Court File and Parties

Court File No.: FC-14-2612 Date: 2018/06/29 Ontario Superior Court of Justice

Between: Michael Salvatore Piacenti, Applicant – and – Ashley Elizabeth Thomson, Respondent

Counsel: Michael Salvatore Piacenti, Self-represented Leighann Burns, Counsel for the Respondent

Heard at Ottawa: January 15-19, 29-31, 2018

Reasons for Judgment

Ryan Bell J.

Overview and Positions of the Parties

[1] This is a high conflict family law case involving issues of custody, access, child support, and division of property.

[2] The applicant, Michael Salvatore Piacenti and the respondent, Ashley Elizabeth Thomson have one child, Mckinley Elizabeth Piacenti, born December 22, 2010. Mr. Piacenti and Ms. Thomson began sharing an apartment in September 2008 and were married in October 2011. Less than seven months later, the parties separated. These proceedings were commenced by Mr. Piacenti in 2014.

[3] Mr. Piacenti seeks an order for joint custody of Mckinley and an order that he be provided with reasonable information and involvement with regard to her education, medical information and extracurricular activities. He seeks access to Mckinley from Thursday after school to Friday morning on week one and from Thursday after school to Monday morning on week two. Mr. Piacenti is prepared to pay child support of $245 per month and s. 7 expenses in proportionate share to his income, provided that the activities and expenses incurred are on consent. Mr. Piacenti also advances a claim for unequal division of property – specifically, the matrimonial home located at 1400 Derry Side Road, Ashton, which the parties own as joint tenants.

[4] Ms. Thomson seeks an order granting her sole custody of Mckinley and an order that she be free to apply for a passport for and to travel with Mckinley without Mr. Piacenti’s consent. Ms. Thomson proposes that Mr. Piacenti have access to Mckinley on alternate weekends from Friday after school until Monday morning. She seeks an order for child support, including s. 7 expenses, in accordance with the Federal Child Support Guidelines, SOR/97-175, based on an imputed income to Mr. Piacenti of $35,000, and retroactive child support payments on the same basis. Ms. Thomson seeks an order for the matrimonial home to be sold so that she can realize her share of the proceeds. She also seeks a restraining order against Mr. Piacenti, prohibiting any contact between Mr. Piacenti and herself and Mckinley, except for the purpose of access.

[5] Although Mr. Piacenti’s original application did not seek a divorce, Ms. Thomson requested a divorce in her answer and Mr. Piacenti made it clear at trial that he also wishes a divorce. Proof of the marriage has been provided. The parties have lived separate and apart since April 21, 2012. There is no possibility of reconciliation. In these circumstances, a divorce is granted.

Factual Background

[6] The parties met in June 2007. Ms. Thomson had just secured a six-month internship in India working with youth at risk. Ms. Thomson described the two of them as “inseparable” during the few weeks before she was scheduled to leave for India. Mr. Piacenti joined Ms. Thomson in India for a couple of months and the parties also spent time together in Costa Rica.

[7] Around September 2008, Mr. Piacenti moved to Ottawa and moved in with Ms. Thomson at her apartment. The parties later moved to a new apartment. In February 2009, Ms. Thomson secured a teaching position.

[8] Ms. Thomson was happy to stay in their new apartment; however, Mr. Piacenti, who was renting out the house he owned in Thorold, wanted to buy a house. The parties became engaged in the spring of 2010. The same day, they went to the bank to be pre-approved for a mortgage.

[9] Mr. Piacenti and Ms. Thomson purchased the matrimonial home at 1400 Derry Side Road in the spring of 2010. Both parties are on title. Shortly after the parties moved into the home in May 2010, Ms. Thomson became pregnant. The pregnancy was difficult: Ms. Thomson was put on bedrest. Ms. Thomson testified that Mr. Piacenti became frustrated and still expected her to help out with the housework during this time. Mckinley was born on December 22, 2010.

[10] Mr. Piacenti testified that after Mckinley was born, Ms. Thomson “hovered over him” when he attended to the baby. He was having issues at work at this time; ultimately, he quit his position in the summer of 2011. Mr. Piacenti subsequently found part-time work as a framer.

[11] Tensions in the home increased; however, the parties continued to plan for their upcoming wedding. Mr. Piacenti and Ms. Thomson were married on October 9, 2011. The day of their wedding, Ms. Thomson surprised Mr. Piacenti with a honeymoon trip to New York City. Mr. Piacenti left a message for his boss explaining why he would be unable for work for a few days. When they returned from New York City, Mr. Piacenti was out of a job. Mr. Piacenti blamed Ms. Thomson for the loss of his job.

[12] By November 2011, a month after they were married, Mr. Piacenti and Ms. Thomson were attending marriage counselling sessions. Notwithstanding the counselling sessions, their relationship continued to deteriorate. Mr. Piacenti considered the sessions to be a waste of time: they were having numerous fights and he felt he was being “controlled” by Ms. Thomson in relation to Mckinley.

[13] The situation came to a head on April 21, 2012. On that day, Mr. Piacenti told Ms. Thomson to leave the matrimonial home. She did, taking Mckinley with her. Ms. Thomson and Mckinley lived with Ms. Thomson’s parents for a period of time. Mr. Piacenti has continued to reside in the matrimonial home since the date of separation.

