COURT FILE NO.: FS-17-00416623
DATE: 20180509
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mary Elizabeth Gallivan
Applicant
– and –
Ronald Charles Rodgers
Respondent
Melanie A. Larock, for the Applicant
Appearing on his own behalf
HEARD: March 19-23, 27-29, 2018
C. gilmore, J.
trial judgment
OVERVIEW
[1] This trial focused mostly on what parenting arrangement was in the best interests of the parties’ only child, Tierney Julia Rodgers (“Tierney”), born December 29, 2006 and now aged 11.
[2] The applicant (“the mother”) alleges that the respondent (“the father”) undermines her parenting and that his failure to adequately recognize the importance of her relationship with Tierney will lead, over time, to alienation. The father denies any allegation of alienation. Contrary to the mother’s allegations, the father’s position is that he is fully supportive of Tierney’s relationship with her mother. He is very close to his daughter and has developed a supportive and nurturing relationship with her. He states that he and Tierney have become even closer since his retirement in 2013.
[3] Both parties put forward a parenting plan. The mother’s plan aligns with the recommendations of Mr. Howard Hurwitz (“Mr. Hurwitz”). Mr. Hurwitz, as the court appointed assessor, gave expert evidence at trial and prepared a section 30 assessment dated November 6, 2017.
[4] The father does not accept Mr. Hurwitz’s recommendations, the result of which would reduce his current parenting time and give sole custody to the mother.
[5] The other issues for adjudication in this trial are the father’s entitlement to spousal support, retroactive and prospective child support and section 7 expenses, the father’s income for support purposes, a divorce, and costs.
[6] The issues related to the sale of the matrimonial home and the equalization of the parties’ net family property were resolved prior to trial. The settlement requires the mother to pay the father an equalization payment of $100,000 from her share of the sale proceeds of the matrimonial home.
[7] The father represented himself throughout the trial. The father was never at any disadvantage as a result of his lack of counsel. He was articulate, well prepared and respectful to counsel and the court.
FACTUAL BACKGROUND
[8] The parties separated on February 17, 2017 after 11 years of marriage. The mother left the matrimonial home on the date of separation and did not return. The jointly-owned matrimonial home at 61 Lynngrove Avenue (“Lynngrove”) has been sold and the sale will close on June 1, 2018. The father has remained at Lynngrove on his own since separation.
[9] The mother is 53 years old. She works full time for Rogers Communications as a leasing specialist and earns approximately $94,000 per year. The mother stayed at home for six years after Tierney’s birth.
[10] The mother was diagnosed with dyslexia when she was 15 years old. Her work accommodates her learning disability. Tierney is also dyslexic and was diagnosed in 2014. The parties have worked hard to ensure that Tierney has the accommodations she needs to work around her learning disability. Tierney’s last report card was excellent. It is clear that her parents’ efforts and her own have paid off.
[11] The father is 67 years old and was trained as a lawyer. He worked in various law-related roles including as a prosecutor for the Ontario Securities Commission and general counsel for Citibank Canada. In 1990 he began to work as an investment advisor with BMO Nesbitt Burns and became the Vice-President of Financial Planning. He retired in February 2013 and has stayed home full time since then, other than taking several lengthy trips to Italy, Peru and Ecuador.
[12] The father’s income for support purposes is in dispute. The father’s position is that his only source of income is from OAS and CPP, which total approximately $20,000 per year. His income from those sources in 2016 was $23,392 and in 2017 it was $20,055. He seeks spousal support on both a compensatory and non-compensatory basis.
[13] The mother seeks to impute income to the father of $106,000 to $114,000 per year depending on which of her proposed income scenarios is used. The father was earning this amount and much more when employed. He saved aggressively during the marriage by way of RRSP contributions. The mother’s position is that, given the father’s age, he should be drawing on his RRSPs and other investments thereby making their incomes approximately equal. She resists the father’s claim for compensatory support and denies that he was ever Tierney’s sole caregiver or primarily responsible for household tasks.
[14] According to the consent order dated April 7, 2017 the mother is to pay 83% of the section 7 expenses for Tierney. There is a dispute about whether some expenses properly relate to the order, but the mother recently paid the father $2,638.06 to reconcile the expenses. The mother’s position is that she should not have to pay such a large proportion of section 7 expenses as income should be imputed to the father.
[15] Tierney is the parties’ only child. She is 11 years old and attends Grade 6 at John G. Althouse Middle School (“Althouse”). Tierney plays piano and swims competitively. She does well in school. By all accounts, she is an engaging child who has two devoted and loving parents. However, the conflict between her parents has significantly affected her and she has been in counseling with Eyglo Thorlaksdottir since May 2017.
[16] The mother commenced this application on March 27, 2017. She did so as a result of what she alleged was resistance from the father with respect to access and various threats she alleged he made that she would never see Tierney again after she left Lynngrove. At the first Case Conference date on April 7, 2017, the parties agreed to a 2/2/3 shared parenting schedule. This schedule has continued other than the summer vacation schedule in 2017.
[17] The parties agreed to appoint Mr. Hurwitz to do an assessment under section 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). The assessment started in June 2017 and a disclosure meeting was held on September 27, 2017. The full report was provided to the parties on November 6, 2017. In short, the report recommends sole custody to the mother. The access recommended by Mr. Hurwitz would result in the father seeing Tierney less than he does now. The mother agrees with Mr. Hurwitz’s recommendations. The father does not. He seeks joint custody and a continuation of the current parenting arrangement.
The Positions of the Parties
[18] The mother seeks sole custody of Tierney. She does so on the basis that the father has attempted to marginalize Tierney in her life since separation. She cites several examples of this including the following:
- The father intentionally delayed the commencement of the assessment and Tierney’s counselling. With respect to the assessment, the father took 20 days to approve the retainer letter after six written requests from the mother’s counsel. He only consented to the assessment after the mother’s counsel threatened a motion.
- The father provides Tierney with access to litigation-related material including emails, correspondence, and the assessor’s recommendations.
- The father picks up Tierney after school when it is the mother’s parenting time and despite the mother having arranged after school care for Tierney.
- The father attends Tierney’s extra-curricular activities on the mother’s parenting time and insists on interacting with Tierney, which creates problems.
- The father attends at the mother’s residence on her parenting time with Tierney and excessively calls, emails and texts Tierney when she is with her mother.
- The father is aggressive and has sworn at the mother in Tierney’s presence.
- When Tierney was ill on Labour Day weekend 2017, the father refused to permit contact between Tierney and the mother when it was the mother’s parenting time.
- Tierney rarely communicates with her mother while in her father’s care.
- The father has resisted and, at times, refused to pay his share of the assessment fees despite having signed a retainer committing him to do so and two subsequent court orders requiring him to do so.
- Tierney has been unduly influenced by the father who has put her in the middle of the parental conflict. Tierney has reacted angrily to the mother, claiming at times that she does not wish to see her or spend overnights with her. After reading the assessor’s recommendations on her father’s computer, Tierney wrote in her journal that she hated her mother. Tierney told Mr. Hurwitz that she had the password for her father’s computer.
- The father insists that Tierney should be consulted around many issues and decisions thereby creating anxiety for Tierney and negatively influencing her relationship with her mother.
[19] The mother’s position is that shared parenting and joint custody cannot work. She recites several reasons for this including the following:
- The father has an anger management problem for which he has failed to obtain adequate treatment.
- The father frequently subjected the mother to bullying and verbal abuse during the marriage, often in front of Tierney. This included belittling the mother because of her dyslexia.
- The parties cannot effectively communicate regarding Tierney because the father is intimidating, controlling and dismisses the mother’s concerns about Tierney.
- Between the date of separation (February 17, 2017) and the date of the commencement of the shared parenting schedule as per the April 7, 2017 court order (a period of seven weeks), the father ignored the mother’s requests to establish a parenting schedule both directly and through counsel and dictated terms of access.
- The father has breached the terms of the April 7, 2017 consent order by discussing the litigation with Tierney, denigrating the mother to Tierney, not encouraging Tierney to communicate with her mother while in her father’s care, and not respecting the mother’s parenting time after school and during extra-curricular activities.
- The parties could not agree on a summer schedule or a school for Tierney for September 2017. The mother was forced to bring a motion on both issues as the father was seriously restricting her summer access time with Tierney and refusing to agree to the mother’s reasonable choice of school for September 2017.
- At the parties’ joint meeting with the assessor, the father acted in an angry and abusive way towards the mother. The assessor found that the father cannot control his contempt for the mother around Tierney and this is a risk factor with respect to undermining Tierney’s relationship with her mother.
- The father believes that his retirement gives him preferential status with respect to the residential schedule and the right of first refusal.
- The father’s plan of care was focused on his needs and not those of Tierney.
- The father has failed to pay court costs and to reimburse the mother for assessment fees paid to Mr. Hurwitz on behalf of the father. The father shows contempt for the court process.
[20] The mother is in agreement with the recommendation of Mr. Hurwitz at pages 71 to 86 of his report including the parenting schedule and holiday access.
[21] With respect to the financial issues, the mother submits that the father ought to be depleting his capital saved for retirement. She seeks to impute to him an annual income of $109,000, which is a combination of his annual pension income, withdrawals from his RRSP and a return on his capital.
[22] The father should pay child support to the mother based on his imputed income and Tierney residing with the mother for the majority of the time. His proportionate share of section 7 expenses would be in the range of 53%.
[23] The mother rejects the father’s argument that any payment of support to her would be “double dipping” because the parties’ assets have been equalized. The mother’s position is that double dipping principles do not apply to the payment of child support.
[24] The mother’s position is that the father has no entitlement to spousal support as he is economically self-sufficient and was throughout the marriage. In any event, his imputed income exceeds that of the mother.
[25] The father’s position is that the equal access schedule has worked well and that the status quo is in Tierney’s best interests and should stay in place. The father submits there is significant evidence to support that the parties have cooperated effectively regarding Tierney’s affairs, activities and access to both parents. The arrangement should continue.
[26] The father rejects the assessment report on the following grounds:
- The assessor drew inferences and conclusions for which there was no factual basis.
- The assessor failed to corroborate or make relevant enquiries with respect to key evidence that did not support his conclusions.
- The assessor drew contradictory conclusions.
- The assessor drew unwarranted conclusions with respect to the parties’ plans of care.
- The assessor failed to arrange or conduct certain testing to corroborate his inferences and conclusions.
[27] With respect to the financial issues, the father’s position is that the parties agreed he would retire in 2013 in order to allow the mother, who had stayed home with Tierney for six years, to pursue her career. They agreed that the father would stay home and care for Tierney full time.
[28] The mother has made no child or spousal support payments to the father since separation. His position is that he should not have to draw on his registered investments until required to by law. Requiring him to pay support would offend the “double dipping” principle as the mother has relied on the father’s registered assets to reduce the equalization payment owed to him.
The History of the Litigation
[29] After the mother issued her application in late March 2017 an early Case Conference was booked for April 7, 2017. The parties were able to agree on a number of issues, which resulted in the consent order of Wilson, J. dated April 7, 2017 (“the April 7 order”). Some notable issues agreed to at the conference included the following:
- An agreement that Tierney would go to counseling with Ms. Thorlaksdottir and that neither party would discuss the litigation with Tierney;
- The parties would share Tierney’s section 7 expenses for swimming, piano, tutoring and counseling with the mother paying 83% and the father paying 17%;
- Parenting time with Tierney would be shared on a 2/2/3 schedule commencing April 9, 2017;
- The parties were permitted to attend any of Tierney’s extra-curricular activities, but were required to respect the other’s parenting time and communicate only about logistics if necessary; and
- The mother is owed a credit of $12,500 for her share of funds withdrawn by the father from the parties’ line of credit.
[30] By way of consent order dated May 24, 2017 the parties agreed to appoint Mr. Hurwitz to conduct a section 30 assessment. The costs of the assessment were to be shared equally and subject to re-apportionment by the court or an agreement by the parties.
[31] The mother brought a motion for holiday time with Tierney during the summer of 2017. She also sought an order for Tierney to attend John G. Althouse Middle School (“Althouse”) in September 2017, as the parties had been unable to agree on where Tierney should attend middle school.
