Court File and Parties

COURT FILE NO.: FS-17-415944 DATE: 20180629 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

A.D. Applicant – and – N.D. Respondent

Counsel: Nancy J. Iadeluca, for the Applicant Howard J. Feldman, for the Respondent

HEARD: March 15, 2018

M. D. FAIETA j.

Reasons for Decision

Introduction

[1] The Applicant, Anna, and the Respondent, Neil, bring motions for, amongst other things, interim custody, access and support. Given the detail provided in this decision and given that this decision will be published, I have not used the actual names of the parties and their family members in an attempt to avoid having the children identified.

Background

[2] The parties were born in Serbia. The Applicant obtained a medical degree from the University of Belgrade in 1996. She completed a five year residency in anesthesia at the same university in 2001. The parties married in September, 2000. After they married, the Applicant became a staff anesthesiologist at a facility. The Respondent worked as a professional engineer. In 2001, they moved to Toronto. Their professional accreditations were not recognized in Canada. Both parties were initially underemployed. The Respondent was hired by the Toronto Transit Commission in September 2002 and remains employed there. The Applicant commenced a four year residency in anesthesia at the University of Western Ontario in 2004. The parties lived in separate cities and the Respondent visited the Applicant on weekends. During this period the Applicant earned about $50,000 per year and the Respondent earned about $65,000 per year.

[3] Their daughter, Karen, was born in February, 2006. After a three month maternity leave the Applicant returned to her residency program. Their mothers came from Serbia to help look after Karen during the week and the Respondent took over primary parenting duties on the weekend.

[4] In 2008, the Applicant moved back to Toronto after she received a one year fellowship at a hospital in Toronto. As well, the Respondent was granted a licence to practice as a Professional Engineer by the Association of Professional Engineers of Ontario.

[5] From 2009 until 2011, the Applicant mother worked as an Associate Anesthesiologist at a hospital in Toronto.

[6] Their son, Andy, was born in April, 2011. Their grandmothers again returned to provide care for the newborn until he went to daycare at the age of 2. The Respondent would drop off and pick up the children from daycare given the long hours associated with the Applicant mother’s work at the hospital. The Applicant stated that the Respondent never offered to take paternity leave for any of the children. She prepared school lunches, snacks and ensured that the children’s homework was done on time.

[7] In 2011, the Applicant mother became a Staff Anesthesiologist at another hospital in Toronto where she stills works.

[8] The Respondent father states that he has consistently worked about 35 hours per week whereas the Applicant mother works much longer hours with the result that he, along with their mothers until 2013, assumed many of the home and child-related responsibilities – such as often preparing meals and taking the children to extra-curricular activities. The Applicant mother states that both she and the Respondent father work 40 hours per week. Her hours of employment are 7:30 am until 3:30 pm, Monday to Friday. She is on call to do 16 hour shifts two to three times per month.

[9] In February, 2015 the Applicant and the Respondent purchased their matrimonial home located in Toronto. Both parents place a premium providing an excellent education and, as a result, they have incurred the significant cost of having their children attend private schools. The Applicant mother states that every summer for eight years, except the summer of 2017, the family travelled to Serbia for three weeks. The children and the Applicant would stay with her mother and the Respondent would stay with his mother.

[10] On August 9, 2016 the parties separated but continued to live in the same house with the children. The Applicant mother states that their marriage had been deteriorating for years due to anger and control issues.

[11] The Applicant mother states that her brother, Nick, his wife Andrea, and their two children, were guests in the matrimonial home for two weeks at Christmas 2016. Andrea stayed until March 2017. In March 2017, the Applicant’s mother, Brenda, came to stay. Brenda helped raise both children and has a close bond with them. The Respondent father states that the Applicant mother used her family to provoke conflict to turn the children against him. The Respondent father states that he called police twice (December 25, 2016 and in February 2017) as a result of Nick’s threatening behavior.

[12] After the Applicant’s extended family moved into the matrimonial home, the Respondent felt that he had no time alone with his children as there was always a member of his wife’s family present. Since their separation the Respondent father also feels that the Applicant mother has insisted on assuming activities that he has previously performed such as taking and picking up the children at school.

[13] This Application was commenced on March 10, 2017. The Applicant mother asked for sole custody of the children; an order that the parties obtain a Views and Preferences Report or alternatively mediation to resolve the residential arrangements of the children; an order that the Respondent pay child support and his share of section 7 expenses; an order for the exclusive possession of the matrimonial home and an order for the immediate sale of the matrimonial home; an order for equalization of the parties’ net family property and an order that $150,000.00 from the Respondent’s share of the proceeds of sale be held in trust as security for the Applicant’s entitlement to an equalization payment. Amongst other things, the Applicant mother alleged that the Respondent father’s conduct following their separation was not in the children’s best interests. For instance: (1) he permitted the children to bring their iPads to bed when he had not permitted them to do so before the separation; (2) Andy has become addicted to playing Minecraft because that is what the Respondent primarily does to engage him.

[14] The Respondent’s Answer states that he was the primary caregiver for the children in the years prior separation and that since their separation the Applicant mother seeks to influence the children and assume the role of primary parent so that she will not have to pay child support and will pay less spousal support.

[15] The Children’s Aid Society of Toronto (“CAS”) was contacted by Toronto Police on May 7, 2017 following a call by the Respondent father to the Toronto Police earlier that day to remove the Applicant’s mother and niece from the matrimonial home. The Respondent father alleges that various members of the Applicant’s family threatened to tell police that he had assaulted them. He also reported that one day earlier he and Brenda had engaged in spitting at each other but neither one wished to lay charges. The Applicant mother states that a fight ensued that afternoon after the Respondent father barged into Karen’s room and started taking pictures of Karen and her cousin. The police reported that there was a risk to the children of mental/emotional harm resulting from exposure to adult conflict. The police also told the family to refrain from calling the police unless it was necessary to do so.