Litigation History

[14] Mr. Piacenti commenced these proceedings in 2014 when Mckinley was three years old. Mckinley is now seven. A number of interlocutory orders have been made in the lead-up to trial. The following is a summary of the relevant orders.

[15] On March 21, 2014, Mr. Piacenti signed an undertaking to comply with the existing custody and access arrangements until those issues were settled between the parties. The existing arrangements were that Mr. Piacenti was to pick Mckinley up from daycare on Friday afternoons and to drop her off at daycare on Monday mornings. On December 3, 2014, Mr. Piacenti sent the following text message to Ms. Thomson:

Just to let you know…I will not be going to the drop off point tonight or any other night due to your unpredictable behavior. I refuse to subject Mckinley to more childish and disrespectful behavior towards me. I will drop her off tomorrow for pajama day at 8:30 am for school. If you have any concerns, please have your lawyer contact mine. I am refusing any and all contact with you until you are able to show respect and dignity to the father of your child. Thank you for understanding.

[16] On December 4, 2014, Master MacLeod (as he then was) granted leave to Ms. Thomson to bring an urgent motion, unless Mr. Piacenti returned Mckinley and provided an undertaking to adhere to the agreement regarding access. On December 16, 2014, Justice Labrosse made a temporary access order on the consent of the parties, which allowed Mr. Piacenti to have access with Mckinley on alternate weekends from after school on Friday to Monday morning and on Wednesdays from after school until 7 p.m., by which time Mckinley was to be fed, bathed, in pajamas and ready for bed.

[17] On January 29, 2015, Master Roger (as he then was) made a consent order regarding disclosure. A further temporary order dealing with disclosure and child support was made by Justice Blishen on September 1, 2015. Paragraph 3 of Justice Blishen’s order required both parties to disclose any and all police reports pertaining to them held by Ottawa Police Service or Lanark County O.P.P. and all records in the possession of Ottawa Children’s Aid Society or Lanark County Children’s Aid Society. Paragraph 4 ordered Mr. Piacenti to pay monthly child support in the amount of $193.00 based on a disclosed income of $24,134.00.

[18] In Minutes of Settlement dated February 29, 2016, the parties agreed on an access schedule, including for holidays. I note in particular that the parties agreed to share equally Mckinley’s school Christmas break.

[19] In August 2016, the matter was placed on the January 2017 trial list. At the trial management conference on January 6, 2017, Justice Kane ordered that the matter would remain on the trial list notwithstanding Mr. Piacenti’s request for an adjournment to retain new counsel. Justice Kane also made a consent order permitting Ms. Thomson to apply to obtain a passport for Mckinley, without Mr. Piacenti’s consent. On January 12, 2017, Mr. Piacenti’s request to adjourn the trial was dismissed by Justice Shelston.

[20] This matter was called for trial on September 25, 2017. The trial did not proceed that day because Mr. Piacenti requested, and Ms. Thomson agreed, to instead proceed with a full day settlement conference. Justice Sheard granted leave to Ms. Thomson to bring an urgent motion to deal with the issue of upcoming weekend access.

[21] On September 28, 2017, the parties appeared before Justice Audet on Ms. Thomson’s urgent motion for an order suspending access between Mr. Piacenti and Mckinley until Mr. Piacenti obtained a psychiatric assessment. The motion was adjourned on terms, including that access between Mr. Piacenti and Mckinley be suspended on a without prejudice basis until further order of the court.

[22] At the return of the motion on October 12, 2017, Justice Audet found “real concerns that the F[ather] may suffer from some mental health issue or personality disorder that the Court needs to assess based on expert evidence before making a final ruling at trial.” Justice Audet ordered Mr. Piacenti to undergo, forthwith, a psychiatric assessment to assess whether, should such issue exist, it has an impact on his ability to parent. Justice Audet varied the existing schedule and ordered that Mr. Piacenti have access to Mckinley every Wednesday from after school until 7:30 p.m. and every Saturday from 10 a.m. to 7:30 p.m. These are the access arrangements that were in place as at the date of trial.

[23] The psychiatric assessment of Mr. Piacenti, conducted by Dr. Leslie Kiraly, was filed as an exhibit at trial. Dr. Kiraly was not called as a witness at trial.

[24] At the commencement of trial, Mr. Piacenti raised issues concerning disclosure by Ms. Thomson, including with respect to a police report relating to an incident involving Ms. Thomson’s mother and Mr. Piacenti in March 2014. I ruled that Ms. Thomson had made full disclosure prior to the anticipated September 2017 trial date. With respect to the police report, I note that Justice Blishen’s order required the parties – that is, Mr. Piacenti and Ms. Thomson – to produce police reports. Ms. Thomson had no legal obligation or ability to obtain a copy of the report pertaining to an incident in which she was not involved.

[25] The trial proceeded on all issues raised by the parties.

The Evidence at Trial

[26] The evidence at trial was extensive. Mr. Piacenti called six witnesses, including his mother, a friend, a friend and former work colleague, a neighbour, his girlfriend and himself.

[27] Ms. Thomson gave evidence on her own behalf, as did a former boyfriend, her best friend, her father and her mother.

[28] Sixty-seven documents were marked as exhibits.