[32] The motion was originally returnable on July 25, 2017 but was adjourned to August 15, 2017. On that date the court ordered that Tierney attend Althouse and set out a parenting schedule for the balance of the summer, which allowed the mother some consecutive time with Tierney in August 2017. The father was ordered to pay the mother $4,000 within seven days. This amount represented reimbursement for a portion of Mr. Hurwitz’s retainer paid by the mother when the father failed to pay his share. The father brought a cross-motion seeking to dismiss the mother’s motion requiring him to pay any further amounts to Mr. Hurwitz or alternatively that he pay his proportionate share of such fees, which would be 17%. The father also sought retroactive and ongoing child support in his cross-motion but he did not pursue that relief.
[33] On August 30, 2017 the parties attended a further Case Conference. An order was made by Low, J. on August 30, 2017 that required that the father produce certain disclosure and pay the $4,000 he was ordered to pay on August 15, 2017, which remained outstanding. A Settlement Conference took place on December 18, 2017 at which time a trial date was set and an agreement on Christmas holiday access reached.
[34] There remained an outstanding issue with respect to the father’s default in the payment of Mr. Hurwitz’s fees prior to trial. The mother was given leave to bring a motion regarding unpaid fees notwithstanding that the matter had been set down for trial. That motion was heard on February 20, 2018. The mother submitted that the father still owed her $2,781.16 by way of reimbursement for fees paid to Mr. Hurwitz on his behalf. In addition, Mr. Hurwitz required a further $11,752 from both parties for trial preparation and attendance.
[35] Stevenson J., in her endorsement of February 20, 2018, referred to the orders of both Wilson J. and Chiappetta J. in which the father was ordered to pay for half of the assessment. She also referenced the father’s assets and ability to pay. The father was required to reimburse the mother and pay his share of Mr. Hurwitz’s fees. He was further ordered to pay costs to the mother of $4,000. As of the last day of trial, those costs remained outstanding. The father paid Mr. Hurwitz’s trial retainer of $11,752 just before trial. The $2,781.16 paid to Mr. Hurwitz by the mother on the father’s behalf remains owing to her.
The Mother’s Pre-Trial Motion
[36] The mother brought a motion returnable on the first day of trial. She sought to amend her application to seek sole custody. Her original application sought joint custody. Given the assessment report recommendations and issues that had occurred since the issuing of the her original application, the mother no longer felt that joint decision making was feasible. The father consented to this amendment but only on the first day of trial.
[37] Next the mother sought to strike the father’s Answer and Claim save and except for the relief related to custody and access. The mother submitted that the father was in breach of certain paragraphs of the orders of Stevenson, Low and Goodman, J. with respect to court costs, reimbursement to the mother for Mr. Hurwitz’s fees, and disclosure.
[38] The mother also sought costs for the motion and a financial sanction of $10,000 pursuant to section 1(8) of the Family Law Rules.
[39] The father’s position was that he had provided all of the disclosure requested. As for the court costs and the amounts owed to the mother for Mr. Hurwitz’s fees, he undertook to pay those from the house sale proceeds.
[40] Notwithstanding the father’s insistence that he had already provided the disclosure requested, he was unable to provide any real proof to the court that he had done so. Ultimately, he provided what he called second copies of the materials. He produced those copies on March 21, 2018. The father filed no responding materials to the motion.
[41] The balance of the relief sought by the mother will be dealt in the context of the cost orders resulting from this decision.
The Section 30 Assessment Report
[42] In his Answer and Claim, the father did not agree to the appointment of an assessor. Ultimately he changed his view and was the one who proposed Mr. Hurwitz. The mother alleges the father delayed the start of the assessment by not signing the retainer letter. The father agreed that his lawyer, at the time, received five letters from the mother’s counsel asking for a response on the retainer issue before it was finally signed on May 24, 2017.
[43] Mr. Hurwitz is a well-respected and experienced clinical assessor who testifies in court frequently with respect to his section 30 assessments. His qualifications in this trial were not contested, and, given his curriculum vitae (exhibit 56), it would have been surprising if had they been. Mr. Hurwitz has been in private practice since 2004 and has completed some 75 assessments since then.
[44] Mr. Hurwitz’s report dated November 6, 2017 as well as his entire file were made available to the parties before and at trial. He was the court’s witness and cross-examined by both parties.
[45] Mr. Hurwitz conducted several individual interviews with each party. He also conducted a home and office observational visit with Tierney and each party and a joint interview with both parties. Mr. Hurwitz conducted telephone interviews with eight personal collateral contacts and six professional collaterals. Documents reviewed by Mr. Hurwitz included each party’s Intake Questionnaire, Plan of Care, Dr. Bresver’s psycho-education report, school reports and legal and email documentation from the parties.
[46] After completing his interview and reviewing the relevant documents, Mr. Hurwitz made several significant findings, most of which were contested by the father. The relevant findings can be summarized as follows:
- The mother is frustrated by her inability to communicate with the father. She is apprehensive of being in the same room as him and shuts down when the father denigrates her.
- The mother has strong and child-centered parenting skills. Her learning disability is not a barrier and should not limit her time with Tierney.
- The mother’s plan of care was reasonable and child-focused. She has a good understanding of her daughter’s needs and is committed to shielding her from parental conflict.
- The father is very devoted to his daughter but his lack of social relationships means that his reliance on his relationship with Tierney is intense.
- The father believes that Tierney should be consulted about issues and decisions that relate to her. He does not want Tierney to be forced to do something she does not want to do. This has created anxiety for Tierney as she has learned about her parents’ disagreements by the father permitting access to litigation-related material on his computer.
- The father is hypercritical of the mother. This was particularly evident in his intolerance of the mother’s learning disability. He felt that this condition should strip her of any parenting abilities and rights.
- The father presents information in an arrogant and self-righteous manner. His inability to control his contempt for the mother contributes to his undermining of Tierney’s relationship with her mother and explains why Tierney says she wants to spend more time with her father.
- At the joint meeting in August 2017 the father was angry and abusive towards the mother. He scolded her and pointed his finger at her during the meeting.
- Certain behavior demonstrated by the father is problematic including his abusive behavior towards the mother on the Labour Day weekend in 2017 and his insistence on picking up Tierney after school during the mother’s parenting time despite the mother’s request that he not do so.
- The father has not demonstrated any capacity or willingness to jointly parent with the mother. Although he is very nurturing towards Tierney and they are closely bonded, this close relationship is being used to marginalize Tierney’s relationship with her mother.
- The father’s plan of care was not realistic and was more focused on his own needs rather than what was in Tierney’s best interests. He fails to recognize the value of the mother in Tierney’s life.
- The father lacks insight into the dynamics of the parties’ post-separation relationship while the mother has a greater awareness of this.
- The most troubling variable in this family situation is the father’s need to involve and share adult information with Tierney.
- The father was challenging and suspicious of the assessment process. He often asked the assessor to repeat things previously discussed at length and spent inordinate amounts of the allotted time discussing his concerns about the mother’s dyslexia.
- The parties’ personalities prevent a joint custody regime. Such a regime would be harmful for Tierney as it would delay decision making and increase frustration for the parents. The assessor is not concerned that the mother would exclude the father from decision making. The mother is more respectful of Tierney’s need to have a relationship with her father than the father is of Tierney having a relationship with her mother.
- The mother is the stronger parent and is always focused on Tierney’s best interests. The recommendation that the mother have sole custody is based on the assessor’s concerns about the father’s personality and the extent to which he brings Tierney into the conflict.
- Tierney has good but different relationships with each parent. She is aligned with her father because of his coaching her with negative comments about her mother. As Tierney is a vulnerable child, she is at risk of developing negative attitudes about her mother, which could impair their relationship.
- Tierney’s desire to placate her father by telling him negative comments about the mother and her preference not to spend time with her is worrisome.
[47] The recommendations of the assessor could not be clearer. He fears an impairment of the mother/daughter relationship if a joint custodial regime is imposed. He was concerned that the father’s insistence that Tierney be consulted was simply a way for him to promote his own agenda through the guise of insisting it was what Tierney wanted. He was concerned about the manner in which the father was setting himself up as the better parent because he was the one at home and marginalizing the mother because of her learning disability. He feared that the father’s attitude was giving Tierney a form of permission to reject spending more time with her mother. The assessor was uneasy about how all of this could impact Tierney over time. He clearly felt less apprehensive about the long term effects of the father’s behavior if decision making was given to the mother.
[48] The father rejected the assessor’s conclusions entirely. He challenged the assessor claiming that he had failed to corroborate his findings or ground them in facts. He accused the assessor of confirmation bias and directing his findings towards the conclusion he wanted to make rather than one based on corroborated facts.
[49] Certain issues and events were raised by the father with some frequency during the course of the trial. In this court’s view it is important to review them from the perspective of the father’s challenges to Mr. Hurwitz such that his criticisms of the assessment can be properly addressed.
Challenges to the Assessment Report
The Events of March 26 and April 11, 2017
[50] The father alleged that the assessor failed to corroborate certain key events and facts that had occurred since separation. The father suggested that the assessor deliberately failed to do so, so as not to undermine the conclusions in his report.
[51] The period between the date of separation on February 17, 2017 and the implementation of the shared schedule on April 9, 2017 was a difficult one. The mother alleges that the father was dictating and controlling access and refusing to allow her overnights with Tierney. The father’s position was that certain events had frightened Tierney and she did not want to spend overnights with her mother.
[52] The father agreed that the mother could see Tierney on Sunday, March 26, 2017. The mother arrived to pick up Tierney at 8:30 a.m. When she arrived she told the father that Tierney would be staying overnight at her home. The father told the mother that Tierney did not want to stay overnight with her mother. He alleges that during this discussion the mother became aggressive and assaulted him twice by pushing him aside. He is not sure how much of this Tierney saw. He did his best to calm the mother down. The father went to pick up Tierney at tutoring at 4:30 p.m. but she had already been picked up by the mother. As he was arriving home, he saw the mother leaving his house. According to the father, the mother had scared Tierney and she had tried to run away. She was too distraught to tell her father what had happened.
[53] The mother has a very different version of what happened. In her recounting of events, she arrived at the father’s home to pick up Tierney on March 26, 2017 and was told that Tierney did not want to stay overnight with her. The father locked the door and would not let the mother in to talk to him or see Tierney until she advised him of exactly where she was going with Tierney and when she would be back. He threatened the mother and told her this is the way it would be and that she would never see Tierney again unless she complied. In fact, she was denied any access to Tierney for a period of 12 days until the court-ordered access began.
[54] It should be noted that the mother was not cross-examined by the father about her version of the events of March 26, 2017. Further, he did not pursue his assault claim against the mother by way of any report to the police.
[55] The mother added certain context to the events that occurred immediately post separation. She testified that her lawyer had sent multiple letters to the father requesting a parenting schedule. His only response was that his lawyer was on vacation until March 6, 2017. The mother had to bring an emergency Case Conference before a parenting schedule was worked out in early April 2017. The mother complained that the father dictated and withheld meaningful access for a period of seven weeks post separation. The father’s view was that Tierney had expressed a reluctance to spend overnights with her mother at her new home and he was simply respecting her wishes.
[56] The father asked the assessor why the March 26, 2017 events were not included in his report. The father suggested that the assessor excluded it because to include it would undermine his conclusion that only the father had a propensity for violence and his recommendation that the mother attend a program for women who have been subjected to domestic violence.
[57] The assessor denied this and testified that the father was putting to him only his version of events from March 26, 2017. His evidence was that he asked the mother about the alleged assault and she denied it. He did not include this incident in the report because he felt he did not have sufficient evidence to believe it had occurred. He saw no evidence during the assessment that the mother was in any way aggressive.
[58] According to the new schedule, the mother’s first access overnight was to be April 10, 2017. Tierney told her father she did not want to stay overnight with her mother. The father initiated a meeting at Starbucks where the mother, father and Tierney were present. The father told Tierney her mother loved her and needed her and that is was better to follow a schedule that was agreed upon rather than having one imposed on them by a court. The mother objected to the father framing things this way.
[59] The father’s evidence was that part of Tierney’s resistance to seeing her mother was that Tierney had had access to three letters from her mother’s lawyer that were sent to the family email address. Tierney was therefore aware of the legal conflict between her parents. The father blamed the mother for this. In his “Access Comments” document that he provided to the assessor, he framed this as “copying Tier with legal correspondence.”