[16] A worker from the CAS, Laura Reisman, met with Karen. Her notes from the CAS file from May, 2017 state:

In the initial interview, the worker spoke to [Karen] who informed her that she hears and sees her parent verbal disputes. They make her sad and angry, she feels she is getting pulled by each parent to choose a side, and she made it clear that she had chosen her mother’s side, although the worker spoke about not needing to choose sides. [Karen] said her father makes her feel uncomfortable and tense, he always asks her what he has done to make her treat him this way and she doesn’t like him asking her those types of questions. [Karen] wants [Neil] out of the house, as she called the house Homegion (a play on the word dungeon and home). [Karen] feels she only has her mother to speak to about her feelings and doesn’t want to make her mom feel sad. …

[Karen] expressed wanting a father who understands her. In describing what she would like from a father she stated she wants a relationship with someone who is always trying to make the daughter feel better, showing that they can take care of anyone, and helping around the home including cleaning up and taking out the trash. [Karen] stated she feels she has never had this type of father daughter relationship and feels there is a difference between her father prior to divorce and after divorce. [Karen] said she feels her father is trying too hard, and doing things he has never done before as a way to win her over. [Karen] wishes this behavior would stop. [ Karen]’s positive memory of her father involves a ski trip last March where he would only ask her questions about her day, not speak about the divorce, and not push her to the point of feeling uncomfortable . [Emphasis added]

[17] Ms. Reisman’s report, dated June 28, 2017, states:

Harm Statement:

There is a lot of animosity in the home because the parents are divorcing. [Karen] and [Andy] see and hear their parents arguing [Karen] feels “pulled” between her parents and she wants her father to stop asking when they are together. This makes [Karen] feel sad and not wanting to be with her father or talk with any of her friends about her home life, because she does not want them to know about her parent’s divorce. her questions about her “love for him”. [Karen] enjoys speaking with her mother about what is going on between her parents, but sometimes feels sad about the things that she is told and would like a third party outside of the family to speak to. [Andy] also feels sad because he hears his parents fighting even when he is in his room. [Andy] no longer feeds or dresses himself. [Andy] is no longer given the opportunity to attempt these life skills as each parent has taken to completing them for him, a skill he had prior to the discord in the home.

Danger:

1. The society is worried that [Karen] has no one to talk to about feeling that she is being “pulled” by her parents due to the divorce. If this continues [Karen] will become lonelier, struggle with social connections, and stop communicating with her family. [Karen] is at risk of feeling it is not safe to get close to people. [Karen] disclosed to the worker that she would like to speak to someone about how she is feeling.

Goal: [Karen] to speak to a third party counselor/therapist.

2. If [Karen] continues to feel “uncomfortable” with her father [Neil], she will keep staying away from him and will not get the opportunity to spend positive time with her father. [Karen]’s last positive memory of spending time with [Neil] was on their ski vacation last March. [Neil] focused the conversation on that trip on how the day was, what activity the children enjoyed, and spent time with the children in a positive environment. When they returned to Toronto, [Karen] felt like the “dark cloud” around her father returned. She wants the father that was on the vacation.

Goal: [Neil] to respect the time [Karen] wants to spend with her mother and to focus his time with [Karen] on the positive aspects of her day and how she is doing. It is important for [Anna] to promote positive relationships between [Karen] and [Neil] to support the parent child bond.

3. If [Anna] and [Neil] continue to focus on their property and the ways in which they can win and lose in court, they will continue to let [Anna] stay up late at night, feed him by hand, and dress him. [Anna] will not learn self-care skills, and will struggle with completing tasks other children his age are capable of doing. This will impact his development (with risk of regression), and may cause behavioural issues at school. [Anna] expresses the love from his parents as receiving hugs and kisses, not playing on the iPad, being dressed or fed by hand. By focusing on the areas listed above, the expression of love that [Anna] feels from his parents will be altered.

Goal: [Neil] and [Anna] will focus on the needs of [Anna] by allowing him to feed and dress himself to the best of his ability. [Neil] and [Anna] will practice positive reinforcement and promote independence.

4. The society is worried that by speaking to [Karen] about the details of the divorce, both parents are pushing [Karen] to feel she needs to choose one parent over the other. This may cause alienation of one parent over the other.

Goal: [Karen] has a right to a relationship with both parents. [Anna] and [Neil] should not speak about the details of the divorce with [Karen] unless they are pertinent to her understanding the divorce proceedings. The explanations should be age appropriate and not focus on why each parent is angry or hurt by the other parent.

5. The society is worried that by speaking to [Karen] about her grandmother and extended family being in the home such as questions like “do you know how long grandma’s staying”, [Karen] is feeling as though [Neil] is pushing her to stand up for her grandmother and extended family whom she loves and enjoys spending time with. This [is] upsetting [Karen] and causing her to pull away from [N.D.]. Similarly, family speaking about [Neil] in front of [Karen] can cause alienation of [Neil] from [Karen].

Goal: [Neil] to respect that [Karen] loves her extended family and enjoys spending time with them. [Neil] to support the time [Karen] spends with extended family. Similarly, [Anna] and her extended family to be conscious about the fact that [Neil] is [Karen]’s father, and their words can influence how she feels about him.

[18] On June 27, 2017 the Respondent father brought a motion for, amongst other things, an order that the Applicant mother cease alienating the children, for an assessment of custody and access, for an for joint decision-making for the children on major issues, for equal time of the children with the parents, for an exclusion possession order in favour of the Respondent father; for support based on the Applicant mother’s imputed income of $649,657.00.

