COURT FILE NO.: FS-15-00406777-000

DATE: 20181009

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHONG LIU

Applicant

– and –

FANG HUANG

Respondent

Toni E. Wharton, for the Applicant

Corinne A. Muccilli, for the Respondent until August 20, 2018

Gary Joseph, for the Respondent as of August 20, 2018

HEARD: February 12, 13, 14, 15, 16, 20, 21, 22, 23, March 5, 27 and 28, 2018; additional written submissions May 18, May 23, May 24, July 31, August 21, and August 22, 2018

kristjanson j.

[1] This case illustrates the toll false allegations of domestic violence have on the best interests of the child. The applicant father, Mr. Chong Liu and the Respondent mother, Ms. Fang Huang, were married in June 2006 and separated on September 27, 2015. Their daughter, CL, was born in March, 2014 and is now 4 ½ years old. Her mother and father have been engaged in a bitter family law battle, primarily over custody and access, since CL was 18 months old.

[2] Parenting issues in this case hinge on the assessment of the credibility of the mother and father and the plausibility of their accounts. In Ms. Huang’s version of events, Mr. Liu is an angry man with a trigger temper, prone to yelling, who physically assaulted her on more than one occasion, refused to participate in the care of the infant CL, and created a “toxic environment”. In her version, the marriage ended when Mr. Liu physically assaulted Ms. Huang in CL’s presence. After separating Ms. Huang withheld access to CL for approximately 3 months. She required supervised access for eleven months because of her fears with respect to CL’s safety. She then required supervised exchanges at a location which meant her infant daughter spent eighty minutes in the car for each exchange. The expansion of access occurred only in the context of motions brought by the father. She requests sole custody of CL because of Mr. Liu’s anger, his inability to make decisions on CL’s behalf or to prioritize CL’s needs, and the inability of the parents to communicate.

[3] Ms. Huang is not credible on key issues, and her account is not plausible. I find Mr. Liu to be a loving and caring father. During the marriage he assumed a substantial portion of CL’s care, the bulk of the chores, and the financial support of the family. Ms. Huang physically assaulted Mr. Liu in September 2015, scratching his face, breaking his glasses, and driving him out of the house. She had previously assaulted him. Since separation, he has continually sought increased time with CL, whom he had cared for before the separation. I find that Ms. Huang used CL as a pawn and a false allegation of domestic violence as an excuse to exclude Mr. Liu from meaningful participation in CL’s life. Mr. Liu has remained a loving father and has expressed appreciation for Ms. Huang’s role as a mother. She, by contrast, has proven herself unable to respect and recognize the important role of Mr. Liu in the life of CL.

[4] For reasons set out in Part I below I have determined that it is in the best interests of CL to grant Mr. Liu sole custody of CL, with a generous access schedule. The only parent who will appropriately respect the role of both parents in CL’s life, and prioritize her needs, is Mr. Liu, and Ms. Huang is unable to communicate responsibly about CL.

[5] I deal with financial and property issues in Part II below.

[6] This decision is organized as follows:

A. Post-Trial Orders and Written Submissions. 4

PART I: PARENTING ISSUES. 5

A. Assessing credibility. 5

B. Parenting Issues During the Marriage. 7

1. Marriage Relationship Before the Child’s Birth. 7

2. Mr. Liu’s Role in Caring For CL Prior to Separation and Alleged Anger Issues. 7

(a) Mr. Liu’s Version of His Role in CL’s Care. 7

(b) Ms. Huang’s Version. 8

3. Conclusion: Mr. Liu Was an Involved Parent; Anger Allegations are Untrue. 9

(a) January 2015 – Mother Leaves Child Alone With Father for Five Weeks. 9

4. Domestic Violence and the Date of Separation Allegations. 10

(a) Contemporaneous Photographs. 11

(b) Adverse Inference: Failure to Call Ms. Huang's Parents. 11

(c) Late and Incomplete Production: We Chat Messages. 12

(d) Ms. Huang’s Allegations of Prior Domestic Violence and Misleading Translation. 13

(e) Evidence of Mr. Haifang Zhang Contradicts Ms. Huang. 14

(i) The Rule in Browne v. Dunn. 15

(f) Evidence from Peng Yu. 17

5. Mr. Liu’s Role in Medical and Dental Care. 17

C. Post-Separation Parenting Issues. 18

1. Ms. Huang Unreasonably Restricted Access After Separation. 18

(a) Supervised Access. 19

(b) Resiling From Brief Focused Assessment Proposal Following Motion. 20

(c) November 9, 2016: Unsupervised Access, Supervised Exchanges. 21

(d) August 22, 2017: Overnight Access. 21

(e) False Allegations in 911 call 21

2. Communications Post-Separation. 24

3. Supporting the Role of the Other Parent 24

D. Conclusion on Parenting Issues. 25

1. Legal Framework: Parenting Issues. 25

2. Summary of Major Findings on the Evidence. 26

3. Sole Custody to Ms. Huang is Not in CL’s Best Interests. 28

4. Joint Custody Not Appropriate; Sole Custody to Father 29

PART II: FINANCIAL and PROPERTY ISSUES. 30

A. Child Support and Section 7 Expenses. 31

1. Income for Child Support Purposes. 31

(a) Income of Mr. Liu. 31

(b) Income of Ms. Huang. 31

2. Proportionate Section 7 Expenses for 2017 and 2018. 32

3. Adjustment to Child Support Given Shared Parenting Schedule. 33

4. Retroactive Child Support and Section 7 Expenses. 34

(a) Interim Child Support Order July 16, 2016. 34

(b) Dental Expenses. 35

(c) Critical Illness Insurance Premiums: Not an Eligible Section 7 Expense. 36

B. Spousal Support Claim.. 37

1. Ms. Huang’s Employment History. 37

2. Findings. 38

C. Equalization. 39

1. The Automobiles. 39

2. Date of Marriage Deductions. 40

3. CRA Refunds. 40

4. Ms. Huang’s Claim for Excluded Gifts. 41

(a) Alleged $10,000 Gift 42

(b) Alleged $23,000 Gift 42

(c) Alleged $14,000 Gift 43

5. Other 43

6. Conclusion. 44

D. Occupation Rent 44

E. Life Insurance Issues. 46

F. Post-Separation Adjustments. 47

1. Mr. Liu’s Claim for Post-Separation Adjustments. 47

2. Ms. Huang’s Claim for Post-Separation Adjustments. 49

PART III: ORDER.. 49

A. Post-Trial Orders and Written Submissions

[7] This was a 12-day trial. There were significant post-trial developments. Mr. Liu was terminated from his position with Blackberry mid-way through the trial. He secured a new position after the trial. On the last day of trial, I issued an Order directing the sale of the matrimonial home which was occupied by Ms. Huang; the final offer was accepted May 15, 2018, with a closing date of August 8, 2018. As a result, the parties made additional written submissions on new issues arising from both Mr. Liu’s new employment and the sale of the home.

[8] Given the sale of the matrimonial home, Ms. Huang’s pending move, and a dispute as to where CL would attend school in September, I released a temporary order on parenting issues in July with reasons to follow. I ordered custody and primary residence of CL with Mr. Liu; and set an access schedule including summer vacation to give the parents certainty on these issues. Following release of the interim parenting order, the parties made further written submissions regarding child support. I have used figures updated to August, 2018 that emerged from the written submissions, in light of the extreme conflict between the parties, and the primary objective of the Family Law Rules – to deal with cases fairly, efficiently, and proportionally, in order to avoid further motions on issues that are straightforward.

[9] I note that Ms. Huang has had approximately five counsel since date of separation. Ms. Muccilli was retained in January, 2018, so references to counsel prior to that time are not references to trial counsel. Mr. Joseph was retained on August 20, 2018. The original date for Ms. Huang’s final submissions on child support following the temporary order awarding custody to Mr. Liu and 50/50 access was August 13, 2018. For medical reasons, this was extended to August 20, 2018. On August 20 at 2:55 pm, Ms. Muccilli wrote to indicate that her submissions were completed, she was having technical issues, and she expected to file them by 4:30 p.m. At 4:01 pm, Mr. Joseph wrote stating he had just been retained and he would require a 2-3-week extension for the child support submissions. In light of the significant delay, and the retainer of yet another new lawyer on the very day child support submissions were due on the financial implications of the 50/50 access, I granted Mr. Joseph a one-day extension. In light of the conduct of Ms. Huang in this file, and the very late retainer of Mr. Joseph, I was of the view that a final and quick resolution was essential. Mr. Joseph filed the final written submissions on August 21, with reply on August 22.

PART I: PARENTING ISSUES

[10] The first issue is what parenting arrangements are in CL’s best interests. Mr. Liu seeks joint custody or, in the alternative, that he has sole custody. Ms. Huang seeks sole custody. The only consideration in determining custody and access is the best interests of the child, as discussed below. I first review the relevant facts.

A. Assessing credibility

[11] Given the dramatically different version each parent presents of the other, my assessment of credibility is critical to the custody and access decision. The key disputes relevant to parenting include:

• Allegations of domestic violence committed by Mr. Liu, his alleged anger, Ms. Huang’s fears of assault and CL’s safety;
• Allegations of domestic violence committed by Ms. Huang;
• Mr. Liu’s role in CL’s care prior to separation;
• Parenting after separation, including post-separation communication about CL’s needs and the ability to put CL’s needs first in decision-making; and
• Post-separation support of the other parent and respect for that parent’s role in the child’s life.

[12] I must evaluate the credibility and reliability of the witnesses, primarily Ms. Huang and Mr. Liu, and their evidence. I do so by referring to facts proved independent of their testimony, including documents, the evidence of other credible witnesses, and considering whether the evidence is corroborated or contradicted by other evidence. I consider the motives of the witnesses, the internal consistency of their evidence, and assess overall probabilities and plausibility. I consider the demeanour of the witness, including “whether questions are answered in a frank and forthright fashion without evasion, speculation or exaggeration”: Joshi v. Joshi, 2017 BCSC 207 at para. 5. In assessing the plausibility of a witness’ story, I must determine what is “in harmony with the preponderance of probabilities, what a practical and informed observer would readily recognize as reasonable in that place and in those conditions”: Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at 356-357.

[13] I may believe none, part or all of the witness’ evidence, and may attach different weight to different parts of the witness’ evidence: R. v. D. R. Square 1996 CanLII 207 (SCC), [1996] 2 SCR 291 at paragraph 93. Finally, I do not weigh the evidence in isolation, but evaluate credibility on the evidence as a whole.

[14] There are significant inconsistencies with respect to Ms. Huang’s evidence that are important in the credibility assessment. The Court of Appeal has specifically commented on inconsistencies in R. v. A.M., 2014 ONCA 769 at paras. 13-14:

[13] …[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath…. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned…

[15] The sheer number of inconsistencies in Ms. Huang’s evidence mean that I cannot resolve all inconsistencies: I have dealt with the major inconsistencies but have not dealt with some areas, such as sexual conduct, that I do not find to be material to the issues I must resolve. As the Court of Appeal explained in R. v. A.M. at para. 14:

A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31.

[16] Other factors going to the credibility of Ms. Huang and the reliability of the evidence she put forward in support of her position include, as discussed below:

• raising significant new issues and allegations for the first time in examination in chief, after cross-examination of the opposing party, despite lengthy pleadings, voluminous correspondence between counsel and viva voce evidence on a prior motion;
• contravening the rule in Browne v. Dunn (failing to put to the witness in cross-examination the substance of material evidence later tendered in an attempt to contradict the witness);
• eve of trial production of (a) a foreign language document with a misleading translation, and (b) an incomplete document; and
• adverse inferences based on the failure to call key witnesses under a party’s control.

B. Parenting Issues During the Marriage

1. Marriage Relationship Before the Child’s Birth

[17] The parties knew each other in school in Shanghai; their fathers worked at the same newspaper. They began a relationship when Mr. Liu was pursuing a PhD program in Canada and returned to Shanghai for a visit. Ms. Huang had completed an MBA in Australia and was working as a financial reporter in China. The parties had a largely long-distance relationship; they married in Shanghai in June, 2006. Ms. Huang immigrated to Canada in January, 2007 to join Mr. Liu, who was working at BlackBerry in Waterloo. Ms. Huang obtained a job in Toronto May, 2007 and Mr. Liu transferred to Blackberry, Mississauga in June, 2008.

[18] CL was born in March, 2014. Mr. Liu took three weeks off work to be at home following the birth. Ms. Huang took maternity leave, returning to work in February, 2015. Both sets of grandparents resided with the family before and after the birth. Ms. Huang’s parents lived in the matrimonial home January to June, 2014, and February, 2015 to present. They became permanent residents in 2015. Mr. Liu’s parents resided with the family June to November, 2014. They live in Shanghai, but come to Canada on visitor visas.

2. Mr. Liu’s Role in Caring For CL Prior to Separation and Alleged Anger Issues

[19] There is a dispute as to what role Mr. Liu played in caring for CL prior to the separation in September, 2015, and his alleged anger issues.

(a) Mr. Liu’s Version of His Role in CL’s Care

[20] Mr. Liu’s evidence is that he played a very active role in CL’s care before the separation. He took 3 weeks off after the birth to assist with the baby; he got up with Ms. Huang when she breast-fed at night; he changed, fed and bathed the baby and put her to bed. He assisted in the transition to solids; he took CL shopping and on outings. In January, 2015 when Ms. Huang was on maternity leave and CL was eight-month-old, Ms. Huang returned to China for five weeks for hemorrhoid surgery. Her parents, who resided with the couple in the matrimonial home, returned to China with Ms. Huang. On short notice, Mr. Liu arranged with Blackberry to take off five weeks to stay home with CL. Except for occasional help from a nanny, Mr. Liu took full responsibility for the care of CL in this five-week period.

[21] After Ms. Liu returned to work in February, 2015, Mr. Liu testified he took CL to all her medical and dental appointments, usually without Ms. Huang since his work was more flexible. On at least two occasions Ms. Huang’s mother called him at work to take CL to a doctor. He was responsible for the household chores.

[22] During his direct examination, Mr. Liu provided a selection of 22 photographs he took in August, 2015, one month before the separation; he explained he has many photos. The pictures show Mr. Liu taking CL to children’s play hours at Goodlife Fitness, Edward Gardens, the Zoo, the bookstore, the mall, a playground, out to eat and at home. Ms. Huang agreed that the photographs were taken by Mr. Liu and that he was present for all of the events depicted in the photos; she and her parents, who resided with them, were also in some of the photographs on family outings.

[23] Mr. Liu’s evidence that he was an involved and loving parent was supported by his BBM text conversations with his boss at the time. Mr. Liu’s messages to Mr. Weintraub explained how much he enjoyed spending time with CL and the activities they did together. It is also supported by the evidence of Mr. Haifang Zhang, discussed below.

(b) Ms. Huang’s Version

[24] Ms. Huang’s pleadings and testimony, though, paint a very different picture. She testified about his anger issues and hair trigger temper. He testified that while she and her parents would invite Mr. Liu to participate in activities involving CL, he was “constantly yelling”, they were afraid of when his anger would be triggered, and so were very careful, cautious and anxious about dealing with him. Because he was easily frustrated when CL cried at night, she would lay in bed with CL, nursing her, to insulate CL from his “toxic atmosphere.”

[25] Her evidence was the first night that CL was brought home, Mr. Liu got angry and yelled very loudly something like “how come like you keep on crying”, expressing upset and anger at a brand-new baby.

[26] She rejected the suggestion that Mr. Liu participated in CL’s care, and said that she was solely responsible, with her parents, for all of CL’s needs. She testified that at the beginning Mr. Liu tried to change a diaper but he felt it was so disgusting that eventually he gave up. Her evidence was that when CL was crying Mr. Liu would get impatient and return the child to her. Ms. Huang’s evidence is that Mr. Liu was uninvolved in CL’s care such as changing diapers, cooking, preparing CL for meals, dressing her and soothing her and or caring for her when she was sick at home. He mostly did grocery shopping, rested and went out to play soccer. Mr. Liu’s evidence is that he dropped out of the soccer league when Ms. Huang became pregnant, and did all aspects of CL’s care. Her evidence was that she and her parents would try to encourage Mr. Liu to play with CL but he would say it’s very tiring to go to work and then come back to the house hearing the baby cry, so she and her parents did all the housework to encourage him to play sometimes.

3. Conclusion: Mr. Liu Was an Involved Parent; Anger Allegations are Untrue

[27] I reject Ms. Huang’s evidence, and accept that Mr. Liu was an active and loving father involved in all aspects of CL’s care, and was not angry at Ms. Huang or CL as alleged. Two aspects of the evidence demonstrate this.

(a) January 2015 – Mother Leaves Child Alone With Father for Five Weeks

[28] Ms. Huang testified that she needed to go back to China for hemorrhoid surgery, and her parents needed to come with her to take care of her when she was in the hospital. The same surgery would have been available in Canada but not until July, and Ms. Huang wished to have the surgery completed before she returned to work in February. Ms. Liu went to China with her parents for five weeks in January, 2015. Mr. Liu, on short notice, took five weeks off work to care for CL, assisted by a nanny, three days a week. Ms. Huang’s testimony about Mr. Liu’s lack of involvement in CL’s needs, his anger, his frustration with CL’s crying and the “toxic atmosphere” he created in the house is inconsistent with leaving an 8-month-old child in the sole care of Mr. Liu for five weeks.