[60] On the evening of April 10, 2017 the mother brought Tierney back to her father’s at 7:00 p.m. because she was upset and crying.
[61] The mother’s parenting time with Tierney included April 11, 2017. The father attended at Tierney’s swim practice that afternoon after school. According to the father, Tierney was again upset about having to go with her mother overnight but the mother told Tierney in front of the father that the agreed upon parenting schedule was to be adhered to. The father alleged that the mother was acting very aggressively and shouting in front of the father and Tierney’s teammates about the fact that Tierney had to come with her. The father tried to leave with Tierney but the mother blocked him and shoved him back. According to the father, Tierney was upset and embarrassed by her mother’s actions.
[62] The mother has a much different version of events. She reported that the father showed up at Tierney’s school and was in a rage that the mother had taken Tierney from school (even though it was her parenting day). He was so outraged that he blocked her car and yelled at her. At swim practice he forcibly removed Tierney from the pool. Tierney witnessed the father’s rage. The mother’s evidence was that when she told Tierney that they would be abiding by the schedule, the father swore at her, blocked her way and pushed her aside saying she would never see Tierney again. He cuddled Tierney, whispered something to her and then Tierney said she wanted to go home with her father. The mother then blocked the father’s way so Tierney could not be removed and told him she was insisting on abiding by the schedule. She denied assaulting the father.
[63] The father asked Mr. Hurwitz why he did not include this incident in his report. His response was that this incident pre-dated the assessment period and that both parents had different perspectives on the same event. He testified that it was hard to comment on a set of circumstances described by the father and interpreted solely by him.
[64] The father also asked Mr. Hurwitz why he did not attempt to corroborate the April 11 incident with Tierney directly. His response was that it would be unethical to do so.
[65] In cross-examination the father agreed that he did not mention the April 11, 2017 incident in his intake form.
[66] Mr. Hurwitz agreed with the father that if the incidents on March 26 and April 11 had been corroborated and demonstrated that the mother assaulted the father, the recommendations in his report about the mother attending for domestic violence counseling would have been different. At the same time he said that he gave minimal weight to the father’s allegations about the mother’s aggression because they were “part of the mudslinging that goes on when someone wants to deflect responsibility for their own behaviour.”
[67] The period between February 17 and April 7, 2017 was very stressful for the mother. Within days of the separation (February 20, 2017) the mother proposed an access schedule to the father by email. He did not respond. She instructed her counsel to send a letter on March 2, 2017. He still did not respond.
[68] The father finally proposed a form of nesting arrangement whereby the mother would see Tierney at Lynngrove. For obvious reasons this did not work. The mother felt she was being dictated to. She was concerned by the father’s emails in which he made comments including the following:
- “No schedule has been agreed to by Tier or I”;
- “I urge you to respect Tier’s wishes and back off” (father’s email to mother dated March 7, 2017); and
- “Your schedule is unfair and unacceptable to both Tier and I” (father’s email to mother dated March 8, 2017).
It was clear that the father was consulting with Tierney and involving her in the adult conflict.
[69] The mother was very concerned that during this time, there were extended periods that she did not see or hear from her daughter. In fact, she had no contact with her daughter at all between March 26 and April 10, 2017. Her evidence was that if she had not set an early Case Conference date, a proper parenting schedule would have been further delayed.
Issues Related to the Father’s Alleged Violence
[70] The father attended for anger management counseling with Derek Shin. The mother’s counsel made six separate requests for Mr. Shin’s file. Those requests started in April 2017 and the last one was on March 11, 2018. The father produced Mr. Shin’s file during the course of the trial.
[71] Mr. Shin was permitted to testify as an expert and his qualifications were not contested.
[72] Mr. Shin is a registered psychotherapist who has been practicing for 18 years. He provided individual counseling to the father on six separate occasions starting in September 2016. In his letter of November 23, 2017 Mr. Shin reported that the father accepted that he needed to work on his anger issues and acknowledged being argumentative and that he had episodes of verbal outbursts. However, he stated that much of this stemmed from his frustration in dealing with his wife’s highly erratic behaviour. In his cross-examination at trial, the father denied being argumentative or prone to verbal outbursts but admitted that he told Mr. Shin this.
[73] Mr. Shin was clear that he had never met the mother or Tierney, nor was he an expert in the area of dyslexia. He conceded he had never read any of the pleadings in this matter nor was he aware that the mother had alleged that the father was emotionally and verbally abusive during and after the marriage and often in front of the child. He was clear that the father came to see him about anger management issues and not dyslexia.
[74] In his letter of January 23, 2018, Mr. Shin opined that the father posed little or no risk of becoming physically violent towards the mother. Mr. Shin felt that because the father had no history of physical violence, no drug or alcohol abuse and no cognitive impairment, he was at little risk of future violence as well.
[75] Some of the father’s behaviours were put to Mr. Shin in cross-examination. Specifically, counsel for the mother asked about an incident that occurred on February 22, 2018 in which the mother alleged that the father shoved her out of the way and told her to “fuck off.” Mr. Shin conceded that such behaviour would contradict his opinion about any future violent behaviour on the part of the father.
[76] Mr. Shin was interviewed as a professional collateral by Mr. Hurwitz on July 6, 2017. His notes indicate that Mr. Shin was of the opinion that the father was committed to working hard on his anger management issues but that he and the mother did not have compatible personalities. The father tried to be controlling in all aspects of the relationship but was working on self-awareness.
[77] In the father’s affidavit of July 30, 2017 he deposed that he consulted with Mr. Shin to manage the mother’s dyslexic behaviours. No mention was made of Mr. Shin providing anger management counseling.
[78] The father testified that he had completed a 12-hour online course titled “Parenting Without Conflict by New Ways for Families.” He filed his certificate as Exhibit 30. Mr. Hurwitz testified that this course did not fulfill the recommendation in his report that the father participate in a program for families involved in high conflict separation.
[79] The father challenged Mr. Hurwitz about the fact that there was no mention of Mr. Shin in his report. He suggested that this was a deliberate omission because adding Mr. Shin’s comments would undermine Mr. Hurwitz’s conclusions about domestic violence. Mr. Hurwitz disagreed. He testified that the omission was an innocent one. In any event, his assessment report could not reasonably document every single interview and contact. The report is a summary of conclusions reached after interviews with the parties, the child, collaterals and an extensive review of all relevant documentation.
[80] The father questioned Mr. Hurwitz about his recommendation that the mother attend a support group for women who have experienced domestic violence. He suggested to Mr. Hurwitz that he should have considered using standard testing to confirm whether the father had a propensity for violence or recommended the father go to someone else for such testing.
[81] Mr. Hurwitz was of the view that such testing was not necessary given the recommendations in his report and his specific recommendation that the father attend counseling for high conflict separation.
Litigation Related to Tierney’s School Placement in September 2017
[82] The parties were not in agreement about where Tierney was to attend school in September 2017. She had been attending Rosethorn Junior School but needed a new placement for middle school as Rosethorn only serviced students up to Grade 5. There were three possibilities for her middle school: Lambton Kingsway (in her home area), Humber Valley and Althouse.
[83] Tierney was placed on a wait list at Humber Valley but the school made it clear that it was extremely unlikely she would be accepted given the length of the wait list. The father supported Tierney going to Lambton Kingsway and his evidence was that that was where Tierney wanted to go as well. The mother objected to Lambton Kingsway. Tierney had been moved to Rosethorn in Grade 1 because of an incident at Lambton Kingsway in which a male student asked her to pull down her pants and said he was going to “fuck” her. The younger brother of that student was still attending Lambton Kingsway. The mother did not think it appropriate that Tierney attend in those circumstances. Given the history of the matter, Lambton Kingsway would not accept Tierney’s application without the consent of both parents. The mother would not give her consent.
[84] The mother supported Tierney going to Althouse. As the assessment was ongoing at that point, Mr. Hurwitz was not in a position to make a recommendation about school. The mother brought a motion and was successful in obtaining an order that Tierney attend Althouse.
[85] The father was critical of the entire process. First, he said that the mother’s litigation about the school issue was unnecessary. As she would not consent to Lambton Kingsway, and Humber Valley was full, the father’s view was that it was clear he had “acquiesced” to Althouse and the mother’s motion was entirely unnecessary. Second, he challenged Mr. Hurwitz permitting such litigation when his retainer agreement prohibited it and when he was in a position to make a recommendation without the need for litigation. Finally, he complained that the mother registered Tierney for Althouse without consulting him. Tierney found out only when those students going to Althouse were invited for a tour. Only when Tierney was informed that she was in the tour group did she know she was going to Althouse. This upset her as she had wanted to go to Lambton Kingsway.
[86] The mother did not agree. She pointed out that the father brought a cross-motion seeking an order that Tierney attend Lambton Kingsway. Further, the retainer permitted litigation with respect to “interim parenting arrangements” and Mr. Hurwitz was well aware the matter was being litigated.
[87] Mr. Hurwitz denied the allegation that he was encouraging conflict by allowing litigation to go forward on the school issue. He testified that his recommendations would not be ready by the start of school in September and as such it became a matter for the court. He did not agree with the father that Tierney should have been consulted about what school she wanted to attend.
Capacity to Joint Parent
[88] The father took issue with Mr. Hurwitz’s conclusions on pages 67 and 69 of the report that he had demonstrated no capacity to joint parent and that the parties were not able to communicate or jointly problem-solve. Mr. Hurwitz concluded that was due, in part, to the father’s need to control situations without considering the mother’s wishes.
[89] The father pointed out his willingness to consent to an order for joint parenting on April 7, 2017 and suggested that, with a couple of exceptions at the beginning, the parties had managed the parenting arrangement quite well. He also pointed out the statements made in his parenting plan in which he proposed equal parenting time and that it was critical for Tierney to have a relationship with her mother.
[90] Mr. Hurwitz disagreed. He testified that there were a number of events that occurred between April 7, 2017 and October 2017 that showed a high level of conflict and a lack of cooperation on the part of the father. Mr. Hurwitz’s evidence was that although the father agreed to a shared schedule, he acted in a manner that was contrary to a joint parenting intent. Mr. Hurwitz gave some examples such as the father stating he wanted Tierney to have a relationship with her mother while at the same time wanting sole decision making (at least initially) because of his view that the mother was incapable of making parenting decisions. Mr. Hurwitz was concerned with the mixed messages he was getting from the father such that it was not appropriate to focus on only one aspect of his parenting plan.
[91] The father challenged Mr. Hurwitz about what communication he had examined between the parties with respect to his conclusions. He responded that he did see some emails and texts provided by the parties.
[92] The father put Exhibit 15 to Mr. Hurwitz as he did to the mother. Exhibit 15 was a binder of 46 different emails between the parties. The emails ranged in subject matter but were mostly focused on day-to-day parenting issues. The emails canvassed issues such as swim gear and school item exchanges, pick-ups, tutoring, sleepovers, piano lessons, exchange of empty lunch containers, access day switches and swim practice. Both the mother and Mr. Hurwitz agreed in their cross-examination that the emails showed a degree of cooperation between the parties on day-to-day issues and that the father was not attempting to control the dialogue in those emails.
[93] The father challenged Mr. Hurwitz about his statements on page 67 and 69 of the report in the face of these emails. Mr. Hurwitz responded that the emails did not change his opinion about anything. The emails were selective and missed critical pieces of the assessment. His testimony was that the father was “positioning” himself to come across cooperatively but that the emails could not be looked at in isolation from other events that occurred. In short, he viewed the emails as cooperation on day-to-day issues that were dwarfed by the more critical issues in the assessment.
[94] The mother challenged the father about the parties’ capacity to joint parent as well. She put his Assessment Intake Form to him in which he documented that the mother was “100% uncooperative” and had an “acute unwillingness to cooperate.” Further, the father’s plan of care contained no residential schedule. His evidence was that he was unsure about what the time break down should look like and thought that Tierney should have input so that she would be happy and buy into the schedule. Since he was discouraged by Mr. Hurwitz from asking Tierney about what she wanted, he included no residential schedule in his parenting plan.