[19] In June 2017, the Respondent father stated:

Although I share a strong bond with [A.], my son, who does not want to leave my side, my daughter [Karen] has been negatively influenced to the point where she does not speak to me. I feel that both [Anna] and her family members are coercing [K.] into disliking her own father. In addition, [Anna] has been encouraging [Karen] to sleep with her grandmother, [Brenda] nightly since [Brenda] came to reside in the matrimonial home in about March 2017. The matrimonial home has four bedrooms and [Karen] has her own room, in which she should be sleeping. It is not appropriate nor beneficial for [Karen] to sleep with her grandmother and again, I truly believe that [Karen] is allowed to sleep with [Brenda] to strengthen her bond with [Anna]’s family and to distance her even further from me.

I strongly believe that it is imperative that I be allowed equal time with my children, especially with my son, [Andy], as I fear that if I am not able to spend ample time with him, he too may be negatively influenced by my wife and her family members. I love both my children dearly and I truly believe that if I am granted equal interrupted access time with my [children], I can hopefully reconnect with my daughter and prevent my son from also being influenced and maintain the strong connection and bond I have with him. …

The conflict that we have been experiencing began to occur after the Applicant received legal advice after the separation. Before seeing a lawyer she was cooperative and sharing in parenting. After seeing a lawyer she changed radically. She obviously wanted to reduce my parenting time and my connection with the children to minimize support. These issues increased since the intrusion of [Anna]’s family into the parenting regime …

[20] In response, the Applicant mother stated in July 2017:

On August 9, 2016 I told [Neil] that I wanted to end the marriage. … Contrary to [Neil]’s allegations that I agreed to joint custody and that somehow after retaining counsel I changed my mind, the truth is [Neil] and I never [did discuss] custody. [Neil]’s first comments to me were that he was thinking of returning to Serbia as he had only two friends here. When I reminded him that he had two kids here, he said the kids would be better off with me. His mother was still staying with us at the time.

The next conversation we had was on August 23, 2016. I did not initiate the conversation. He told and I believe that the kids should live with me on a primary basis, that he would waive spousal support, that I should pay for all of the children’s schools and activities, and that he wanted me to waive his pension.

[Neil]’s allegations that my position with respect to child-related issues in this proceeding is motivated by financial considerations is merely his projection unto me of his own motivations.

[Neil]’s behavior started to deteriorate at this point. He became progressively more angry and confrontational. He inappropriately brought the children into our conflict. Started to walk around the house with a tape recorder. Would take selfies of him “parenting”. …

[Neil]’s parenting style could be described as disinterested, immature and self-serving. Particulars are as follows:

a. [Neil] has not attended any parent-teacher meetings. He knew about the meetings but never expressed any interest in attending. I believe that was hurtful to [Karen] …;

b. [Neil] took the children to March 2017 break skiing with another family. It was post separation … . When the kids got back home I noticed that they were both filthy. [Andy]’s private parts had a rash from not bathing and skin behind his ears was red and cracked. [Neil] joked that he gave the kids a holiday from bathing for a week;

c. In August, 2016, also post separation, [Neil] and his mother [Olivia] and the kids went to Mexico for a holiday. … The kids were much better looked after with [Olivia] attending

d. Prior to separation, the kids were not allowed to bring their iPads to bed. [Neil] now brings [Andy] to his room at night allowing him to pay on his iPad until late, even on a school night. [Andy] has become addicted to playing Minecraft. Whenever I voice my concerns, [Neil] would laugh and tell [Andy] to ignore me

e. [Neil] does not enforce with [Andy] that he needs to maintain regular hygiene and dental hygiene. He is more interested in presenting as [Andy]’s buddy than as his parent. …

f. [Neil] tried to help [Karen] with her math but he would become angry and demeaning to her if she did not understand something. It brought her to tears. …

g. [Neil] never read any books to the children …

h. [Neil] would buy the children toys but rarely engaged in play with them ….

i. It is an absolute lie that I was not available to take the children to their activities. I alone took the children to museums, children’s theatre shows, exhibitions and library visits. …

j. It is true that [Neil] took the kids to the movies. He did not do so weekly. He told me that he did not know what else to do with them. …

k. Most family outings were attended by both of us because he was not interested to go alone with the kids …

[21] The Applicant mother brought a cross-motion for an order that: (1) a Voice of the Child Report or alternatively that a clinical assessment of the needs of both children be prepared by Ilana Tamari or Jacqueline Van Betelhem; (2) no custody or residential order be made pending completion of the report; (3) the matrimonial home be sold; (4) adjourn the Respondent father’s motion for matters related to support and division of property;

[22] Both motions were heard on July 25, 2017. The parties agreed, amongst other things, to: (1) list the matrimonial home for sale; (2) the preparation of a Voice of the Child Report by Ilana Tamari in respect of Karen; (3) an assessment under section 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, if such assessment was recommended by Ms. Tamari.

[23] On August 2, 2017, the CAS closed its investigation on the basis that: (1) the volatility in the family should decrease given that the Court had ordered the sale of the matrimonial home and that the parents would live in separate homes; (2) both parents had agreed that Karen see a professional counsellor to speak about her feelings.

[24] Ms. Tamari provided her understanding of Karen’s views and preferences at a case conference held on August 30, 2017.

