NEWMARKET COURT FILE NO.: FC-10-37022-02 DATE: 20181018

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Angela Elizabeth Van Applicant – and – David Michael Palombi Respondent

Rachel Radley and Gillian Tadman, for the Applicant Patrick Di Monte, for the Respondent (Respondent Unrepresented for Last Day of Trial)

HEARD: May 15, 16, 17, 18, 19 and 23, 2018

REASONS FOR DECISION McDERMOT, J.:

BACKGROUND

[1] The Respondent Father, David Michael Palombi (herein “the Respondent” or “Mr. Palombi”) is the father of two daughters, L.P. and M.P., who are now 9 and 8 years of age. The mother of his children, and his former spouse is the Applicant Mother, Angela Elizabeth Van (herein “the Applicant” or “Ms. Van”).

[2] These parties separated in 2010 after a three year marriage. In 2012, Ms. Van had agreed in a separation agreement to joint custody of the children with Mr. Palombi, as well as to extensive and liberal time sharing with the children in favour of Mr. Palombi.

[3] By the time of trial, Mr. Palombi had gotten himself into in a pile of trouble. Because of his misconduct during access visits, his time sharing had been reduced by court order to supervised access. He initially refused to exercise supervised access, did so for a time and then again refused to see his children. It has been more than a year since he has seen L.P. and M.P.. [1]

[4] Moreover, because of his failure to comply with a number of temporary court orders, Mr. Palombi’s pleadings have been struck and he was allowed only limited participation in the trial. To top things off, during the cross-examination of Daniel Musselman, the assessor appointed under s. 30 of the Children’s Law Reform Act, [2] Mr. Palombi fired his lawyer and acted on his own for the last day of trial. He prepared his own written submissions. He is without pleadings, counsel and, most importantly, contact with his own children.

[5] Through all of this, Mr. Palombi continues to act as if he has done nothing wrong at all. He has no comprehension of the role that he played in all of these misfortunes that he has suffered. His lack of self-awareness and insight was demonstrated by his own cross-examination of Mr. Musselman when he referred to conversations that he had with the children which confirmed that he extensively discussed adult issues with them. His perception that the submission of these conversations into evidence as being positive to his case, while they in fact harmed it, indicated his continuing inability to understand how to parent his children in a way that would “do no harm.” In fact, the interactions between himself and the children that he referred to in cross-examination were clearly hurtful to these young children and Mr. Palombi appeared to have limited, if any, awareness of this.

[6] That was the point made by Mr. Musselman in both of his assessments wherein he recommended that the Applicant have full custody of the children, as well as supervised therapeutic access only to the Respondent. He submitted that the benefits of access to Mr. Palombi were far outweighed by the harm that he did to the children in his continuing vendetta against Ms. Van. Ms. Van echoes Daniel Musselman in her custody claims at trial, requesting, at most, therapeutic access. She also requests retroactive and ongoing child support and a proportionate share of expenses under s. 7 of the Child Support Guidelines. [3]

[7] I earlier spoke of Mr. Palombi’s limited role at this trial. On October 7, 2015, Healey J. struck Mr. Palombi’s pleadings because of his failure to pay costs, a portion of the children’s counselling expenses, as well as his conduct during access visits with the children. That Order was tempered to some extent on appeal to the Divisional Court: in her written reasons, Linhares de Sousa J. upheld the Order striking the pleadings, but gave Mr. Palombi’s counsel the right to cross-examine the assessor as well as to make final submissions “as determined by the trial judge”. I allowed Mr. Palombi to make written submissions in reply only to the custody and access submissions made by the Applicant.

[8] Because Mr. Palombi’s pleadings were struck, the evidence that I must rely upon in determining the children’s best interests were the affidavits of Ms. Van sworn October 30, 2017, [4] May 7, 2018 [5] and May 11, 2018, [6] the affidavit of Tina Tran (the children’s pediatrician) sworn October 19, 2017, [7] the affidavit of Chad Jeremiah (the Applicant’s partner) sworn October 27, 2017, [8] the various financial statements of the parties as well as the financial affidavits of Tania Morgado sworn on May 14, 2018 [9] and May 22, 2018, [10] filed immediately prior to and during trial as a result of late disclosure by Mr. Palombi. Finally, there were the two assessments completed by Daniel Musselman, one on July 24, 2015 [11] and an update on October 27, 2017. [12] The only witness at trial was the assessor social worker who was cross-examined by both parties. Because his pleadings were struck, Mr. Palombi was not permitted to cross-examine the remaining affiants noted above; nor was he permitted to give evidence himself.

