean stated that his form of discipline usually consisted of taking away such things as his Xbox or other electronics as a punishment.

[47] Sean stated that, although the relationship between him and Sherry was deteriorating by March of 2015, he urged Sherry to attend with him in counselling. At the end of March he went on a business trip to Asia and he was shocked when he got an email from Sherry indicating that she could not take it any longer and she had moved with the children to a home in Brantford.

[48] When he returned from Asia at the end of April, he immediately got in contact with Sherry and saw the children. Within approximately one week, Sherry and Sean entered into an agreement for shared parenting and a 50/50 sharing of time with the children.

[49] Sean was also completely unaware that Sherry had signed a court application on May 5, 2015 to seek sole custody of the children. She did not serve him with this application until August 24, 2015. The application did not state that the parties had agreed to a joint custody regime nor did it mention the 50 % time sharing.

[50] By the time Sherry served her application, the 50% sharing and joint custody had been in place for over 3 months. Sherry did not bring any motions before the court to change the custody agreement until November 2015. On November 19, 2015 she signed a motion and supporting affidavit for a motion returnable November 27, 2015. Despite the fact that her application sought sole custody of the children, this motion asked for an emergency hearing before a case conference and the motion requested:

An Order that the applicant mother and the respondent father shall share the care of Nycholas Damian Joseph Brown-Chandra, born April 30, 2003 and Abygal Eve Brown-Elliott, born October 24, 2008, with the older child’s having the choice as to whether he wishes to attend with either parent.

[51] At this time, the child Nycholas was 12 years old. Sherry claimed that the emergency was due to the fact that allegedly Sean was to pick up the children from school at 2:55 p.m. on October 30, 2015. She claimed that he picked up Abygal and then agreed to give Nycholas a further 30 minutes to play with his friends. She claims that she was told by Nycholas that Sean did not come back to pick him up and Nycholas called her in a panic. Sherry claimed that after the incident, Nycholas has not attended on weekend access since. She testified, at trial, that she leaves it up to the child whether or not to go on access visits. She asserted that she does not encourage or discourage the child.

[52] Sean testified that he did come back to pick up Nycholas at the time that he and Nycholas agreed to be 3:30 p.m. He returned by 3:20 p.m. and parked at the same spot he had previously. He and Abygal waited unto approximately 4 p.m. At that time he contacted Sherry by text asking her if she knew where Nycholas was. Sherry did not respond to Sean’s text. Sean stated that he then drove around with Abygal for another 15 minutes looking for Nycholas. He did not receive a response from Sherry until after 5 p.m. to advise him where Nycholas was. According to Sean, Nycholas thought the pickup was to occur at the Community Centre near the school and Sean was of the view that he made it clear it was at the parking spot that he left Nycholas at when they agreed he could play with his friends.

[53] This is another example of how, in my view, Sherry misrepresented and distorted the facts. Despite her advancing this as an urgent motion due to this event, she entered into minutes of settlement that continued to provide for shared parenting of the children and equal time with the proviso that Nycholas’ view would be considered about access from time to time.

The OCL Investigation, Report and Testimony of Barbara Dyszuk

[54] Barbara Dyszuk conducted an investigation pursuant to the Courts of Justice Act s. 112. Ms. Dyszuk is an experienced investigator with OCL. She has performed and completed many s.112 investigations, social assists, as well as acted as a social work assist in Child Protection matters. I find that Ms. Dyszuk’s investigation was thorough and her testimony was objective, fair and helpful. Sherry filed an objection to her report as she has a right to do pursuant to section 112. However, aside from certain errors that were not material to the ultimate recommendations, the OCL corrected such errors and declined to change the recommendations.