[25] This oral report was followed by a written report, dated October 30, 2017. The views expressed by Karen included the following:

• The Applicant is a great mother, who is both easygoing and easy to talk to;
• Her parents hate one another;
• Her mother tends to hide her feelings from her so as not to upset her;
• The most positive thing that she could say about the Respondent was that he was knowledgeable;
• She does not know her father too well, she spends little time with him (both before and after her parents’ separation) and that she is not able to easily speak with him;
• She also stated that her father made her feel uncomfortable by asking awkward questions such as “Do you want me to leave the house”?, “What did I do to you?” and by taking candid photographs of her and her brother within the home by coming out of nowhere while she is engaged in regular activities and snap pictures;
• Karen questions whether her father truly loves her as he has placed her in the middle of the separation conflict. She said that in the past few months her father seemed to be trying “too hard” to win her over, to the extent that it seemed “fake”;

[26] Ms. Tamari’s report goes on to provide the following summary:

[Karen]:

[Karen] presented as a very mature young lady despite being 11 years old. She was forthcoming, articulate and comfortable expressing her views. She was told explicitly by this author that although she has a voice, she does not have a choice; rather, parents and/or judges (when parents cannot agree) will make the necessary decisions when it comes to the children’s living arrangements. She was also informed that she should never be asked who she loves more or who she would choose to live with, that these were inappropriate questions that should never be asked of children. [Karen] seemed to fully grasp this idea.

[Karen] presented as very reliable, consistent with her views and preferences over time, and was able to put forth very cogent arguments as to why she wished and desired to live primarily with her mother and brother. [Karen] demonstrated consistency and veracity regarding these views. In addition, [Karen] is very committed to her schooling, extracurricular activities and to her wide circle of friends. This is all seen as being well within normal child development. [Karen] seems to be developing normally and healthily, and there are no concerns about her level of emotional and psychological functioning. Furthermore, it does not appear that she has been coached or unduly influenced when sharing her views and opinions.

What does seem apparent and is concerning is the children’s exposure, most notably [Karen]’s, to parental conflict, including the police involvement on numerous occasions. Of additional concern is the intrusion of having her picture taken by her father without her permissions, as well as her expressed view that her father plays a very marginal role in her life. What needs to also be noted is [Karen]’s expressed concerns regarding her younger brother and his relationship with his father. [Karen] was worried that her father was influencing her younger brother’s opinions by trying to be overly nice to him now, as he was not so in the past.

As for living arrangements, [Karen] desired to spend weekdays with her mother and spending some limited time on the weekends with her father. She stated that she would consider one overnight with her father on the weekends, but would not want to commit to that every weekend. As for the question of whether she would be open or amenable to counselling and/or treatment to repair or establish a closer relationship with her father, [Karen] was adamant that she was not open to this. [Karen] expressed that since her parents split, her life has been nothing but stressful with the fighting, police involvement, etc. and thus she desired to lead a normal life which did not entail having to go for counselling with her father.

[Andy]:

[Andy], although only 6 years old, presented as a mature young boy. He was however very guarded while being interviewed. He was able to speak about his life in concrete terms and express his likes and dislikes. He too, seems to have been affected by the conflict in the home and the subsequent police involvement. Having stated this, he seemed less affected emotionally and psychologically by the turmoil in the home than his sister. [Andy] expressed feeling loved and cared for by his mother, father and older sister.

It is important to note that [Andy] has not expressed any views to date regarding any preference for a specific residential schedule once his parents reside in separate homes.

[27] A motion was heard on November 28, 2017. The parties agreed to exchange a sworn affidavit of documents by December 15, 2017 and to schedule questioning. The production of CAS and police records in a redacted form was ordered.

[28] A further motion was heard on January 24, 2018. The Respondent’s request to proceed without a section 30 assessment was dismissed as was his request to have someone other than Ms. Tamari prepare that assessment.

[29] The sale of the matrimonial home, for $2,425,000.00, was to be completed on March 22, 2018. The outstanding mortgage is about $1,359,000.00. The Applicant has purchased a house near her daughter’s private school for $1,930,000.00.

Issue #1: What Should Be the Terms of the Temporary Parenting Plan?

[30] The Applicant mother seeks a temporary parenting plan (see Schedule “A”) that allocates parenting time in a manner that, subject to vacation and holidays, results in Andy spending 5 of every 14 nights with the Respondent father and Karen spending at least 2 of every 14 nights with the Respondent father and, if Karen wishes, up to 5 of 14 days with the Respondent father. It also provides for a Summer 2018 holiday in Serbia as the children have frequently taken in the past. The Applicant’s mother’s parenting plan is largely silent on the allocation of decision making responsibilities.

[31] The Respondent father seeks a temporary parenting plan (see Schedule “B”) that allocates parenting time equally and that decision making responsibilities, including related to health, education and activities, will be exercised jointly.

Analysis

[32] An interim order for custody and access shall only take into account the best interests of the child of the marriage as determined by reference to the condition, means and other circumstances of the child: Divorce Act, s. 16(2), (8). A parent’s past conduct is also relevant but only in relation to that person’s ability to act as a parent of the child: Divorce Act, s. 16(9). A court shall also give effect to the principle that a child of the marriage should have as much contact with each parent 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: Divorce Act, s. 16(10). Thus to the extent that the goal of maximum contact conflicts with the best interests of the child, it may be restricted, but only to that extent. Finally, existing custody and access arrangements will be maintained on an interim motion unless it is shown that they should be changed in the child's best interests: Papp v. Papp, [1970] 1 O.R. 331 (C.A.).

[33] Under s. 24(2) of the Children’s Law Reform Act, the “best interests” of a child is informed by the consideration of all of a 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.