[29] Her testimony as to why she left CL alone for five weeks with the allegedly angry and abusive Mr. Liu who would not change diapers or participate in CL’s care is not plausible. In order to explain leaving her daughter for hemorrhoid surgery, which she acknowledged was not life-and- death, Ms. Huang stated on cross-examination that:

(1) “at that moment I didn’t think [Mr. Liu] will be a life threatening to CL”,

(2) “probably he will not, you know, cause very, very serious injury or life-threatening to CL”, and

(3) “I probably won’t think he will-like CL will lost the life or something so that’s the moment I say-I take the chance and I try to recover by myself so that, so that I can come back and I can, I can take care of my daughter in the long term.”

(4) “I was worried that what he will do the same thing to me to CL but as I said, even the things he did to me is not life threatening.

(5) At that moment I was just thinking even he do the same thing he did to me to CL, it’s not life-threatening”.

(6) “She probably will not be the life-threatening risk but I, I was afraid that he would do the similar thing to me to CL but it’s just a short term and then as long as I, I can, I can come back I can still, you know, do something.”

(7) Firstly, if I lost my health, if I got really sick in long run even nobody can protect CL. As long as I’m alive, as long as I can go back to CL healthily, something happen I can still have the ability to protect her and I can still have the ability to take care of her. But if I lost my health totally I, I cannot take care of CL and then in the future who will protect her by holding her in the bed.”

[4] That version of events is not plausible, even taking into account the difficulty of communicating in a second language. Ms. Huang alleged previous incidents of domestic abuse involving pushing, dragging, and yelling. No parent who genuinely believed that the father was a domestic abuser, angry, impatient, frustrated by a child’s crying, uninvolved in the child’s care, and disgusted by diapers would leave an eight-month-old infant for five weeks in his sole care, and insist that her parents, the other adults in the household, accompany her to China for elective surgery. No parent who puts a child’s needs first decides to “take a chance” for a “short term” with an eight month old in a situation that’s “probably” not “life-threatening” or likely to cause “very, very serious injury”, all the while “being afraid” he’ll do the same thing to the baby he does with her, in order to pursue hemorrhoid surgery. I find that Ms. Huang left CL alone with Mr. Liu because Mr. Liu was not a risk to CL, was not a risk to Ms. Huang, did not have an angry trigger temper, and has never been a danger to the safety of either CL or Ms. Huang. In light of her decision to leave the eight month old child alone with Mr. Liu for five weeks, her allegations of his hair-trigger anger, yelling, physical abuse, and her need to lie in bed with the baby to insulate the baby from Mr. Liu are not credible.

4. Domestic Violence and the Date of Separation Allegations

[30] The most significant area in which the parties' testimony differed regards the events on the date of separation September 27 2015; each parent accuses the other of assault. Mr. Liu testified that he had heard CL cry, entered the master bedroom and Ms. Huang handed CL to him to calm down. Ms. Huang returned to bed. Mr. Liu testified that he was speaking to CL, trying to calm her down and Ms. Huang became angry, accusing him of intentionally disrupting her sleep by speaking to CL in the bedroom. As they argued, Ms. Huang’s mother entered and took CL away. They continued to argue. Ms. Huang stated that she wanted a divorce, to which Mr. Liu responded that it was not the right time. Ms. Huang then got out of bed, approached Mr. Liu and began hitting and scratching him in the face, smashing his glasses in the process. Mr. Liu testified that Ms. Huang's mother came back into the room with CL, which caused Ms. Huang to stop her assault, and left with CL. Ms. Huang then demanded that he leave the house. Mr. Liu was cross-examined regarding the details of what happened during this incident, and his evidence was not undermined, although additional details were added in the testimony. I found his evidence was consistent and credible, and supported by independent evidence as summarized below.

[31] In Ms. Huang’s version, the domestic violence on the date of separation was consistent with Mr. Liu’s prior history of domestic violence, his trigger temper and anger issues with CL. Ms. Huang’s evidence is that at 7 a.m. CL was crying and Ms. Huang took her to bed. Mr. Liu was upset and angry with CL’s crying, and said “oh why cannot stop crying like why can you not calm CL down?” She suggested that he soothe her and handed off CL to him. He was quite angry and said “why you like want me to do a woman’s job, why are you leaving this woman’s job to me?” When Ms. Huang saw that CL was still crying in his arms, she insisted he stop yelling and give CL back, and he refused and then pushed her down to the floor. CL was very frightened and crying. Ms. Huang was worried and got up and tried to retrieve CL from him, saying “CL is still in your hand don’t do this give CL to me.” Ms. Huang claimed he pushed her away again. She states that her mother entered the room when CL was crying, and while Ms. Huang was trying to retrieve CL from Mr. Liu. Mr. Liu gave CL to her mother, who then took CL downstairs. They continued to argue. Mr. Liu said he didn’t have any feelings for Ms. Huang, packed a bag, and left the house. She testified “he even didn’t have a final look at CL”. She denied scratching him and said he pushed her down and then he pushed her away. Her evidence is that following that incident she was in fear of Mr. Liu. She said she was in fear of his anger. She testified that after he left “I feel the peace come back to my life.”

(a) Contemporaneous Photographs

[32] Mr. Liu presented a series of photographs, showing scratches on his face which had drawn blood and broken glasses. On cross-examination, the date of the photographs were questioned in that they did not display metadata such as time and place. Mr. Liu took his cell phone out of his pocket on the witness stand and displayed the same pictures with the geo-tagging turned on. The pictures of the scratches on his face are clearly visible in the geo-tagged photographs as occurring on the date of separation, just outside the matrimonial home. Additional pictures from September 29, two days later, also show visible scratches on Mr. Liu's face, and Mr. Liu’s broken glasses.

[33] Mr. Liu's evidence regarding this was natural and credible. He did not have any time to prepare or alter the photographs. I find the photographs were genuine and they provide reliable and independent evidence in support of Mr. Liu’s testimony that Ms. Huang assaulted him on the date of separation, leaving him with scratches on his face, and contradict Ms. Huang's testimony that she suffered the assault.

(b) Adverse Inference: Failure to Call Ms. Huang's Parents

[34] Both of Ms. Huang’s parents lived in the matrimonial home prior to separation during the period in which Ms. Huang testified to Mr. Liu's anger, constant yelling, and toxic behavior.

[35] Both parties agree that her mother came into the room where the parties were arguing on the date of separation and took CL away. She is the only other witness to the date of separation incident. Her mother's evidence on financial issues was introduced by way of affidavit, and did not deal with the date of separation incident nor the yelling/anger issues which Ms. Huang claimed impacted the whole family.

[36] There is another important incident, one Ms. Huang alleges involved her father, but her father did not testify. Within days of separation, Mr. Liu called requesting to see CL. Ms. Huang and her parents met him in the Fairview Mall on Saturday, October 3, 2015. Her evidence is that she let him play with CL for a while, and when they attempted to talk, he became angry and began to walk away. She observed him speaking with her father. She testified that Mr. Liu was very angry and hostile towards her father and that he yelled at her father. She says she was so afraid of the yelling she tried to pull her father out of Mr. Liu’s reach. Ms. Huang testified that Mr. Liu’s hostility and aggression with her father during this meeting at Fairview Mall, and this is part of the reason she restricted Mr. Liu's access with CL after separation.

[37] Ms. Huang did not call either of her parents to give evidence on the key issue of Mr. Liu's anger, yelling, and lack of involvement in CL's care. She did not call her mother’s evidence on the date of separation incident. She did not call her father on the alleged Fairview Mall incident. Had Mr. Liu been angry, yelling and toxic as alleged during the marriage, Ms. Huang's parents would have been important witnesses.

[38] At the trial management conference on January 12, 2018, Ms. Huang stated that she would be calling her mother to give evidence regarding custody and access and gifts. Ms. Huang's mother swore an affidavit to support her daughter on financial issues, but did not give evidence regarding important incidents she is alleged to have witnessed. I draw an adverse inference against Ms. Huang on the issues related to domestic violence and custody/access based on her failure to call her parents, and I find that the evidence that they would have given would not support Ms. Huang.

[39] I find claims that Mr. Liu was hostile and aggressive during the first post-separation attempt by Mr. Liu to see CL, and the domestic violence incident, were fabricated by Ms. Huang in an attempt to a support the extreme position she took regarding access after separation, discussed below.

(c) Late and Incomplete Production: We Chat Messages

[40] I also find Ms. Huang’s late and incomplete production of an October 9th text conversation undermines her credibility. Mr. Liu and Ms. Huang used a text message service, WeChat; they wrote in Mandarin. The WeChat conversation between the parties nine days after separation supports Mr. Liu's testimony regarding the events that took place on the date of separation and contradicts Ms. Huang's testimony on this issue. In that conversation, Mr. Liu states that his lawyer advised him to report Ms. Huang's assault to the police but Mr. Liu will not do so because he does not wish CL to be without her mother. Mr. Liu included a photograph of the scratches on his face. Ms. Huang received the photograph of the scratches on Mr. Liu's face during the WeChat conversation and did not ask him where the scratches originated from or the relevance of the photograph to their conversation. This is consistent with Mr. Liu's story: that she scratched his face on the date of separation. If she was not the source of the scratches, it is reasonable to assume she she would have inquired.

[41] In the conversation, Ms. Huang states, 'I've been putting up with you but you have been forcing me time and time again.' It is noteworthy that she did not make an accusation of an assault by Mr. Liu in this conversation, nine days after the incident in the date of separation. Rather, she accused him of “forcing” her. I draw the logical inference from this that she meant he was forcing her to attack him. It was only in response to Mr. Liu's application seeking custody of CL in that she raised any allegation of domestic violence by Mr. Liu.

[42] Ms. Huang produced only one message in the We Chat conversation (Mr. Liu calling her then lawyer “shabby”). The message was first produced by Ms. Huang late Friday afternoon before trial commenced on Monday, although it was in her possession since October of 2015. After receiving the text message, Mr. Liu located the entire conversation and arranged to have it translated quickly. Ms. Huang claimed that she had deleted all but one of the messages, being the one she provided, because she was frustrated with the messages. I do not find this to be truthful. The balance of the conversation supported Mr. Liu's version of events and contradicted hers, in particular the photograph and Mr. Liu’s October 9th statement that he would not report her assault to the police. The late production and the requirement for translation were meant to undermine his ability to respond. The incomplete and late production was meant to leave a misleading impression with the court, and was strategic and improper. I find Ms. Huang’s conduct in this regard worthy of rebuke. It also negatively affects her credibility as a witness. .

(d) Ms. Huang’s Allegations of Prior Domestic Violence and Misleading Translation

[43] Ms. Huang testified about an incident of domestic abuse in April, 2007, as an example of how when something would trigger Mr. Liu, he would go out of control and turn very angry. They had an argument because she had not prepared food. She attempted to go through a doorway. He blocked the doorway, held on to her wrist and dragged her to the sofa in the living room. He pushed her onto the sofa using his elbow, causing her chest pain and wrist pain, and went back to sleep. She also described other incidents in 2010 of Mr. Liu pushing her around, and stated that he would become angry, yelling and would push and punch her.

[44] Mr. Liu denied this. He testified that in February, 2007, she assaulted him during an argument, punched him and pushed him out the door in the middle of the night, after which he walked to a hotel and spent the night.

[45] To support her evidence about the April 2007 incident, on the eve of trial she produced a "promises note" written in Mandarin by Mr. Liu in 2007, together with an affidavit stating the translation was done by an individual, although there was no proof of credentials or certifications, nor was the translator called.

[46] The translation put forward by Ms. Huang included a statement by Mr. Liu, translated as: "I can't hit the wife in any way, even under the assumption that I was hit, I can't hit back." Mr. Liu denied he assaulted Ms. Huang. He testified that the translation she provided was longer than the original phrase and contained references not in the original; the original lacked the Mandarin character for "wife", for example. Given the late production, Mr. Liu was given time to obtain a certified translation which confirmed that the original document is properly translated as "I won't hit back when I am hit." Ms. Huang, a native Mandarin speaker, accepted that the translation provided by Mr. Liu was accurate.

[47] The accurate translation supports Mr. Liu's testimony about the 2007 event, and contradicts Ms. Huang's version of events. The line "I won’t hit back when I am hit" supports Mr. Liu's testimony that Ms. Huang was punching and hitting him during the incident, and that he had put his arms around her to prevent her from hitting him. Together with other aspects of the note, which includes lines such as "I will get lost when I'm told to get lost", the note contradicts Ms. Huang's claims that Mr. Liu was a hostile and abusive partner with anger issues, and that she had to tip-toe around to meet his unreasonable demands. It also contradicts her claims that she never assaulted him.

[48] The "promises note" with the translation was delivered Friday at 4 pm, with the trial starting on Monday. Ms. Huang admitted she had the Promises Note in her possession since 2007 but had failed to disclose until the eve of trial. She admitted that she had the misleading translation in her possession since January, 2016 but failed to produce it, despite court orders that all documents to be relied on at trial were to be disclosed months before trial. I find that Ms. Huang's decision to knowingly withhold the document until the eve of trial, in breach of court orders, with a translation that she knew to be misleading, was a calculated decision aimed to keep Mr. Liu from commissioning an accurate translation of the document for trial.

[49] Ms. Huang's claims of abuse were raised for the first time after separation, after she had consulted a lawyer in connection with Mr. Liu's application. The first lawyer she consulted wrote a letter on October 5 demanding sole custody. The October 5 letter states that at the end of the Fairview Mall access visit Mr. Liu was “inappropriately hostile” towards Ms. Huang’s father; there is no mention of Mr. Liu’s alleged assault on the date of separation. The first post-separation document referring to a physical assault is Mr. Liu’s October 9th We Chat photo and his message that his lawyer told him to report Ms. Huang’s assault to the police, but he would not do so.

[50] I find that Ms. Huang's claims that Mr. Liu was abusive to her were fabricated, for the dual purposes of both avoiding any consequences to her resulting from her assault on him, and to improve her position in litigation on custody and access.

(e) Evidence of Mr. Haifang Zhang Contradicts Ms. Huang

[51] I also find the evidence of Mr. Haifang Zhang, a witness called by Mr. Liu, to be important in evaluating Ms. Huang’s credibility and evidence. Mr. Haifang Zhang had been friends with both parties since 2006. They met when Ms. Huang was visiting Canada from China, before making a final decision whether to move to Canada. From 2007 to 2011 when he moved to Vancouver, he saw them approximately monthly, and celebrated major holidays with them. He returned to Toronto in July, 2015, and saw the parties four times prior to separation. They went to dinner at a restaurant. He went to their house and taught them to cook on two occasions. He visited when they had friend come from China. He gave his observations of the household in the summer prior to separation, and evidence of his discussions with each party after separation. Mr. Haifang Zhang's direct examination evidence, given by Affidavit, was provided to Ms. Huang in May of 2016. The cross-examination evidence of Mr. Haifang Zhang was consistent with his 2016 affidavit. Mr. Haifang Zhang was a mutual friend of both parties and gave evidence that he was simply trying to help the parties resolve their issues. I find him to be a reliable and credible witness.

[52] Mr. Haifang Zhang met with Ms. Huang at her request around October 6, 2015 in order to sign a passport photograph for CL; they talked briefly about the separation, and Mr. Haifang Zhang offered to talk to Mr. Liu to try to mediate. He did talk to Mr. Liu, who agreed. The next day, October 7, 2015 he went to see Ms. Huang in the evening. He observed that Ms. Huang was very angry with Mr. Liu. Ms. Huang told him that Mr. Liu did not take care of her properly; he made her work hard and she shouldn’t have to work if he was supporting her properly financially. She said that she had to do a lot of housework and take care of the baby because he did not do these things. He said that this surprised him because whenever he had visited, Mr. Liu was always making himself busy with housework and caring for the baby. In the period after July 2015 when he visited, it was Mr. Liu or the grandparents looking after CL. Mr. Haifang Zhang saw Ms. Huang play with CL.

[53] Ms. Huang said to Mr. Haifang Zhang that now that she and Mr. Liu were separating, Mr. Liu should leave her alone with the baby. She told Mr. Haifang Zhang that she wanted Mr. Liu to leave her life and leave the baby’s life and she did not want him to see the baby again. Mr. Haifang Zhang told Ms. Huang that she can’t just leave Mr. Liu without the baby, and she can’t leave her daughter without a father. However, Ms. Huang repeated that Mr. Liu does not care for her and that she didn’t want him in her life.

[54] He spoke on the telephone with Ms. Huang on October 10, 2015, again trying to convince her that it would be better if they could separate amicably. She repeated that Mr. Liu should leave everything to her and leave her life and CL’s life, and not come back. During this conversation Ms. Huang referred to a message that Mr. Liu had sent saying that he did not go to the police, even though she scratched him on the day he moved out. I note that this is clearly a reference to the October 9 We Chat message. Ms. Huang admitted that she scratched Mr. Liu’s face, and didn’t care; she said he is not a man if he goes to the police, but he can go to the police if he wants.