[55] I have set out the OCL recommendations earlier in these reasons. It is important to emphasize some of the significant features of the testimony of Ms. Dyszuk that were not challenged on cross examination. That material evidence is as follows:

Both Sean and Sherry are very important in the lives of all three children; Both Sean and Sherry love the children and they reciprocate in that love; The relationship of all three children, Nycholas, Matthew and Abygal is extremely important to the wellbeing of each of them. They love each other and their relationships should be continued and most importantly fostered and outwardly supported by Sean and Sherry. Each child is caught in a loyalty bind. They do not fully have the support and permission to love and enjoy a positive relationship with the other parent and each other. This is partly due to being witnesses to chronic and high conflict and partly due to the actions of Sherry vis a vis the relationship between Sean and Nycholas. Sherry, at its least, does not support and encourage Nycholas to see Sean. She simply leaves it up to Nycholas. I find that her conduct in this regard is unacceptable and not in the best interest of Nicholas. Nycholas has a significant attachment to Sean. Nycholas had not even seen his biological father until recently. Sean has been the only father he has known since age 4. Nycholas needs to have his relationship with Sean continued and supported by his mother. If Nycholas’ attachment to Sean is not continued he will have adverse and serious long term negative consequences. Most importantly, he will have difficulties in forming healthy attachments. He may also run the risk of behaviour problems and difficulties with anger issues. All of the children may need counselling resources to help them deal, manage the impact of being exposed to adult conflict between parents that they love. Nycholas needs specific counselling in order to re-establish his attachment and relationship with Sean. Both parents need their own education and counselling to learn communication techniques that will better allow for co-parenting in the manner that these children need. Both parents need counselling to be able to deal with the negative perceptions they have of the other parent and their associated emotional reactions to the other as a result of those perceptions.

[56] I agree with all of the above noted testimony of Ms. Dyszuk. I find that Sherry fabricated her claims of spousal abuse. She presented no evidence to justify her professed fear of Sean when she surreptitiously moved with the children while he was away on a business trip to Asia. She structured what she falsely characterized as a “safety plan”, in order to attempt to justify moving the children when she had decided to separate. Parents cannot take the law into their own hands, uproot the children and then ask the court to retrospectively justify what they did. If she felt such fear she should have brought a motion to the court on an urgent basis. She did not do so.

[57] I agree with the comments of Justice Shelston in Ng v Charles, 2016 ONSC 3778,

[28] The actions of resorting to self-help remedies regarding the custody of children is not to be condoned. The father should have commenced his own motion seeking judicial intervention.

[58] Sherry’s conduct in uprooting the children and then agreeing to shared parenting with equal time sharing on two occasions subsequent to that move are inconsistent with her later claims of abuse. I do not accept her claim that she entered into those agreements out of fear. I do not accept her version of incidents of physical and emotional abuse.

Custody and Access: The Law and Analysis

[59] In Todoruck v. Todoruck, 2014 ONSC 6983, Nightingale J. reviewed some of the more significant aspects of the legal considerations relating to joint custody. Commencing at paragraph 4, he stated the following:

[41] The parties have agreed to joint custody of the children in a separation agreement. In considering the application of the father, the separation agreement must be examined to determine if it is consistent with the overall objectives and values in the Divorce Act. The court must then consider what is in the best interests of the children while at the same time considering the importance of the parents’ autonomy in reaching their own agreement. Miglin v. Miglin, 2003 SCC 24; Blois v. Gleason; Heard v. Heard, 2004 ABQB 75.

[42] Although the parents’ agreement with respect to post-separation childcare arrangements are entitled to great weight, the court is not bound to give effect to the custody agreement if the agreement does not promote the child’s best interests. L.(A.) v. K.(D.), 2000 BCCA 455 and L.(A.) v. K.(D.), 2000 BCCA 633.

[43] As a practical matter, a parent who has agreed to a child care arrangement should be prepared to explain why what he or she felt was appropriate earlier on is no longer appropriate. Summers v. Summers [1999] O.J. No. 3082. In essence, a parent who seeks to overturn a reasonable custodial access agreement entered into at the time of separation should be prepared to prove the agreement is no longer reasonable and how his or her proposed arrangement better meets the best interests of the children.