[29] The witnesses called by Mr. Piacenti all spoke of the warm and loving relationship that exists between Mr. Piacenti and Mckinley. While Mr. Piacenti testified that from the time Mckinley was born, he felt that Ms. Thomson was undermining his ability to parent, it is evident that he now enjoys a strong bond with his daughter. In particular, Mr. Piacenti’s girlfriend, Ms. Kucey, described the loving relationship between father and daughter, characterized her own relationship with Mckinley as “very good”, and stated that Mckinley is “a huge bonus to our [own] relationship.”

[30] Ms. Thomson is not seeking to deny Mr. Piacenti access to Mckinley; the central issue I must determine is whether joint custody is in Mckinley’s best interests. In this regard, and as I will discuss in more detail, a person’s past conduct, including whether the person has committed violence or abuse against their spouse, is a relevant consideration. The parties’ testimony is critical to this determination.

[31] It is for this reason that I make the following observations concerning the testimony of the parties. Mr. Piacenti’s testimony suffered from a number of shortcomings. The most obvious of these was his tendency to blame others in an effort to excuse his own behaviour. For example, he claimed not to have received certain of Ms. Thomson’s documents and said he felt like he was “kept in the dark” by his former lawyer. Notwithstanding repeated requests for financial disclosure, Mr. Piacenti maintained that he thought he had given such disclosure. He emphasized the “running around” and work involved in obtaining the court-ordered psychiatric assessment. Mr. Piacenti blamed Ms. Thomson for the loss of his job when she surprised him with a honeymoon trip. Ultimately, he blamed the litigation for having an adverse impact on his ability to work, and blamed Ms. Thomson’s refusal to transfer title in the matrimonial home to him for adversely impacting his ability to invest in his business and to pay s. 7 childcare expenses.

[32] Mr. Piacenti’s tendency to blame others was confirmed by the evidence of Ms. Thomson’s father. Mr. Thomson testified that Mr. Piacenti denigrated one of his former employers, which contributed to Mr. Piacenti losing his position. Mr. Piacenti refused to accept responsibility and attributed the loss of his job to other factors.

[33] Mr. Piacenti’s explanations for inaccuracies in Dr. Kiraly’s report also illustrate his tendency to blame others and his failure to take responsibility for his actions.

[34] Mr. Piacenti complained about his access to Mckinley over the holiday period, notwithstanding that the schedule was something to which both parties had agreed.

[35] Mr. Piacenti testified that he did not “understand completely” what it meant for Ms. Thomson to be on title to the matrimonial home. I do not accept Mr. Piacenti’s evidence in this regard given the evidence that he and his former partner were on title to the home in Thorold.

[36] There were also inconsistencies in Mr. Piacenti’s testimony. For example, his testimony that Ms. Thomson cried when she found out she was pregnant was inconsistent with his evidence that she had stopped taking birth control prior to the pregnancy. He initially testified that he signed Mckinley up for the canoe club; on cross-examination, he admitted that he had only taken her to the canoe club.

[37] On cross-examination, Mr. Piacenti often argued with counsel. For example, he refused to agree that the events of December 3, 2014 – when Mr. Piacenti refused to return Mckinley in accordance with the existing access schedule – precipitated Ms. Thomson’s urgent motion.

[38] Mr. Piacenti testified that he did not agree to update the valuation on the matrimonial home or that an updated valuation had been requested repeatedly since January 2017. At trial, however, he produced an appraisal updated as of September 21, 2017.

[39] There were a number of times throughout his testimony where Mr. Piacenti was evasive in responding to counsel’s questions. He could not “verify” Mckinley’s homework, which was his responsibility on his access days. He testified “I do not remember” when asked about automatic billing in relation to the carrying costs of the matrimonial home. He was “unable to verify” whether he replied to certain correspondence through his counsel. And, he claimed not to understand certain undertakings that he had signed.

[40] Ms. Thomson’s testimony did not suffer from any of the same shortcomings. Ms. Thomson was responsive to the questions posed to her, both on examination in chief and on cross-examination. Ms. Thomson was openly appreciative of Ms. Kucey. Her testimony was internally consistent. Ms. Thomson’s evidence regarding Mr. Piacenti’s behaviour was corroborated by the evidence of other witnesses.

[41] I found Ms. Thomson to be both a reliable and a credible witness. Where Ms. Thomson’s evidence conflicts with that of Mr. Piacenti, I accept Ms. Thomson’s evidence.

[42] I turn to the specific issues to be determined in this case.

Custody and Access

[43] Mr. Piacenti seeks an order for joint custody of Mckinley. For the following reasons, I have determined that an order for joint custody would not be in Mckinley’s best interests. The evidence was overwhelming that the parties are unable to communicate; there is, quite simply, no indication that the parties could effectively co-parent the child.

[44] Any decision dealing with the custody of and access to a child is determined by what is in the best interests of the child: “[i]n 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” (Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(8)). Past conduct of a person is not to be taken into consideration unless the conduct is relevant to the ability of that person to act as a parent of a child (Divorce Act, s. 16(9)).

[45] The court is also required to give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child (Divorce Act, s. 16(10)).

[46] While the Divorce Act applies, the criteria in the Children’s Law Reform Act, R.S.O. 1990, c. C.12 are relevant to any case dealing with the best interests of children. In determining the best interests of the child, s. 24(2) of the Children’s Law Reform Act provides:

(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.