[55] Mr. Haifang Zhang said that at no time during any of the conversations with Ms. Huang or with her parents about the separation, did anyone mention that Mr. Liu was physically violent toward Ms. Huang or CL; at no time did any of them mention that they were scared of Mr. Liu; and at no time did anyone mention that Mr. Liu presented a risk of harm to Ms. Huang or to CL.

[56] He said he found any suggestion that Mr. Liu presented a risk of harm to Ms. Huang or CL “absurd”.

[57] Mr. Haifang Zhang was in a position to observe Mr. Liu’s care of CL in the home prior to separation, and his evidence supports Mr. Liu’s account that he was engaged in CL’s childcare. I considered the evidence of Mr. Kaixiang Zhang, a student from China called by Ms. Huang. His evidence is that when he visited the home he saw Ms. Huang and her parents take care of CL, not Mr. Liu. I do not find that this contradicts or undermines Mr. Haifang Zhang’s evidence or Mr. Liu’s evidence. The point is not that Ms. Huang never took care of CLl ‑ Mr. Liu acknowledges that she is a good mother - but rather, that Mr. Liu did provide care to CL. I find the same with respect to the evidence of Dr. Luby, Mr. Huang’s chiropractor, who gave evidence that Ms. Huang talked frequently about CL and made inquiries about parenting issues. Mr. Liu does not contest that Ms. Huang has been a good mother.

[58] Mr. Haifang Zhang recounted conversations with Ms. Huang which support Mr. Liu’s evidence, both that she scratched his face in the date of separation incident, and that she told him her wish was that Mr. Liu should leave CL’s life and leave her alone with the baby.

(i) The Rule in Browne v. Dunn

[59] Ms. Huang testified that on October 7 when Mr. Haifang Zhang came into her house, she told him that she was the one taking care of CL day and night and her parents provided a lot of help; she told him that she never tried to prevent Mr. Liu from seeing CL; she told him that she was afraid of Mr. Liu and just needed to find a safe way to let it happen; she says she told him that Mr. Liu pushed her and physically assaulted her; and she mentioned that Mr. Liu threatened her and said he would make a false allegation against her. Mr. Haifang Zhang gave a very different evidence, most of it contained in an affidavit originally prepared in 2016. He was not questioned about Ms. Huang’s version of events except that he was challenged (a) on the statement that Ms. Huang wanted Mr. Liu to leave the baby’s life; (b) the alleged admission that Ms. Huang scratched Mr. Liu, and (c) her statement that Mr. Liu wasn’t supporting her properly. He was unshaken on cross-examination.

[60] It was never put to Mr. Haifang Zhang that Ms. Huang told him that: she was afraid of Mr. Liu; was looking for a safe way to let him see CL; that Mr. Liu pushed her and physically assaulted her; and that Mr. Liu threatened her and said he would make a false allegation against her.

[61] Given the gravity of these allegations and the clear contrast between what Mr. Haifang Zhang alleges was said to him and what Ms. Huang now says she told him regarding the assault on the date of separation, it was imperative for counsel to put these allegations to Mr. Haifang Zhang on cross-examination. Counsel failed to do so. Mr. Liu’s counsel objected to admitting Ms. Huang’s evidence on the basis of the no-ambush rule in Browne v Dunn, which requires that if a party intends to impeach a witness called by an opposite party, the party must give the witness an opportunity, while testifying, to provide any explanation the witness may have for the contradictory evidence. I find the failure here breached the rule in Browne v. Dunn. Watt, J.A. held in R. v. Quansah, 2015 ONCA 237 at para. 81:

Compliance with the rule in Brownev. Dunn does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness’s credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness’s story is not accepted…It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness…(internal citations omitted).

[62] The remedy is discretionary. As stated by the Alberta Court of Appeal in R. v. Werkman, 2007 ABCA 130 at para. 11: “A trial judge has a number of remedies available when the rule has been breached. One is taking into account the failure to cross-examine in assessing the witness’ credibility, and another is granting leave to call witnesses in reply.”

[63] Mr. Haifang Zhang had travelled from Ottawa to testify. The cross-examination was very brief. He had returned to Ottawa by the time Ms. Huang testified and in light of those factors I did not believe it suitable to recall Mr. Haifang Zhang. Rather, I find Ms. Huang’s attempt to introduce contrary evidence regarding what she said to the witness on critical points without putting them to Mr. Haifang Zhang calls into question the reliability of her evidence. Where the evidence of Mr. Haifang Zhang contradicts the evidence of Ms. Huang, I prefer his evidence.

(f) Evidence from Peng Yu

[64] Ms. Huang called evidence from her friend, Peng Yu, who claimed that he recalled an incident in 2012 in which Ms. Huang had told him on the telephone that Mr. Liu had been physically abusive to her. Mr. Yu admitted that the party who drafted and had him swear the Affidavit suggested to him that he had had a conversation with Ms. Huang around October of 2012. Having observed him give evidence, I do not believe that Mr. Yu had any independent recollection of the details of the conversation he claims to have taken place. Although he says there were other incidents, he testified that he could not remember the dates since “it’s a long time ago” and he forgot. In any event Mr. Yu gives no independent evidence of abuse or violence; his testimony related to what he had been told by Ms. Huang. He has never met Mr. Liu or seen him together with Ms. Huang. The fact Ms. Huang called a friend of hers, Mr. Peng Yu, who did not know Mr. Liu and had never seen them together, to testify as to her tales of abuse, but she did not call her parents with whom the couple resided, is telling. Mr. Yu’s evidence is of little value in resolving the disputes in this case. It lacks meaningful detail as to dates and events. I place no weight on his evidence.

[65] I accept Mr. Liu’s evidence that Ms. Huang was the assailant on the date of separation domestic violence incident. Given my findings of credibility, reliability and the plausibility of the competing versions, having considered all of the evidence, I also accept Mr. Liu’s evidence that she had assaulted him on two previous occasions.

5. Mr. Liu’s Role in Medical and Dental Care

[66] To demonstrate Mr. Liu’s lack of involvement in CL’s care and her primary role, Ms. Huang testified that she was the one who took CL to all of her medical appointments from the time that Ms. Huang returned to work in February 2015 until the date of separation in September 2015. Mr. Liu testified that he took CL to all of the medical appointments, although sometimes Ms. Huang would also attend. His evidence was that on two occasions when he was at work, Ms. Huang's mother called him to take CL to the pediatrician rather than Ms. Huang as it was easier for him to take time off work.

[67] The documentary evidence supporting Mr. Liu’s evidence that he attended CL’s medical appointments includes:

(a) a contemporaneous text message sent by Mr. Liu to his boss on June 10, 2015 stating he had to take CL to the doctor for a vaccination and would be late to work;

(b) Mr. Liu wrote a cheque for the vaccination that same day; and

(c) Mr. Liu wrote a cheque to CL’s pediatrician on August 12, 2015.

[68] There was contrasting evidence of CL’s first dental appointment, which I find undermines Ms. Huang’s credibility. Mr. Liu testified that he took CL to the dentist August 28, 2015. As Ms. Huang was at work, the office staff took a photograph of Mr. Liu and CL, to commemorate CL’s first dentist appointment. That photograph is in evidence. Mr. Liu’s credit card payment to the dentist that day is in evidence.

[69] During her testimony Ms. Huang admitted that Mr. Liu attended the dental appointment but testified that she also attended but the dental office staff had taken the picture so quickly that she was not in it. It is not plausible to assert that dental office staff would take a commemorative appointment photo of the first dental appointment, but not take time to allow the child’s mother to get into the photograph.

[70] I find that Mr. Liu clearly took CL to medical and dental appointments and took an active role in her health care. Ms. Huang’s claims that this is untrue are contradicted not only by Mr. Liu’s testimony, but by contemporaneous documentary evidence. Ms. Huang did not adduce evidence from her employer to support the claim that she took time off work for CL’s appointments. I accept Mr. Liu’s evidence on this issue. The fact that Ms. Huang is willing to be untruthful on this issue involving Mr. Liu’s parenting in order to support her claim must be considered my overall assessment of Ms. Huang’s credibility and the reliability of her evidence.

[71] I note that a witness’ motivation to lie must be assessed when the court is faced with competing testimony. Mr. Liu’s claim turns on him being an involved parent, but he does not claim Ms. Huang was not an involved parent. By contrast, Ms. Huang’s claim is that Mr. Liu was not involved in CL’s case. Mr. Liu therefore has no reason to lie about Ms. Huang also attending appointments. By contrast, Ms. Huang has reason to lie about the same to bolster her claim. Her narrative that Mr. Liu was uninvolved is undermined by Mr. Liu’s testimony and his documentary evidence. Based on the evidence presented, Ms. Huang’s claim that she attended all the medical appointments and the dental appointments after she returned to work from her maternity leave is simply untrue.

[72] I find that Mr. Liu was a significant caregiver in CL’s life prior to separation, and I prefer his evidence on this issue to Ms. Huang’s.

C. Post-Separation Parenting Issues

[73] I now turn to consider post-separation parenting issues relevant to the best interests of the child. This includes significant attempts by Ms. Huang to restrict Mr. Liu’s access between separation and trial, the failure by Ms. Huang to communicate appropriately with Mr. Liu about parenting issues, and the role of each parent in supporting the other parent in the life of their daughter.

1. Ms. Huang Unreasonably Restricted Access After Separation

[74] Mr. Liu had no access to CL for three months after separation, supervised access at Ms. Huang’s insistence based on allegations of his domestic abuse and anger for 11 months, followed by supervised access exchanges at a location requiring 80-minute trips for CL, and minimal access for almost 2 years after separation. All expansions of access were the results of motions or threatened motions. Since separation, Ms. Huang has taken many unreasonable steps to restrict access to CL in a manner contrary to CL's best interests, and which seriously calls into question Ms. Huang's ability or willingness to make decisions that are in CL's best interests in relation to Mr. Liu. I have found that Ms. Huang lied and then relied upon the false allegations of Mr. Liu’s assaultive behavior and anger, to the detriment of CL, by severely restricting the ability of CL to have a relationship with her father. She told Mr. Haifang Zhang that she wanted Mr. Liu to leave CL’s life, and then acted on it. Ms. Huang fails to recognize the role of Mr. Liu in CL’s life, which is part of her failure to appreciate CL’s best interests.

(a) Supervised Access

[75] Mr. Liu began requesting access immediately after separation. Ms. Huang refused. Ms. Huang unreasonably delayed in filling out the Brayden Supervision forms. Ultimately supervised access visits commenced on December 27, 2015. I find that Mr. Liu agreed to supervised access because he had not been afforded any access to CL for three months after separation, other than occasional weekly visits when he attended at CL’s daycare. By consent order dated January 12, 2016, Mr. Liu was granted supervised access to CL once a week for two hours at the supervised access site operated by Access for Parents and Children in Ontario (APCO).

[76] On January 25, 2016 Justice Corbett ordered, on consent, an interim supervised access schedule providing for Saturday access to be supervised by Mr. Liu's parents for five hours, with additional access at APCO on Sundays for two hours, and "such other access as the parties agreed to in writing." The parties agreed at that time to "monitor the progress of access in CL's response to this schedule with a view to expand access."

[77] I have reviewed the supervised access notes. They were uniformly positive. There are no issues of concern in any of those notes about Mr. Liu’s care of CL. Notwithstanding the very positive supervised access notes, Ms. Huang refused to consent to additional access between January and November 2016 when supervised access changed to supervised exchanges. I find Ms. Huang was unreasonable in withholding her consent to unsupervised access for 11 months.

[78] When it was put to Ms. Huang on cross-examination that there were no issues raised by her in relation to Mr. Liu’s parenting time during supervised access, she recalled a series of issues that she failed to address in her pleadings and had failed to put to Mr. Liu in cross-examination.

[79] Of concern, Ms. Huang testified for the first time on cross-examination that shortly after commencing APCO supervised access, “I noticed… Some behaviour change for, for my daughter, and sometimes when I come, like my daughter being crying saying like protect me or something…” CL was approximately two years old. The allegation that on returning from an access visit with her father she began crying and saying “protect me” was never put to Mr. Liu on cross-examination; it was not raised in the pleadings or in any earlier affidavit; it was not raised with Mr. Liu at the time; and Children’s Aid was never contacted. As Mr. Liu submits, is not credible to suggest that a two-year-old would have the language and cognitive skills to have a negative experience with Mr. Liu and then ask Ms. Huang to protect her. There was no mention of this at any earlier stage of the proceeding or in the pleadings. I find that this is a fabrication by Ms. Huang, this time in the middle of her cross-examination, and reflects a disturbing pattern of making up a story directly related to the safety of CL in order to gain an advantage in this litigation.

[80] Ms. Huang claimed in her examination, without putting it to Mr. Liu in chief, that after CL’s first supervised access visit at Mr. Liu’s home, she came home with red eyes that were of such concern that Ms. Huang took the child to the emergency room. Her claim that this is a reason why she refused to expand access, but declined to mention it earlier, is simply not believable.

[81] In December, 2015, at a time when Ms. Huang was represented by counsel, CL missed daycare due to illness and was taken the following day to the emergency room by Ms. Huang. Ms. Huang did not advise Mr. Liu either of the illness or of the fact that their daughter was taken to the hospital. This is manifestly improper behavior. It demonstrates again her lack of concern for Mr. Liu’s as CL’s parent, and of CL’s interest in having the love and support of both of her parents, especially when CL is ill.

(b) Resiling From Brief Focused Assessment Proposal Following Motion

[82] On July 13, 2016, Mr. Liu brought a motion seeking temporary joint custody or unsupervised access, and an assessment. In her cross-motion, Ms. Huang sought an order for temporary custody. Justice Moore did not make an order for custody on an interim basis. He found that the parties are “unable to communicate effectively with each other in CL’s best interests”, and “the parties are in enmeshed in high conflict debates on all issues.”

[83] While Mr. Liu had sought a court-ordered assessment, Ms. Huang’s counsel on the motion suggested that a brief focused assessment regarding the timing of Mr. Liu’s increase in access would be a more efficient and less expensive manner to assess parenting issues. Mr. Liu confirmed he was prepared to engage in the brief focused assessment process. Justice Moore held he had no jurisdiction to require the parties to engage in that process but endorsed it as “likely to produce a reasoned, reasonable, professional solution tailored to address access issues in CL’s best interests.”

[84] Ms. Huang subsequently discharged her counsel and resiled from her proposal. Ms. Huang was represented by counsel on the motion before Justice Moore when she proposed having a brief focused assessment rather than arguing the motion with respect to access. When she gave her reasons for resiling from the brief focused assessment, she said that Justice Moore in his decision said it’s a good idea but he didn’t order it. She acknowledged a court order would have enforced the completion of the brief focused assessment but in the absence of that she did not regard there to be an obligation to complete it. She also stated that the parties could not agree on either the assessor or on the cost of the brief focused assessment and allocation of costs was of concern. This is truly disturbing conduct. All litigants have a duty to further the primary objective of the Family Law Rules, to deal with cases justly, expeditiously, efficiently and fairly. Her proposal which was accepted by Mr. Liu to resolve the motion was meant to avoid the expense and delay of an assessment. When parties make a proposal like this, particularly one meant to resolve a motion, they are expected to comply with it. A sensible suggestion by Ms. Huang turned into a feint, causing more delay and expense.

[85] In his costs order on the motion, Justice Moore noted that Ms. Huang had offered temporary access to CL on the condition that access remain supervised until CL turned three years old; thereafter, she would retain the right to control whether access should remain supervised. She offered no commitment to embrace unsupervised access on a timeline. Justice Moore held:

The applicant has been forced to accept supervised access or have none at all. The respondent has acted unilaterally in requiring supervised access. I found no basis in the evidence before me for any need for continued supervision of access visits…

… The respondent claimed to understand and agree with the proposition that more contact with the applicant would further the child’s best interests but she did not cooperate in allowing that to happen. In that respect, she did not act reasonably.

(c) November 9, 2016: Unsupervised Access, Supervised Exchanges

[86] In November 2016 Mr. Liu brought a motion, ultimately determined on consent, providing Mr. Liu with unsupervised access five hours on Saturdays and four hours on alternating Sundays. The consent order resulted in Mr. L’s obtaining an additional two hours, from 12 to 14 hours every two weeks. All access exchanges would be supervised through APCO.

[87] Ms. Huang insisted on supervised exchanges at a location which required CL to travel twice as long as another venue closer to daycare such as a McDonald’s. Ms. Huang’s insistence on this location for supervised exchanges meant that CL was required to travel 80 minutes for each exchange. At the next motion, when Ms. Huang sought to continue the supervised exchanges at APCO, Justice Hood found it was not be in CL's best interests to be in the car for the lengthy trip and extended time. Ms. Huang’s insistence on the APCO supervised exchanges is an example of prioritizing her position in this litigation over CL’s best interests.

(d) August 22, 2017: Overnight Access

[88] Overnight access was granted only in response to a motion brought by Mr. Liu. On August 22, 2017, Justice Hood ordered Mr. Liu to be given overnight access commencing August 27, 2017, every Sunday morning to Monday morning, with additional access time Tuesday 5 to 8 pm, and alternate Thursday overnights. Where daycare would not be open, Justice Hood directed exchanges at the matrimonial home during which Ms. Huang’s mother would facilitate the access and Mr. Liu was to remain inside his vehicle.