[34] The status quo has involved both parents living in a “nested” home. This approach has worked poorly for many reasons. Each parent attempted to ingratiate themselves with their children in order to satisfy their own needs. To make matters worse, a few members of the Applicant mother’s extended family (some permanently and others temporarily) moved into the matrimonial home after the separation. At the best of times, this would have been a delicate situation but in these circumstances it led to heightened tensions and inappropriate conduct involved both parents and some members of the extended family. Thankfully, their children will no longer have to be subjected to the tension and awkwardness of living in this situation as the parties have agreed to sell the matrimonial home and to live in separate homes.

[35] The emotional ties between the children and their parents appear strong except for the emotional ties between Karen and her father. I note that Karen does not wish to spend evenings with her father other than every other weekend and is not open to seeking counselling in order to establish a closer relationship with him. It appears that the children, particularly Karen, lived in a stable home environment for many years until events unfolded that led to the separation of their parents.

[36] Both parents appear able and willing to provide the children with the guidance and education and necessaries of life. The education of their children has always been a priority for both parents as they have incurred significant costs (about $63,000 per year) to have their children attend private schools.

[37] The Applicant mother has purchased a new house within a ten minute walk from the school that Karen attends. The Respondent father has rented a three bedroom apartment that is further away. Each home has a bedroom for each child. Each parent will have the support of their mother in caring for the children.

[38] Both parents are intelligent people. However, as noted in the CAS report, they have tried to enlist their children’s support through behavior that is either indulgent or guilt provoking. Both parents have spoken to Karen about the details of their divorce. It also appears that Karen has been exposed to discussion about that is critical of each parent. It is my view that, as an incident to custody and access, both children would benefit if their parents attended counselling to address the many concerns expressed in the CAS report and Ms. Tamari’s report. However, I do recognize from both reports that it appears that the need for insight and modified behavior is greater with the Respondent father.

[39] In my view, the parenting plan proposed by the Applicant mother is better suited in these particular circumstances with the modification that the parenting time in that plan shall apply to both children. Accordingly, the sentence “In the case of [Karen], and until the completion of the clinical assessment, mid-week access with the Respondent father will be subject to her wishes” is removed from the parenting plan.

[40] To some extent, I have taken into account Karen’s views by imposing a parenting plan where the children spend 5 of 14 days with the Respondent father rather than a plan with equal parenting time or a plan where she only spends 2 of 14 days with her father. As well, both parents shall share decision-making in the areas of health, education, religion, spirituality and significant extra-curricular activities.

[41] Both parents must protect their children from the conflict that has developed between them. Karen’s relationship with the Respondent father needs to be improved and supported for her emotional and psychological well-being. At the hearing of this motion, the Applicant mother advised that she was seeing a counsellor and the Respondent father advised that he was not. It is critical for the Respondent father to take concrete steps to improve his relationship by focusing on his daughter’s needs and to gain the insight needed for him to do so. To this end, I order that the Respondent father attend counselling with a professional parenting specialist of his choice. This order is a permissible term of custody and access under s. 16(6) of the Divorce Act as it serves to promote the purpose of the Act which, amongst other things, is to protect a child’s emotional and psychological well-being. In making this order I am mindful of the Ontario Court of Appeal’s decision in Kaplanis v. Kaplanis, [2005] O.J. No. 275 which I distinguish on the basis that it required both parents to jointly see a counsellor who, amongst other things, would make decisions about choice of schools, activities and hobbies for the children. As Philip Epstein, Q.C., L.S.M., has also noted, the law permits a court to order counselling as incident of custody: Case Comment: L. (J.K.) v. S.(N.C.) and McAlister v. Jenkins, (2008), 54 R.F.L. (6th) 163. I also expect the Applicant mother shall provide whatever encouragement or other action is needed to support the relationship between father and daughter, including encouraging Karen to seek counselling if needed. Finally, if their children’s emotional and psychological welfare is as important to these parents as their children’s academic development, then both parents should treat each other with greater respect and kindness as it would help the children in becoming well-adjusted to the reality of their parents’ separation and their own new living arrangements.

Issue #2: What Amount of Interim Child Support, If Any, Should Be Paid?

[42] Where an application is made for child support, the court may make an interim order requiring a spouse to pay for the support of any or all children of the marriage pending the determination of the application: Divorce Act, ss. 15.1(2), (4). An interim order for child support must be made in accordance with the Federal Child Support Guidelines: Divorce Act, s.15.1(3)

[43] An interim order is just that — one made pending trial, with the expectation that the full financial circumstances of the parties will be forthcoming and available to the trial judge: Tedham v. Tedham, 2003 BCCA 600, 20 B.C.L.R. (4th) 56 (B.C.C.A.), para. 59.

[44] In 2017, the Applicant’s income was $492,119.00 and the Respondent’s income was $116,500.00.

[45] Under the interim parenting plan, the children will reside primarily with the Applicant mother. Under section 3 of the Guidelines the amount of child support is the table amount based on the income of the payor parent and the amount, if any, determined under section 7 of the Guidelines for special or extraordinary expenses. In this case there are no applicable exceptions to this general rule.

[46] Since their separation, the Applicant mother has paid the full cost of tuition and related expenses for the children:

• Havergal College Tuition- $32,750;
• Havergal after school, activities and extras - $1,710
• Mabin School Tuition - $25,950
• Mabin School After School Care - $4,680
• Morning Bus Transportation to Mabin School - $3,400
• Karen’s activities (piano, swimming, math, snowboarding) - $6,650
• Andy’s activities (swimming, skating) - $2,500
• Day Camp (3 weeks for Andy) - $2,000

[47] Accordingly, I order that the Respondent father pay to the Applicant mother:

(1) interim child support in the amount of $1,673.00 per month;

(2) his proportionate share (being 27% of such costs given their incomes and the amount of interim spousal support ordered below) of the children’s section 7 expenses until trial in relation to their tuition costs, school transportation costs, after school care and extra-curricular costs and recreational activities costs, including day camp, and any other expense agreed upon by the parties;

Issue #3: What Amount of Interim Spousal Support, If Any, Should Be Paid?