[9] The striking of Mr. Palombi’s pleadings was his responsibility alone. However, as I discussed with counsel during trial, this leaves a gaping hole in my determinations as to the children’s best interests, and as to the type of access to be exercised with their father. That hole consists of the fact that I never met Mr. Palombi on the witness stand, and only got to observe him as he cross-examined Mr. Musselman. Without having met Mr. Palombi, I am only able to determine his parenting abilities and his relationship to the children from the evidence adduced through the affidavits mentioned above, as well as Mr. Musselman’s observations and conclusions. Mr. Palombi was unable to answer the criticisms of the assessor or the Applicant in any way other than through his cross-examinations and submissions.

[10] For the reasons set out below, I have made the following orders and directions:

(a) Ms. Van shall have full custody of both children; (b) Mr. Palombi shall have no access to the children. That order is subject to review in the event that Mr. Palombi arranges for and pays for a therapeutic plan prepared by Dr. Shenfield, the children’s therapist, which plan can be presented to the court for approval or change; (c) Mr. Palombi shall pay child support of $1,203 per month based upon his income being found to be $ 79,510 per year; (d) Mr. Palombi shall pay 50% of the children’s s. 7 expenses including the costs of therapy and activities; (e) Mr. Palombi shall pay 100% of Dr. Shenfield’s costs of preparing a therapeutic plan of access and for the costs of therapeutic and supervised access; (f) Arrears of base child support are fixed in the amount of $7,331 as of April 30, 2018; (g) Arrears of s. 7 expenses are fixed in the amount of $1,306 as of May 31, 2018; and, (h) Mr. Palombi shall not bring any further family law proceedings involving Ms. Van (not including the access review noted above) until he has paid the costs incurred in this proceeding, including the costs of trial.

ISSUES

[11] The matters raised by the Applicant can be classified as child-related issues on one hand, and support issues on the other.

[12] The child related issues, the most contentious issues before the court, are as follows:

(a) Should full custody of the children be awarded to the Applicant? (b) Should Mr. Palombi’s access be further reduced to therapeutic supervised access, and if so, on what terms?

[13] Child support issues are as follows:

(a) What ongoing child support should Mr. Palombi pay, including s. 7 expenses for the children? (b) Is Ms. Van entitled to retroactive child support and s. 7 expenses and, if so, in what amount?

[14] Finally, Ms. Van has asked that I declare Mr. Palombi to be a vexatious litigant under s. 140 of the Courts of Justice Act. [13]

CUSTODY AND ACCESS ISSUES

[15] As mentioned, the child related issues were the most contentious and difficult in this trial. The children have suffered greatly, not only because of extreme parental conflict, but as well because Mr. Palombi does not seem to understand that the statements made to the children about their mother are as harmful to these children as if he had physically assaulted them. To undermine one parent is clearly harmful to the children and, on a number of occasions, Mr. Palombi did just that.

Should Full Custody of the Children Be Awarded to the Applicant?

[16] Despite Mr. Palombi’s position on the record that he should have sole custody of the children, there is really no issue as to with whom these children will live. They will continue to live with the Applicant mother, with whom they have lived since separation. Mr. Palombi’s pleadings have been struck and his claim for custody is therefore at an end. The only issue is whether the Respondent father will have a parenting role concerning these children or whether the mother will be the parent who makes the decisions concerning the upbringing of the parties’ children. To that purpose, Ms. Van requests “full custody” of the children.

[17] The legal term, “custody” in family matters is close to having had its day. For years now, there have been efforts by legislators to rid statutes of that term, the latest of which are the proposed amendments to the Divorce Act which suggest exactly that. [14] There is good reason for this; the term “custody” as it relates to children arises, from the 19th century and implies ownership of children which is, of course, not what any contemporary court order intends. It is also pejorative; the person who has custody feels as though they have “won” something, and the person without custody feels a loss and exclusion. The term is, in itself, the source of much litigation and gets in the way of settlement because of the emotional power behind the language.