[95] The father also challenged Mr. Hurwitz’s conclusion that he was using his close relationship with Tierney to marginalize her relationship with her mother. He pointed out to Mr. Hurwitz various examples including times he has encouraged and facilitated access, and the many pictures of Tierney and her mother in his home.
[96] Mr. Hurwitz did not change his opinion. His view was that the father only validates his relationship with Tierney and does not validate the mother’s relationship with Tierney. He used the events that occurred on the Labour Day weekend in 2017 as an example. The father felt that only his decision-making capabilities were in Tierney’s best interests. Mr. Hurwitz mentioned the father’s insistence that the mother’s dyslexia was harmful to Tierney and that when Mr. Hurwitz suggested talking about other aspects of parenting, the father accused him of not understanding disabilities.
[97] Further, Mr. Hurwitz indicated that the father lacked empathy for the mother and uses this as a way of demonizing the mother for ending the marriage. Mr. Hurwitz’s position is that the father insists that the problems all lay with the mother while he refuses to look inward and reflect on anything he may have done that would have led to the marriage’s demise. Mr. Hurwitz believed that if the mother was given custody she would solicit the father’s views. He does not think the father would solicit the mother’s views.
[98] The father challenged Mr. Hurwitz as to why he never asked the father about his parenting style or philosophy, his approach to discipline, Tierney’s access to social media, participation in sports and the arts, how he manages her dyslexia, promotes her self-confidence, develops her autonomy, gives her positive reinforcement and how he deals with her homework obligations.
[99] Mr. Hurwitz responded that he did not need to ask those questions as they had already been answered in the father’s parenting plan, his “Access Comments,” his detailed narrative that was titled “Affidavit,” and the many interviews he had with the father alone, with Tierney and with the mother.
Tierney’s Involvement in Parental Conflict
[100] The father took issue with Mr. Hurwitz’s criticism of him at page 67 of the report with respect to his view that Tierney should be consulted about issues related to school, court, the right of first refusal and the residential schedule. He refutes the conclusion that he has thereby involved Tierney in the adult conflict and shared information with her that is not for her to know and creates extreme anxiety for her.
[101] The father denies that he has involved Tierney in adult conflict and that in fact it is the mother’s fault that Tierney had so much information about the parties’ separation and court. The father put Exhibit 18 to Mr. Hurwitz, a letter from the mother’s counsel dated February 21, 2017 sent to him via the family email. The letter requested financial disclosure, a residential schedule and suggested listing Lynngrove for sale. Mr. Hurwitz was also shown letters from the mother’s counsel dated March 2 and March 7, 2017. Those letters proposed a specific residential schedule, suggested counseling for Tierney and indicated that an urgent motion would be brought if no response was received. Tierney had access to these emails and opened and read them.
[102] Mr. Hurwitz was asked if he had questioned Tierney about the letters. He said he did not as it would be improper to do so. He only asked her open-ended questions to gain insight into the broader effect of the conflict on her.
[103] The father was concerned about a comment at page 37 of the report in which Mr. Hurwitz reported that the father raised his voice and was indignant about the effect of the mother’s letters on Tierney. The father questioned Mr. Hurwitz about why he suggested that the father was blaming others when the fault was clearly the mother’s. Mr. Hurwitz felt that the father was leaving such material accessible to Tierney without password protecting it. He felt that the father’s actions were not responsible.
[104] The father was concerned about the information at page 62 of the report in which Mr. Hurwitz documents that Tierney told him that she read his recommendations on her father’s computer and that she has the password and can access it at any time. The father asked how this was possible when the interview with Tierney in which she made this disclosure was on November 2, 2017 and the report was not sent electronically until November 6, 2017.
[105] Mr. Hurwitz said it was likely that he sent an electronic copy of his recommendations to each parent after the disclosure meeting on September 27, 2017 although he could provide no proof of this nor was he able to produce notes of the November 2, 2017 interview with Tierney. The father suggested that Mr. Hurwitz was dissembling or attempting to conceal important facts related to that meeting. Mr. Hurwitz denied any such allegation. Mr. Hurwitz testified that he had no reason to disbelieve Tierney when she told him about access to her father’s computer and what she had read.
[106] The father was concerned that Mr. Hurwitz reported that he had discussed the litigation with Tierney after the August motion. The mother told Mr. Hurwitz that during her summer vacation with Tierney she was sullen and disagreeable. Tierney said to her mother, “it’s not fair that you get 11/31 days in August. It’s not fair and it’s all your fault. You’re the one who left.”
[107] The father suggested that Tierney keeps a calendar and can count. There is no reason why she could not have figured this out on her own. The father’s position was that it is unrealistic for Mr. Hurwitz to frame this as the father sharing litigation information with the child.
[108] Mr. Hurwitz did not agree. He was concerned that the father did not hide the fact that he was working on his court file at home. Tierney knew when her father was going to court because he wore a suit on those days. Because he is retired, he does not normally wear a suit. Mr. Hurwitz was concerned that she saw her father immersed in the court matter and that there was no effort on the part of the father to hide this from her or even do the work in another more private part of the house. Mr. Hurwitz stated in his report that “he [the father] acknowledged that he made no secret to Tierney of his working on these [court] documents and that he had a discussion with her about various issues pertaining to this hearing.”
[109] Mr. Hurwitz was also concerned that the father expressed a similar sentiment of unfairness about the division of court ordered holidays in August (the mother having 11 out of 31 days) during a telephone conversation he had with him in July 2017. Mr. Hurwitz was clearly suspicious that Tierney was mirroring her father’s resentment about the court-ordered summer vacation with the mother.
[110] After the disclosure meeting in September 2017, the mother found some distressing notes in Tierney’s journal. In an entry marked “Oct 5,” Tierney wrote the following:
I have some bad news. Howard suggested that my mom (which I hate) have full costade (sp.). And also my mom won’t let me have Istagram (sp.) or Snapchat. Which I think sucks…
I miss my Dad when I am at my Mom. P.S. I hate my mom.
And I still hate my mom when I am at my Dad’s.
[111] There are other undated entries in the journal in which Tierney says she hates her mother. She included an access calendar that had a “thumbs up” emoji on the days she was with her father and a “thumbs down” emoji on the days she was with her mother.
[112] The mother was hurt and distressed about these journal entries. She requested that Mr. Hurwitz re-open the assessment. Mr. Hurwitz contacted each parent and interviewed Tierney. Tierney told Mr. Hurwitz that her parents had not talked to her about the contents of the assessment but that she had read his recommendations on her father’s computer. She told Mr. Hurwitz that she had access to her father’s computer and knew his password.
[113] During his evidence, the father went to great lengths to describe how the computer system in the home was set up and the layers of passwords and parental controls that existed. He filed, as exhibits, screenshots of his desktop computer to show that Tierney had access to a limited number of programs.
[114] Overall, Mr. Hurwitz was concerned about how much the father would protect Tierney from parental conflict if there was joint custody. He was worried about the fact that the father’s parenting plan includes the father consulting with Tierney about certain issues. He was concerned that if that plan was adopted, Tierney’s views would be influenced by her father’s. He was further concerned about the father’s sharing of adult issues with Tierney including allowing her access (intentionally or otherwise) to court documents and the assessment recommendations on his computer. He felt that the mother’s plan of care was more definitive with respect to the larger issues and included a better recognition of her role as a parent. That is, the mother would involve Tierney somewhat but would not give her input the same weight with respect to decision making as the father and the mother would protect Tierney from being placed in the middle of any parental conflict.
[115] Mr. Hurwitz’s view was that the mother better understands her role in protecting Tierney from parental conflict. The father does not because he does not understand the impact of his behaviours on Tierney.
The Right of First Refusal
[116] The father challenged Mr. Hurwitz about his framing of the father’s discussions with Tierney about after school pick-ups as “consulting” with Tierney. The father’s position was that Tierney did not want to go to an after-school program and she told her father this. She wanted to go home to Lynngrove after school. The father did not see the problem with this. He was not encroaching on the mother’s parenting time, he was able to feed Tierney a hot meal before swim practice, and the mother could pick up Tierney at Lynngrove without incident.
[117] Mr. Hurwitz had a problem with this. His position was that even though the mother was not directly parenting Tierney it was still her time. He viewed the father’s intervention as a means of circumventing plans for Tierney made by the mother. In Mr. Hurwitz’s view, the issue was more about decision making than whether there was or was not an encroachment on the mother’s time. He added his concern that the father was presenting himself as the better parent because he was always available after school.
[118] In his notes from an interview with the father on August 23, 2017, Mr. Hurwitz wrote the following:
He said he will not interfere with access btw MB [the mother] and T [Tierney] on her time EXCEPT if there is daycare, where he will pick her up from the aftercare. His view is that because she [the mother] is not able to access T, and he can, he should be able to do this. He said that if she enforces this, this will erode the MB and T relationship. MY VIEW IS THAT THIS IS A VEILED THREAT. [Emphasis in original.]
[119] Mr. Hurwitz’s evidence was that he took from this statement by the father that he was going to do what he wanted to do and that the mother would pay if she interfered with his after-school plans.
[120] The mother’s view is that the father picking up Tierney at school on her time is a deliberate encroachment of her parenting time. She testified that the father does not respect her wishes, comes to her home uninvited and has boundary issues.
[121] The mother testified about a recent incident that occurred on February 22, 2018. This was the mother’s parenting time so when she arrived home from work she drove over to Tierney’s school to pick her up. She was running a bit late. On her way there, Tierney called and told her that her father was taking her home. The mother was upset and told Tierney to tell her father to take her back to the school. The phone then went dead so the mother drove to Lynngrove. Tierney texted her mother to request that she come inside the house as her father wanted to talk to her. The father was full of rage and told the mother that when she was late he would pick up Tierney at school and bring her home. He then told her to fuck off and pushed out of house and shut the door. The mother is not sure how much of this Tierney saw. The mother then opened the door again and told Tierney they were going home to her place. Tierney appeared upset and anxious and insisted that she had not heard anything.
[122] The father did not deny that he swore at the mother but said that was in only in response to comments made by the mother to him.
[123] The mother complains that such intrusions on her time continue to occur. On March 18, 2018 (the Sunday before the trial commenced) the father appeared at the mother’s home. He asked to speak to Tierney as he had her stuffed animal she had asked for. The mother asked him to just leave it as Tierney was upstairs. However, Tierney must have heard the exchange as she came running out of her bedroom and grabbed the toy. The father was full of rage that the mother would not let him speak to Tierney and as he was leaving gave the mother the finger and told her to “sit on it.”
The Family Day and Labour Day Weekends – 2017
[124] Both of these weekends were the subject of a considerable amount of evidence at trial and the Labour Day weekend events were covered extensively in the assessment report.
[125] The father was very upset about the way in which the separation occurred on the Family Day weekend in 2017. He told the court that the mother unilaterally removed Tierney from her play date on Friday, February 17, 2017 (a PA day) and then arrived at Lynngrove with her brother and sister-in-law and removed all of her personal belongings and Tierney’s. She then took Tierney to her brother’s home in Waterloo for the weekend. She would not answer the father’s calls and would not let Tierney contact him. The mother took the only family car and then cancelled the father’s credit card so he could not rent a car.
[126] The mother’s evidence was that she was the one who decided to end the marriage. Although she felt the anger management counseling had helped the father, his need to control everything continued to be problematic. The mother testified she had been trying to get help for their marriage for years but only when she asked the father for a divorce did he finally start to pay attention.
[127] She agreed that she left the home abruptly but she did so because she knew that another conversation about their marital issues would not go well. She did not want Tierney to be exposed to another bout of the father’s rage. Upon returning from her brother’s home after the Family Day weekend she obtained the use of a basement apartment in a friend’s home and then moved to her own apartment two months later.
[128] The father challenged Mr. Hurwitz as to why he did not include a detailed account of the events of the Family Day weekend in his report. His view was that it was unfair to criticize him about the events of the Labour Day weekend when the mother’s actions on the Family Day weekend were worthy of equal criticism.
[129] Mr. Hurwitz’s response was that he was aware of the events of the Family Day weekend in 2017 as they formed part of his notes. His evidence was that at that time the family was in crisis. The mother feared for her safety and feared the consequences of discussing the problems with the father. Mr. Hurwitz testified that the mother conducted herself in a way that led him to believe that she was genuinely fearful and he gave weight to that based on what he came to learn in the assessment about the dynamic between the parents. He did not feel that the mother’s behavior was unreasonable in all of the circumstances.