[89] In his costs order of September 21, 2017, Justice Hood determined that there was no unreasonable conduct by Mr. Liu. He found, however, that in continuing to insist upon supervised access exchanges, Ms. Huang was unreasonable, as was her continuing refusal to accept Mr. Liu’s mother in facilitating the exchanges.

(e) False Allegations in 911 call

[90] On September 5, 2017, two weeks after overnight access and unsupervised exchanges commenced, Ms. Huang called 911 when Mr. Liu attempted to returned CL to the matrimonial home after an access visit in accordance with Justice Hood’s order. The 911 call is critical in evaluating Ms. Huang’s credibility and her character as a parent. In the paragraphs that follow I will provide the relevant context.

[91] Ms. Huang conceded on cross-examination that Mr. Liu’s mother brought CL to the door of the house at about 8 pm, returning her from an access visit. Mr. Liu remained in the car in accordance with the order. Ms. Huang conceded she opened the door but refused to take CL, who she testified was lying on the concrete floor of the carport adjacent to the door crying. She agrees she shut the door, leaving CL crying outside, with the grandmother. She testified that she was afraid to take CL from the grandmother’s hand because she was afraid she would be accused of something. She confirmed that Mr. Liu’s mother took CL back to the car where Mr. Liu was waiting; he stepped out of the car and began to walk up the driveway with a crying CL in his arms, approaching the house, and she then called 911.

[92] A recording of the 911 tape introduced in evidence by Ms. Huang was played in court. The exact recorded exchange is as follows:

FANG HUANG: Yes. Yes. Is this, like, uhh, umm, I had a - I had a court order and my ex has to return my kid at eight.

9-1-1 OPERATOR: Right.

FANG HUANG: And now, like, they – they just tried to take my daughter away again.

[93] The 911 operator heard crying in the background and asked Ms. Huang: “She doesn't want to go with her father?” Ms. Huang told the 911 Operator: “She doesn’t want to go. She’s crying.”

[94] Ms. Huang provided false information to the 911 Operator. The father was returning the daughter from an access visit, not taking her away. The mother refused open the door and take her crying young child from the grandmother. The mother instead called 911 and reported that they just tried to take her daughter away and that the child was crying and didn’t want to go with the father. Ms. Huang’s statements to 911 clearly imply some sort of child abduction or failure to comply with an access order. It is a serious issue for a party in a custody and access dispute to call up 911 and misrepresent facts regarding the child. No family litigant should do that. It also shows the facility with which Ms. Huang is prepared to tell untruths to officials.

[95] Mr. Liu testified that when he approached the house with CL in his arms, he heard Ms. Liu call 911 and say that they are taking the daughter. He knocked on a neighbor’s house, to get a neutral witness, but no one answered. He concedes that he yelled at Ms. Huang in Mandarin, saying that she was doing these things in front of their daughter, and she was worse than a pig, worse than a dog. He returned with the crying CL to the car. Mr. Liu returned to the car with CL. There was then a third attempt to return CL to Ms. Huang. Mr. Liu’s father and mother brought CL to the door, knocked and shouted to open the door. CL even said, “Mommy open the door”, while crying. Ms. Huang refused to open the door. She called 911 again and waited for the police to arrive.

[96] Mr. Liu’s reaction to the 911 incident was commendable in term of dealing with CL. The police took an hour to arrive. He stayed in the car with CL. He pretended that mommy was playing a game, and that’s why she wasn’t opening the door. He soothed CL, who did not want to go back to her mother’s home; that’s why she was crying when her grandmother sought to return her to Ms. Huang. He testified that did not want CL to feel unwanted by her mother. In respect of yelling at Ms. Huang when she called 911, he said, and I accept, that he was upset, scared that Ms. Huang would make a false allegation. He was feeling terrible – CL was crying, and both sets of grandparents were there. He stated that he took full responsibility and regretted yelling. He conceded that he did the wrong thing and apologized to Ms. Huang on the witness stand. I accept that he was contrite, and in the moment, was understandably upset that CL was crying, that her mother wouldn’t take her, and that Ms. Huang had called 911 with false information.

[97] The incident is directly relevant to Ms. Huang's overall credibility.

[98] Ms. Huang's reasons for refusing to take her crying daughter into the house defied logic. First, she stated that she 'did not want to be accused of taking CL from Mr. Liu's mother's hands'; she then stated that CL was actually laying on the ground at the time. Ms. Huang also claimed that she did not take CL back because she was afraid of what Mr. Liu's elderly mother would do; she then clarified that she meant that she was afraid that Mr. Liu's mother would “make false allegations against her” if she picked up CL from the ground.

[99] Ms. Huang conceded Mr. Liu started to approach her and was actually walking towards her when she called 911. Ms. Huang admitted that at no time had Mr. Liu turned on his car or taken any actions or made any statements to suggest that he had an intention of leaving. Mr. Liu testified that as soon as he heard Ms. Huang calling the police, it became clear to him that she was making a false report and he immediately sought out a neighbour who could act as a neutral witness.

[100] The police attended in response to the 911 call. The Police Occurrence Report, introduced into evidence by Ms. Huang, states that Ms. Huang, "advised that [Mr. Liu] did have [his mother] deliver [their] daughter to her but she didn't take her daughter since she was crying. She told officers that she did not want to be accused of taking her daughter from the hands of [Mr. Liu's mother]. Officers attempted to clarify what Ms. Huang meant by this but her reasoning and her side of the story did not make sense at all." I agree.

[101] The 911 incident happened almost immediately after Justice Hood's Order, in which exchanges were ordered to be unsupervised for the first time, contrary to Ms. Huang's position, and in which Mr. Liu's access was significantly expanded. Mr. Liu submits that Ms. Huang did not wish to have unsupervised exchange and set out to create a reason why supervision was necessary. Ms. Huang's explanation of her actions lacks any semblance of believability. Ms. Huang's willingness to lie on a 911 call where she feels that doing so will gain her an advantage must be taken into account when assessing her overall credibility in these proceedings. Mr. Liu should not have yelled at Ms. Huang, but in light of the terrible toll of the false allegations of domestic violence over the previous two years and CL’s clear distress, it was understandable. He apologized and acknowledged his mistake – something that Ms. Huang did not do in her testimony. I find that Ms. Huang failed to take her clearly distressed daughter from the Liu’s, and called 911 with a false claim, prioritizing her position in this litigation over her daughter’s distress.

2. Communications Post-Separation

[102] I find that Ms. Huang failed to communicate appropriately about CL to Mr. Liu. Post-separation, the parties communicated by Our Family Wizard. The father’s communications were child focused and appropriate. He sent a detailed message after every access visit. By contrast, Ms. Huang never responded to the messages, and very rarely provided details regarding CL’s life and activities.

[103] Ms. Huang testified that she felt that Our Family Wizard was a very good tool for communicating information about CL, such as medical information, school activities and access time. However, there is evidence that she did not view messages or respond to inquiries in a timely manner. One example is a message sent December 17, 2016. The first view was February 5, 2017. Her only explanation was that maybe she was preoccupied. She admitted that when she was tied up with things, she would not check it on a daily basis, even though there is an email alert for any message sent to her. This doesn’t explain a six-week delay.

[104] Ms. Huang’s inability to communicate concretely about CL’s needs is illustrated by an exchange in December, 2017. Mr. Liu initiated a message proposing to set up a contingency plan if either parent was late or the weather was too cold. Ms. Huang’s response was that while it appeared polite, the contingency planning message was initiated on a day her mom was three minutes late for on an exchange, and she felt that Mr. Liu was being critical of walking CL from her school to McDonald’s in the very cold weather. Rather than responding to the long-term co-parenting question of what do to do if either parent is late, it’s too cold, or other contingency, Ms. Huang became fixated on what she felt to be Mr. Liu’s criticism of her mother, blame of her and her mother, and his intervention in her life, rather than the larger question of how to plan for emergencies.

[105] By contrast, on the Our Family Wizard messages, Mr. Liu often praised her for the decisions she made, and thanked her for caring for CL.

3. Supporting the Role of the Other Parent

[106] Ms. Huang was adamant that only she was qualified to make major decisions in CL’s best interests. On cross-examination, she was unable to identify any positive qualities that Mr. Liu could offer to CL in parenting decisions. She would not acknowledge that CL had a close, loving bond with Mr. Liu, stating that CL was “okay” with the access, and he could develop such a bond if he could control his anger. She seemed to question whether Mr. Liu really loved CL. She questioned whether he was capable of putting CL’s interests above his own. She was unsure that he would be able to make a good decision on CL’s health, and testified she felt would protect his interests first. She was adamant throughout direct and cross-examination that because of the conflicts, they would not be able to make joint decisions on CL’s life.

[107] Mr. Liu attempted on many occasions to engage in discussions about extra-curricular activities and medical issues; Ms. Huang dismissed these attempts. Ms. Huang chose not to engage in meaningful communication with Mr. Liu. Mr. Liu was, by contrast, supportive of Ms. Huang’s role in her daughter’s life. Mr. Liu readily agreed in cross-examination that CL loves her mother, and Ms. Huang loves her daughter; he never questioned that bond. He did not cite the physical assault on the date of separation in his application, explaining that he wanted CL to have her mother, and domestic violence was not a big issue in the marriage. He expressed thanks to Ms. Huang for her good parenting in Our Family Wizard exchanges, and the good decisions she made.

D. Conclusion on Parenting Issues

1. Legal Framework: Parenting Issues

[108] The Divorce Act, RSC 1985, c. 3 (2d Supp) sets out the factors the court must consider in making an order for custody and access:

16 (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

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

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

[109] Section 16(10) of the Divorce Act establishes the maximum contact principle. Each child should have maximum contact with both parents if it is consistent with the child’s best interests: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. Each parent is expected to recognize and support the child’s relationship to the other parent.

[110] I am also guided by the factors relevant to the best interests of the child set out in section 24(2) of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”):

(2) The court shall consider all the child’s needs and circumstances, including,

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

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

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

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

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

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

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

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

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

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

(h) any familial relationship between the child and each person who is a party to the application.

[111] Given the allegations of domestic violence by each parent and Ms. Huang’s expressed fears for CL’s safety, in assessing ability to act as a parent I must also consider whether either parent has committed violence or abuse against his or her spouse, child, or members of the household in which the child resides, and how this affects the best interests of the child in the parenting decision.

2. Summary of Major Findings on the Evidence

[112] The evidence demonstrates that:

(1) Before separation, both parents played a relatively equal role in the care and upbringing of the child once the mother returned to work following her maternity leave. The father was a caring and attentive parent who played a full role in the care of their daughter;

(2) Since separation, both parents have been capable parents, able to provide their daughter with love and affection, guidance and education, and the necessaries of life. Both have plans for the appropriate care and upbringing of their daughter;

(3) Since separation, both parents have provided a stable home environment for CL;

(4) On three occasions during the marriage, the mother assaulted the father. In the last incident on the date of separation, she scratched the father’s face, drawing blood, and broke his glasses;

(5) The mother made false allegations of domestic violence against the father at separation, which she relied upon to withhold access, and to subsequently insist on supervised access and supervised exchanges for an unreasonably long period of time;

(6) The mother falsely accused the father of attempting to take away the child and called 911 to involve the police in this false accusation, to bolster her position in the litigation;

(7) Expansions of access required motions or threatened motions. Two judges on earlier motions found that Ms. Huang’s positions on access were unreasonable. I also find that the mother unreasonably sought to restrict the father’s access through the period from separation to trial;

(8) The mother prioritized her position in litigation over the well-being and comfort of her daughter. In addition to the unreasonable positions on expansion of access, specific examples include CL’s distress during the 911 call incident and the 80-minute round trip to the supervised access exchange insisted upon by the mother;

(9) The mother proposed a brief focused assessment to resolve the husband’s motion for an assessment. Immediately after the motion Judge’s decision, she discharged her counsel and resiled from her own proposal that the parties engage in a brief focused assessment process. This undermined the primary objective of the Family Law Rules, delayed the expansion of access to the father and imposed additional cost for all parties, to the detriment of their daughter’s best interests;

(10) Between separation and trial, the mother refused to involve the father in decision – making or advise him of important issues concerning CL, including hospital visits;

(11) The access notes from Brayden and APCO, and Mr. Liu’s testimony which I accept, confirm that CL and Mr. Liu have a close and loving bond. Mr. Liu confirmed that CL and Ms. Huang have a close and loving bond;

(12) The father carefully provided significant feedback on Our Family Wizard involving their daughter, while the mother failed to respond and failed to provide similar feedback;

(13) The mother failed to consult the father on health, medical and extra-curricular activity issues, failed to share information appropriately, and made decisions unilaterally. She dismissed his attempts to consult on issues, and failed to respond to reasonable requests for information by the father;

(14) The mother was critical of the father and his parenting and expressed a wish that he would simply disappear from CL’s life. She was unable to point to a single positive quality that the father could offer to the child in parenting decisions;

(15) By contrast, the father is focused on the role both parents can play in CL’s life and has been supportive of the mother’s parenting abilities;

(16) The mother’s emotions towards the father mean that she is incapable of objectively assessing the benefits to her daughter of an active, involved and caring father.

[113] Both parents love CL, and both are capable parents. However, only Mr. Liu appreciates the role of the other parent, and the importance to CL of having the love and support of both parents in her life. Although Ms. Huang has been violent toward Mr. Liu, I find that there are no domestic violence concerns that would impact on Ms. Huang’s ability to parent. In this case, I find it is only the father who will best support access and consultation about significant issues involving the child, and the father who places the child’s best interests first. For reasons set out below, sole custody to Mr. Liu, with access as set out in the Order.

3. Sole Custody to Ms. Huang is Not in CL’s Best Interests

[114] One of the desired objectives of a custody order is to maximize the involvement of both parents in the child’s life. The extent to which evidence shows that a parent has failed to communicate with and inform the other parent and tried their best to reach mutual decisions on significant guardianship questions, is an important consideration when deciding what parenting arrangement is in the best interests of a child. If a parent has made access to the child difficult for the other parent, that is also a factor: D.L.S. v. R.S., 2012 BCSC 977, paras. 171, 208. I also consider the ability and commitment of each parent to putting their child’s interests ahead of their own, including their commitment to ensuring the child maintains a positive relationship with the other parent: Hawkins v. Schlosser, 2012 ONSC 2707, para 71.

[115] The ability or inability of parents to communicate about their child appropriately is critical to determining if there should be an order of sole or joint custody: Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA). Given the mother’s extreme hostility to the father, and her own testimony, I find that she is not willing or able to cooperate or communicate effectively with the father about CL.

[116] Ms. Huang has taken extreme measures to excluded Mr. Liu from CL’s life since separation, including the false allegations of domestic violence, her unreasonable positions on supervised access, supervised exchanges, and expansions of access, and the 911 call incident. She has failed to inform Mr. Liu of important events in CL’s life, including hospital and medical visits, and has failed and refused to consult with him about decisions including extracurricular activities. She testified that she did not require Mr. Liu’s input to make the best decisions for CL and was unable to identify a single positive quality that Mr. Liu brought to CL’s life. Indeed, she seemed to suggest that Mr. Liu did not love CL. Ms. Huang’s conduct was clearly intended to marginalize Mr. Liu and exclude him from having a meaningful relationship with CL and from decision making. Her strategy was to control access to CL by making every step as difficult as possible for Mr. Liu.

[117] Ms. Huang’s inability to prioritize CL’s needs above her own, particularly in seeking to limit the role of Mr. Liu in CL’s life, and her unwillingness to consult and communicate with Mr. Liu about decisions regarding CL, leads me to conclude that Mr. Liu’s relationship with CL would be at risk if she were the custodial parent: Miller v. Miller, 2014 ONSC 6947 at para. 21. She does not respect or value Mr. Liu’s role in CL’s life, or his input. Sole custody would allow Ms. Huang to continue to exclude Mr. Liu from CL’s life; given that he is a loving and attentive parent, this is not in CL’s best interest.

[118] I have the same concerns with Ms. Huang as those stated by Zisman, J. in Suchanek v. Lavoie, 2014 ONCJ 39 at para. 112:

Although the mother has been [the child’s] primary caregiver she deliberately excluded the father and his family from [the child’s] life during a crucial period of his upbringing and has continued to marginalize the father’s role. I find that the mother cannot be trusted to assume the role of a sole custodial parent that would respect the importance of the father in the child’s life. The mother had nothing positive to say about the father. She does not trust or respect him as a parent. She has continued to raise allegations that are unfounded and has not seen the necessity of even consulting with him about issues that affect [the child]. …If the mother had the sole authority to make the decisions, it is clear that she would not even consult with the father as she does not seek or value his input but rather sees the father’s inquiries as an intrusion.

[119] Since I have found that Ms. Huang engaged in domestic violence, I also considered this factor. However, as Mr. Liu submits, the three incidents in nine years of marriage to him were not a significant factor in their marriage, and I do not find that Ms. Huang would pose a safety threat to her daughter.