[44] One of the factors under s. 16 (10) of the Divorce Act the court must consider is that the children should have as much contact with each other as is consistent with their best interests. The applicant father believes he is “entitled” to or “deserves” equal time with the children but the only test under the Divorce Act is the best interests of the child. Parental preferences and “rights” play no role in the issue of custody and access and despite the maximum contact principle, contact is to be restricted if it conflicts with the child’s best interests according to the evidence of the case viewed objectively. Young v. Young.

[60] I agree with the considerations that are set out above. In this case, the parties agreed to a joint custody arrangement shortly after separation. This agreement that is set out above included an equal sharing of the time for the children Nycholas and Abygal with both parents. The agreement was entered into at the beginning of May 2015. That regime was kept in place until December 11, 2015. At that time, although there were changes to the actual days in which the children resided with each parent, the joint custody remained and the equal time sharing also remained. Despite the two agreements of the parties, I find that Sherry consistently attempted to interfere in Sean’s relationship with the children. She made numerous false allegations to the Children’s Aid Society. She also conducted herself in such a manner that caused a wedge to be placed between her biological son, Nycholas and his step-father Sean. Nycholas started to reduce his contact with Sean in the fall of 2015 and has since that time stopped seeing Sean altogether.

[61] That wedge placed by Sherry between Nycholas and Sean has complicated the relationships between Nycholas and his sister, Abygal and his step-brother, Matthew. All of these relationships are important to each child and must be fostered. Nycholas is only 13 years old. Promoting his relationship with his stepfather Sean is central to the promotion and continuation of his relationship with his stepbrother Matthew and his sister Abygal. Sherry has made the promotion of that relationship even more difficult by re-introducing Nycholas’ biological father, Chandra back into his life since the separation between Sean and her. I am not critical of Mr. Chandra having a relationship with his son Nycholas. However, that relationship should not be at the expense of Nycholas’ relationship with his siblings and his step father Sean. All of those relationships are important to Nycholas and it is in the best interest of all of the children to continue these relationships.

[62] I find that Sherry has not demonstrated that she can put the best interests of the children before her interests. If she were given sole custody of Abygal, it is likely that Abygal will also be negatively influenced against her father in the same manner as Nycholas has been.

[63] My order treats, as a priority, the need to allow all three children to continue their relationships with each other; allow for Nycholas to reintegrate with Sean and maximize a positive relationship with each parent and all of the children.

[64] My order is as follows:

[65] Sean shall have custody of the child Abygal;

[66] Access to the children shall be structured in a manner to allow for the children, Abygal and Matthew to have their weekends at Sean’s house when Matthew has his weekends at Sean’s house.

[67] On the alternate weekends that Abygal and Matthew are not with Sean, Abygal shall be with Sherry from after school until Sunday evenings at 7 p.m.

[68] The parents shall engage the services of a child counsellor for Nycholas in order for Nycholas to re-establish his relationship with Sean. Each parent shall cooperate with the counsellor and attend any sessions requested by the counsellor in order to advance this goal.

[69] Each parent shall encourage Nycholas to attend access at Sean’s house when Abygal and Matthew are with Sean on the weekends.

[70] Each parent shall encourage Matthew to attend access at Sherry’s house when Abygal and Nycholas are with Sherry.

[71] Each parent shall make themselves available to the child’s counsellor in order to promote the reintegration of Nycholas and Sean.

[72] The costs of such counselling shall be shared equally by the parents.

[73] Sean shall engage in counselling in order to deal with is emotional reactions to Sherry and to improve his ability to communicate with Sherry as a parent.

[74] Sherry shall engage in counselling in order for her to deal with her emotional reactions to Sean and improve her ability to communicate with Sean as a parent.

Child Support

Income of the parents

[75] Sean’s income was $152,747 as shown on his 2015 tax return. He testified that he is not making as much and probably will end up making approximately $145,000. He gave no justification for such a drop in income. I impute income to him at $152,747. He is employed at Sunlife Financial and he works largely out of his home.