[48] Where an application is made for spousal support, the court may make an interim order requiring a spouse to pay such amount as the court thinks reasonable for the support of the other spouse, pending the determination of the application: Divorce Act, ss. 15.2(2), (3). An interim order for spousal support shall take into consideration the condition, means, needs and other circumstances of each spouse, including the length of time the spouses cohabited, the functions performed by each spouse during cohabitation and any order, agreement or arrangement relating to support of either spouse.

[49] Section 15.2(6) of the Divorce Act provides that an order for interim spousal support should:

(a) Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[50] The following principles are applicable on an interim motion for spousal support:

1. On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance;
2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it;
3. On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best;
4. The courts should not unduly emphasize any one of the statutory considerations above others;
5. On interim applications the need to achieve economic self-sufficiency is often of less significance;
6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
7. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;
8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support: See Driscoll v. Driscoll, [2009] O.J. No. 5056, para. 14, citing Robles v. Kuhn, 2009 BCSC 1163 (B.C.S.C.).

[51] The Respondent father states that he was held back from pursuing his career and was not able to pursue opportunities for advancement due to the demands of caregiving for the two children. The Respondent father states that he was the primary parent prior to the separation given his flexible work schedule.

[52] The parties submissions related to spousal support were brief. The Respondent father seeks spousal support based on an equally shared child parenting plan which I have not approved. No alternative submissions were provided. On a without prejudice basis, the Applicant mother does not dispute the Respondent father’s entitlement to interim spousal support and submits that spousal support in the amount of $3,233.00 per month should be paid given that it is the mid-range calculation of a range of $2,700.00 to $3,695.00.

[53] The DivorceMate SSAG calculation that I have prepared based on their incomes and a child support payment of $1,673 per month paid to the Applicant mother provides the following “custodial payor” formula – Low: $2,976 (75% NDI with Payor); Mid - $3,473 (74% NDI with Payor); High - $3,969 (73% of NDI with Payor). See Schedule “C”. In my view, the high end of the SSAG figures should apply on an interim basis given that the Applicant mother still retains more than 75% of the net family disposable income.

Conclusions

[54] For the reasons given, I make the following interim orders:

(1) The parties shall comply with the parenting plan attached as Schedule “A” to this decision with the deletion of the sentence “In the case of [Karen], and until the completion of the clinical assessment, mid-week access with the Respondent father will be subject to her wishes” from that plan;

(2) The Respondent father shall attend counselling with a professional parenting specialist of his choice and, prior to his first session, shall provide a copy of this decision to the specialist.

(3) The Respondent father shall, commencing April 1, 2018, pay child support of $1,673.00 per month to the Applicant mother;

(4) The Respondent father shall, commencing April 1, 2018, pay his proportionate share (being 27% of such costs) of the children’s section 7 expenses until trial in relation to their tuition costs, school transportation costs, after school care and extra-curricular costs and recreational activities costs, including day camp, and any other expense agreed upon by the parties;

(5) The Applicant mother may claim all applicable tax deductions/benefits in relation to the children;

(6) The Applicant mother shall, commencing April 1, 2018, pay to the Respondent father interim spousal support of $3,969.00 per month, on without prejudice basis to either party.

[55] On consent of the parties, I also make the following Order:

(1) The net proceeds of sale after the payment of the mortgage without penalty, property taxes, real estate commission, costs of staging, legal fees and other usual adjustments, be divided equally between the parties and disbursed to them, subject to the following:

a. From each party’s share of the net proceeds of sale, the further sum of $10,000 ($20,000 total) shall be held in trust by the real estate lawyer and released to the clinical assessor Ilana Tamari to secure the costs of the clinical assessment;

b. From the Respondent’s share of the net proceeds of sale, the sum of $5,537.50 shall be paid to the Applicant for his 50% share of Illana Tamari’s VOC report as ordered by Madam Justice Wilson;

c. From the Respondent’s share of the net proceeds of sale, the further sum of $7,500.00 shall be paid to the Applicant in payment of the costs award of Mr. Justice Corbett dated February 28, 2018.

(2) An order that the current balance of $8,455 on deposit in the parties’ joint Tangerine account ending in 4173 be forthwith paid out to the parties in equal shares and closed. In so far as the Respondent alone has access to same, an order for him to direct Tangerine to issue a cheque or money order payable to the Applicant for one half of the amount.

(3) An order that the parties’ current joint CIBC account ending in 6039 be closed on the closing of the sale of the matrimonial home with any remaining balance to be divided by the parties.

[56] Given their divided success, the parties should have little difficulty in arriving at an agreement regarding costs of this motion, failing which they may deliver written costs submissions by July 13, 2018 (maximum 3 pages exclusive of an outline of costs), and reply submissions (maximum two pages) by July 20, 2018.