4. Joint Custody Not Appropriate; Sole Custody to Father

[120] It is clear from the evidence presented at trial that Ms. Huang continues to have little respect for Mr. Liu or his views regarding their daughter. Where he and Ms. Huang disagree on an issue involving CL, she asserts her position. She has not attempted to engage in joint decision-making or even consult on issues. She never advised him in advance of extracurricular decisions or sought his input.

[121] By contrast, Mr. Liu has acted in a manner which consistently respects the importance of Ms. Huang’s role in CL’s life. He provided detailed reviews of everything CL did, what she ate and how slept during each of his visits with CL, even though Ms. Huang never replied to these messages. He testified that he did this because Ms. Huang is CL’s mother and it was in CL’s interest that her mother know how CL is doing. On Halloween, he offered to split his limited access time with Ms. Huang so that she could go trick or treating with CL. During the 911 call incident, Mr. Liu told CL that her mother was just playing a game when Ms. Huang refused to bring her into the house, because he did not want CL to feel unwanted by her mother.

[122] Every time that CL was ill, Mr. Liu asked Ms. Huang how he could help her in caring for CL, encouraging her to ensure she met her own needs as well. He graciously thanked Ms. Huang repeatedly for the hard work she did in caring for CL, acknowledging how difficult it could be to care for a sick child. When CL received positive reports at school, Mr. Liu thanked Ms. Huang and her parents for helping CL develop. Mr. Liu took all of these steps in the midst of high conflict litigation, in which Ms. Huang had made false allegations of physical assault against him, claimed that he had been an uninvolved parent and kept him from his child. On cross-examination, Mr. Liu agreed that CL definitely loves her mother and her mother definitely loves CL, that they had a strong bond, and he never questioned that. Mr. Liu has clearly demonstrated his ability to recognize the importance of CL’s relationship with her mother and put CL’s interests above his own in this regard.

[123] As Chappell, J. held in V.K. v. T.S., 2016 ONSC 4305 at para. 96: “If one of the parties is unable to focus on the child’s needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child’s day to day needs.” That is the case here.

[124] The custody order in this case will shape CL’s long-term relationship with both parents. Mr. Liu has established that he will continue to support Ms. Huang’s relationship with CL and will appropriately consult and respect Ms. Huang’s role in CL’s life. I have no doubt in concluding that Ms. Huang’s concerted course of conduct has been directed to restrict Ms. Liu’s relationship with CL and his role in her life, devaluing his role as CL’s father. The only way to ensure that CL will maintain a relationship with both parents is to award sole custody to the father, which will prevent the mother from continuing attempts to marginalize the father’s role in her daughter’s life and will ensure that decisions will be made in CL’s best interests.

[125] I have determined, on the evidence before me, that it is in CL’s best interests that her father, Mr. Liu, have sole custody and primary residence, with a generous access schedule which allocates time 50/50, on a 2-2-3, two-week schedule. I made the decision on parenting issues in July, and issued a temporary order, the permanent parts of which I have affirmed in the final Order set out in Part III below.

PART II: FINANCIAL and PROPERTY ISSUES

[126] The financial and property issues are:

(1) Child Support and Section 7 expenses:

(d) What are the incomes of the parties for child support purposes?

(e) What child support and section 7 expenses should be paid in the future?

(f) Are there any retroactive child support or section 7 expenses owed by Mr. Liu to Ms. Huang?

(2) Spousal Support: Is Ms. Huang entitled to spousal support and if so, how much and for how long?

(3) Equalization: What is the final amount to be paid, and by whom, for equalization of net family property?

(4) Post Separation Adjustments: What post separation adjustments should be made between the parties?

(5) Occupation Rent: Is Mr. Liu entitled to recover occupation rent from Ms. Huang and if so, how much and for what period?

(6) Miscellaneous: There are a number of miscellaneous issues including an insurance policy. The parties also settled an issue regarding RESP.

A. Child Support and Section 7 Expenses

[127] I first determine the income of the parties for child support purposes. I then discuss both ongoing and retroactive child support and section 7 claims.

1. Income for Child Support Purposes

(a) Income of Mr. Liu

[128] Mr. Liu’s employment with Blackberry, the company for which he had worked since before the marriage, was terminated mid-way through the trial. He received a severance package from Blackberry; this will be reflected in his 2018 income. After the trial, Mr. Liu accepted an offer of employment with another company as a Senior Software Engineer, commencing May 14, 2018.

[129] Mr. Liu’s Notice of Assessment shows line 150 income for 2017 was $128,266.

[130] Given uncertainties relating to Blackberry severance and the new company’s compensation structure, both parties agreed in their supplementary submissions that it is appropriate to follow section 16 of the Child Support Guidelines, such that ongoing support should be based on Mr. Liu’s 2017 Line 150 income. The severance pay and new salary will be included in the 2018 Income Tax Return. Both parties agreed that child support will be reviewed and adjusted annually upon receipt of the prior year notice of assessment, and I so order.

(b) Income of Ms. Huang

[131] Ms. Huang's line 150 income for 2017 is $140,927.00. This includes RRSP withdrawals in the amount of $59,107.93. Ms. Huang’s employment income is $81,796.75, which she submits is the income which should be used for child support purposes.

[132] Mr. Liu submits that Ms. Huang's 2017 income for child support and section 7 expenses purposes is $140,816, which includes RRSP withdrawals. He argues that in 2018, income should also include RRSP withdrawals.

[133] The Court of Appeal in Fraser v Fraser, 2013 ONCA 715 addressed the issue of the sources of income that should be included in the calculation of income for child support purposes, stating at para. 97:

Subject to ss. 17-20 of the Guidelines, s. 16 provides that a spouse's annual income for child support purposes is determined using the sources of income set out under the heading 'Total income' on the T1 tax form. Accordingly, subject to ss. 17-20 of the Guidelines, RRSP income received in a particular year is presumptively part of a spouse's income for child support purposes…The clear wording of the Guidelines includes RRSP withdrawals as income and no special exception has been provided in Schedule III [of the Child Support Guidelines].

[134] The purpose of the presumption in the Child Support Guidelines is to ensure that income available for child support in fact is used for child support. The Court of Appeal in Fraser held that neither (i) using RRSP funds in to cover non-recurring expenses, nor (ii) the fact that RRSP funds will be equalized in the proceedings, will necessarily rebut the presumption under the Child Support Guidelines that income for support purposes includes RRSP withdrawals. In Fraser, the Court of Appeal did not find that the RRSP withdrawal should be excluded from the father's income on the grounds that it was made for a specific and non-recurring reason (in that case, purchasing a house). It was still money available for child support purposes.

[135] I have considered Ms. Huang’s submissions that the income generated from RRSP sales was a one-time event to fund litigation. As noted by Justice Mesbur in Fielding v. Fielding, 2014 ONSC 2272 at paragraph 168, Footnote 14, a single non-recurring source of income including in income for support purposes can lead to an unfair determination, especially so when the non-recurring income source was incurred to fund litigation. I do not find that including RRSP withdrawals as income in the circumstances of this case would result in an unfair determination of income.

[136] Ms. Huang calculated Mr. Liu's income for child support purposes for 2015 to include the RRSP withdrawals he made in that year, which Mr. Liu has accepted. However, she appears to be taking the position that the same principles do not apply to her. Given that Mr. Liu has paid child support on income including his RRSP withdrawals, on equalized funds, I do not see a reciprocal arrangement as unfair in this litigation.

2. Proportionate Section 7 Expenses for 2017 and 2018

[137] In determining the proportionate share of section 7 expenses, the court is to use each party's income for child support purposes, as determined in accordance with the Child Support Guidelines: Titova v Titov, 2012 ONCA 864 at para 23. For 2017, when CL was primarily resident with Ms. Huang, the parties' proportionate share of section 7 expenses should be determined taking into account Ms. Huang's RRSP withdrawals as part of her income for child support purposes. Ms. Huang's line 150 2017 income for the purposes of determining proportionate contribution to section 7 expenses is $140,816. Mr. Liu’s Line 150 income for 2017 was $128,266. For 2017 and 2018, the ratio of income is Mr. Liu 48%, Ms. Huang 52%.

[138] As agreed by the parties, I order the parties to adjust child support retroactively to January 1, 2018, once the parties have filed their tax returns in 2018 and are aware of their line 150 incomes for support purposes. Income includes RRSP withdrawals, if any, in 2017 and 2018.

3. Adjustment to Child Support Given Shared Parenting Schedule

[139] I have ordered a shared parenting schedule where CL will reside with each parent 50% of the time. Child support should be the table amount for each of them under the Federal Child Support Guidelines, SOR/97-175, based on each of their respective incomes for child support purposes, set off against one another, in accordance with Section 9.

[140] Section 9 of the Child Support Guidelines states that in cases of shared parenting:

9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[141] The weight to be given to each of the factors will depend on the specific circumstances. Bastarache J. for the majority in Contino v Leonelli-Contino, 2005 SCC 63 held at para. 77 that “[t]he simple set-off verified against the budgets submitted by the parties under factor 9(c) is however acceptable in the absence of other evidence, since it leads to an examination of the actual capacity of each party to contribute to the expenses and consideration of the standard of living of both households.”

[142] A simple set-off is appropriate in this case, given the absence of detailed evidence regarding each party’s long-term expenses, and deficiencies in the evidence. In particular:

(a) The matrimonial home has been sold. Both parties testified their living arrangements after the closing of the sale are uncertain. Any information regarding the parties’ expenses at the time of trial is going to change after the sale of the house.

(b) There is insufficient evidence on which to engage in a detailed Contino analysis of the parties’ spending and expenses. Neither party provided a budget setting out their expenses in a 50/50 access arrangement, nor did they give evidence as to their expenses in any detail.

(c) Ms. Huang admitted in her testimony that her sworn Financial Statements have all contained errors, including double-counting of items in the Expenses section, and the inclusion of expenses incurred in relation to her parents, who live with her, and not simply Ms. Huang and CL. The Expenses section of Ms. Huang’s sworn Financial Statements are not accurate or reliable evidence as to Ms. Huang’s expenses at the time the Statements were sworn, let alone what her expenses may be after the house is sold.

[143] The best evidence available regarding the capacity to contribute to expenses and standard of living in each household is the parties’ respective incomes for child support purposes. A set-off of each party’s table child support figure under the Child Support Guidelines for one child is the most appropriate child support arrangement under Section 9, in light of the parties’ circumstances.

[144] Based on Mr. Liu’s 2017 line 150 income of $128,266, the Guidelines amount owed to Ms. Huang is $1,132 per month for 2017 and 2018. Based on Ms. Huang’s 2017 line 150 income of 140, 927, the Guidelines amount owed to Mr. Liu is $1,232 per month commencing August 1 onward. Ms. Huang is to pay Mr. Liu $100 per month from August 2018 until the parties exchange disclosure and adjust child support based on 2018 income tax filings, in 2019.

[145] A support deduction order is to issue in this matter; the prior support deduction order is vacated; Ms. Huang will have to reimburse Mr. Liu for overpayment of child support amounts after August 1, 2018. I expect the parties to cooperate in this determination.

4. Retroactive Child Support and Section 7 Expenses

[146] Are there any retroactive child support and section 7 expenses owing by Mr. Liu to Ms. Huang for the period of date of separation to the present date?

(a) Interim Child Support Order July 16, 2016

[147] Mr. Liu paid all household expenses, including the mortgage, home insurance, car insurance and other expenses from date of separation until July 31, 2016, which payments were made in lieu of support, and exceed his child support/section 7 obligations. He has fully paid both child support and section 7 from August 1, 2016 to present pursuant to the Interim Order of Justice Moore dated July 29, 2016 to present.

[148] Justice Moore found that Mr. Liu had been paying $2,800 per month towards the entire monthly cost of the mortgage, the full amount of the car loan for the car driven by Ms.Huang, the full insurance premiums for his car and hers as well as the home, and the full cost of life insurance with no contribution by Ms. Huang. This was in excess of amounts payable for table child support and daycare.

[149] In his Endorsement in this matter dated July 29, 2016 Moore J. held at para. 33, citing Lihou v Lihou, 2011 ONSC 7671:

[Ms. Huang] has had a free ride on the house, car and insurance costs that [Mr. Liu] has paid since separation. As is clear from Lihou, in circumstances where, as here, the non-custodial parent continued to pay for the carrying costs of the matrimonial home for the benefit of the children of the marriage, he was making the equivalent of child support payments. No order for child support having been made since separation was reflective of the fact that the parties recognized that his payments were the equivalent of child support. In the circumstances, I am not prepared to award interim child support or arrears of section 7 expenses for the interval between separation and the present.

[150] He ordered temporary child support be paid on Mr. Liu’s 2015 income of $126,143.89, in the amount of $1,085 per month commencing August 1, 2016, and he ordered that Mr. Liu pay 65% of CL’s daycare costs, $859 per month net of tax. Justice Moore’s Order was without prejudice to Mr. Liu seeking credit for the expenses he paid on behalf of Ms. Huang during this period which exceeded his child support and section 7 obligations.

[151] I find that table child support underpaid from the date of separation to August, 2018 is $10, 111. The amount of section 7 expenses underpaid in the same period is $2,814. The total underpayment is $12,925. This amount is a credit to Ms. Huang, to be applied against the total amount she owes him for the expenses he has paid on her behalf since the date of separation, which exceeds this figure.

[152] I accept Mr. Liu’s evidence that he paid child support and section 7 expenses for March, 2017, including the FRO Statement of Account for payments made between April 1 and October 25, 2017, and find that no arrears are owing for March, 2017.

[153] Mr. Liu’s proportionate share of section 7 expenses for 2017 and 2018 is 48%. For daycare/school, the amount payable by Mr. Liu to Ms. Huang is $598 per month for the period January, 2017 to July, 2018, and $603 in August.

[154] Since Mr. Liu has sole custody, it is appropriate for him to pay monthly school fees of $1,480 directly to the school commencing September 1. Commencing September 1, 2018, Ms. Huang is to pay Mr. Liu $663 per month for school fees, and the proportionate amount (52%) for daycare (before and after school).

(b) Dental Expenses

[155] Ms. Huang seeks a proportionate contribution of the retroactive dental expenses she claims for CL. Ms. Huang failed to provide the receipts to Mr. Liu in a timely manner so that he could claim the expenses on his dental coverage. Ms. Huang was clearly aware that Mr. Liu had dental coverage for CL through his employment, as she had previously corresponded with him on this point. She chose not to provide the receipts to him so that he could claim reimbursement for same.

[156] Mr. Liu pays a premium for his dental coverage. Ms. Huang testified that while group dental coverage is available through her employer, she made the financial decision not to secure coverage for CL as in her view, dental costs did not warrant payment of the premium.

[157] Mr. Liu testified at trial that the dental expenses claimed by Ms. Huang may no longer be eligible for reimbursement under the plan because they were not claimed within the time period. Mr. Liu testified that Ms. Huang had never provided the receipts to him, but he was prepared to submit the expenses to his provider and if they did reimburse him, to contribute.

[158] Following trial, Ms. Huang provided the receipts to Mr. Liu. His insurer reimbursed a significant proportion of the 2018 and 2017 claims but denied the claims for 2015 and 2016. Had Ms. Huang provided the receipts in a timely manner within the claim period, Mr. Liu could have obtained reimbursement. It would be unreasonable to order Mr. Liu to contribute to 2015-2016 expenses when by her own actions in failing to remit receipts, Ms. Huang has caused Mr. Liu to be unable to make a claim although he maintained insurance coverage. By her actions, Ms. Huang has waived the right to claim contribution for the 2015 and 2016 dental claims, and no amount is owing by Mr. Liu.

[159] Section 7 expenses are allocated in accordance with income calculated for child support purposes; the 2017 income on which the 2017 and 2018 expenses are based is allocated in the ratio of Mr. Liu 48% and Ms. Huang, 52%. Section 7 expenses are also eligible for readjustment the following year.

[160] I order Mr. Liu to continue his medical and dental insurance for CL through his employer, pursuant to section 6 of the Federal Child Support Guidelines.

[161] Ms. Huang has made the financial decision not to buy the group dental insurance coverage available through her work. Pursuant to section 7(b) of the Child Support Guidelines, commencing in October, 2018 I order Ms. Huang to pay that portion of Mr. Liu’s medical and dental premiums attributable to the child (50% of the cost), unless and until she secures medical and dental insurance and provides proof to Mr. Liu of the coverage. Mr. Liu is to provide annual evidence of the cost of the medical and dental premiums. Once Ms. Huang commences paying 50% of Mr. Liu’s medical and dental premiums, then they are to share the costs pro rata (Ms. Huang 52%), after reimbursement from insurance.

[162] With respect to amounts incurred by Mr. Liu before Ms. Huang contributes to his premiums, the costs are to be borne pro rata if there are expenses after reimbursement, but the party with insurance is not required to contribute to amounts remaining after reimbursement if the reimbursed amount exceeds his or her share. Mr. Liu is to remit the insurance proceeds to Ms. Huang; as the amount reimbursed for 2017-2018 exceed his 48% share of the total cost, she is to bear the remainder of the cost.

(c) Critical Illness Insurance Premiums: Not an Eligible Section 7 Expense

[163] Ms. Huang claims critical illness insurance premiums for CL as a section 7 expense. I dismiss this claim.