[130] The Labour Day weekend in 2017 was the mother’s parenting time. She and Tierney had been looking forward to attending Tierney’s cousin’s wedding in Waterloo. On the Friday afternoon the father informed the mother that Tierney was quite sick. The mother arranged for a doctor’s appointment for Tierney but the father refused to let her go. The mother then arranged to visit Tierney at the father’s home but when she arrived the father told her to leave and said “fuck you.”
[131] The mother tried to contact Tierney on Saturday about the wedding. Tierney texted her mother and told her to go to the wedding on her own. She asked her mother to stop phoning her because she could barely talk. The mother testified that throughout the weekend the father would not respond to her emails or calls. She went by Lynngrove on the Sunday and Monday but there was still no answer from the father. The mother later found out that Tierney went to a play date on the holiday Monday. The overall effect of this was that the father had Tierney from the Friday before Labour Day until the following Wednesday morning.
[132] The father pointed out that he emailed the mother on Friday, September 1, 2017 to advise that Tierney was ill and would have to stay home “for the time being.” The father conceded that he had no other email contact with the mother that weekend. He testified that taking Tierney to the doctor on a weekend would not have been a good idea given the unhealthy environment of walk-in clinics.
[133] Mr. Hurwitz was concerned about the father’s actions on the Labour Day weekend for the following reasons:
- While Tierney was apparently too ill to be moved all weekend, she was well enough to go on a play date on the Monday.
- It was reasonable that she be seen by a doctor given how ill she was according to the father.
- The father refused communication with the mother and admitted this.
- Tierney was prevented from going to a long-planned and much-anticipated family wedding.
- The father presented this as an entitlement to having Tierney under the circumstances.
[134] The father challenged Mr. Hurwitz’s conclusions about the Labour Day weekend. He took issue with the assessor’s characterization of Tierney being “prevented” from going to the family wedding when she emailed her mother directly and told her to go on her own. Mr. Hurwitz was unconvinced by this, testifying that he was unsure if Tierney really felt free to go to the wedding or not.
The Dyslexia Issues
[135] Both the mother and Tierney have been diagnosed with dyslexia. Both were assessed and tested by Dr. Barbara Bresver, a psychologist. A copy of Dr. Bresver’s report dated May 10, 2015 was marked as Exhibit 23. This report contained her findings after conducting a psycho-educational assessment on the mother. She found that the mother continued to meet the definition of “learning disabled” but that she was highly motivated, had an admirable work ethic and is more than capable in many areas. Dr. Bresver notes, “Mary Beth has met and continues to meet the designation of Learning Disabled. It is important that it is acknowledged but does not define her. She is a person with strong verbal and reasoning skills who also experiences visual spatial/working memory/processing speed difficulties.”
[136] While the mother scored high in some areas of testing such as auditory-verbal processing skills, she scored very low in the area of working memory (12^th^ percentile).
[137] Dr. Bresver conducted a psycho-educational assessment on Tierney in December 2014. She concluded that Tierney had mild dyslexia and should be designated as Special Needs due to her reading disability, rote memory deficits and weak sequencing skills. She recommended intensive remedial tutoring.
[138] Mr. Hurwitz spoke to Dr. Bresver as a professional collateral on August 1, 2017. Mr. Hurwitz recorded that Dr. Bresver reported that the father was difficult to deal with as he was opinionated, controlling, intimidating and confrontational. She noted the mother to be open and more co-operative. The mother often consulted with Dr. Bresver about strategies to deal with Tierney. She noted tensions between the parents during the feedback sessions.
[139] During his initial interview with Mr. Hurwitz, the father gave him three pieces of research concerning dyslexia. He told Mr. Hurwitz that the conclusions in the research mirrored his experiences with the mother. He suggested at trial that Mr. Hurwitz had not read this most important information. Mr. Hurwitz denied this. The father suggested that Mr. Hurwitz had an acute bias against him because he lacked knowledge about a key issue (dyslexia) in his relationship with the mother.
[140] Mr. Hurwitz was very concerned about this allegation. He made it clear in court that the father had been oppositional about many aspects of the assessments, not just the financing of it. The father blamed everyone including his own lawyer. It was clear to Mr. Hurwitz that the father that had an agenda he wanted to promote, which was primarily the view that the mother’s “mental disability” prevented her from properly parenting Tierney. Mr. Hurwitz testified that the father only formulated the opinion that Mr. Hurwitz was biased after he saw the report. During the assessment he did not raise any questions about the process.
[141] Mr. Hurwitz made reference to the joint meeting he had with the parties on August 17, 2017 in which the father was threatening and aggressive towards the mother and he had to intervene and tell the father he was not permitted to treat the mother that way.
[142] In his Intake Questionnaire for the assessment, the father described the mother as having a “severe mental disability” and a spectrum of other disabilities including short term and working memory deficiencies, sequencing problems and communication problems. The father felt that his marriage to the mother had been held hostage by her disability. Mr. Hurwitz reported that during his June 19, 2017 meeting with the father, he spent the entire time explaining dyslexia and its effects to Mr. Hurwitz. He told the court that in his view Mr. Hurwitz had no knowledge of how dyslexia can affect a person’s behavior.
[143] In his initial plan of care, the father sought sole custody and decision making given the mother’s “disabilities and dysfunctions.” At trial, his position had changed. He wanted shared parenting and joint decision-making.
[144] The mother’s evidence was that her dyslexia impacted her relationship with the father during the marriage. He made her feel stupid, and would put her down and correct her constantly. It was hurtful to her that the father refers to her dyslexia as a “mental disability.” In her view, she manages quite well, receives accommodations at work and focuses on her strong verbal skills.
[145] The mother’s evidence is that her dyslexia does not affect her relationship with Tierney. In fact, she finds that she can use some of her own learning strategies to help Tierney with her schoolwork.
[146] Mr. Hurwitz’s view was that the mother’s dyslexia gave the father a diagnostic label he could use to criticize the mother. He told the court that the father’s central theme was that because the mother had dyslexia, it somehow made her unable to parent Tierney. If someone did not agree with that view, they were accused of not understanding dyslexia. It was hard to redirect the father to other issues during the interviews as he repeatedly returned to this topic.
[147] Mr. Hurwitz was clear that the mother’s learning disability could not be correlated to her effectiveness as a mother. He remarked on the difference in the empathy the father showed towards Tierney and her learning issues, which was the antithesis to how he responded to the mother’s challenges. Mr. Hurwitz was not of the opinion that the mother needed any treatment. Her coping strategies and self-awareness were sufficient to deal with her learning disability.
Tierney
[148] Mr. Hurwitz observed each party on two occasions with Tierney, once in their home and once in his office.
[149] The first observational visit with Tierney at the mother’s home did not start well. Tierney was upset because she was pulled away from an end of year pool party. She did not want to participate in the interview and ran to her room to cry. Mr. Hurwitz and the mother problem-solved this issue and agreed that the visit would be delayed for 1.5 hours so Tierney could return to her pool party. The mother was concerned because she attributed Tierney’s sadness to the fact that Tierney confided to her that her father told her if he did not comply with the assessment her mother would take him to court. The mother was concerned that this contributed to Tierney being upset.
[150] The father asked Mr. Hurwitz if he had attempted to corroborate this information with Tierney. He indicated that he would not have asked such a question, as it would have Tierney in the middle of her parent’s conflict.
[151] After the pool party incident was dealt with, Tierney was calm. Mr. Hurwitz described the mother’s parenting as sensitive, nurturing, attentive and focused. The two appeared well bonded. Mr. Hurwitz was complimentary of the manner in which the mother engaged with him and handled the pool party issue.
[152] At the second observational visit between the mother and Tierney, Mr. Hurwitz described their interaction as relaxed and happy while they played a game. Tierney was well behaved and there was a calming dynamic between them.
[153] During the home observational visit between Tierney and the father, Mr. Hurwitz noted that their interaction was comfortable and happy. Tierney looked at her father “adoringly.” Mr. Hurwitz complimented the father’s ability to guide, direct, support and nurture Tierney. Tierney presented as closely bonded to her father.
[154] At the office observational visit Tierney and her father were observed while playing a game together. Mr. Hurwitz noted that the quality of interaction between them was good. He described the father as being facilitative and engaged and that he treated his daughter in a mature and respectful manner. He noted that they were both very animated when talking about Tierney’s swimming competitions and that they have common interests in recreational pursuits.
[155] Mr. Hurwitz noted that the father made an inappropriate comment in front of Tierney during this interview. He told Mr. Hurwitz that he and Tierney had to cancel their Blue Jays tickets for a game a few weeks ago because the “stupid judge” miscalculated the schedule and that the judge could not do basic arithmetic. He said they had been in court that day. The father was talking about the mother’s August motion for summer access. Mr. Hurwitz’s view was that this critical comment should not have been made in front of Tierney. He described it as “very inappropriate on many levels.”
[156] The father challenged Mr. Hurwitz about the comments made regarding the observational visits. Mr. Hurwitz agreed during cross-examination that Tierney was happier and better behaved with the father than during the visits with the mother.
[157] The father confirmed that Mr. Hurwitz had concluded that during the observational visits he was child-centered, that he made the activities with Tierney enjoyable, that Tierney was excited about photographs showing activities she did with her father, and that she was very happy when her father complimented her on her accomplishments. The father then asked why Mr. Hurwitz had not made similar conclusions about Tierney’s interaction with her mother. Mr. Hurwitz said he did not know.
[158] The father referred to Mr. Hurwitz’s interviews with Tierney and Mr. Hurwitz agreed that Tierney clearly expressed a preference for her father and for spending more time with him. The following is an excerpt of comments made by Tierney that are of note:
- “I like my Dad more because I can spend more time with him because mom is at work. I’m ok with having two homes.”
- “I’m used to going to my dad for advice. He spent more time with me because he retired when I was in grade 1. He gives me swim training advice too.”
- “I don’t actually do stuff with my mom. She takes me to tutoring or the therapist.”
- “I don’t like the residential schedule because I only saw my dad for 11 days in August. I’d like to see him more. I know they are going back to court in August to change things.”
- “I don’t want to spend more with her [mom] because she’s working.”
- “If I had three wishes I would wish to spend more time with dad. I don’t have any other wishes.”
- “I don’t like sharing my feelings with my mom.”
- “I don’t like the current schedule….I should have longer time in each home.”
- “I enjoy spending time in both homes.”
- “The special people in my life who I want to be proud of me are my dad, my mom and my uncle and aunts.”
- “I feel free in my heart to love both parents.”
- “I go to my Dad if I am feeling sad. We would talk it out. He gives me good advice. I feel better about it.”
- “If I was at my mom’s house and I had a problem, I would call my dad.”
- “I would rate my vacation with my mother a 5/10 because I didn’t like some of the activities we did. I would rate my vacation at my uncle’s cottage and my vacation with my dad an 8/10.”
[159] The father suggested to Mr. Hurwitz that these comments were indicative of Tierney having a negative relationship with her mother. Mr. Hurwitz did not deny that, at times, Tierney’s relationship with her mother was fragile, ambivalent and strained. He was careful to add, however, that other factors could account for this including the father’s behaviour, the fact that he has the time to do more recreational things with Tierney, and that she goes to her father over her mother because she may not have permission to do otherwise. That is, the father sets himself up as the only one who is around to give advice because he is retired and the mother is working. Mr. Hurwitz extrapolated from Tierney’s answers at the interviews that the father had negatively influenced her with respect to the mother.
[160] Mr. Hurwitz added a concern about the father’s tendency to characterize himself as the better parent solely because he was around more often. He expressed a degree of unease that Tierney viewed her father as the better parent because he was retired and used that to demonize the mother. He testified that this was not something that he would expect a child of Tierney’s age to come up with on her own. He felt Tierney’s responses to him in this regard were unusual.
[161] As for the low rating of her vacation with her mother, Mr. Hurwitz explained that Tierney may have felt her father would not approve if she told the assessor she had a good time with her mother because she knew this information would be reported to her father.