[47] Section 24(4), which is also relevant in this case, provides:

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child.

[48] In determining what is in Mckinley’s best interests, I find as follows.

(i) Mr. Piacenti Engaged in Verbal Abuse Against Ms. Thomson

[49] I find that Mr. Piacenti engaged in extensive verbal abuse against Ms. Thomson. I accept Ms. Thomson’s evidence that the abuse began when the parties learned that she was pregnant and continued post-separation. The following describes only a fraction of the abuse inflicted on Ms. Thomson by Mr. Piacenti.

[50] Ms. Thomson testified that after Mckinley was born, she had recurring nightmares about the baby and their dog. Mr. Piacenti responded by laughing and swearing at Ms. Thomson. Mr. Piacenti repeatedly belittled her, including in front of Mckinley. He screamed at Ms. Thomson over the phone. He swore at Ms. Thomson, accused her of having affairs and started checking her phone. Ms. Thomson got to the point where she dreaded going home; on occasion, she would nap with Mckinley in the car because it was “easier to sleep there than at home.” Mr. Piacenti mocked Ms. Thomson to the point where she felt worthless. By the end of their relationship, Mr. Piacenti was telling her to leave several times a week.

[51] Other witnesses gave evidence that Ms. Thomson would cut social events short, saying she had to get home as Mr. Piacenti did not want to spend too long on his own with the baby. Mrs. Thomson testified about a call she received from her daughter, who sounded frantic to return home, followed by a call from Mr. Piacenti, screaming and wanting to know where Ms. Thomson was. Mr. Thomson also described Mr. Piacenti’s “blind fury” over the frozen sump system at the house. Mr. Piacenti characterized marriage counselling as “stupid”.

[52] On April 21, 2012, Mr. Piacenti flew into a blind rage when Mckinley picked up something of his while she was playing on the floor; Ms. Thomson had been vacuuming. Mr. Piacenti shouted at Ms. Thomson to “get out”; she packed her things and took Mckinley to her parents’ home. Mr. Thomson said his daughter was nervous, shaking and “crushed”. Mrs. Thomson described her daughter as “walking on eggshells”. She said that Ms. Thomson’s “light had disappeared”.

[53] There was also evidence at trial of Mr. Piacenti’s anger and verbal abuse post-separation.

[54] Shortly after the parties’ separation, Mrs. Thomson overheard Mr. Piacenti screaming at Ms. Thomson on the phone. At an access exchange in March 2015 attended by Mr. Thomson and Ms. Thomson’s then boyfriend, Mr. Piacenti became very agitated and began to yell in front of Mckinley. After the exchange, Mr. Piacenti sped off, yelling out the window as he did so. Ms. Thomson described Mr. Piacenti swearing at her then boyfriend at one access exchange; on another occasion, Mr. Piacenti jumped into her car, yelling and screaming at her.

[55] Ms. Thomson is afraid of Mr. Piacenti; accordingly, Mr. Thomson now tends to the access exchanges to ensure stability for Mckinley. Recently, the exchanges have been without incident.

(ii) The Parties are Unable to Communicate

[56] I find that the parties are unable to communicate where Mckinley is concerned – indeed, both parties admit this is the case. Given Mr. Piacenti’s history of verbal abuse toward Ms. Thomson, there is no indication that the parties could effectively co-parent Mckinley.

(iii) Mr. Piacenti has Engaged in Self-help Behaviour

[57] At times, Mr. Piacenti has engaged in self-help behaviour. For example, in December 2014, Mr. Piacenti refused to return Mckinley in accordance with the agreement regarding access, necessitating an urgent motion by Ms. Thomson.

(iv) Stable home environment and Mckinley’s Educational Needs

[58] Since the parties separated in April 2012, Ms. Thomson has been Mckinley’s custodial parent. Mckinley is now seven and a half. I find that Ms. Thomson has always done her best to balance her job and her care of Mckinley. She continues to do so. Ms. Thomson provides a stable home environment for her daughter.

[59] I also find that, notwithstanding Mr. Piacenti’s abusive behaviour towards her, Ms. Thomson has made every possible effort to involve Mr. Piacenti in Mckinley’s life. Contrary to Mr. Piacenti’s assertion, Ms. Thomson has not undermined his ability to parent Mckinley; Mr. Piacenti enjoys a strong and loving relationship with his daughter.

[60] I note the evidence that Mckinley’s academic performance at school appears to have improved with the change in access that occurred in mid-October 2017. It is of concern that Mr. Piacenti professes not to recognize Mckinley’s homework booklets and that he is unable to verify her homework on his access days.

(v) The Child’s Best Interests - Custody

[61] Before a joint custody order will be made, there must be some evidence before the court that despite their differences, the parents of the child are able to communicate effectively with one another. Regardless of how detailed the custody order is, there will be gaps, unexpected situations and changing developmental needs of the child (Kaplanis v. Kaplanis (2005), 194 O.A.C. 106 (C.A.), at para. 11). Mr. Piacenti professes a hope that the situation will improve through the use of Our Family Wizard; however, a mere hope that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody (Kaplanis, at para. 11).