[164] Ms. Huang testified that the purpose of critical illness insurance is to provide funds to assist in meeting expenses should CL become ill. The beneficiary of the policy is not CL but Ms. Huang herself. If CL were to become ill, her medical expenses would be section 7 expenses to which both parties would be required to make their proportionate contribution. These would not be CL’s expenses to bear herself. The funds under the policy would be paid out to Ms. Huang, which she could then use to meet her increased section 7 expenses obligation rather than using her other funds. These funds would benefit Ms. Huang only, not CL. Mr. Liu would still be required to make his proportionate contribution to CL’s medical expenses. They are not an eligible section 7 expense.

[165] I also note that Mr. Liu had secured critical illness insurance through his employment, so the coverage secured by Ms. Huang was duplicative. Further, he was not consulted on whether it should be obtained for CL. Parents have an obligation to consult on section 7 expenses and run the risk of lack of contribution in the absence of consultation.

B. Spousal Support Claim

[166] Ms. Huang advances a claim for spousal support on a compensatory basis. She essentially relies on the following grounds:

(a) Ms. Huang gave up her career in China to marry Mr. Liu and follow him to Canada;

(b) She had to start over on her career;

(c) Mr. Liu has consistently earned more than Ms. Huang;

(d) Ms. Huang took a full year maternity leave, which effectively suspended her career.

[167] Section 15.2 of the Divorce Act, RSC 1985, c 3 (2nd Supp), allows a court to make an order deemed reasonable for the support of a spouse. Section 15.2(4) states that the factors to be taken into consideration include the means, needs and other circumstances of each spouse, the length of cohabitation and the roles performed by each spouse. Section 15.2(6) of the Divorce Act states that the objectives of a spousal support award include recognizing any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown and relieving any economic hardship of the spouses arising from the breakdown of the marriage. All four objectives under the Divorce Act must be considered when assessing entitlement to spousal support: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 SCR 813 (SCC) at para 53.

1. Ms. Huang’s Employment History

[168] Before the relationship, Ms. Huang was a financial journalist in China. She left her job in China in order to complete a Masters’ degree in Banking and Finance in Australia and was interested in pursuing banking and finance as a career. After her Masters, she went back to her previous employer in China, as a financial journalist. Ms. Huang arrived in Canada in January, 2007. Ms. Huang obtained an entry level position with State Street in the financial sector, at a salary of $35,000, and moved to Toronto for the position in May 2007. Mr. Liu initially commuted, then obtained a transfer to Blackberry’s Mississauga office about June 2008, at which time he moved to Toronto as well.

[169] Mr. Liu paid for Ms. Huang to study for and obtain a Certified Management Accountant (CMA) designation in 2010.

[170] Ms. Huang secured a position with Acuity as a general accountant in 2009 and subsequently moved to BMO in 2010. She secured a position with her current employer, Scotia Bank, in 2011.

[171] Ms. Huang’s income has steadily increased over time. In 2012, Ms. Huang’s Line 150 income was $67,654. In 2013, the year before CL was born, her Line 150 income was $69,062. In 2016, her first full year back after maternity leave, her income was already higher, at $75,911. The Respondent described moving to a new position as Manager of Reconciliation in April 2017. Ms. Huang's employment income for 2017 was $81,796.75. She is eligible for bonuses.

[172] Her salary has steadily increased. She has management position and testified as to a recent promotion.

2. Findings

[173] In some cases, giving up a career in another country to marry and move to Canada with a resultant dependency and economic disadvantage can be sufficient to entitle a party to spousal support on a compensatory basis: Niranchan v. Nadarajah 2015 ONCJ 149 at para 31. In this case, however, I find that both parties decided to emigrate to Canada for a better life for themselves and their children. Mr. Liu completed his PhD in Canada, and Ms. Huang completed her Masters in Australia. They jointly and freely chose to marry and come to Canada. Indeed, Ms. Huang subsequently sponsored her parents to emigrate to Canada, and they now reside with her.

[174] During the marriage Ms. Huang has worked full-time except for the period of one-year maternity leave. Mr. Liu supported the family while she upgraded her qualifications, and during the marriage she obtained a CMA designation. He paid for virtually all household expenses during the marriage, save for some exceptional expenses to which Ms. Huang contributed. I accept his evidence that he performed many of the household chores, and a significant amount of the childcare. Her income has increased every year, even after the maternity leave.

[175] Ms. Huang commenced the marriage with $5,000 in her account. By date of separation, she had accumulated savings and pensions in the amount of $161,048. All of Mr. Huang’s income was deposited into the joint account and used to cover household expenses. He was solely responsible for the mortgage, home and car insurance, and living expenses. Throughout the marriage, Ms. Huang retained her income and built up her savings, other than contributing to extraordinary items, including daycare.

[176] The Divorcemate Calculations based on SSAG do not result in any spousal support payable at the low or mid-range, which is where her claim, if any, would be placed. On the evidence before me, I find that Ms. Huang did not suffer an economic disadvantage from the marriage or its breakdown as a result of roles taken on during the marriage, and no pattern of economic dependency developed during the parties' relationship. I find that Ms. Huang is not entitled to support, whether analyzed on a compensatory or a needs basis. Both parties have sufficient income earning capacity to achieve and maintain economic self-sufficiency. A difference in post-separation incomes does not generate a claim for spousal support.I dismiss the spousal support claim.

C. Equalization

[177] The parties agree on the valuation date of September 27, 2015.

[178] The Applicant’s position is that the Respondent is to pay him $87,378.70; the Respondent claims she owes him $39,997.07. I will review disputed amounts.

1. The Automobiles

[179] There is a dispute about how the Ford Focus and the Ford Escape and the related car loans should be reflected on the NFP statements, hinging on what Mr. Liu asserts is Ms. Huang’s unreasonable conduct regarding the cars. Mr. Liu seeks an equitable remedy. However, the only jurisdiction I have to depart from the date of separation value is section 5(6) of the Family Law Act, which requires unconscionability having regard to one or more of the factors set out in s. 5(6) of the Family Law Act. As set out by Trimble, J. in Maharaj v. Wilfred-Jacob, 2016 ONSC 7925 at para. 205:

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

[180] The Ford Focus was owned by both parties, but the car loan was in Mr. Liu’s name alone. He made all the payments on the Focus loan. After separation in 2015 Mr. Liu sought to sell the Focus on a without prejudice basis. He required Ms. Huang’s consent as the car was jointly owned. She refused.

[181] After December, 2016 when he took over the Ford Escape, Mr. Liu again sought Ms. Huang’s consent to sell the Ford Focus on a without prejudice basis as he was not using the car, and he had to pay for additional parking. She again refused to consent. Mr. Liu has been unable to sell the car which he has not used since December, 2016. Due to Ms. Huang’s unreasonable position, Mr. Liu was not able to take advantage of the date of separation value to sell the vehicle.

[182] In the circumstances, I do not find that it would be unconscionable for the date of separation value to be used on the NFP when Mr. Liu has been unable to sell the car as a result of Ms. Huang’s refusal to consent, even on a without prejudice basis. I do make post-separation adjustments in respect of the loan payments, however. As both parties are joint owners, I allocate the value 50% to each party. As the borrower, the loan is Mr. Liu’s debt. He also seeks an order directing that the Focus be sold, and proceeds be applied to pay any outstanding loan. I so order.

[183] The Ford Escape was solely owned by Mr. Liu, but the loan was in both names. Only Mr. Liu made payments on the loan. After separation, Ms. Huang had sole use of the car, from October, 2015 to December, 2016. Although Ms. Huang purchased another car in October, 2016, she did not return the car to Mr. Liu until December, 2016. The loan was discharged in December, 2017, and Mr. Liu made all car payments. As the Escape was owned by Mr. Liu, it is an asset on his NFP Statement as at date of separation. It is not unconscionable to do so; his counsel argued that because he had no access to the Escape until December, 2016, it would be inequitable to put the date of separation value on his side of the NFP. This does not rise to the level of unconscionability.

[184] The Escape loan was in both names and is a joint liability at date of separation. However, the conduct of Ms. Liu is relevant to post-separation adjustments. Based on the fact that Mr. Liu made every payment on both cars after the marriage, Ms. Huang is to account for payments in post-separation adjustments, paying 100% of the Escape loan payments during the time the vehicle was in her sole possession, from date of separation to December, 2016.

[185] Based on her refusal to consent to the sale of the Ford Focus after December, 2016, Ms. Huang is to pay 50% of the Ford Escape payments from January 1, 2017 to December 31, 2017, since Ms. Huang was jointly liable on the loan, and by refusing to consent to the sale of the Focus, Mr. Liu was stuck with two vehicles, one of which he did not need but could not sell.

2. Date of Marriage Deductions

[186] I accept Mr. Liu’s testimony and evidence to support a date of marriage deduction in the amount of $15,000 for his CIBC account, based on his work at Blackberry and savings, as well as the $4,036.12 in his Tangerine Account.

[187] Ms. Huang claims a date of marriage deduction of $5,000, which she claims is money given for the wedding although the Canadian account was not opened until after the marriage. I accept this date of marriage deduction.

3. CRA Refunds

[188] Each party’s income tax refund for 2015 should be included under the “money owed to you” section of the NFP Statement, prorated to the 270 days from January 1, 2015 to the date of separation. For Ms. Huang this is $2,788.05, and for Mr. Liu, $1,977.29.

4. Ms. Huang’s Claim for Excluded Gifts

[189] Section 4(2) of the Family Law Act provides in part that:

(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:

1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.

2. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.

[190] Ms. Huang claims an exclusion for three separate gifts received from her parents during the marriage, in the total amount of $47,000. The evidence of Ms. Huang’s mother was put in by way of affidavit. Her affidavit evidence is that at the end of December, 2006, just before Ms. Huang emigrated to Canada, the parents gave Ms. Huang $10,000. In November, 2009 the parents gave Ms. Huang $23,000 as a bank draft. On January, 23, 2014 upon their arrival in Canada, Ms. Huang’s parents gave her $14,000, asking her to save it to take care of herself physically after giving birth. The mother’s evidence is that the gifts were given personally, not as financial support, and not as a gift to her family.

[191] Ms. Huang must establish not only that the cash was a gift, but that the gift still exists on the date of separation. This requires Ms. Huang to trace the gift from the time it was received to the date of separation.

[192] As stated by Penny, J. in Ludmer v. Ludmer, 2013 ONSC 784 at paras. 76, 78 and 86:

[76] The application of some form of tracing is contemplated by section 4(2) of the Family Law Act, which provides that excluded property includes not only property under subparagraph 1 that was acquired by gift or inheritance but “property other than a matrimonial home into which property referred to in paragraphs 1 to 4 can be traced.”

[78] Perkins J., in Goodyer v. Goodyer, 1999 CanLII 20759 (ON SCDC), [1999] O.J. No. 29 (C.J. Gen. Div.), said:

The tracing concept was adopted because the Family Law Act property scheme has a bias in favor of sharing the value of assets in existence at separation date and a bias against the exclusion of assets from the equalization calculation. Hence the onus on the spouse seeking to exclude assets, and hence the requirement that the spouse seeking to exclude a gift received during the marriage be able to trace it from its original form into assets in existence at the separation.

[86] Thus, it is not the transformation of the asset that brings tracing to an end. Rather, it is the inability of the beneficiary to prove the necessary connection or nexus between the trust property and the subsequently acquired asset. For example, tracing may reach its limit when an asset is spent or dissipated or where it is used to pay down debt or otherwise becomes co-mingled with other assets such that the original trust property can no longer be discerned. (emphasis added)

(a) Alleged $10,000 Gift

[193] Ms. Huang testified that the $10,000 was deposited in her CIBC Chequing account January 2007, but she was unable to obtain the statement from the bank. She testified that the funds were later transferred to her CIBC Savings account, although she did not provide any evidence of the date of transfer or the subsequent use of funds in the account. At valuation date, that account held $1,900. I find that Ms. Huang has failed to establish that the $10,000 gift was still in existence on the date of separation. Following Ludmer, Ms. Huang has not proved the necessary connection between the excluded property and the asset in existence at the date of separation; it has lost its traceability.

(b) Alleged $23,000 Gift

[194] Ms. Huang introduced in evidence a bank statement for her CIBC chequing account. It shows a deposit of $23,000 into the account on December 2, 2009, immediately followed by a “Correction” showing the $23,000 that had just been deposited into the account being removed from the account. The notation does not contain the words 'transfer' or make any reference to a transfer of the funds. Ms. Huang testified that after depositing the money it was transferred into another account, and she had in excess of $23,000 in that other account at date of separation. Ms. Huang could not identify any other bank account that received $23,000 on December 2, 2009. The notation relating to the funds in Ms. Huang's Financial Statement sworn February 12, 2018, states that the funds in question were "deposited” into the CIBC chequing account, yet the $23,000 was not deposited. She could offer no explanation other than that she did not know at the time the tracing was ordered that she would have to provide more detail. Ms. Huang was represented by former counsel at the time the tracing was ordered. Ms. Huang admitted that she had provided nothing to show that the “Correction” was a transfer of funds from her chequing account to another account in her name.

[195] The “Correction” notation on the bank statement raises a question as to whether the $23,000 was ever deposited into an account in Ms. Huang's name. Even if it was, Ms. Huang has failed to meet her onus to trace these funds to the date of separation. It is unclear which funds in which date of separation accounts Ms. Huang is claiming originated from the alleged $23,000 gift. Ms. Huang's claim that she is entitled to exclusion of $23,000 in relation to his alleged gift should be dismissed. Following Ludmer, Ms. Huang has not proved the necessary connection between the excluded property and the asset in existence at the date of separation; it has lost its traceability.

(c) Alleged $14,000 Gift

[196] Ms. Huang identified two deposits to her CIBC savings account in February 2014 totalling $14,000 which she alleges were a gift from her parents. On September 12, 2015, two weeks prior to the separation, Ms. Huang withdrew $14,000 from a different bank account and paid her parents $14,000. As part of court-ordered financial disclosure, on March 1, 2016 Ms. Huang’s former counsel explained the $14,000 paid to Ms. Huang’s parents as follows:

My client is responsible for taking care of her parents, who are currently residing with her and therefore wanted to provide some monies to support them while they were in Canada. Therefore, it is reasonable for my client to assist and support her parents who have been supportive to her and CL.

[197] When explaining the three “batches of money” provided to Ms. Huang, her mother’s evidence was that:

In the Chinese culture, it is relatively common for parents to give their adult children financial support and gifts. In the Chinese culture, although we don’t have strict rules as to when this kind of financial support and gifts must be repaid or at what kind of …interest rate, we do expect that when we are old, our daughter will fulfill her responsibility to take care of her parents or provide necessary support.

[198] The parents provided Ms. Huang $14,000 in February, 2014; there is no tracing of the $14,000; and prior to separation Ms. Huang provided her parents with $14,000. I find that the money was not a gift. The full amount was returned to her parents; the parents expected the money to be returned and financial support to be provided.

[199] Mr. Liu testified and provided evidence of gifts from his parents in the amount of $56,898, during the marriage. He did not claim them as excluded property because the funds were not traceable and were used for the family.

[200] None of these amounts claimed by Ms. Huang qualify as gifts excluded under FLA section 4(2).

5. Other

[201] I accept Mr. Liu’s evidence that the valuation date value of the disputed Canada Trust and ING accounts is zero. The parties agreed that Ms. Huang’s estimated RRSP disposition costs are to be set at $26,370.53. The parties settled the RESP issue and agreed it should be removed from the Net Family Property statements.

6. Conclusion

[202] In accordance with these findings, and the summary Net Family Property Statement included as a schedule to this decision, Ms. Huang is to pay Mr. Liu $74,812.83 as equalization of net family property.

D. Occupation Rent

[203] Mr. Liu advances a claim for occupation rent on an equitable basis. Jim Parthenis gave evidence as an expert real estate valuator and completed the expert acknowledgement in Form 20.1. He submitted a professional opinion of value based on comparable properties and I accept his evidence. Mr. Liu claims occupation rent from Ms. Huang in relation to the matrimonial home, for the period from the date of separation when he was ejected from the home until the date of closing of the sale of the house.

[204] Based on the market rental analysis undertaken by Mr. Jim Parthenis, and given that the closing date for the sale of the matrimonial home is August, 2018, he seeks the monthly market rates as follows:

Year	Monthly Market Rate	Total for Year
2015 (Oct- Dec)	$2,135	$6,405
2016	$2,175	$26,100
2017	$2,210	$26,520
2018 (to sale of house)	$2,210 (based on 2017 figure)	$15,470
TOTAL:		$74,495\2=$37,247.50

[205] In the absence of an order for exclusive possession, an award of occupation rent is an equitable remedy that will only be ordered in exceptional cases. This is an exceptional case in which it is reasonable and equitable to make such an order, taking into account factors set out in Griffiths v. Zambosco, 2001 CanLII 24097 (ON CA) at para 49:

(a) the timing of the claim for occupation rent;

(b) the duration of the occupancy;

(c) the inability of the non-resident spouse to realize on his equity in the property;

(d) any reasonable credits to be set off against occupation rent; and

(e) any other competing claims in the litigation.