Mr. Justice M. D. Faieta

Released: June 29, 2018

Schedule “A” – Applicant Mother’s Proposed Parenting Plan

The children shall live with each parent in accordance with the temporary schedule set out below:

	Monday	Tuesday	Wednesday	Thursday	Friday	Saturday	Sunday
Week 1	M	M D from 5:00 pm	D	D to 8:30 am	M	M	M
Week 2	M	M D from 5:00 pm	D to 8:30 am	M	D from 5:00 pm	D	D until 8:00 pm

The children shall be resident with the Respondent father alternating weeks from Friday at 5:00 pm until Sunday at 8 pm and every Tuesday from 5:00 pm to Wednesday mornings;

In the weeks where the Respondent father does not have the children on the weekend he will also have the children Wednesdays from 5:00 pm to Thursday mornings;

The Father shall pick up the children from after school/ Mother’s home and return the children to their school or mother’s home as the case may be;

In the case of Karen, and until the completion of the clinical assessment, mid-week access with the Respondent father will be subject to her wishes;

The children shall be resident with the Applicant mother for the balance of the two week schedule;

There shall be the following conditions to the residential schedule:

• The children will have their own room and their own beds;
• Andy will be encouraged to sleep in his own bed;
• Proper dental and personal hygiene shall be followed with the children not missing any daily showering or twice daily teeth brushing;
• The parents shall respect their children’s privacy;
• The children’s bedtime routines shall be consistent in each home, with Andy going to bed by 9:00 pm on a school night;
• The parents shall ensure that Andy’s homework be done before 7:30 pm;
• Neither parent shall discuss any adult matter with the children including the within litigation or matters relating thereto;
• Neither party shall denigrate the other parent or his or her extended family in the presence of the children or within their ear shot;
• The parties shall ensure the children attend all scheduled activities during the time the children are residing with him or her.

Summer 2018 Holiday

• The Applicant mother shall have the children for the three week period commencing July 2, 2018 provided she is off work and personally available to care for the children
• The Respondent father shall have the children for the two week period commencing August 13, 2018 provided he is off work and personally available to care for the children;
• For the three week period commencing July 23, 2018 until August 12, 2018 in lieu of camp, Karen will stay with family relatives in Serbia and the Adriatic coast;
• The balance of the summer shall be shared in accordance with the regular two week schedule;
• The parties shall sign such travel consents to permit the parents to travel with the children

Other Holidays

• Children’s Birthdays: Every effort will be made for the children to spend time with the non-resident parent for two hours on that day. Either parent shall be free to arrange a peer party for the child;
• Parents’ Birthdays: Both parents may choose to spend time with the children on his or her respective birthday, notwithstanding the usual schedule;
• Mother’s and Father’s Day: Notwithstanding the usual schedule, the children shall always be resident with the Applicant mother on Mother’s Day from 9:00 am until 5:00 pm and with the Respondent father on Father’s Day from 9:00 am until 5:00 pm. The usual schedule of alternating weekends does not change as a result of any temporary changes required for this holiday.
• Long Weekends (February/Family Day, Easter, Victoria Day, Canada Day, August Civic, Labour Day and Thanksgiving): These weekends shall continue as per the usual schedule with the long weekend ending on Monday at 5 pm

Medical Decision-Making

• The children’s family doctor is Dr. Susan Joyce. The children’s dentist is Dr. Mark Alexis. The children will continue under their care;
• The Applicant mother will be responsible for making and facilitating the children’s routine medical and dental appointments. The resident parent may also take the children to a medical walk-in clinic during off hours and/or when the usual physician is not available;
• The Applicant mother shall be the librarian of the children’s health cards and vaccination records and the Respondent father shall have photocopies. The original cards shall accompany the children when they travel from Ontario overnight.

Telephone and Email Communication

• The children may call or text us whenever they wish while in the other’s care

Travel

• When a parent travels without the children, that parent shall provide a reliable telephone contact number to the resident parent in case of a child-related emergency and/or if the children wants to contact the travelling parent;
• The prepared letter shall contain all required information (ie. location, hotel/accommodation name, flight numbers, and any other pertinent information) and be provided by the travelling parent to the other parent four weeks in advance of travel. The executed notarized letter shall be returned to the travelling parent, one week in advance of travel accompanied by the children’s passport. Any other details of the itinerary that are not required in the official notarized letter shall be provided no less than one week in advance of the departure date. For short notice travel, the non-travelling parent will make every effort to deliver the notarized letter as quickly as possible in time for the travel.

Schedule “B” – Respondent Father’s Proposed Parenting Plan

The parents will hold joint decision making authority on all major decisions for the children, including but not limited to health, education and activities.

The parent residing with the children at the relevant time will make the daily decisions affecting their welfare.

The following is the regular schedule of parenting overnights (“regular residential schedule”)

	Monday	Tuesday	Wednesday	Thursday	Friday	Saturday	Sunday
Week 1	F	F	M	M	F	F	F
Week 2	F	F	M	M	M	M	M
Week 3	F	F	M	M	F	F	F
Week 4	F	F	M	M	M	M	M

The parties will share all school vacations and holidays pursuant to the holiday residence schedule set out below, which will override the regular residence schedule herein.