[62] Based on my findings, I have concluded that this is not an appropriate case for an order for joint custody. The parties cannot communicate; they cannot cooperate. There is no evidence that Mr. Piacenti and Ms. Thomson could effectively co-parent Mckinley. The parties’ inability to communicate and cooperate is a direct result of Mr. Piacenti’s extensive verbal abuse toward Ms. Thomson. She is afraid of him. An order for joint custody would only lead to further conflict between the parties and would not be in Mckinley’s best interests.

(vi) The Child’s Best Interests - Access

[63] Pursuant to the temporary order of Justice Audet, Mr. Piacenti currently has access to Mckinley every Wednesday from after school until 7:30 p.m. and every Saturday from 10 a.m. to 7:30 p.m. Mr. Piacenti seeks access to Mckinley mid-week overnight on week one and from Thursday after school to Monday morning on week two. Mr. Piacenti’s proposal represents an increase in access from the arrangements that were in place immediately prior to Justice Audet’s order. Those access arrangements were every second weekend and once each week from after school until 7:30 p.m. Ms. Thomson proposes that Mr. Piacenti have access every other weekend.

[64] In determining access, I am required to bear in mind the principle that a child should have as much contact with each parent as is consistent with the child’s best interests. In my view, Mr. Piacenti’s access to Mckinley must be increased from the current schedule; the real question is whether mid-week overnight access is consistent with Mckinley’s educational needs. There was anecdotal evidence at trial from Ms. Thomson that Mckinley has been doing better at school since the mid-week access visits ceased in mid-October; however, there was no expert evidence tendered at trial in this regard.

[65] Counsel on behalf of Ms. Thomson advanced the argument that Mr. Piacenti should be required to undergo a s. 30 assessment before his access is increased. I do not agree. Based on the evidence before me, there is no reason to deny Mr. Piacenti mid-week overnight access to Mckinley on those weeks when he does not have weekend access. To do so would be contrary to the maximum contact principle.

[66] Therefore, Mr. Piacenti shall have (i) weekend access on week one from Friday after school to Monday morning; and (ii) overnight access on week two from Wednesday after school to Thursday morning.

[67] I was not provided with any compelling reason to adjust the current holiday access schedule. Accordingly, the existing holiday access schedule forms part of my order.

Child Support and Section 7 Expenses

(i) Imputation of Income

[68] One of the objectives of the Child Support Guidelines is to establish a fair standard of support for children to ensure that they benefit from the financial means of both parents following separation (s. 1(a)). Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning (Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.), at paras. 31-32).

[69] Section 19(1)(a) of the Guidelines provides that the court may impute such amount of income to a spouse as the court considers appropriate in the circumstances, including where the spouse is intentionally under-employed or unemployed. There is no need to find a specific intent to evade child support obligations before income can be imputed. The parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning (Drygala, at paras. 24-28).

[70] Ms. Thomson’s position is that Mr. Piacenti is intentionally underemployed and that child support should be calculated based on an imputed income of $35,000.00. The amount of $35,000.00 is the three-year average of Mr. Piacenti’s income in 2010, 2011 and 2012, as shown on his Notices of Assessment for those years. Mckinley was born in 2010 and the parties separated in 2012.

[71] Mr. Piacenti started his own home renovation business in late 2012 or early 2013. Certainly, by 2013, the business was up and running. In the years 2013 to 2017, invoices for the business total:

2013: $76,376.57 2014: $83,983.12 2015: $66,503.38 2016: $35,962.33 2017: $23,828.70 (to July 2017 only)

[72] Mr. Piacenti’s income as shown on his Notices of Assessment was $19,697.00 in 2013, $24,133.00 in 2014, and $18,157.00 in 2015. His financial statement sworn April 30, 2014 shows income of $42,000.00 and expenses of $52,560.00. His financial statement sworn November 17, 2014 shows income of $36,000.00 and expenses of $52,200.00. His February 20, 2016 financial statement shows an income of $0.00 and expenses of $28,059.36.

[73] Mr. Piacenti does not keep records of the number of hours that he works. His hourly rate ranges between $25.00 and $50.00. Based on the 2014 invoices, and assuming an hourly rate of $25.00, Mr. Piacenti worked approximately 1,100 hours that year. A similar calculation based on the 2013 invoices yields approximately 900 hours. In 2016, Mr. Piacenti worked fewer than 150 days per year. Based on all of the evidence before me, I conclude that Mr. Piacenti has not been working on a full-time basis since 2012.

[74] Mr. Piacenti maintained that Ms. Thomson’s refusal to transfer title in the matrimonial home to him impacted his ability to invest in his business, and, in turn, adversely affected his income. This is yet another example of Mr. Piacenti refusing to take responsibility for his own conduct.

[75] In my view, it is not a coincidence that since Mr. Piacenti made a sizeable “catch up” child support payment in April 2014, his reported income has decreased.

[76] For these reasons, I find that Mr. Piacenti intentionally chose to be under-employed when he elected to start his own business. He continues to be under-employed.

[77] When imputing income based on intentional under-employment, a court must consider what is reasonable in the circumstances (Drygala, at para. 45). In my view, the appropriate basis upon which to impute income is the average of Mr. Piacenti’s income in the years 2010-2012 when he was employed full-time. His average annual income in those years was $35,000.00.

(ii) Child Support

[78] The guideline table amount for one child at an income of $35,000.00 per year is $304.00 per month. Based on an imputed annual income of $35,000.00, Mr. Piacenti’s ongoing monthly child support obligation to Ms. Thomson is $304.00, commencing January 1, 2018.