[206] Both parties testified that Mr. Liu had been seeking sale of the matrimonial home since separation. Ms. Huang directed Mr. Liu to leave the matrimonial home after separation. Ms. Huang acknowledged that Mr. Liu could not have reasonably moved back into the home after separation. Given the assault by Ms. Huang, and the position taken in withholding CL, Mr. Liu could not remain in the home. Mr. Liu was forced to rent an apartment while Ms. Huang and her parents remained living in the home. After he moved out, Mr. Liu continued to pay the entire mortgage, property taxes and home insurance on the property from October 2015 until September 2016, when Ms. Huang was ordered to contribute to these expenses.

[207] After September, 2016, Mr. Liu continued to pay one-half of the mortgage and all of the home insurance premiums, in addition to his rent and the expenses of his own household. Both parties testified that on at least two occasions since September of 2016, Ms. Huang has failed to pay her half of the mortgage, resulting in it going to collections. Mr. Liu testified that as a result of paying for two households since separation, his debts have increased by over $200,000 since the date of separation, including credit cards for which he pays significant interest. Because Ms. Huang refused to agree to sell the house, Mr. Liu was prevented from accessing the equity in the home, his most significant asset, to meet his needs. In refusing to consent to the sale of the Ford Focus after December 2016, Ms. Huang also prevented Mr. Liu from accessing the equity in the car.

[208] Mr. Liu has paid child support; prior to the interim order of July, 2016 the amounts he voluntarily paid for the mortgage, car loans, home and car insurance and life insurance exceed child support owed. After that time he paid in accordance with all child support orders.

[209] Ms. Huang seeks to defeat the claim since: (a) Mr. Liu did not bring an earlier motion for sale of the home, and (b) the occupation rent claim was added in December 2016. In the circumstances, I find it equitable to make the award. Mr. Liu was forced to bring a significant number of motions in this file dealing with access. That was the key priority, and I do not find in the highly conflicted environment that he should have been forced to bring a motion for sale of the house. The motion to amend was more than a year before trial and was clearly raised in sufficient time. Mr. Liu made it clear after separation that that he wanted the house sold, that he needed his equity in the home in order to pay debts and meet joint expenses, and he was deprived of his equity in the house.

[210] Ms. Huang is ordered to pay Mr. Liu occupation rent of $37, 247.50. Other aspects of the post-separation adjustments (for example, property tax, car loans, insurance and mortgage) are dealt with below.

E. Life Insurance Issues

[211] During the marriage both parties contributed to a joint first-to-die life insurance policy with Manulife purchased in 2008. After 15 years, no further premiums are payable. Mr. Liu continued to pay the entire premium after separation until the July 29, 2016 Order of Justice Moore, after which he testified he could not continue to pay the premiums in addition to child support, both car loans and half the mortgage in addition to his own rent. Ms. Huang refused to contribute to the premiums and the policy was collapsed. However, Mr. Liu testified that the policy is eligible to be re-instated until 2019, after which the parties could pay the premiums for approximately another seven (7) years, after which the policy would be premium-free but the value would continue to grow.

[212] Mr. Liu submits that an Order should be made that the parties re-instate the policy and name CL as the irrevocable beneficiary of the policy for the period in which CL remains a child of the marriage.

[213] This is a proceeding under the Divorce Act. Simmons, J.A. in Katz v. Katz, 2014 ONCA 606 held that in proceeding under the Divorce Act, the court has broad discretion to impose terms and conditions. She held in para. 71 that:

It is generally accepted that as part of its discretionary power under these sections, a court may impose terms aimed at securing payment of a support order: ….With respect to a child support order made under the Divorce Act, s. 12 of the Federal Child Support Guidelines gives a court express authority to order a spouse to supply security.

[214] However, Simmons, J.A. in Katz v. Katz cautioned that:

(a) The amount of insurance ordered should not exceed the total amount of support likely to be payable over the duration of the support award;

(b) The amount of insurance to be maintained should decline over time as the total amount of support payable over the duration of the award diminishes.

(c) The obligation to maintain insurance should end when the support obligation ceases, and provision should be made to allow the payor spouse to deal with the policy at that time.

(d) When proceeding under the Divorce Act, the court should first order that the support obligation is binding on the payor’s estate.

[215] Ms. Huang testified that she did not feel comfortable letting Mr. Huang hold insurance on her life, and would not consent to reinstating the joint-first-to-die policy. That policy does not meet the criteria set out in Katz.

[216] I order that Ms. Huang maintain in good standing a life insurance policy with a face value of not less than $200,000, in order to secure Ms. Huang’s child support and section 7 expenses obligation; the beneficiary is Mr. Liu, to secure the child support obligations; and the insurance must be binding on the Estate of Ms. Huang.

[217] Mr. Liu is similarly directed to maintain his life insurance policy, with a face value of $200,000.

F. Post-Separation Adjustments

1. Mr. Liu’s Claim for Post-Separation Adjustments

[218] I have already reviewed retroactive child support; Ms. Huang is entitled to a payment of $12,924 in respect of underpayment of child support ($10,111) and section 7 expenses ($2,814) (calculated to August, 2018).

[219] Mr. Liu is entitled to be reimbursed for payments he has made on behalf of Ms. Huang in relation to the joint liabilities of the parties, including the mortgage, the Escape car loan, the home insurance, the car insurance and the joint life insurance policy.

[220] Mr. Liu submits, and I agree, that the for the period from October of 2015 until December 2016, during which period Ms. Huang alone had use of the Ford Escape and it was in her sole possession, the joint car loan payments made by Mr. Liu on the Ford Escape were made entirely on behalf of Ms. Huang. I find that this expense should be considered Ms. Huang’s entirely, since she had possession of the vehicle and Mr. Liu had no use of the vehicle. For the periods after which the car was returned to Ms. Huang, I accept Mr. Liu’s submission that one-half of the payments should be credited as on behalf of Ms. Huang, given that the loan was joint and, most importantly, Ms. Huang refused to consent to the sale of the Ford Focus. He was stuck with a car he didn’t need, and has experienced a significant depreciation in realizable value in the absence of her consent, while incurring insurance and parking costs.

[221] The following chart summarizes the payments made by Mr. Liu on behalf of Ms. Huang after separation to August, 2018 which total $28,392.12. I have adjusted the figures to August, 2018, based on the updated written submissions of the parties. The charts are consistent with the submissions at trial, and area merely updated to August, 2018.

EXPENSE	YEAR	TOTAL PAID BY MR. LIU	TOTAL PAID ON BEHALF OF MS. HUANG
Mortgage	2015	$5,832	$2,916
*50% allocated to Ms. Huang as Mr. Liu paid 100% of mortgage until following court order, Ms. Huang started contributing
	2016	$19,538.13	$7,776
	2017	$15,384.55	None
	2018(Jan and Feb)	$1,779	none
Escape Loan	2015	$1,574.97	$1,574.97
*100% to Ms. Huang, as she was sole driver and had exclusive use of car
	2016	$6,348.93	$6,348.93
*50% to Ms. Huang
	2017	$6,299.39	$3,149.70
	2018	None (loan paid off)	None
Home and car insurance	2015	$799.54	$399.77
*50% allocation
	2016	$3,369.19	$1,684.60
	2017	$3,526.79	$1,763.40
*To sale of home
	2018 to August	$2,458.72	$1,229.36
Joint life insurance policy	2015	$774.69	$387.35
*reasonable to maintain payments, 50% allocation, Ms. Huang agrees
	2016	$2,324.07	$1,162.04
	2017	None (payments stopped)	None
	2018	None	None
Total Payments made by Mr. Liu on behalf of Ms. Huang from DOS- August, 2018:			$28,392.12

[222] Ms. Huang is to reimburse Mr. Liu for $28,392.12 in expenses paid on behalf of Ms. Huang between the date of separation and August, 2018.

2. Ms. Huang’s Claim for Post-Separation Adjustments

[223] Ms. Huang’s claim for a contribution from Mr. Liu for carpet repair on the matrimonial home is dismissed. Ms. Huang did not consult Mr. Liu about the carpet repair, and did not inform him at the time of the repair. He was not given an opportunity to contest whether the repair was necessary or to gather quotes as to cost. Ms. Huang has not established that the repair was necessary, and that there is no evidence that the repair was required for the sale of the house, approximately three years after the repair.

Matrimonial Home

[224] By the start of trial both parties agreed that the matrimonial home should be sold, although they differed on timing. After closing submissions, I ordered the parties to list their property for sale no later than May 1, with the closing date no later than August 31. I was subsequently advised that the home was sold with a closing date of August 8 and the real estate lawyer is holding the proceeds. I make orders with respect to release of the funds to the parties in the order below.

PART III: ORDER

[225] For reasons set out above, I make the following Order:

Custody

1. The Applicant Father shall have sole custody of the child of the marriage, CL.

Regular Parenting Schedule

2. Commencing July 23, 2018, CL shall reside with the Applicant Father and the Respondent Mother equally, based on a shared, two week, 2-2-3 schedule set out below, or some other equal parenting schedule in the best interests of CL as the parents may subsequently agree to in writing:

week	Mon	Tue	Wed	Thurs	Fri	Sat	Sun
1	F	F	M	M	F	F	F
2	M	M	F	F	M	M	M

3. The parties shall pick up CL from her daycare/school for their parenting time when daycare/school is open. In the event CL is at camp, the parties shall pick up CL from camp for their parenting time. In the event a parenting exchange occurs on a day when there is no daycare/school/camp, the parties will exchange CL at 9:30am or such other time as may be mutually agreed between the parties, at the McDonalds at the Sheppard and Leslie location, or such other location as may be mutually agreed to in writing between the parties.

4. Supervision is not required for exchanges of the child, but either party may have another adult in attendance at exchanges should they so wish, or if they would prefer they may allocate the exchange to a third party of their choosing, at no expense to the other party (for clarity, if the mother allocates exchange to a third party, she will pay 100% of any expense for such third party, if there is an expense).

5. CL may spend any such alternative or additional time with the parties, as may be agreed between the parties in writing.

Holiday Parenting Schedule

6. CL shall reside with the Applicant Father and with the Respondent Mother during holidays and vacation time, as set out below. For clarity, the Holidays and Vacation Schedule shall override the regular parenting schedule as set out above, as well as any future regular schedule, as may be amended by the parties:

i. CL’s Birthday:

a) CL shall have contact for a two hour period in each year on her birthday with the parent with whom she is not residing on that day, should the parent with whom she is not residing so wish. On weekdays or school days, such contact shall take place after school. On weekend days, such contact shall take place during the day or evening and shall include a lunch or a dinner.

ii. March Break:

a) Commencing in 2019, CL shall reside with the Applicant Father in odd numbered years, from leaving school when the March Break starts, until her return to school following the break.

b) Commencing 2020, CL shall reside with the Respondent Mother in even numbered years, from leaving school when the March Break starts, until her return to school following the break.

iii. Easter Weekend:

a) Commencing in 2019, in odd numbered years CL shall reside with the Respondent Mother for the entire weekend, commencing Thursday after daycare/school, until drop off at daycare/school on Monday (or on Tuesday in the event the daycare/school is not open on Monday), when the regular schedule will recommence.

b) Commencing in 2020, in even numbered years CL shall reside with the Applicant Father for the entire weekend, commencing Thursday after daycare/school, until drop off at daycare/school on Monday (or on Tuesday in the event the daycare/school is not open on Monday), when the regular schedule will recommence.

iv. Mother’s Day/Father’s Day:

a) Commencing in 2018, CL shall reside with the Respondent Mother on Mother’s Day, if she would not ordinarily reside with the Respondent Mother during this time, commencing at 10:00am on Mother’s Day, until drop off at daycare/school on Monday morning, at which time the regular parenting schedule shall resume.

b) Commencing in 2018, CL shall reside with the Applicant Father on Father’s Day, if she would not ordinarily reside with the Applicant Father during this time, commencing at 10:00am on Father’s Day, until drop off at daycare/school on Monday morning, at which time the regular parenting schedule shall resume.

v. Victoria Day Weekend:

a) Commencing in 2018, in even numbered years CL shall reside with the Applicant Father for the entire weekend, commencing Friday after daycare/school, until drop off at daycare/school on Tuesday, when the regular schedule will recommence.

b) Commencing in 2019, in odd numbered years CL shall reside with the Respondent Mother for the entire weekend, commencing Friday after daycare/school, until drop off at daycare/school on Tuesday, when the regular schedule will recommence.

vi. School summer vacation period:

a) Commencing in summer 2019, CL shall spend two weeks, uninterrupted, consecutive or non-consecutive, in the care of each of the parents during CL’s summer vacation from school.

b) In odd numbered years, the Applicant Father shall select his dates of summer vacation no later than March 1st and the Respondent Mother shall select her dates no later than March 15th. In the event of a clash of dates, the Applicant Father’s selected dates shall take priority.

c) In even numbered years, the Respondent Mother shall select her dates of summer vacation no later than March 1st and the Applicant Father shall select his dates no later than March 15th. In the event of a clash of dates, the Respondent Mother’s selected dates shall take priority.

vii. Vacation:

a) CL may travel within or outside of Canada for up to sixteen (16) days consecutively, once each year, as well as up to seven (7) days consecutively, once each year for the purpose of such vacation, with each of the parties.

b) The Parties shall provide a minimum of 30 days’ notice in relation to such travel, including travel details, itinerary, where CL will be staying and contact details for the non-travelling party to contact CL while she is away. The non-travelling party shall provide a notarized consent for CL to travel at least 14 days prior to travel and shall co-operate with the signing of any documents in order to enable CL to travel (travel visa/passport etc.).

c) The parties shall not schedule such travel with CL during any period when she has exams or important appointments, such as recital days, school plays or concerts etc., which cannot be rearranged.

d) In the event of a clash of dates between travel and other holidays, such as long weekends (except for other vacation dates, the priority arrangements for which are already specified above and Christmas, which must take place according to the schedule set out below, unless the parties agree otherwise), the Applicant Father’s dates for this travel shall take priority in odd years and the Respondent Mother’s in even years.

e) In the event CL travels with either of the parties to China to visit family, the travelling parent shall make best efforts to enable CL to visit extended family of the non-travelling parent during such trip.

f) The number of travel days and amount of travel can be amended on consent in writing.

viii. Canada Day:

a) Commencing in 2018, in even numbered years CL shall reside with the Respondent Mother for the Canada day holiday or (if Canada Day falls such that there is a long weekend) for the entire weekend, commencing the day before Canada day after daycare/school, until drop off at daycare/school on July 2 or next working day, when the regular schedule will recommence.

b) Commencing in 2019, in odd numbered years CL shall reside with the Applicant Father for the Canada day holiday or (if Canada Day falls such that there is a long weekend), for the entire weekend commencing the day before Canada day after daycare/school, until drop off at daycare/school on July 2 or next working day, when the regular schedule will recommence.

ix. Civic Day Weekend:

a) Commencing in 2018, in even numbered years CL shall reside with the Applicant Father for the entire weekend, commencing Friday after daycare/school, until drop off at daycare/school on Tuesday, when the regular schedule will recommence; and

b) Commencing in 2019, in odd numbered years CL shall reside with the Respondent Mother for the entire weekend, commencing Friday after daycare/school, until drop off at daycare/school on Tuesday, when the regular schedule will recommence.

x. Labour Day Weekend:

a) Commencing in 2018, in even numbered years CL shall reside with the Respondent Mother for the entire weekend, commencing Friday after daycare/school, until drop off at daycare/school on Tuesday, when the regular schedule will recommence.

b) Commencing in 2019, in odd numbered years CL shall reside with the Applicant Father for the entire weekend, commencing Friday after daycare/school, until drop off at daycare/school on Tuesday, when the regular schedule will recommence.

xi. Thanksgiving Weekend:

a) Commencing in 2018, in even numbered years CL shall reside with the Applicant Father for the entire weekend, commencing Friday after daycare/school, until drop off at daycare/school on Tuesday, when the regular schedule will recommence.

b) Commencing in 2019, in odd numbered years CL shall reside with the Respondent Mother for the entire weekend, commencing Friday after daycare/school, until drop off at daycare/school on Tuesday, when the regular schedule will recommence.

xii. Halloween:

a) CL shall be permitted to “Trick-or-Treat” for up to thirty (30) minutes with the parent with whom she is not ordinarily residing on Halloween Eve, at a mutually agreed upon time and in the area in which she is residing at the time, should the non-residing parent so wish.

xiii. Christmas Vacation:

a) Commencing in 2018, the parties will share equally, CL’s school Christmas Break.

b) In even numbered years CL shall spend the first half of the Christmas break with the Applicant Father from pick up from school, until 10:00am, half way through the school Christmas break. CL shall spend the second half of the school Christmas break with the Respondent Mother, from 10:00am half way through the Christmas break, until she returns back to school.

c) In odd numbered years CL shall spend the first half of the Christmas break with the Respondent Mother from pick up from school, until 10:00am, half way through the school Christmas break. CL shall spend the second half of the school Christmas break with the Applicant Father, from 10:00am half way through the Christmas break, until she returns back to school.

d) Commencing in 2018 and each alternate year thereafter, notwithstanding the above Christmas Break schedule, CL shall reside in even numbered years with the Respondent Mother from 6:00pm on December 24th, until 3:00pm on December 25th and with the Applicant Father from 3:00pm on December 25th until 3:00pm on December 26th.

e) Commencing in 2019 and each alternate year thereafter, notwithstanding the above Christmas Break schedule, CL shall reside in odd numbered years with the Applicant Father from 6:00pm on December 24th, until 3:00pm on December 25th and with the Respondent Mother from 3:00pm on December 25th until 3:00pm on December 26th.

xiv. Chinese New Year:

a) CL shall spend Chinese New Year with the Applicant Father in odd numbered years overnight, from pick up at daycare/school, until drop off at daycare/school the next morning, when the regular schedule shall recommence.

b) CL shall spend Chinese New Year with the Respondent Mother in even numbered years overnight, from pick up at daycare/school, until drop off at daycare/school the next morning, when the regular schedule shall recommence.

xv. Family Day Weekend:

a) Commencing in 2019, in odd numbered years CL shall reside with the Respondent Mother for the entire weekend, commencing Friday after daycare/school, until drop off at daycare/school on Tuesday, when the regular schedule will recommence.

b) Commencing in 2020, in even numbered years CL shall reside with the Applicant Father for the entire weekend, commencing Friday after daycare/school, until drop off at daycare/school on Tuesday, when the regular schedule will recommence.

xvi. Any such additional or alternative Holidays parenting time as may be agreed between the parties.

xvii. Resumption of regular parenting schedule following holidays/vacation periods:

a) Potential instances in which CL would reside in the care of the same parent for three consecutive weekends as a result of a holiday or vacation period intervening the regular parenting schedule, shall be avoided. In such potential instances, the regular parenting schedule after a holiday weekend or vacation period specified above, shall resume with CL spending the weekend after the holiday weekend or vacation period (or weekend days or day, whichever applies at the time) with the parent with whom CL did not spend the holiday weekend/vacation (For example, if CL spends Friday to Monday with the Applicant Father and then the following weekend is Thanksgiving in an even year when CL would spend the weekend with the Applicant Father, the regular alternating weekend parenting schedule shall resume with CL spending the weekend after Thanksgiving with the Respondent Mother).