[18] That being said, in certain circumstances, the word, “full custody” can be useful to describe what might be necessary, which is to remove one of the parents from any major role in parenting his or her children. That is exactly what Ms. Van wants. She had originally agreed to joint custody in the separation agreement entered into between herself and Mr. Palombi on March 29, 2012; in that agreement, the parties agreed to terms that appeared to suggest that the parties could easily cooperate with each other in parenting their two children. The agreement states that the parents would have “joint custody” with primary residence to Ms. Van. The agreement provided for extensive access and it is significant that the access is referred to in the agreement as the children “secondarily” residing with Mr. Palombi during his parenting time. In the agreement, the parties agreed to share decision making concerning the children with each other as follows: [15]

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

4.8 DAVID and ANGELA will make important decisions about the children's welfare together, including decisions about the children's: (a) education, (b) major non-emergency health care, (c) major recreational activities, and (d) religious activities. If the parties cannot agree, they will use the Dispute Resolution Section, to resolve the dispute.

4.9 If DAVID and ANGELA are unable to resolve a parenting issue, they will use counsel to assist in settling the issue which may include mediation.

[19] It is these specific clauses in the separation agreement that Ms. Van wishes changed by an order granting her sole custody.

[20] Joint custody is generally ordered where the parties are able to communicate effectively about their children so that they can effectively co-parent without conflict which is harmful to the children. If parents can communicate, or can give in gracefully where there is a disagreement, then joint custody is both laudable and desirable; it keeps both parents involved in their children’s lives, and the children are well aware of this and appreciate the involvement of both of their parents whom they love.

[21] Where, however, because of personal animosity or communications issues, the parents cannot communicate with one another, cannot agree on major issues concerning the children, or have fundamentally different parenting philosophies, an order for joint custody may very well be contrary to the best interests of the children. That is because ongoing parental deadlock or conflict is clearly harmful to the children, especially where that conflict is demonstrated openly to them.

[22] This is confirmed by case law. In the leading case of Kaplanis v. Kaplanis, 2005 ONCA 1625, 2005 CarswellOnt 266 (C.A.), Weiler J. confirmed that for a court to make an order for joint custody, a finding must be made that such an order is in the best interests of the children in question [para. 10]. Moreover, in determining whether joint custody is in the children’s best interests, reasonable communication between the parties is essential [para. 11]:

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important.

[23] The only exception is where a parent unreasonably “creates problems” with another parent with the intent of frustrating joint custody and communication with the other in order to co-parent the children: see Lawson v. Lawson, 2006 ONCA 26573, [2006] O.J. No. 3179 (C.A.) at para. 15. In the present case, other than the 2014 incident involving a disagreement about a car seat, when Ms. Van and her partner blocked the Respondent from leaving with the children and Mr. Palombi refused to allow the children to leave his car, there is little evidence in the present case of that having occurred.

[24] The requirement for reasonable communication between the parents for joint custody has been followed in numerous cases. An example is Kalliokoski v. Kalliokoski, 2016 ONSC 2273, where sole custody was ordered where there was “significant [parental] conflict, and the parties' ability to work together in a collaborative manner to meet the needs of the children has been minimal” [para. 45].

[25] The communication requirements for joint custody has also meant that there is no default position for joint custody, especially where the court is considering a high conflict custody case: see Kalliokoski, para. 32 and Young v. Young, [1993] 4 S.C.R. 3 at para. 47.

[26] The facts in the present case militate against a joint custody order. There has been serious parental conflict from the beginning. The court only need look at the record of interim court orders since this application was issued on November 18, 2013 which have effectively given the Applicant sole custody during the currency of the proceedings. In 2011, both Graham J. and Rogers J. made temporary orders confirming that the parties had joint custody of the children, subject to primary residence with Ms. Van and specified weekend access to Mr. Palombi. Since then, however, the court orders confirm that the parties have an extremely conflicted relationship and have been unable to work cooperatively in parenting L.P. and M.P.. The fact that the court has had to involve itself in making parenting decisions regarding the children is evidence, in itself, of the parties’ inability to jointly parent the children. These orders include the following:

(a) On December 9, 2013, Ferguson J. ordered, on consent, that neither party give M.P. any lactose-based products. On March 12, 2014, Rogers J. ordered on consent that Mr. Palombi “shall refrain from feeding M.P. …dairy or lactose-based products unless the child’s pediatrician recommends otherwise.” (b) On January 14, 2015, Bird J. ordered on consent, that Mr. Palombi’s consent for the children to attend therapy is dispensed with. Dr. Tali Shenfield was re-engaged as the children’s therapists, and Mr. Palombi was ordered to “co-operate” with the therapist. (c) On July 16, 2015, Jarvis J., while adjourning a motion for a stay of access, spoke of the fact that is difficult for Mr. Palombi to “justify non-compliance with court orders.” He notes that Mr. Palombi will “do what he wants, regardless of the consequences.” (d) On July 29, 2015, based upon Daniel Musselman’s first assessment, Mr. Palombi’s access to the children was stayed, and Ms. Van was given the power to make all health care decisions for the children. McGee J. noted that it was uncontested “that Mr. Palombi speaks to the children about the litigation, contrary to the order of Rogers J. dated March 12, 2014.” She also noted that the girls were too young to “protect themselves from the conflict [between the parents] and that while the mother accepted the advice from the therapist to isolate the children from parental conflict, “[t]he father remains defiant that his parenting is faultless”. (e) On October 7, 2015, Healey J. struck Mr. Palombi’s pleadings for failure to pay costs and for one-half of the children’s therapy costs. Healey J. noted that Mr. Palombi “chooses …to take steps that force the AM to seek his compliance with orders, such as a prohibition on feeding dairy products to his lactose-intolerant child.” By the time of this motion, Mr. Palombi had made no attempt to see the children since June of that year, and had contacted neither the therapist nor the assessor, Mr. Musselman, “to work toward a resolution of his parenting issues.” The pleadings were struck on custody and access issues because “the RF’s claim for custody has little merit”. This order was upheld on appeal, subject to the Divisional Court permitting Mr. Palombi the opportunity to cross-examine Daniel Musselman at trial. (f) On April 12, 2017, Bennett J. ordered, after a contested motion, that Ms. Van could obtain passports for the children and travel to Buffalo without Mr. Palombi’s consent. Bennett J. described Mr. Palombi’s refusal as “a reaction that ‘if I don’t get what I want I am not going to give you what you want’”.

[27] The inability of the parents to communicate or cooperate with each other is confirmed by Daniel Musselman’s two assessments.

[28] In the first assessment issued July 24, 2015, [16] Mr. Musselman confirms the amount of parental conflict between these parties: [17]

The most significant impression that this assessor has been left with in this case is the level of conflict and the impact it has had on everyone. Both parents agree that they do not communicate effectively and are not working well together as parents. Both parents have reported serious concerns about the other parents (sic.) behaviour and each parent has reported those concerns to various authorities (police and Children’s Aid). They have been unable to find solutions to the conflict and are taking very divergent positions with regards to what care arrangement would be best for the children. There is no doubt in this assessor’s mind that both parents love their children but it takes more than love to provide the proper environment for the care of the children.

[29] After discussing the fact that Mr. Palombi had, on an ongoing basis, discussed adult issues and the litigation with the children, Mr. Musselman squarely puts the responsibility for the inability to communicate onto Mr. Palombi. He states as follows: [18]

Both parents share responsibility for exposing the children to the adult conflict. However, this assessment has found that Ms. Van had demonstrated insight regarding her role in that issue and she accepted responsibility for her mistakes and expressed appropriate remorse. Mr. Palombi, on the other hand, blamed Ms. Van for all the parental conflict and inability to communicate. He freely admitted that he had discussed adult issues as well as court proceedings with the children and demonstrated no insight into how that may emotionally harm the children, accepted no responsibility for that distress and expressed no remorse or regret for his actions. In fact, after hearing about the level of concern expressed by this assessor at the disclosure meeting, he left that meeting and drove directly to the children's school and requested to speak with the children. This assessor is not aware of his intent, but knowing how upset he was and judging from his previous actions and lack of insight and awareness it is assumed that his intentions were focused on his own distress and not what was appropriate to be saying to the children.

[30] He later concluded that Mr. Palombi used “his custodial authority like a hammer directed at Ms. Van” [19] and recommended sole custody in her favour.

[31] By the time of Mr. Musselman’s updated assessment, [20] nothing had changed. The assessor said that since the first assessment, he had seen “no change in [Mr. Palombi’s] behaviour and attitude.” He noted that Mr. Palombi accepted no responsibility for his actions, and said that, in his experience, he had “never seen the kind of blatant disregard for the rules and intent of supervised access” as he saw with Mr. Palombi. He noted that Mr. Palombi continued to challenge the direction that he not feed M.P. dairy or lactose-based products notwithstanding the consent order of March 12, 2014. [21] That this had been an ongoing problem is evidenced by the fact that Healey J. had noted in her 2015 ruling, which mentioned that Mr. Palombi had challenged that issue at that time, forcing Ms. Van to incur legal fees for enforcement motions.