(iii) Section 7 Expenses

[79] Mr. Piacenti is prepared to pay his proportionate share of extraordinary expenses associated with Mckinley’s extracurricular activities, provided that both parties consent to Mckinley’s participation in such activities. Given my finding that the parties are unable to communicate and cooperate, and that their inability to do so is a direct result of Mr. Piacenti’s past verbal abuse of Ms. Thomson, a requirement that both parties consent to the extracurricular activities would be unworkable. At the very least, it would unduly complicate Mckinley’s participation in extracurricular activities; at worst, imposing such a requirement might compromise her ability to participate altogether.

[80] Section 7 expenses under the Child Support Guidelines are to be shared by the parties in proportion to Ms. Thomson’s income and Mr. Piacenti’s imputed income of $35,000.00. Ms. Thomson’s 2017 income was approximately $94,000.00. The extracurricular activities are to be limited to three per year: one each in the fall, winter and summer months. To be clear, Ms. Thomson is not required to secure Mr. Piacenti’s agreement in advance to the activities or the associated expenses. Proof of a section 7 expense is to be given to Mr. Piacenti by Ms. Thomson in writing or electronically. Mr. Piacenti shall pay his proportional share of the section 7 expenses within thirty days of receiving proof of such expense.

(iv) Child Support Arrears and Retroactive Payments

[81] Mr. Piacenti’s position is that there are no arrears of child support or s. 7 expenses. He relies on a FRO statement as at January 2018, which shows a zero balance, and points out that at times, he paid more than the table amount of child support.

[82] The parties agree that no child support or s. 7 expenses are owed by Mr. Piacenti with respect to 2012. Based on Mr. Piacenti’s income as reported on his Notices of Assessment, and crediting all amounts paid by or on his behalf, it appears that Mr. Piacenti “overpaid” for the years 2013-2017 in the amount of $8,118.85. However, it should be noted that the amounts paid in 2016 ($3,009) and 2017 ($1,621) were pursuant to support deduction orders.

[83] Counsel for Ms. Thomson urges me to make a retroactive order for child support and s. 7 expenses based on Mr. Piacenti’s imputed income of $35,000.00. In determining whether to make a retroactive award, the court is required to balance the payor parent’s interest in certainty with the need for fairness and for flexibility (D.B.S. v. S.R.G., 2006 SCC 37, at para. 133). In doing so, the court should consider the reason for the recipient parent’s delay in seeking child support, the payor’s conduct, the past and present circumstances of the child, including the child’s needs at the time the support should have been paid, and whether the retroactive award might entail hardship (D.B.S., at para. 133).

[84] In this case, there will be an order for retroactive support. There was no delay by Ms. Thomson in seeking a higher level of child support. She gave effective notice of her concerns regarding the amount of child support being paid in her Answer dated December 16, 2014, and specifically highlighted Mr. Piacenti’s precipitous drop in income in 2013 as a result of his new business venture. There was evidence that in the first two years following separation, Mr. Piacenti’s contributions to child support and extraordinary expenses were, at best, unreliable. I have also considered the fact that the delays in getting this matter to trial are attributable to Mr. Piacenti. A payor parent who knowingly avoids or diminishes his support obligation to his child should not be allowed to profit from such conduct. Mr. Piacenti did exactly that when he chose to be under-employed. He preferred his own interests to those of his child and in so doing, engaged in blameworthy conduct.

[85] I have concluded that the appropriate quantum of a retroactive support award in this case is the amount owed from January 1, 2013, based on an imputed income of $35,000.00. It was in 2013 that Mr. Piacenti’s business was, according to him, “up and running”, and it was in 2013 that Mr. Piacenti incurred a significant drop in his reported income. Mr. Piacenti is to pay Ms. Thomson child support and s. 7 expenses retroactive to January 1, 2013 based on an imputed income of $35,000. After crediting Mr. Piacenti with all payments made by or on his behalf, I fix total retroactive child support as at January 31, 2018 at $8,855.78. Mr. Piacenti is to pay Ms. Thomson this amount within 60 days.

The Matrimonial Home and Equalization of the Net Family Properties

[86] Both parties are registered on title as joint tenants of the matrimonial home. Mr. Piacenti seeks an order for unequal division of the property with a view to purchasing Ms. Thomson’s interest as determined by the court. He advances constructive trust and unjust enrichment arguments in support of his position. Mr. Piacenti points to the following: the use of his savings to fund the down payment on the home; his payment for a new water treatment system; the brevity of the marriage; and the brevity of the parties’ cohabitation in the matrimonial home.

[87] Constructive trust and unjust enrichment principles do not assist Mr. Piacenti. Mr. Piacenti seeks to rely on equitable principles, but he does not come to this court with clean hands. In this regard, I emphasize his abusive behaviour toward Ms. Thomson, his self-help behaviour, and his delay in bringing the matter to trial.

[88] In addition, there is no evidence to support Mr. Piacenti’s claim. I reject Mr. Piacenti’s evidence that he did not understand what it meant for Ms. Thomson to be on title. I find that the parties intended to be joint owners of the property. Both parties contributed to the expenses of the matrimonial home during the period of cohabitation. Even after separation, Ms. Thomson continued to pay some of the expenses associated with the property for a period of time. Mr. Piacenti has enjoyed de facto exclusive possession of the home since the parties separated. During this time, Mr. Piacenti has not paid occupation rent to Ms. Thomson.