[162] Mr. Hurwitz denied that Tierney was an alienated child. However, he did identify that certain risk factors were present that concerned him. In his evidence, Mr. Hurwitz referred to a Best Practice Guide he had co-authored with Nicholas Bala and Barbara Jo Fidler entitled “Emotional Harm and Parent-Child Contact Problems in High Conflict Separations” (Exhibit 58).
[163] Mr. Hurwitz agreed that some of Tierney’s behaviour was consistent with alienation cases such as her rejection of her mother or resistance to spending time with her, which was the result of the favoured parent’s strategies – “conscious or unconscious, subtle or obvious, direct or indirect” (p. 21).
[164] Mr. Hurwitz also saw signs that some stages in the alienation process were present:
- Stage 1 – a theme for the rationalization of the rejected parent is chosen. Mr. Hurwitz agreed that, in this case, the theme could be that the father was retired and could be there for Tierney whereas the mother was working and could not.
- Stage 2 – a sense of support and connection to the favoured parent is fostered. Mr. Hurwitz agreed that the father’s emphasis on being always available for Tierney would foster this connection.
- Stage 3 – a feeling of sympathy for the favoured parent is fostered. Mr. Hurwitz agreed that the father emphasizing that the mother left the home and took him to court would generate such feelings.
- Stage 4 – the child expresses support for the beliefs of the favoured parent – such as refusing to see or talk to the rejected parent. Mr. Hurwitz agreed that Tierney’s threats to run away from her mother’s home or expressing hatred towards her would be examples of this (p. 23).
[165] Mr. Hurwitz went on to express concern that Tierney was at a vulnerable age and cited his co-authored guide as support: “[n]ine to 11 year olds are particularly vulnerable to getting caught up in their parents’ conflict, prone to take sides and are at risk for becoming alienated” (p. 26). He testified that children of this age are beginning to develop moral values and a sense of right and wrong. This may be applied to which parent they view as at fault in the litigation context.
[166] Mr. Hurwitz gave evidence that Tierney’s headaches could be a form of somatic complaint consistent with alienated children who are more likely to have emotional and behavioural problems (p. 50).
[167] Typical behaviours exhibited by “favoured parents” include, among other things, allowing a child to make decisions about contact with the other parent, no encouragement of contact with the other parent between visits, rigidity around routines and rules, no concern for missed visits with the other parent, non-verbal communication that reveals disdain or disapproval of the other parent, involving the child in litigation and adult matters, and a lack of courtesy towards the rejected parent (p. 41). Mr. Hurwitz testified that he found all of these behaviours exhibited by the father during the assessment.
[168] The father suggested to Mr. Hurwitz that there could be many other explanations for Tierney’s conduct. For example, she may have been angry with her mother about the fact that she did not get to go Humber Valley or Lambton Kingsway, that she was exhibiting understandable stress as a result of the family dissolution, and that Mr. Hurwitz was unable to point to any negative comment made by the father to Tierney about the mother. Mr. Hurwitz did not disagree because he repeated that he had not found that this was an alienation case. These were simply risk factors that he observed that led him to conclude that joint custody would not be in Tierney’s best interest.
Conclusion
[169] The father spent over one and a half days cross-examining Mr. Hurwitz. He accused him of bias and dissembling the facts. He challenged him with respect to an alleged failure to corroborate certain significant conclusions made in the report. He suggested that Mr. Hurwitz could not testify as to the success of recommendations made in previous assessments because Mr. Hurwitz had no historical way to gauge the results.
[170] Mr. Hurwitz calmly and professionally dealt with all of the suggestions put to him in cross-examination. While he made certain concessions, none of them led to him changing his opinion or conclusions. He went so far as to agree with certain of the father’s propositions but was careful to reiterate that he gave little weight to the father’s version of certain facts especially as they related to the mother’s alleged assaultive behaviour.
[171] It is this court’s view that the father’s cross-examination of Mr. Hurwitz did not materially affect the conclusions in his report. The father was unable to prove that Mr. Hurwitz authored his report by way of a confirmation bias. Specifically, I accept Mr. Hurwitz’s evidence of the following:
- It was not necessary for him to include the comments of every collateral in his report. The fact that he failed to mention Mr. Shin was an oversight that did not materially affect his recommendations.
- It would have been unethical and/or inappropriate for him to corroborate certain facts with Tierney such as the events of March 26. This type of interrogation would have put Tierney in the middle of the parental conflict. Rather, Mr. Hurwitz used open-ended questions to allow Tierney to describe situations rather than responding to factual scenarios put to her by the assessor.
- The fact that Tierney made negative comments about her relationship with her mother required some analysis. Mr. Hurwitz’s did not accept the comments at face value but connected them to the father’s behaviour and his tendency to demonize the mother. His conclusions in this regard were logical and grounded in his investigation and observations of the parties and Tierney.
- Mr. Hurwitz’s conclusions regarding the father involving Tierney in adult issues and consulting with her on decision making were well founded. The father’s attempts to prove otherwise were not successful. There were many examples used by the assessor but two specific ones are illustrative: first, the father’s admission that he spoke to Tierney about picking her up after school on her mother’s parenting days and planned to care for her without consulting the mother and without explaining to Tierney that this was her mother’s time; and second, the fact that Tierney read the assessor’s recommendations on her father’s computer. There is no reason to disbelieve this. Mr. Hurwitz believed what Tierney told him.
- Mr. Hurwitz’s evidence that he gave little weight to the father’s allegations about the mother’s assaultive behaviour was reasonable. Mr. Hurwitz observed the parties individually, jointly and with Tierney on multiple occasions. It was logical for Mr. Hurwitz to conclude that, based on those observations, the mother demonstrated no aggressive behaviour.
Should the Assessment Recommendations be Implemented?
[172] The real issue in this case is decision making. These parents cannot collaborate and it is disingenuous for the father to suggest that they can.
[173] There are several reasons why the joint custodial arrangement proposed by the father cannot work. They are set out below.
The Father’s Personality
[174] The father’s personality is not conducive to a joint parenting, collaborative approach. The calm, measured and respectful manner in which he conducted himself throughout the trial must be contrasted with significant evidence that was inconsistent with his trial demeanour.
[175] Mr. Hurwitz described the father as “self-righteous, critical, dogmatic, suspicious, and lacking empathy.” He told the court that the father was focused on shaming and blaming the mother to the point of being obsessive about her dyslexia. He spent much of his allotted time during the assessment on that.
[176] The mother described the father as a bully and always needing to have control. She testified that he had a dominant personality and cannot co-parent. She had concerns about his inability to control his anger and described several incidents both before and after separation in which the father was enraged. The mother recalled the morning after an emotional marriage counseling session in 2016. The father was enraged and said to her three times, “I could kill you.”
[177] The mother called Yellow Brick House on her own to learn about domestic violence as she was fearful of the father’s rages. She described the father’s anger towards her post separation as “unfathomable.” She testified that she has been told she was stupid, to “fuck off,” and given the finger. The father’s communication with her ranges from simply no response at all to sarcastic and demeaning. The mother referred to two particular emails sent to her by the father:
- Email of July 4, 2017 to the mother: “…..In the meantime, please do not waste any more of my precious time with your nonsensical ineptness.”
- Email of June 29, 2017 to the mother: “…Accordingly, I have no sympathy for your whining.”
[178] The mother testified about incidents that occurred as recently as February 22, 2018 when the father swore at her and another incident in March 18, 2018 when he gave the mother the finger and told her to “sit on it” in front of Tierney.
[179] The mother and Mr. Hurwitz were not the only ones who were disquieted by the father’s personality. Mr. Hurwitz noted in his interview with Dr. Bresver that she described the father as “difficult to deal with” and “opinionated and controlling.”
[180] In Mr. Hurwitz’s interview with Linda Gallivan, the mother’s sister-in-law, she described the father’s anger as “scary” and told him that the father could be a bully towards the mother.
[181] I give little weight to Mr. Shin’s conclusions as he did not interview the mother or Tierney. Further, his information was based solely on self-reporting from the father. He was unaware of the pleadings, the affidavits, the assessment or the allegations made by the mother about the father. Some of the mother’s allegations related to the father’s emotional and verbal abuse towards her were read to Mr. Shin. He agreed that those allegations, if true, would contradict his opinion that the father had no propensity for violence.
[182] The father introduced a binder of 46 emails (Exhibit 15), through which he attempted to show that he was being cooperative and not trying to “control the dialogue.” But Mr. Hurwitz would have none of it. His view was that the emails demonstrated a degree of cooperation with respect to day-to-day matters related to the child, but they did not change any of his conclusions because he found the emails selective and missing critical pieces of the assessment.
[183] In summary, the father has failed to persuade this court that his personality is one that would lend itself to collaborative decision-making and joint parenting. The controlling and bullying aspects of his personality are corroborated by the evidence of Mr. Hurwitz, the mother and other collaterals. Mr. Hurwitz’s fear that decision making would come to a standstill in a joint parenting arrangement is likely to be borne out if the current arrangement continues.
The Father’s Contempt for the Mother
[184] It is trite to say that it is impossible to effectively joint parent without some degree of respect existing between the parties. Mr. Hurwitz was clear that the father’s focus during their interviews was the impact of wife’s dyslexia on their relationship and her parenting. Mr. Hurwitz reported that the father was highly critical and intolerant of the mother and her learning disability. He lacked empathy towards her and felt that this condition should strip her of any parenting abilities and rights.
[185] In his affidavit sworn July 30, 2017, the father makes the following statements about the mother’s dyslexia at paras. 15, 16, 18, 20 and 21:
The Applicant has severe mental disabilities….. her most serious deficiencies are related to memory. The Applicant also has problems with communication, sequencing, directionality, general learning disabilities, problems with time, scheduling, planning and other difficulties… Her disability was a major problem in our relationship while living together and remains a problem today… During our marriage, the Applicant’s behaviours resulting from her disabilities were often bizarre and offensive.
[186] The father was focused in his interviews with Mr. Hurwitz and his evidence at trial on the mother’s deficiencies while always deflecting comments about his own. As Mr. Hurwitz noted in his notes, “throughout the assessment, Ron took no responsibility for any historical marital problems. He had no insight and blamed MB [the mother] for everything. This is problematic.”
[187] In contrast, the father was very empathetic with respect to Tierney’s learning disability. He told the court in great detail the learning strategies he has developed to help her with her school work. He was extremely proud of the progress Tierney had made in school. He never used Tierney’s dyslexia to disparage or blame her as he did with the mother.
[188] Mr. Hurwitz recognized this trait in the father and made several important comments in his assessment about the father’s view of the mother. At page 66 he wrote, “Mr. Rodgers’ inability to control his contempt for Ms. Gallivan is a risk factor in what he communicates to Tierney about her mother. This correlates to his contributing to undermining Tierney’s relationship with her now and in the future.” And at page 67, he further stated, “[i]t is hard to know why Mr. Rodgers is so contemptuous of Ms. Gallivan but I believe it is a combination of it being divorce related, and his anger at her leaving the marriage, and his personality, where he presents himself as being better than her.”
[189] Perhaps no event better illustrates the father’s deprecating treatment of the mother than the joint meeting held with Mr. Hurwitz on August 16, 2017. Mr. Hurwitz described the father as bullying and verbally abusive in his interaction with the mother, accusatory and angry in tone. He frequently cut the mother off and controlled the conversation. Mr. Hurwitz observed that the mother appeared intimidated by the father who presented himself as superior to her. He commented that the mother “shuts down” when the father denigrates her. Their inability to problem-solve childcare issues was high and evident at the joint meeting according to Mr. Hurwitz.
[190] The mother told Mr. Hurwitz on several occasions that she needed respect from the father in order to co-parent. She did not feel that was forthcoming and expressed frustration about this and trepidation about how joint parenting could work in the long term.
The Father’s Lack of Cooperation
[191] The father’s failure to cooperate on a number of levels has led to unnecessary litigation and increased parental conflict. The inability of the parties to agree on some important child-related issues does not give this court any confidence that a joint parenting arrangement would be in Tierney’s best interests. Specific examples of the court’s concern are set out below.
A) The Father’s Failure to Pay Court Costs and the Assessment Retainer
[192] The father’s attitude in this area is concerning as it relates to a lack of respect for court orders and previous agreements. The father was ordered to pay $4,000 in court costs on February 20, 2018. He had not paid those costs by the trial date. His view was that he had no liquid assets at that time but would pay the costs upon the sale of the home in June 2018. It is important to note, however, that the father’s financial statement sworn February 19, 2018 shows that he had $20,154.55 in a TFSA account. The father had the ability to pay the costs at the time the order was made but chose not to.