• This holiday residence schedule is in addition to the regular residence schedule above, and overrides the regular residence schedule in the event of conflict. (The regular residence schedule and the holiday residence schedule are collectively referred to as the “schedule”).
• Family Day Weekend. The children will reside with Neil on Family Day in odd­ numbered years and with Anna in even-numbered years, from their leaving school on Friday until their return to school on Tuesday.
• School Spring Break. The children will reside with each parent for half of the spring break.
• Easter Weekend. The children will reside with each parent for half of the Easter weekend.
• Mother’s Day. If the children are not otherwise with Anna on this weekend, the children will reside with Anna on Mother's Day weekend, from Saturday at 7:00 until their return to school on Monday.
• Victoria Day Weekend. The children will reside with Anna on Victoria Day in odd­ numbered years and with Neil in even-numbered years.
• Father’s Day. If the children are not otherwise with Neil on this weekend, the children will reside with Neil on Father's Day weekend, from Saturday at 7:00 p.m. until their return to school on Monday.
• Summer Vacation. The children will reside with each party for half of the summer; in 2018, the third week in June, 2018, will be with Anna and the fourth week of June, 2018 will be with Neil. Anna will then have the first 3 weeks of July, 2018. Neil will have the last 3 weeks of August, 2018. The middle weeks will be alternated and the children will attend summer camp. The days between the end of Neil's August holiday and the start of school will be split equally.
• Canada Day Weekend and August Civic Holiday. The parents have the option of alternating Canada Day weekend and August Civic Holiday weekend if these weekends are not on either parent's weeks of the summer.
• Labour Day Weekend. Subject to the above, the children will reside with Neil in odd­ numbered years on Labour Day weekend and with Anna in even-numbered years, from 5:00 p.m. on Sunday until their return to school on Tuesday.
• Thanksgiving Weekend. The children will reside with Neil on Thanksgiving Day in odd­ numbered years and with Anna in even-numbered years from 10 a.m. to 8 p.m.
• Halloween. The children will be with Anna for Halloween in odd­ numbered years and with Neil in even-numbered years, from their leaving school until 8:00 p.m. The parent who has the children for Halloween will be responsible for the children's costumes.
• Christmas Break. The parties will share equally the children's school Christmas Break. The children will reside with Neil for the first half of the Christmas Break in odd-numbered years and the last half of the Christmas Break in even-numbered years, and with Anna for the first half of the Christmas Break in even-numbered years and the last half of the Christmas Break in odd-numbered years. The first half will start after school on the children’s last day of school in December and end at noon on the date that is the half-way point of the Christmas Break. The second half will start at noon on the date that is the half-way point of the Christmas Break and end on the morning the children return to school in January.
• Christmas Eve/Morning and Christmas Day. Regardless of the Christmas Break schedule set out above, the children will reside with Neil on Christmas Eve/Morning until Christmas Day at noon, and with Anna from noon on Christmas Day until 9:00 p.m. on Boxing Day in odd-numbered years, and with Anna on Christmas Eve/Morning until Christmas Day at noon, and with Neil from noon on Christmas Day until 9:00 p.m. on Boxing Day in even-numbered years.
• Child’s Birthday. Each child will spend his or her birthday in accordance with the regular schedule.

With respect to the schedule set out above, the parties further agree as follows:

• Both parties will provide each other with their email addresses, current addresses and a phone number where they can be reached at all times.
• Residency time will only be altered if both parties agree.
• With respect to the children's transitions between the parties, the children will be picked up or dropped off directly at school or daycare. When the children are not in school, the party with the children shall be responsible for dropping off the children at the other party’s home at 10:00 a.m. unless otherwise specified, at the commencement of the other party’s time with the children.
• There will be make-up time for missed residency time, unless the parties agree otherwise.
• Neither party will object to the other's plans with the children and the parties must respect each other's ability to care for the children appropriately.
• Neither party will arrange activities for the children during the other party's residency time without the other party's consent.
• Both parties may attend extracurricular activities and scheduled school events regardless of the schedule.
• If the child is sick, the transition from one party's care to the other party's care is to proceed according to the schedule unless the child is too sick to travel between the parties' homes according to the child's doctor.
• The children will be permitted to take any personal item, toy, gift or article of clothing between the parties' homes, without restriction.
• The children's health cards will travel with the children between the parties' homes.
• If the children will be in the care of a third party for more than one overnight during a party's scheduled residency time, that party will advise the other party by email and will provide the name, address and phone number of the third party

Anna and Neil agree that it is in the children's best interests to spend time with the other party rather than with a third party. Accordingly, if a party with whom the children are scheduled to be according to the schedule above cannot care for the children for overnight, that party will notify the other party and give the other party the opportunity to do so. If the other party cannot care for the children, the party with whom the children are scheduled to be according to the schedule above will be solely and financially responsible for making alternate childcare arrangements.

Anna and Neil may communicate with the children when they are not in his or her respective care by telephone, text, Skype, social media, email, or other electronic means. The children may in the same fashion communicate with a parent when they are not with that parent.

Anna and Neil may make inquiries and be given information by the children's teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with the children. The parties intend this clause to provide each of them with access to any information or documentation to which a parent of a child would otherwise have a right of access. If, for whatever reason, this clause itself is not sufficient (although both parties intend it to be sufficient authority for either of them), the parties will cooperate and execute any required authorization or direction necessary to enforce the intent of clause.

With respect to the children's education, the parties agree as follows:

• Both parties may attend all school functions regardless of the schedule;
• The parties will attend parent-teacher meetings together or separately;
• Each party will obtain his or her own school calendar and school notices;
• With respect to school field trips or classroom events, the parents may alternate.

If a party proposes to change their home residence the moving party will give particulars of their new address and telephone number to the other.

Anna and Neil will live in areas near each other so that the children will have frequent contact with both parties.

Anna will apply for a Canadian passport for each child. Neil will sign the passport application. Anna will keep the passports and give them to Neil when her needs them for travel. Neil will return the passports promptly.

If either party plans a vacation with the children, that party will give the other a detailed itinerary at least 10 days before it begins, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact the children during the trip.

If either party plans a vacation without the children, that party will give the other a telephone number where he or she can be reached in case of emergency or if the children wish to contact that parent.

If either party plans a vacation outside Canada with the children, the travelling party will provide the other party with a draft letter or travel consent, for the other party to execute and have notarized.

Anna and Neil will not change the children's names without the other's written consent.

The children will have no religious affiliation and will not undergo any religious ritual at the request of either party, unless otherwise agreed in writing between the parties.

Anna will provide her work schedule and call schedule to Neil at least one week in advance by email.