General

7. If either of the parents is unavailable to care for CL for a minimum 4 hour period during which CL is normally in the care of that parent, is awake and not in daycare, school or other structured activity, then the other parent shall be given the opportunity to care for CL during that period first, before any third party. If the parent with whom CL is not residing at the time is unable to provide care, and the other parent has advised that s/he cannot care for CL, then the parent with whom she is residing shall be responsible for making appropriate care arrangements for CL during that period.

8. The parent with first right of refusal will take into consideration organized playdates, sleepovers etc. and will not insist on the first right of refusal if these are the reasons the first right of refusal is triggered. (For example, when CL is older and would like to spend the day with a friend at a playdate, even if the time spent at the friend’s home is longer than 4 hours the non-resident parent shall not rely on the first right of refusal to insist on spending this time with CL).

9. The parties shall not disparage each other in the presence of CL, nor shall they knowingly expose to CL a risk of her hearing any negative comments about her other parent, either from her parent or third parties.

10. The parties will consult each other regarding extra-curricular activities for CL, before registering her for same. Ultimately the decision regarding extra-curricular activities is with the Father.

11. Unless the other agrees, the parties will not schedule activities for CL during the other parent’s time with CL. If the parties agree to a scheduled activity, or the Father has enrolled CL in an extra-curricular activity after consultation with the Mother, they will each take CL to the activity during his or her time with CL, unless there are circumstances which present this, or the parties agree otherwise.

12. The parent with whom CL is residing at the time, shall be responsible for making the day-to-day decisions regarding CL’s welfare, but will follow CL’s normal established routine to the extent possible, for consistency.

13. During the time that CL resides with one parent, should she be unwell or suffer an injury, the parent with whom CL is residing shall notify the other parent as soon as possible of such illness or injury.

14. The parties will keep each other informed of any medical, dental, or other health concern or issue that arises during the time that CL is in their care, including providing details of any required medication, appointments etc.

15. The Father has authority to make decisions about CL’s medical, health and dental care, after consultation with the Mother.

16. The parties shall share information regarding CL’s academic progress, extracurricular activities and social activities.

17. Each parent will request from the daycare or school that he or she be provided with all notices, report cards etc.

18. Both parents may attend daycare/school related functions, such as open houses, plays, concerts, fund-raisers, regardless of whether CL is residing with that parent at the time of such events.

19. The Father may apply for a passport for CL, in the event she does not yet have a passport and either party may apply to extend an expiring passport or replace a lost passport. The parents shall co-operate in obtaining and maintaining a valid Passport in CL’s name. If the Mother does not cooperate, the Father may bring a motion to dispense with the Mother’s consent.

20. The Father shall be the custodian of CL’s Passport, Birth Certificate, Social Insurance Number Card and Health Card. If the Mother is presently the custodian, she will provide the originals to the Father within 10 days of the date of this Order.

21. Upon a request from the Mother for one of the above-noted documents for CL, the Father shall provide said document(s) to the Mother forthwith as required, unless a notarized copy is sufficient, in which case the Mother shall pay for the production of a notarized copy. The Mother shall return the documents forthwith.

22. The Father shall provide the Mother with CL’s passport no later than 14 days before any travel. The Mother shall return the passport with CL upon return from travel.

23. If either of the parties propose to change their residence, he or she will immediately give his or her new contact details to the other, as soon as the information is available.

Schooling

24. The Father has primary educational decision-making authority. He must consult with the Mother prior to removing CL from her current school. If CL finishes the Grade levels of her present school, or if the Father determines it would be in CL’s best interests, the Father may enrol CL in a school run by the public school board after consultation with the Mother.

DIVORCE

25. The parties, who were married on June 7, 2006, in Wuhan, China and separated on September 27, 2015, be divorced and that the divorce take effect 31 days after the date of this order.

CHILD SUPPORT & SPECIAL OR EXTRAORDINARY EXPENSES

26. The Applicant Father owes the Respondent Mother $10,111 for retroactive child support and $2,814 for retroactive section 7 expenses to August, 2018. This amount is a credit to be deducted from the Applicant’s share of the net proceeds from the sale of the matrimonial home and added to the Respondent’s share.

27. Mr. Liu is to continue his medical and dental insurance for CL through his employer pursuant to section 6 of the Federal Child Support Guidelines.

28. Pursuant to section 7(b) of the Federal Child Support Guidelines, commencing in October 2018 the Mother to pay 50% of the Father’s medical and dental premiums which is the amount attributable to CL, unless and until she secures medical and dental insurance which covers CL and provides proof of coverage to the Father. The Father is to provide the mother with annual evidence of the cost of medical and dental premiums.

a. For medical and dental expenses incurred before the Mother contributes to the Father’s premiums, the costs are to be borne pro rata if there are expenses remaining after reimbursement, except that the Father is not required to contribute to the remaining expense if the insurance reimbursement exceeds the Father’s pro rata share of section 7 expenses.

b. Once the Mother begins paying 50% of the cost of the medical and dental premiums, then the parents are to share the costs of medical and dental expenses pro rata after reimbursement from insurance.

29. The Applicant Father is not required to contribute to dental expenses incurred in 2015 and 2016.

30. The Applicant Father shall reimburse the Respondent Mother the full amount he was reimbursed by his insurer because of the claims submitted to his health and dental care plan for CL’s dental expenses in 2017 and 2018, within 10 days of this Order, except that if the Mother owes the Father amounts under sections 31 and 32 of this Order, the amount of the insurance reimbursement may be set off against sums owing to the Father pursuant to section 31 and 32 of this Order until paid up.

31. Commencing August 1, 2018, and on the first day of each month thereafter, the Respondent Mother shall pay child support to the Applicant Father in the amount of $100. This payment is based on the Applicant Father’s child support owing to the Respondent Mother in the amount of $1,132, based on his 2017 Line 150 income of $128,266, and the Respondent Mother’s child support owing to the Applicant Father in the amount of $1,232, based on her 2017 Line 150 income of $140,927, given the shared parenting schedule and in accordance with the Federal Child Support Guidelines. A support deduction order is to issue in this matter; the prior support deduction order is vacated; Ms. Huang will have to reimburse Mr. Liu for overpayment of child support amounts after August 1, 2018.

32. Commencing September 1, 2018, and on the first day of each month thereafter, the Respondent Mother shall pay to the Applicant Father an amount of $663 for her proportionate contribution towards CL’s estimated Daycare/School Fees.

33. The parties’ ongoing contributions payable for all other agreed upon special or extraordinary expenses, in proportion to their respective incomes are as follows:

i. 48% payable by the Applicant Father; and

ii. 52% for the Respondent Mother;

The parties will reimburse each other their proportionate contribution of any agreed upon special or extraordinary expenses, which for greater certainty shall include medical and dental expenses, school fees at the existing school and daycare (before and after care and summer day camp) expenses, and extracurricular activities, within 14 days of providing proof of payment of such expense.

34. Critical illness insurance coverage for CL paid by either of the parties is not an eligible section 7 expense.

35. Since the parties have equal parenting, the Respondent Mother will claim the eligible dependent credit in her 2018 Income Tax return and in even years thereafter, and the Applicant Father shall claim the eligible dependent credit in his 2019 Income Tax Return and in odd years thereafter.

36. The parties’ child support obligations shall be binding upon their respective estates.

37. Commencing July 1 2019, and once per year thereafter, no later than July 1st each year, both parties will provide to each other:

i. The documents required in s. 21(1) of the Federal Child Support Guidelines that have not previously been provided (three years’ tax returns, notices of assessment and reassessment, most recent statement of earnings indicating year-to-date earnings, and any other relevant disclosure in the event a party is self-employed, in a partnership, controls a corporation, is the beneficiary under a trust, or is in receipt of other income, such as employment insurance, social assistance, pension, disability payments or any other source of income);

ii. Current information about CL’s section 7 expenses;

iii. Details of Canada Child Tax Benefits or other Child Benefits received in the previous year and anticipated in the coming year; and

iv. Any other information and documents needed to review child support.

38. Commencing July 2019, by no later than July 30th each year the parties shall review child support. They shall determine and adjust their ongoing child support and section 7 contributions payable, based on their previous year’s income. They shall also determine the retroactive child support and section 7 contribution that was payable for the previous year based on their incomes for that year. In the event that there has been an overpayment of child support for the previous year, the payor will adjust ongoing child support payments to credit the payor for the total overpayment, over a three month period (or longer if three months of ongoing support is not sufficient to credit the entire amount owing for the overpayment). In the event of an underpayment, the payor will adjust the ongoing child support payments to credit the recipient for the total underpayment, over a three month period (for clarity, in July 2019, the parties will review the ongoing support and section 7 contributions payable for 2019, based on their 2018 incomes. They will review support and section 7 contributions that were payable for 2018, based on their 2018 incomes. They will adjust ongoing support to account for the new support payable. They will also adjust their ongoing support over a three month period to account for any retroactive overpayment or underpayment of support in 2018).

39. The parties will also review the child support at least three months prior to CL commencing post-secondary education and consideration will be given to the reduced expenses for the parent with whom CL resided prior to post-secondary education, to the additional expenses incurred for tuition fees accommodation, books, living expenses etc., as well as the time spent by CL residing with each parent, as opposed to at college/university.

40. The parties will cooperate to inform the Family Responsibility Office (“FRO”), regarding the adjusted amount of support payable and the period for which it is payable. The parties will comply with any requests made by FRO to formalize any adjustments, so that FRO is able to enforce with respect to the adjusted amount.

41. Both parties shall include CL as a beneficiary of any extended healthcare and dental benefits/insurance to which they may have access to through their employment. Prior to requesting reimbursement for a proportionate share of medical and/or dental expenses with respect to CL, the parties shall exhaust all contributions available to them through their employer’s benefits/insurance plan.

SPOUSAL SUPPORT

42. There shall be no spousal support payable by the Applicant Father to the Respondent Mother, either retroactively or prospectively. The Respondent’s claim for spousal support is dismissed.

LIFE INSURANCE

43. The Respondent Mother shall maintain a life insurance policy with a face value of $200,000, to secure her child support and special and extraordinary expenses obligations. The Applicant Father will also ensure that he has a life insurance policy in place with a face value of $200,000, to secure his child support and special and extraordinary expenses obligation. The parties shall designate each other as irrevocable beneficiary of their $200,000 life insurance policies. The Applicant Father is deemed to be a creditor with respect to the Respondent Mother’s policy and the Respondent Mother is deemed to be a creditor with respect to the Applicant Father’s policy, with rights and secured creditor pursuant to all applicable legislation, including the Succession Law Reform Act.

44. The parties authorize a lien and first charge against their estates for the full amount of the policy proceeds if the policy is not in force on their death.

45. If the policy is not in force on a parent's death, in addition to any other remedy the Trustee may have against the deceased parent's estate, he/she may apply under the Succession Law Reform Act for relief for CL if she remains a dependent. All of the surviving parent's rights and remedies against the deceased's estate are preserved.

46. If either parent's policy cannot be maintained for any reason, he/she will immediately obtain replacement coverage at a reasonable cost, ensuring no gap in coverage. If the insured parent learns that there may be a change in insurance coverage, he/she will advise the other parent of the proposed change in coverage and the reason for the change.

47. The insured parent will pay all policy premiums when due, as applicable. If he/she does not and the other parent pays any premiums, interest or penalties to prevent the policies lapsing, those amounts will be considered child support and enforceable against the defaulting parent. If the policy lapses because a parent failed to pay the premiums, the defaulting parent will also pay the other parent all necessary costs incurred by him/her to reinstate the policy.

48. Within 60 days of this Order, each parent will provide the other with a copy of the policy and the irrevocable beneficiary designation. Each parent will sign an Authorization and Direction permitting the other parent to confirm directly with his insurer that the policy is unencumbered and in force.

SALE OF THE MATRIMONIAL HOME

49. The net proceeds of sale of the parties’ matrimonial home shall be divided equally between the parties, subject to:

i. A credit to the Applicant Father from the Respondent Mother’s share for 100% of all transfers to tax made for non-payment of utility bills from the date of separation to the date of the closing of the sale of the home, because of the utility bills that were unpaid by the Respondent Mother and were transferred to the property tax; and

ii. Credits for the other payments owing between the parties, as specified in accordance with other terms of this order, in particular:

(e) Deduct from Applicant Father’s share and add to Respondent Mother’s share $12,925 for retroactive child support and section 7 expenses;

(f) Deduct from Respondent Mother’s share and add to Applicant Father’s share $37, 247.50 for occupation rent;

(g) Deduct from Respondent Mother’s share and add to Applicant Father’s share $74,812.83 for equalization;

(h) Deduct from Respondent Mother’s share and add to Applicant Father’s share $28,392.12 for post-separation adjustments.

50. Within five days of this Order, the parties will jointly direct their real estate lawyer to release the funds to them in accordance with this Order, and the net proceeds shall be released to each of them in the respective proportions as set out in this Order, except that in his sole discretion, the Applicant Father may waive clause 49(i) in which case, the funds owing to the Father pursuant to clause 49(i) will be paid directly by the Mother to the Father within 10 days of this Order.

OCCUPATION RENT

51. The Respondent Mother shall pay to the Applicant Father $37,247.50 for Occupation Rent with respect to the matrimonial home until the closing of the sale of the matrimonial home.

52. These monies shall be deducted from the Respondent’s share of the net proceeds from the sale of the matrimonial home and added to the Applicant’s share.

EQUALIZATION

53. The Respondent Mother shall pay to the Applicant Father the sum of $74,812.83, to equalize the parties’ Net Family Property. These funds shall be deducted from the Respondent’s share of the net proceeds from the sale of the matrimonial home and added to the Applicant’s share.

54. The parties will close all joint bank accounts forthwith and will co-operate with the signing of documents to close the accounts.

55. The Ford Focus shall be sold forthwith. The Respondent Mother shall sign all documents necessary to consent to the sale of the vehicle within 10 days of this Order.

56. In the event there are any net proceeds (after payment of the Ford Credit Canada Loan) of the sale of the vehicle, these will be shared equally between the parties.

POST-SEPARATION EXPENSES

57. The Respondent Mother shall reimburse the Applicant Father in the amount of $28,392.12 for expenses paid on her behalf since the date of separation to August, 2018, with respect to the carrying costs of the home, car financing, car and home insurance and life insurance. These monies shall be deducted from the Respondent’s share of the net proceeds from the sale of the matrimonial home and added to the Applicant’s share.

58. MISCELLANEOUS

59. Any and all other claims are hereby dismissed, except for costs.

60. The Respondent Mother shall pay pre and post judgment interest on the amounts owing in accordance with the Courts of Justice Act.

COSTS

61. In the event the parties are unable to agree upon costs the Applicant Father will serve and file written costs submissions within 14 days of this order. The Respondent Mother shall serve and file responding submissions within 14 days of receipt of the Applicant Father’s cost submissions. Costs submissions for each party to include a Bill of Costs, together with Offers to Settle.

Kristjanson J.

Released: October 9, 2018