[89] This court has no jurisdiction to require Ms. Thomson to sell her interest in the matrimonial home to Mr. Piacenti. Ms. Thomson is entitled to realize her one-half share of the equity the parties share in the home as joint tenants. Mr. Piacenti has failed to comply with court orders requiring him to provide proof of third party financing for the matrimonial home. In these circumstances, I order that the matrimonial home is to be sold, with the parties to share equally in the net proceeds of sale. The matrimonial home had an appraised value of $325,000.00 as at September 2007. Should either party wish to obtain an updated appraisal on the home, that party may do so at his or her own expense.

[90] With respect to the equalization of the net family properties, the parties are in substantial agreement as to the value of the assets owned on the date of separation. Where the parties do not agree, I find that the value of Mr. Piacenti’s RRSP on the date of separation is $5,110.30, and that the value of Ms. Thomson’s chequing account is $919.08 on the date of separation. The parties agree on the value of their debts and other liabilities on the date of separation.

[91] I find that on the date of marriage, Ms. Thomson owned property valued at $14,175.95 and owed debts totalling $19,117.76. I find that the net value of property owned by Mr. Piacenti on the date of marriage is $6,950.00.

[92] Based on these findings, I calculate the equalization payment as follows:

Applicant Respondent

1. Value of Property Owned on Valuation Date $156,829.78 $151,487.10

2. Value of Debts, Liabilities on Valuation Date $85,806.02 $95,031.70

3. Net Value of Property, Debts on Date of Marriage $6,950.00 ($4,941.81)

4. Value of Excluded Property $0.00 $0.00

5. Total of Values 2, 3 and 4 $92,756.02 $90,089.89

6. Net Family Property $64,073.76 $61,397.21

Difference: $2,676.55

Equalization payment: $1,338.28.

[93] Mr. Piacenti owes Ms. Thomson an equalization payment of $1,338.28. This amount is to be paid from Mr. Piacenti’s share of the proceeds from the sale of the matrimonial home.

Request for a Restraining Order

[94] Ms. Thomson seeks a restraining order against Mr. Piacenti. Section 46 of the Family Law Act, R.S.O. 1990, c. F.3 is discretionary. There must be objective facts for the court to conclude that there exists a reasonable danger that one spouse will molest, annoy or harass the other (Mercieca v. Mercieca (2002), 32 R.F.L. (5th) 392 (Ont. S.C.), at para. 27).

[95] I find on the facts that there is insufficient evidence to require a restraining order at this time. Although Ms. Thomson continues to be afraid of Mr. Piacenti in light of his past conduct, there is no evidence of recent abuse by Mr. Piacenti of Ms. Thomson. The access exchanges at school will minimize contact between the parties, as will Mr. Thomson’s continued involvement at exchanges. I am satisfied that a restraining order under s. 46 of the Family Law Act is not required at this time. I therefore decline to grant the order sought.

Conclusion

[96] In conclusion, I make the following final orders:

1. The parties are divorced.

2. Ms. Thomson shall have sole custody of the child, Mckinley, born December 22, 2010, and Mckinley shall have her primary residence with Ms. Thomson.

3. Mr. Piacenti shall have the right to make inquiries and to be given information as to Mckinley’s health, education and welfare. In order to effect this part of the order, Ms. Thomson shall, within seven days of the release of this judgment, provide Mr. Piacenti with the names and contact information of all the professionals involved in the health, education and welfare of Mckinley so that Mr. Piacenti may pursue his inquiries and obtain this information.

4. Ms. Thomson shall be free to apply for a passport for and to travel with the child without Mr. Piacenti’s consent.

5. Commencing July 6, 2018, Mr. Piacenti shall have access to Mckinley on alternate weekends from Friday at 3:30 p.m. to Monday at 8:00 a.m. (week one) and on alternate Wednesdays (week two) from 3:30 p.m. to Thursday at 8:00 a.m.