[76] Sean submits that Sherry is underemployed. She works at Walmart in Cambridge and earns and income of approximately $23,000 annually. Sean argues that Sherry was educated and trained as a, Environmental Technician. He states that she could be earning in the area of $80,000 per annum. However, he did not present any evidence with respect to the amount of income an environmental technician’s average income would be in today’s market. He did present a copy of a web site survey that demonstrated an environmental technician in waste and water management in Ontario California could make in the area of approximately $52,000 annually United States Dollars. That evidence is of little assistance to me.

[77] Sherry testified that she would have to go back to school in order to upgrade. She also submitted web site entries of water treatment environmental jobs, requirements and possible earnings. According to Sherry, the potential for income if she were working in the environmental tech field would be in the range of $50,000 to $60,000 per annum. She agreed in cross examination that working at Walmart was not working at a level consistent with her education and training. She also agreed that her goal is to work in the E-Technology field. Until this trial she has made no effort to retrain or seek out employment in the field she was educated and trained in.

[78] In addition to income she could receive in her field, she earns an additional amount form WSIB. This amount is $6,500 annually and increases by 5 percent per annum.

[79] I find that Sherry is underemployed and has chosen to be underemployed since the date of separation. I impute income to her in the amount of $55,000 form employment and an additional $6,500 for WSIB for a total annual income of $61,500, as of April 2015.

[80] Sherry has never paid support for Sean’s son Matthew. Sean has paid child support for the children Abygale and Nicholas pursuant to an interim without prejudice Order pursuant to minutes of settlement of the parties signed December 11, 2015. At that time, the parties had a shared parenting arrangement with the children residing with each parent on a roughly equal time sharing basis. The support that Sean paid was based on his income or $152,747 and Sherry’s income of $22,845. Her WSIB income was not disclosed when the interim order was made. In addition, Sherry did not disclosed that she had been receiving a further sum of child support from Mr. Chandra in the annual amount of $2,568. There are no arrears under this order.

[81] The biological father of Nycholas is Damian Chandra. Mr. Chandra was ordered to pay to Sherry child support in the amount of $216 per month in 2004. That would mean that the income accepted in 2004 for Mr. Chandra would have been approximately $20,200. According to Sherry, Mr. Chandra had a stroke in or about 2015 and is on disability. Mr. Chandra did not testify and Sherry did not have any information as to his income.

[82] Sean pays child support for his son Matthew in the amount of $1,208 per month.

[83] Sherry admitted that she never applied to the court or sought an agreement from Mr. Chandra in order to get an increase in support for Nycholas. She also stated that although there were no arrears of support, Mr. Chandra often did not pay regularly.

Entitlement for Support; the Child Nycholas

[84] Sean takes the position that Nycholas has essentially “shunned” him since December 2015. He seeks an order terminating the support for Nycholas as of the end of December 2015. I am not prepared to find that Nycholas has withdrawn for parental control. I find that Sherry has been the main cause of the estrangement between Nycholas and Sean. however, I am not at this stage prepared to give up on what was a very positive relationship between Nycholas, and Sean, Matthew and Abygal.

[85] In Caterini v. Zaccaria, 2010 ONSC 6473, Justice Pazaratz dealt with the issue of a father who sought to terminate support of an adult child who the father alleged was estranged from him by his mother. Justice Pazaratz in Caterini sited Whitton, J. as follows:

The father had appealed the dismissal of his action for a declaration that an adult daughter had ceased to be a child of the marriage. In dismissing his appeal, Finlayson J.A. commented starting at paragraph 8:

...The most troublesome issue is the attitude of the daughter to her father. At age 22 she should have the maturity to deal with her father directly to help him in discharging his legal and parental duties to assist in her education. We are told that Joanne and her father had a very close relationship which was not disturbed by the break-up of the marriage and the remarriage by the father. The reasons given for her refusal to communicate with him now are vague. It is to be noted that the separation agreement expressly provides for joint involvement by both parents in the education of both children of the marriage and yet the appellant father has not been consulted by either his former wife or Joanne on this most important matter which is the heart of the respondent wife's claim that Joanne is "unable ... to withdraw herself from their charge ..."