[32] Mr. Musselman was cross-examined about this issue by Mr. DiMonte, Mr. Palombi’s counsel for the first portion of the trial. Mr. Musselman confirmed that it was his view that the parties’ inability to communicate and cooperate is proportionate to the distress suffered by the children of the relationship. He eloquently noted that parallel parenting is not a solution, requiring “the children to walk between no man’s land between East and West Berlin, with the parties not talking and at war and the children have to make their way through [that] no man’s land.” It was his view that, although minimizing communication was a solution to the harmful parental conflict that these people go through, that this also necessitated sole custody with one of the parties being the decision maker for these children. His recommendation was that Ms. Van be designated the sole decision maker for these children.

[33] The actions of Mr. Palombi only go to confirm Mr. Musselman’s conclusions. An issue for these parties has always been M.P.'s lactose intolerance; her physician has, since at least infancy, recommended that M.P. not receive any dairy or lactose-based products. [22] This diagnosis was reflected in Ferguson J.’s consent order made in December, 2013. According to Ms. Van, Mr. Palombi accepted this diagnosis until June of 2013 and then began giving M.P. lactose or dairy based products. Eventually, a long motion was brought, but Mr. Palombi acknowledged in open court to having given M.P. dairy products and a further order was made on consent enjoining the Respondent from giving M.P. either dairy or lactose-based products unless recommended by M.P.'s pediatrician.

[34] Notwithstanding these orders, Mr. Palombi has continued to provide dairy products to M.P.. He acknowledged this in an affidavit sworn January 10, 2017. [23] According to the evidence, he brought pizza to the access centre, as well as lactose free ice cream (which, however, contained dairy products) and a chocolate bunny. This is notwithstanding the court order noted above, as well as a specific direction to the access centre, provided to Mr. Palombi, forbidding dairy or lactose-based products during the access visits.

[35] Mr. Palombi continued to challenge the need for a ban on lactose-based products in his closing submissions; he suggested that “the physical manifestations of M.P.…to date have not been accurately diagnosed” and he blames Ms. Van for refusing to submit M.P. to a breath test at the Hospital for Sick Children. [24]

[36] It is difficult to understand Mr. Palombi’s motivations in providing these foods to M.P.. He is an intelligent man, and knows that M.P. cannot be given these foods; they make her ill and his providing of these items to M.P. can only hurt him in this litigation. I can only speculate as to his motivation because he did not testify. But, as suggested by Bennett J. on April 12, 2017, a plausible explanation is that if the suggestion concerning lactose or milk-based foods came from Ms. Van, even when that suggestion is backed up by medical evidence, orders of this court and directions from the access centre, Mr. Palombi will not have it.

[37] The dairy issue is not the only place where the parties’ disagreements have harmed the children. Mr. Palombi delayed in providing his consent to the children participating in therapy with Dr. Tali Shenfield. [25] An interim order had to be obtained dispensing with his consent. He refused to execute travel consents or provide the children’s passports, even regarding a proposed one day trip to Buffalo; again this required a court order. [26] There are other examples where the parties disagreed on an issue and Mr. Palombi went ahead and did it anyways; for example, Mr. Palombi insisted on continually celebrating with his daughters a tearful birthday of their stillborn brother, who died before either was born, notwithstanding the upset this caused to the girls and the entreaties of Ms. Van.

[38] All of this does not bode well for joint custody and decision making for these children. The conflict between these parties is deep seated and perverse. It underlies all of the interactions between the parties and, by extension, contact with the children. Usually, it is difficult to determine the cause of toxic inter-personal relationships. However, the evidence is overwhelming that the cause of these parties’ communications issues lies with Mr. Palombi. His stubbornness and inability to accept any direction from Ms. Van or the children’s physician, as evidenced by the “dairy wars” noted above, makes it impossible for these parties to co-parent the children without causing them further harm.

[39] Although no change in circumstances is necessary to make an order contrary to the separation agreement, it is clear that the parties were unaware of the direction of their relationship when they entered into the agreement in 2012. The joint custody provisions in that agreement are unworkable and harmful to the children; the circumstances and events that have occurred since the agreement was signed make this apparent. It is not in the best interests of the children for the court to confirm the joint custody provisions of the separation agreement.

[40] There shall be an order that Ms. Palombi have sole custody and decision making in respect of the children.

[41] Ms. Van has requested that the court order that Mr. Palombi be entitled to information about the children from the schools and other caregivers. So ordered.