6. Holiday access is in addition to the regular residence schedule specified in paragraph 4 and, in the event of conflict, overrides the regular residence schedule: (i) Family Day weekend: in even years, Mckinley will reside with Ms. Thomson from after school on Thursday until the return to school on Tuesday. In odd years, Mckinley will reside with Mr. Piacenti from after school on Thursday until the return to school on Tuesday. (ii) March break: in even years, Mckinley will reside with Mr. Piacenti for March break. In odd years, Mckinley will reside with Ms. Thomson. March break begins from Friday after school until the return to school on Monday morning. (iii) Easter weekend: in even years, Mckinley will reside with Ms. Thomson from after school on Thursday until the return to school on Tuesday. In odd years, Mckinley will reside with Mr. Piacenti from after school on Thursday until the return to school on Tuesday. (iv) Mother’s Day: if Mckinley is not otherwise with Ms. Thomson, Mckinley will reside with Ms. Thomson on Mother’s Day weekend from Saturday at 5:30 p.m. until return to school on Monday. (v) Father’s Day: if Mckinley is not otherwise with Mr. Piacenti, Mckinley will reside with Mr. Piacenti on Father’s Day weekend from Saturday at 5:30 p.m. until return to school on Monday. (vi) Summer vacation: both parties are entitled to take three weeks of summer holiday with Mckinley, provided that a maximum of only two weeks shall be consecutive. Each parent shall notify the other by May 1 of the same calendar year to indicate which weeks they will be taking as holidays. Ms. Thomson shall have the first choice on dates in even years. Mr. Piacenti shall have the first choice on dates in odd years. Failure to select dates by May 1 will result in first choice defaulting to the other party that year. (vii) Thanksgiving weekend: in even years, Mckinley will reside with Ms. Thomson from after school on Thursday until the return to school on Tuesday. In odd years, Mckinley will reside with Mr. Piacenti from after school on Thursday until the return to school on Tuesday. (viii) Hallowe’en: Mckinley will be with Mr. Piacenti for Hallowe’en in even years and with Ms. Thomson in odd years, from after school (or 3 p.m. on a weekend) until 8 p.m. The party who has Mckinley for Hallowe’en that year will be responsible for Mckinley’s costume. (ix) Christmas break: the parties will share Mckinley’s school Christmas break equally. Mckinley will reside with the parent who has the first weekend of Christmas break according to the alternating weekend access schedule for the first half of the Christmas break, starting after school on Mckinley’s last day of school in December and ending at noon on the date that is the halfway point of the Christmas break. The second half will start at noon on the date that is the halfway point of the Christmas break and end on the morning Mckinley returns to school in January. (x) Christmas eve/morning and Christmas Day: regardless of the Christmas break schedule, in even years Mckinley will reside with Ms. Thomson on Christmas eve from 10:00 a.m. until Christmas Day at 10:00 a.m., and with Mr. Piacenti from 10:00 a.m. Christmas morning until 10:00 a.0m. on Boxing Day. In odd years Mckinley will reside with Mr. Piacenti on Christmas eve from 10:00 a.m. until Christmas Day at 10:00 a.m., and with Ms. Thomson from 10:00 a.m. Christmas morning until 10:00 a.m. on Boxing Day. (xi) Child’s birthday: Mckinley will spend her birthday with Mr. Piacenti in even years and with Ms. Thomson in odd years. If Mckinley’s birthday does not fall on that parent’s scheduled time in accordance with the Christmas break schedule, Mckinley will be with that parent from 10:00 a.m. on December 22 until 10 a.m. on December 23. If Mckinley’s birthday falls on a school day, she will reside with that parent from after school on December 22 until the return to school the following day.

7. When the pick up and drop off location is not Mckinley’s school, it shall be at the Tim Horton’s in Richmond. One member of the extended family of each party may be present or take part in the pick up or drop off of Mckinley for access.

8. Provided that prior notice is given that access will be missed, that access visit shall be made up within the following week.

9. Except as expressly provided herein, all communications between the parties shall be through Our Family Wizard.

10. Commencing January 1, 2018, Mr. Piacenti shall pay ongoing monthly child support to Ms. Thomson in the amount of $304.00, based on an imputed income of $35,000.00.

11. The parties will share s. 7 expenses under the Child Support Guidelines in proportion to their income, which at present is 73/27 based on Ms. Thomson’s income of $94,000.00 and Mr. Piacenti’s imputed income of $35,000.00. The extracurricular activities are to be limited to three per year: one each in the fall, winter and summer months. Ms. Thomson is to provide proof of a s. 7 expense to Mr. Piacenti in writing or electronically. Mr. Piacenti shall pay his proportional share of the s. 7 expenses within thirty days of receiving proof of such expense.

12. Mr. Piacenti shall pay Ms. Thomson retroactive child support of $8,855.78 within 60 days.

13. The parties shall exchange, on an annual basis, their income tax returns and notices of assessment. This exchange should be done by June 30 each year.

14. The matrimonial home shall be sold. By July 15, 2018, Ms. Thomson shall provide Mr. Piacenti with the names of three real estate agents. By July 22, 2018, Mr. Piacenti shall select, in writing, one of the real estate agents proposed by Ms. Thomson. In the event that Mr. Piacenti fails to do so, Ms. Thomson may unilaterally select one of the three proposed agents to list the property. In that event, Mr. Piacenti’s consent to and signature on the listing agreement are specifically dispensed with. The property shall be listed for sale by no later than August 15, 2018. The parties shall, acting reasonably and in consultation with the real estate agent, agree on an initial listing price for the property. In the event that the parties are unable to agree on a listing price or on any matter in relation to the sale of the matrimonial home, either party may seek directions from the court, which motion shall be supported by evidence but may be brought on short notice. The parties are directed to make the arrangements through the Trial Co-ordinator’s Office. I remain seized of the matter for this purpose.

15. After payment of the mortgage, real estate fees, legal fees related to the sale, any outstanding property taxes and utilities and any other reasonable amounts owing, Ms. Thomson shall be paid one half of the net proceeds of the sale of the matrimonial home and the equalization payment of $1,338.28, which payment shall be deducted from Mr. Piacenti’s one-share of the net proceeds.

[97] If either party wishes to seek costs, that party shall serve and file written submissions by July 20, 2018. The other party will then have until August 10, 2018 to serve and file a written response. The written submissions are not to exceed three pages, not including any offer to settle or bill of costs.

Released: June 29, 2018 Madam Justice R. Ryan Bell