[193] The father refused or delayed payment of retainers and fees to Mr. Hurwitz despite his consent to appoint an assessor and the fact that he chose Mr. Hurwitz out of a list of proposed assessors. At his first interview with Mr. Hurwitz he told him he had no liquid assets and could only give him a $1,000 retainer. This led to the mother having to essentially fund the father’s share until he was ordered by the court (twice) to repay her. The father paid his share of Mr. Hurwitz’s attendance fee of $11,359 only days before the trial began.
[194] The father conceded that he still owes the mother $2,781.16 for monies the mother advanced on the father’s behalf for Mr. Hurwitz’s fees. He was ordered to pay this to the mother “forthwith” as part of Stevenson J.’s endorsement dated February 20, 2018. As of the date of trial he had not paid it. He again stated he would pay it from his share of house sale proceeds. He agreed, however, that he had more than $18,000 of room on his line of credit as of March 12, 2018 but had made no effort to repay the mother from his line of credit.
[195] On March 13, 2018 the mother e-transferred the father the sum of $2,638.06 to reconcile certain section 7 expenses. The father removed $25,000 from the parties’ line of credit just before separation. The mother suggested that the funds owed to the father for section 7 expenses be offset from the $12,500 she was owed from the line of credit withdrawal. The father refused the offset.
[196] In this court’s view, the father’s refusal to pay court costs, his refusal to pay fees to Mr. Hurwitz when bound by a retainer agreement and court order to do so, and his refusal to reimburse the mother for fees paid on his behalf to Mr. Hurwitz, while at the same time insisting that the section 7 payment be made to him, demonstrate a shocking disrespect for authority, court orders and the mother.
B) The Father’s Lack of Cooperation with Respect to the Listing and Sale of the Matrimonial Home
[197] On August 30, 2017, Low, J. ordered that that father could make an offer to buy out the mother’s interest in Lynngrove within 45 days failing which the home was to be listed for sale within 60 days. Nothing happened.
[198] Another order was made on February 20, 2018 in which Stevenson, J. noted, “[t]he listing [of the home] must proceed. It should have taken place long ago and the Respondent [father] has provided no evidence as to why the home has not been listed.” The court noted the numerous letters presented by the mother’s counsel seeking cooperation with respect to the listing of the home and selecting a real estate agent. The court further noted that the correspondence had gone unanswered.
[199] The father was present at the February 20, 2018 motion, but he did not file any material. While failing to explain the delay, the father then opposed the listing of the home claiming that he could not prepare the home for sale and prepare for trial at the same time. He also opposed the mother’s request to have the house sale proceeds held in trust pending the trial outcome. Not surprisingly he was ordered to pay the mother’s costs of that motion ($4000), which remain unpaid as described above.
C) The Father’s Lack of Cooperation with Respect to the Mother’s Belongings in the Matrimonial Home
[200] On April 4, 2017 the mother’s counsel sent the father’s then-counsel a list of contents she proposed to remove from Lynngrove. Some negotiations took place but no agreement was reached.
[201] Follow up correspondence related to the household contents was sent by the mother’s lawyer on May 5, 18 and 31, 2017. On June 14, 2017 the mother’s counsel indicated a deadline by which the mother was to pick up contents so that she could furnish her new rental accommodation. In correspondence dated June 26, 2017 the mother’s counsel advised that a motion would be brought on July 25, 2017 to deal with the contents issue as well as the school and Mr. Hurwitz’s retainer issues.
[202] Some items were retrieved by the mother on September 9, 2017 but other contents had to be dealt with at the February 20, 2018 motion. There was no disagreement that the mother owned these items but the respondent would not cooperate with respect to their retrieval until a motion was brought.
D) The Father’s Failure to Implement a Timely Parenting Plan Post-Separation
[203] On February 20, 2017, mere days after the separation, the mother sent the father an email requesting a parenting schedule (Exhibit 1). He did not respond.
[204] On March 2, 2017 the mother had her counsel send a letter setting out a detailed parenting schedule (Exhibit 2). The father did not respond.
[205] On March 7, 2017 the mother had her counsel send a further letter indicating that there had been no response to the requests for a schedule and further that the father was unilaterally restricting the mother’s access to Tierney. The father did not respond.
[206] The father’s evidence was that his counsel was away on vacation and her office had advised that she would respond on her return. He appeared confused about why the mother was sending so many letters and tried to paint her as being insensitive and unreasonable about parenting time following separation. However, a review of some of the father’s emails around that period of time shed a different light on the issue.
[207] On March 7, 2017 the father sent the following email to the mother: “[n]o schedule has been agreed upon by either Tier or I….I urge you to respect Tier’s wishes and back off….Tier has told me she wishes to remain at our home this week.”
[208] On March 8, 2017 the father sent the following email to the mother: “I will be at the school at around 3:00. Your options are: take Tier home for dinner and deliver her to swimming and I will take her home from swimming or, I will simply take her home and to swimming and then home again. This is not negotiable.”
[209] I accept the mother’s evidence that the father refused to agree to any access schedule other than what he (apparently in consultation with Tierney) imposed on the mother. Her evidence was that the father unilaterally decided the schedule on a daily basis. The mother was forced to issue her application and set an urgent Case Conference date at which point the joint parenting schedule was implemented. There was no dispute that the mother had no contact at all with Tierney for approximately 12 days prior to the first day of court ordered access on April 10, 2017.
[210] The father’s actions following separation are concerning from several aspects: his decision to involve Tierney in the parenting schedule discussions, his failure to respond to the mother, and his withholding of access. The most concerning aspect, however, is his dictating of access terms and a complete failure to collaborate with the mother under the guise of what Tierney did or did not want. This type of approach is not conducive to a joint parenting arrangement.
[211] The court is concerned about the mother’s evidence that the father is fine as long as everything is going his way. The possibility of the parties not agreeing on a substantive parenting issue is a real one. Based on the history of this matter with respect to interaction between the parties and the ongoing litigation, the court is left with little hope that such issues could be worked out by the parties on their own.
E) The Father’s Insistence on a Right of First Refusal
[212] Despite the mother’s request that he not do so and Mr. Hurwitz’s position that he was intruding on the mother’s parenting time, the father has continued to have Tierney come to his home after school on the mother’s parenting days.
[213] The father’s view during the assessment and throughout trial was that it is best for Tierney to come to his house after school and have a hot meal before swim practice. She does not like the after school care program her mother arranged. The father was open about the fact that he had talked to Tierney about this and he and Tierney formulated this plan together. He feels strongly that this is in Tierney’s best interests and cannot see a problem with it.
[214] Mr. Hurwitz’s view was that even when the mother is not directly parenting, her parenting time must be respected. Mr. Hurwitz viewed after school care as part of the decision making function of the parent who has Tierney’s care. He went on to comment that it is the father’s belief that his retirement status gives him preferential treatment around the right of first refusal. Mr. Hurwitz does not agree with this view.
[215] Needless to say, the mother is very concerned about the father’s insistence that Tierney come to his home after school. She has been powerless to stop it up to this point but agrees with Mr. Hurwitz that such actions on the part of the father undermine her parenting and involve Tierney in the parenting conflict.
[216] In this court’s view, the father has empowered Tierney by consulting her on the after school care issue. The father is then critical of both the mother and the assessor for attempting to prevent Tierney from doing something that she wants that benefits her. The father fails to see Mr. Hurwitz’s point and the mother’s distress about how this arrangement undermines the mother and her parenting time.
[217] It appears that this after school care arrangement has been going on since September 2017 and it must stop. There can be no more blurred lines in any parenting arrangement between these parties as the father will take advantage of them and justify his actions based on what he interprets Tierney wants. The danger, of course, is related to the warnings in Mr. Hurwitz’s assessment that Tierney’s expression of what she wants has been influenced by what she thinks her father wants her to want.
Conclusion
[218] Based on all of the above, it is evident that these parties cannot co-parent. Mr. Hurwitz is clear in his report that “joint custody would be harmful for Tierney as it would promote delays in decision making and increase frustration for both parents.” I agree. It is obvious that for these parties, joint decision making would lead to either no decision making or litigation. Since separation alone, the parties have litigated the choice of school for Tierney, as well as a residential schedule and summer vacation with Tierney.
[219] The Court of Appeal for Ontario has spoken very clearly about joint custodial arrangements in Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.LR. (4th) 620. In that case, the court discussed the dissonance created when joint custody is imposed on parents who cannot co-parent. The court stated the following at para. 11:
…hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence that, despite their differences, the parties are able to communicate effectively with one another.
[220] The father tried, and failed, to demonstrate that the parties could communicate effectively. The binder of emails he presented at trial showed cooperation on day-to-day issues such as exchanging swim gear and empty lunch containers. It did not show collaboration on issues such as Tierney’s school or other major issues. In fact, certain emails in evidence (and referred to in this judgment) demonstrate a sarcastic and belittling tone on the part of the father in his communication with the mother. I also accept the mother’s evidence that at times the father simply does not respond to her at all.
[221] The key point is “effective communication” as per Kaplanis. I do not interpret Kaplanis to mean that an agreement to exchange empty lunch containers is effective communication. It is certainly a level of communication, but not the threshold required for the joint custodial arrangement proposed by the father.
[222] In addition to the mother having sole custody, it clear that hard lines must be drawn with respect to each parent’s contact with Tierney. The father has his own interpretation of the current parenting arrangement. The after school care issue and keeping Tierney home over the Labour Day weekend are only two examples. The parenting arrangement must be one in which there is little room for interpretation or debate. This includes an arrangement in which there is no right of first refusal except in very specific circumstances.
[223] Given my observations of the parties at trial and Mr. Hurwitz’s conclusions in his report, it is also clear that situations in which Tierney is placed in the middle of parental conflict must be eliminated. I refer specifically to swim practice. It is interesting to note that when Mr. Hurwitz interviewed the mother’s friend, Ted Durst, he observed that he had seen Tierney at the swimming pool when the father was present but when it was not the father’s parenting time. Mr. Durst’s evidence was that Tierney seemed tense.
[224] There have been a number of conflicts that have arisen because of the parties’ interactions at the pool and even with respect to the exchange of Tierney’s swim gear. Given the current risks that Mr. Hurwitz identified with respect to risk factors concerning possible parental alienation, the parent who is not caring for Tierney should not be permitted to attend her swim practices or swim meets. This will reduce contact between the parties and anxiety for Tierney. The same regime would apply for any future extra-curricular activities in which she is involved.
[225] Although it is this court’s view that virtually all of Mr. Hurwitz’s recommendations should be adopted as a parenting plan, there is a concern about the residential schedule proposed for two reasons. First, Tierney made it clear that she does not like going back and forth as frequently between her parents’ homes. She describes this as wanting more sleeps at each parent’s home. I infer this to mean that Tierney would simply like more uninterrupted time in each parent’s home. The shuttling back and forth every few days would be stressful for anyone, let alone an 11-year-old child who is in therapy and still dealing with the anxiety related to her parents’ separation.
[226] Second, Tierney is closely bonded to her father. The description of the home and office visit between Tierney and her father show a relationship filled with love and harmony. While the father should not retain any decision-making authority in the parental arrangement for the detailed reasons articulated above, his residential time with Tierney should not be significantly reduced. I fear that Tierney would greatly miss her father and the things they do together. A further concern is that she would blame her mother for reducing the time with the father.
[227] In conclusion, a more traditional shared parenting arrangement should be adopted in which Tierney spends extended time in each parent’s home on a week about basis. This would align with Tierney’s expressed preference but also address the maximum contact principle in section 10 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), to which the father made repeated references. Each party’s parenting time would be strictly defined with no intrusion by the other parent on that time except in very specific circumstances. Any extra-curricular activities that fall on a particular parent’s time would be exclusively their time with respect to transportation and attendance at practices, games and competitions. Although this may seem harsh, particularly for the father, the intent is solely to reduce anxiety for Tierney.