9. However, after reviewing all the other considerations reflected in the material before this court, I am satisfied that Joanne still falls within the definition of "child of the marriage" in the separation agreement. If she continues to refuse to engage in any sensible discussion with her father on the matter of her future education, the appellant's only recourse would be to pursue a parallel proceeding, already instituted, to have the quantum of her maintenance reviewed by the court…

[86] In this case, the child is only 14 years of age. As stated earlier my order seeks to preserve the relationships that were clearly important and in all of the children’s best interests until the end of 2015. I find that Nycholas is a dependent child. At this stage, child support is owed by both Sean and Nycholas’ biological father, Mr. Chandra.

[87] I can only make an order based on the evidence before me. For child support purposes I make the following findings given the evidence before me:

[88] Sean’s income $152,000 annually;

[89] Sherry’s income imputed at $40,000 annually.

[90] Sean has custody of Abygal.

[91] Sherry has custody of Nycholas.

[92] Sean pays child support for Matthew in the amount of $1,208.00

[93] Sherry receives child support from Mr. Chandra for Nycholas in the amount of $214 per month.

[94] Justice Belch considered circumstances similar to the circumstances in this case in the case Stadig v. Stadig, 2013 ONSC 7334.

[95] In that case, the payor father was paying child support to a biological child from another marriage. In addition, a payor father of a child that was in loco parentis to the payor father in this case paid child support to that child. Under the circumstances, Justice Belch reduced the father’s income by the support he paid to his biological child and reduced the guideline amount the payor father would have to pay by the amount being paid by the other father. I agree with this approach.

[96] The resulting adjustments are that Sean’s income is reduced by $1,208.00 per month. This results in an income for support purposes to be $ $135,704. Based on that income the guideline amount for the child Nycholas is $1,167 per month. However, the base amount under the circumstances is not appropriate given the fact that the child’s biological parent is paying support in the amount of $214 per month. Therefore the amount of child support for the child Nycholas shall be $953 per month.

[97] The child support payments set out above shall commence June 1, 2017.

[98] Section 7 expenses shall be paid in the ratio of 73.5 per cent by Sean and 26.5 per cent by Sherry.

[99] The issue of custody, access and child support back for a review to this court in 6 months. The purpose of the review is to determine the impact of the counselling on the custody and access of all of the children.

[100] The child support may be reviewed in 6 months. This review should consider up to date financial information with respect to Mr. Chandra, Sean and Sherry and the custodial arrangements at that time.

[101] Sherry has a duty to maximize her earning capacity. I find that she has not done so to date. She must also seek disclosure of Mr. Chandra’s present income in order to determine the proper ratio of support he should be paying toward Nycholas.

Support entitlement of Sherry

[102] The parties cohabited for a period of approximately 7 years. They have one child from their relationship. I accept the evidence of Sean that both he and Sherry parented the children during their cohabitation on an equal basis. Sean worked substantially from home and was available for the children when Sherry was not available.

[103] The parties never pooled their resources. They never had a bank account with each other and the only savings they had were RESPs for Abygal and Nycholas. They kept their finances as separate as they could. Each party was supposed to be responsible for an equal contribution to the living costs. Although that was the goal, Sherry did not contribute her share. This became one of the contentious points between the parties and Sean kept an accounting of what was owed by Sherry.

[104] I find that Sherry has not demonstrated that she is entitled to spousal support. In Peters v. Peters, 2015 ONSC 4006, Justice Gorman provided a comprehensive review or the law relating to spousal support entitlement. Commencing at paragraph 25 she states:

[105] 25 The Supreme Court of Canada significantly clarified the law relating to entitlement to spousal support in the seminal cases of Moge v. Moge, [1992] 3 S.C.R. 813 and Bracklow v. Bracklow. Those cases provided a general framework within which the various factors relevant to entitlement to spousal support should be analyzed by establishing three general models for entitlement : compensatory grounds, non-compensatory "needs based" grounds and entitlement based on contractual or consensual considerations.

[106] 26 The fundamental principles set out in Bracklow are as follows:

[107] a. The presumption in marriage is that spouses owe each other a mutual duty of support. The court emphasized, however, that this premise of mutual support is rebuttable; parties to a marriage may alter this presumption, either through explicit contracting or "through unequivocal structuring of their daily affairs, to show disavowal of financial interweaving." 21

[108] b. When a marriage breaks down, the presumption of mutual support no longer applies. However, there is no "judicially created statute of limitations on marriage." McLachlin, J. emphasized that "marriage...is a serious commitment, not to be undertaken lightly. It involves the potential for lifelong obligation. There are no magical cut-off dates." 22

[109] c. Section 15.2(6)(c) of the Divorce Act broadens the right to spousal support beyond situations where a party has suffered losses or disadvantages that are causally connected to the marriage, and recognizes that entitlement may exist where the breakdown of the marriage in itself has caused economic hardship. In discussing this issue, the court clarified that this provision encompasses situations where "a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it."

[110] d. Marriage does not in and of itself automatically entitle a spouse to support.

[111] "To hold otherwise would swing the pendulum too far back and completely ignore the independent, clean-break model of marriage." 24 The court stressed that it is not the bare fact of marriage so much as "the relationship that is established and the expectations that may reasonably flow from it [emphasis added] that give rise to the obligation of support under the statutes." 25

[112] e. Contract and compensation are not the only sources of a spousal support obligation. "The obligation may alternatively arise out of the marriage relationship itself." 26 However, the court added that where a spouse achieves economic self-sufficiency on the basis of his or her own efforts, or by means of a compensatory support order, "the obligation founded on the marriage relationship itself lies dormant."

[113] f. Where need is established that is not based on compensatory or contractual grounds, "the fundamental marital obligation may play a vital role. Absent negating factors, it is available, in appropriate circumstances, to provide just support." 27

[114] g. The court did not specifically elaborate on the "negating factors" that would preclude a finding of spousal support entitlement in non-compensatory cases, or conversely on "the appropriate circumstances" that would give rise to a finding of entitlement. However, in discussing the issue of non-compensatory support in the context of the facts in Bracklow, the court emphasized the importance of analyzing the nature of the parties' relationship during the marriage, and in particular to determine whether there was any evidence as of the separation date to rebut the presumption of mutuality and interdependence in the parties' relationship. The court emphasized the importance of starting this analysis using the correct judicial lens, with the presumption of interdependence between the parties. McLachlin, J. noted that although the Bracklows’ were relatively financially independent at the outset of their marriage, by the end of the marriage they had established an interdependent relationship. It was on this basis that the court determined that Mrs. Bracklow was in state of economic hardship resulting from the breakdown of the marriage as contemplated by section 15.2(6) (c) of the Divorce Act.

[115] h. It follows from this reasoning that if there was evidence that the parties' relationship was not characterized by interdependence and mutual reliance during the period leading to the marriage breakdown, this would be a relevant factor that could lead the court to conclude that the spouse claiming support did not suffer economic hardship as a result of the marriage breakdown.

[116] i. In determining the issue of entitlement, the court emphasized the point established in Moge that all of the objectives set out in section 15.2(6) must be considered, with no one objective being paramount. Therefore, the objective of promoting self-sufficiency with a reasonable period of time is always a consideration.