[228] While the week about shared parenting time is much different from the current arrangement and different again from the recommendation of Mr. Hurwitz, it is this court’s view that it aligns with Tierney’s best interests for the following reasons:
- It reduces the shuttling back and forth that Tierney objected to and allows her more continuous time with each parent.
- A mid-week visit with the other parent will ensure that the time away from either parent is not significantly prolonged.
- Tierney is adapting well and is now used to living in two households. She also adapted well to her new school last September as evidenced by her excellent report card.
- Reduced transitions between households will reduce contact and tension between these parties and anxiety for Tierney.
- Tierney is now 11 years old and at a point where she is sufficiently mature that she can contact the non-residential parent on her own by phone, Skype, Face Time or whatever method she chooses.
[229] Given all of the above, Mr. Hurwitz’s recommendation that the mother have sole custody is accepted by this court. The balance of his recommendations shall form the parenting plan attached as Schedule A to this judgment with the required changes to the Right of First Refusal, some slight changes to holiday time and a change to the proposed parenting schedule, which would result in the parties having an equal amount of time with Tierney.
Support Related Issues
A) The Parties’ Incomes for Support Purposes
[230] The mother’s income is not in dispute in this case. She is a salaried employee whose 2017 T4 income was $94,825.50.
[231] The mother seeks to impute income to the father. She provided three scenarios in which income would be imputed at $106,397.90, $111,633.16 or $114,816.76 depending on the interest rate used to determine the growth in his capital from the sale of the matrimonial home and the equalization payment he will receive from her of $100,000.
[232] The father retired in February 2013. In his peak earning years, he earned as much as $412,000. Even after his retirement, he continued to receive payouts from commissions and other amounts such that in 2013 his income was $210,110, in 2014 it was $162,190 and in 2015 it was $61,908. In 2016 and 2017 his income has consisted of CPP and OAS payments. In 2016 his income was $23,392 and in 2017 it was $20,055.
[233] The father’s assets, apart from his share of the matrimonial home, consist of a LIRA in the amount of $82,533.21 and an RRSP in the amount of $687,188.21. The father’s position is that he does not want to access funds from his RRSP until he is required to at age 71. He is currently 67 years old.
[234] The mother introduced evidence from Statistics Canada that shows that the average Canadian male lives to age 79.8. Using this statistic, the mother estimates the father will live another 13 years. As such, he should be withdrawing $57,734.70 per year from his RRSP/LIRA accounts.
[235] The father disputes the age statistics provided by the mother but did not introduce any contrary evidence of his own. The father complained that Statistics Canada uses a Canada-wide average that includes infant mortality. This skews the number downward and it should therefore not be relied upon.
[236] In addition to an imputed annual withdrawal from savings to the father, the mother seeks to impute interest income on the capital the father will receive from the matrimonial home and by way of equalization payment. The mother calculates this capital amount to be $707,467.35. Using a range of interest rates from 4.04% to 5.23% the mother estimates that the father could be receiving income of at least $28,581.68 by way of return on his investments and up to $37,000 using the highest rate of interest.
[237] The father disputes the mother’s calculations. He points out that it is impossible to predict the future regarding rates of return. Further, the mother has not factored in the withdrawals the father will be required to make and the security required for the payment of support since the father has no significant amount of life insurance. The mother has also failed to address the double dipping issue since the father’s assets were already considered in determining the equalization payment.
[238] In determining spousal support, section 15.2(4) of the Divorce Act requires that the court take into considerations the “condition, means, needs and other circumstances of each spouse.” A spouse’s means includes all financial resources, capital assets and income from all sources: see Strang v. Strang, 1992 CanLII 55 (SCC), [1992] 2 S.C.R. 112.
[239] The father chose to retire voluntarily. It would follow that upon retirement; he would access the capital he had saved for that purpose. It is not reasonable for the economic consequences of the marriage to fall solely on the mother. The father is expected to access his capital and if he does not, such withdrawals should be imputed to him. This proposition is supported in cases such as McConnell v. McConnell, 2015 ONSC 2243, at para. 101, in which the court viewed an RRSP as deferred income for support purposes.
[240] While the father did not introduce any other statistical evidence with respect to mortality rates, his evidence was that he exercises daily, and is scrupulous about his personal health in all aspects. It is clear from simply looking at the father that he is a healthy and fit individual.
[241] While admittedly somewhat random, I am prepared to accept that the father will live longer than the 79.8 year average and will impute withdrawals from his LIRA and RRSP over 15 years rather than 13 years. This would result in an annual withdrawal of $50,036 from the combined capital of his retirement accounts being $750,551.11 based on his financial statement sworn February 20, 2018.
[242] The mother’s counsel then seeks to impute annual interest income to the father based on his non-registered capital investments. The mother’s calculations are that the father’s share of the Lynngrove proceeds would be $607,467.35 plus the $100,000 equalization payment for a total of $707,467.35. The mother used the various return rates on the father’s own registered investments at different points in time to calculate a range of return rates.
[243] There is no doubt that investment income on an equalization payment can be attributed to a recipient. In Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, at paras. 137-139, the court attributed a 3% rate of return on the appellant’s equalization payment.
[244] Further, courts have accepted that income from investment of the equity in a home can also form part of a party’s income. See Schulstad v. Schulstad, 2017 ONCA 95, at para. 43, in which the Court of Appeal for Ontario determined that the trial judge had erred in not including this interest income for support purposes.
[245] There is clearly a varied view on what should be used as a rate of return. As the father points out, it is impossible to predict the future. However, I note that in Berta v. Berta, 2017 ONCA 874, 138 O.R. (3d) 81, at para. 44, the court used a 6% return rate for spouses whom the court described as “wealthy and financially savvy.” Certainly the father can be considered nothing less than a “savvy” investor given his education, qualifications and previous employment as a senior investment advisor.
[246] I see no reason why a return rate of 4.78% should not be used. This reflects the rate of return of the father’s registered investments and TFSA since 2016. This reflects the father’s own investment expertise that cannot be ignored in these factual circumstances.
[247] The father submits that it is likely that certain sums may be put aside for security for the payment of support given that he is likely unable to afford life insurance premiums because of his age. He submits that whatever amount is set aside should be deducted from his capital given that he will have no access to it. The mother seeks to have $150,000 set aside. The father says this is overkill. He suggests $60,000 to secure a possible seven years of child support payments.
[248] If $100,000 is set aside as security for the payment of child support in the event of the father’s death before Tierney is an adult, that would reduce his capital to $607,467.35. Applying a return rate of 4.78% would generate an annual return of $29,036.
[249] Therefore, the father’s income shall be imputed at $99,154.45. This number is made up of RRSP withdrawals of $50,036, interest income of $29,036.93 and OAS/CPP income of $20,081.52.
B) The Father’s Entitlement to Spousal Support
[250] This issue does not merit much discussion and the father did not argue his entitlement to spousal support very strenuously at trial. I do not find that the father has an entitlement to either compensatory or non-compensatory spousal support for the following reasons:
- He did not suffer any disadvantage during the marriage. He agreed that each parent had stayed home to care for Tierney an approximately equal amount of time by the date of separation.
- The father was in a superior capital position to the mother both before and after the sale of the matrimonial home.
- The father’s imputed income exceeds that of the mother.
- It would be inequitable for the mother to bear all of the financial consequences of the marriage breakdown.
[251] Based on all of the above, the father’s claim for both retroactive and ongoing spousal support is dismissed.
C) Child Support
[252] As the parties will be sharing time with Tierney, support will only be owed if there is a set off amount owing. The father’s obligation for child support would be $903 per month and the mother’s would be $869 resulting in a differential payment of $34 per month. Rather than attempting to collect such a small amount each month, the slight difference in income should be reflected in the division of section 7 expenses as those expenses are substantial.
[253] Therefore, in the circumstances, there shall be no payment of retroactive or ongoing child support by either party.
[254] Given that there is no child or spousal support payable by either party, the father’s arguments related to “double dipping” do not apply.
D) Section 7 Expenses
[255] Based on the father’s imputed income and the mother’s income, the parties should apportion section 7 expenses with the father paying 51% and the mother 49%.
[256] However, given the income differential and the fact that a small amount of support would be payable to the mother, the division of section 7 expenses shall be apportioned at 55% payable by the father and 45% by the mother.
[257] Given this finding, the parties shall re-apportion all section 7 expenses incurred since the date of separation on a 55/45% apportionment and the mother shall be refunded all resulting amounts owing to her from the father’s share of the proceeds of the sale of the matrimonial home.
[258] In the past there have been disputes with respect to what is and is not included in section 7 expenses. This judgment shall set out exactly what category of expenses is included for the purposes of section 7. All other expenses incurred for Tierney shall be fully paid by the parents individually and without apportionment.
Final Orders
[259] The applicant shall have sole custody of the child, Tierney Rodgers, born December 29, 2006.
[260] The parties shall abide by the parenting plan attached as Schedule A to this judgment, which forms part of this judgment.
[261] There shall be no retroactive or ongoing spousal or child support payable by either party based on the respondent’s imputed income of $99,154.45 and the mother’s income of $94,825.50.
[262] Section 7 expenses for Tierney shall be apportioned at 55% payable by the respondent and 45% payable by the applicant.
[263] The section 7 expenses incurred for Tierney shall be recalculated back to the date of separation and reapportioned based on the above paragraph. Any funds owing to the applicant shall be paid to her from the respondent’s share of sale proceeds from the matrimonial home.
[264] On a go forward basis, section 7 expenses for Tierney shall consist of the following:
- Swimming registration fees, competition (swim meet) fees, banquet and team photograph fees. Each parent shall have their own set of swim gear for Tierney as bathing suits, towels, bags, etc. are not section 7 expenses.
- Piano lesson and recital fees including piano books required by the teacher.
- Therapy.
- Tutoring.
- School trips, class photos and outings.
- Driving lessons when applicable.
- “Prom” type wear should Tierney choose to attend.
- Any other extra-curricular activities that the parties agree should be a section 7 expense including equipment and uniforms for such activities.
- The cost of the purchase and/or renewal of any passport, Nexus, health card or SIN card for Tierney.
[265] Where a parent incurs an agreed upon section 7 expense they shall retain the receipt and section 7 expenses shall be reconciled quarterly commencing June 15, 2018 and thereafter on September 15, December 15, March 15 and June 15 in each year. Reconciliation shall be done by email with receipts as scanned attachments.
[266] The applicant’s court costs of $4,000 and the amounts owed to her by the respondent for the assessment ($2,781.16), inclusive of interest from the date owed, shall be paid to her from the respondent’s share of house sale proceeds.
[267] The respondent shall pay to the applicant the sum of $12,500 representing funds withdrawn from the parties’ joint line of credit and used solely by the husband. This shall be paid to the applicant from the respondent’s share of house sale proceeds.
[268] The sum of $100,000 shall be paid into court from the respondent’s share of house sale proceeds as security for the payment of child support in the event of the respondent’s death during Tierney’s dependency. If the respondent is able to obtain life insurance with a face value of at least $100,000 and provide proof to the applicant that such insurance is in place, he may apply to the court by way of 14B motion on notice to have the security funds returned to him.
[269] Upon Tierney turning 18 years of age (if she does not attend post-secondary education) or the completion of her post-secondary education, the respondent, or his estate, may apply for a return of the deposited funds with the court including interest if any balance remains.
[270] The applicant is not required to deposit security for the payment of child support so long as she maintains the life insurance set out in her financial statement sworn March 5, 2018.
[271] The sum of $100,000 to be held back from the respondent’s share of house sale proceeds pending the determination of costs in this matter.
Costs
[272] The parties shall provide written costs submissions of no more than three pages in length exclusive of any Offers to Settle and Bill of Costs. Submissions shall start with the applicant on a seven day turnaround. The first day shall be calculated from the date of release of this judgment. If no costs submissions are received within 35 days of the release of this judgment, costs will be deemed to be settled.
[273] All costs submissions and related documents are to be emailed directly to my assistant at Natasha.Mirabelli@ontario.ca.
Gilmore, J.
Released: May 9, 2018
COURT FILE NO.: FS-17-00416623
DATE: 20180509
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mary Elizabeth Gallivan
Applicant
– and –
Ronald Charles Rodgers
Respondent
TRIAL JUDGMENT
Gilmore, J.
Released: May 9, 2018