[117] j. In cases involving spouses who become disabled toward the end of the marriage, where no compensatory or contractual claim for support exists, it may be unfair to the other spouse to order support on an indefinite basis. The court left open the possibility that spousal support could be time limited, even if the disabled spouse will not be able to achieve self-sufficiency. It should be noted that on the re-hearing of Bracklow, 28 the court ordered five years time limited support despite the fact that the wife would never be able to support herself adequately on her own.

[118] I find that in this case there was little to no financial interweaving of the financial affairs of Sean and Shelly. They structured their union in such a manner as to emphasise independents. As a result there is no entitlement to spousal support.

145 Willow St., Paris, Ontario

[119] When the parties started to cohabited, they resided in a home at 42 Glanlaw, in Cambridge Ontario. That property was in Sean’s name alone.

[120] Sean sold that residence in Cambridge and purchased a property know as 145 Willow St in Paris Ontario in November 2010. That property was purchased for $304,500. A Home Line Mortgage was placed on the property in the amount of $240,000. Sean put down the sum of $65,000 to make up the balance of the purchase price. At the time of the purchase, Sherry owned a condo in the Hamilton area. She ended up selling that property and also had some money form a law suit. Her total savings were approximately $80,000.

[121] According to Sean, he gave her money to do some repairs on her condo and helped her make some payments for the carrying costs until the condo was sold. Sherry was to contribute equally to the costs of the Willow St. property as the title was taken in joint tenancy. Sean stated that he was getting worried as Sherry was not contributing and he discussed with her the costs and what she owed to him. Sherry paid him $20,000. According to Sean $7,000 was for the amounts of money he put into her condo and the balance of $13,000 was all the money Sherry put into the Willow Street property.

[122] Sean claims that Sherry did not contribute to the costs of the home since she stopped working outside of the home in 2009. Since April 2015 Sean has paid for all of the costs of that home. In addition he renovated that property. He put on a new roof, completely upgraded the electrical system, and did all the necessary maintenance and repairs and landscaping. Sherry did not contributed to such expenses. He also paid down the mortgage since separation by approximately $44,000.

[123] I accept Sean’s evidence that Sherry did not contribute to the costs of the Willow St. property since she stopped working outside of the home in 2009.

[124] Although Sean paid a significant amount of money into the home without being compensated for it by Sherry, title to the home was placed in joint tenancy.

The Law and Analysis

[125] In Pecore v. Pecore, 2007 SCC 17, the Supreme Court of Canada discussed the law of resulting trusts. Rothstein J. stated, at para. 24:

[126] [W]here a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters' Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110. This is so because equity presumes bargains, not gifts.

[127] To establish the requisite intention to gift, or animus donandi, it must be shown that the transferor intended to part with the property and did not intend to reserve to himself or herself the ultimate right of disposal: Fleet Estate v. Davies, 2009 ABCA 376. The transferee must prove on a balance of probabilities the intention of the transferor at the time of the transfer: Pecore, para. 43.

[128] In Pecore v. Pecore, 2007 SCC 17, the Supreme Court of Canada discussed what the Court can consider in determining the intention of the transferor. Rothstein J. stated, at para. 55:

[129] Where a gratuitous transfer is being challenged, the trial judge must […] weigh all the evidence relating to the actual intention of the transferor to determine whether the presumption has been rebutted. It is not my intention to list all of the types of evidence that a trial judge can or should consider in ascertaining intent. This will depend on the facts of each case.

[130] Applying the law to this case, I find that Sean and Sherry intended a bargain and not a gift. Sean set out the expectation that he would be repaid his down payment and all other major renovations and repairs would be shared. Sherry repaid some of the down payment. However, she did not contribute to the payment of the mortgage and other repair and renovations costs. I find that Sherry is entitled to the money that she did contribute. I find that her total contribution was $ 13,000 out of this property.

[131] If counsel can’t agree on costs, they may arrange with the trial co-ordinator for a date and time for submissions of those costs to be heard orally. A summary of the costs to be submitted 1 week in advance of that date and to be no longer than 5 pages in length.

Harper, J. Released: September 14, 2017