[42] Ms. Van has also requested that she be entitled to travel with the children without the consent of Mr. Palombi. In light of Mr. Palombi’s refusal to provide a very limited travel consent requiring an interim motion, that also shall be ordered. Ms. Van may also obtain passports for the children without Mr. Palombi’s consent.

[43] I agree with the suggestion of Ms. Van that all communications between the parties concerning the children be made through the Our Family Wizard computer program, a program that Mr. Palombi previously discontinued. Again, so ordered.

Should Mr. Palombi’s access be further reduced to therapeutic supervised access and, if so, on what terms?

[44] Under the separation agreement, Mr. Palombi had extensive weekend and other time sharing with the children. He has, however, not exercised that access for some time. In June of 2015, Mr. Palombi stopped seeing the children after the first disclosure meeting with Daniel Musselman; he says that access was wrongfully withheld, even though the Children’s Aid Society recommended supervised access based upon Mr. Palombi’s harm to the children due to his refusal to cooperate in parenting the children, and because of his statements to the children.

[45] He resumed access with the children in January, 2016, six months later. That access, however, was supervised access pursuant to the order of McGee J. on July 29, 2015. Mr. Palombi saw the children two hours weekly at an access centre, and extensive notes of the access visits were filed as a trial exhibit [27] and were referred to extensively by Daniel Musselman in the preparation of his second assessment.

[46] Access has since broken down a second time. On April 30, 2017, L.P. became upset with her father for calling her a liar and refused to see him after that point. While Dr. Shenfield was working with L.P. to reintegrate her with her father, Mr. Palombi advised on June 23, 2017 that he was no longer willing to see M.P. at the access centre. Neither child has seen Mr. Palombi since that date although they have been ambivalent about their views and preferences.

[47] Ms. Van says that supervised access was not sufficient to protect the children from Mr. Palombi. She says that access should be therapeutic only, in order to both protect the children, and to reintegrate the children with their father without harm being caused to them.

[48] Access to the children is not for the visiting parent’s gratification or pleasure; it is solely based upon the best interests of the children: see s. 16(8) of the Divorce Act [28] which provides that an order for custody or access shall be based “only” on the best interests of the children. The issue for the court, irrespective of the position of the parents, is therefore what access to Mr. Palombi would be in the best interests of L.P. and M.P..

[49] The fact that the children’s best interests trump almost all other considerations is evident from a case cited by Mr. Palombi. In Young v. Young, supra, the court considered an argument that an order preventing the father from discussing religion with his children was an infringement on his religious rights under the Charter. [29] McLachlan J. confirmed [at para. 225] that the “guarantee of freedom of religion does not extend to religious activity which harms other people” and also said [at para. 227] that, “even in cases where a risk of harm may not have been established, the guarantee of freedom of religion should not be understood to extend to protecting conduct which is not in the best interests of the child.” Moreover, freedom of expression was held not to permit “harmful expression” of views to a child. In sum, the Supreme Court determined that the courts could act to protect a child from harm or injury notwithstanding what might be a breach of the Charter.

[50] Although the Applicant has requested therapeutic access, I must also consider whether this is in the children’s best interests and whether any access whatsoever should be ordered. I realize this is beyond what the Applicant asked for; however, the court’s mandate is to make an access order which is in the children’s best interests even where that order is not requested. Whatever the positions of the parties, the court must do what is right for these children and that which will cause the least amount of harm to them.

[51] In Jennings v. Garrett, 2004 ONSC 17126, [2004] O.J. No. 2238 (S.C.J.), Blishen J. considered an application to terminate the father’s supervised access to his child. After determining [at para. 1] that “[t]ermination of [the child’s] right to visit with and know her father is an extreme remedy which should only be ordered in the most exceptional of circumstances”, Blishen J. carefully reviewed the facts and determined that the father should continue to have supervised access. At para. 143, she outlined some of the criteria for termination of access:

Such an extreme measure warrants the most serious consideration. It is necessary to weigh and balance numerous factors in the context of [the child’s] best interests, including:

1. The maximum contact principle;
2. The right of a child to know and have a relationship with each parent;
3. A limitation of a consideration of parental conduct to that conduct which impacts on the child;
4. The risk of harm: emotional, physical and sexual;
5. The nature of the relationship between the parents and its impact on the child;
6. The nature of the relationship and attachment between the access parent and the child; and,
7. The commitment of the access parent to the child.

[52] At para. 135, Blishen J. reviews the case law and lists the circumstances “most commonly” in play when access is terminated. Many of these circumstances are inapplicable to the present case; however, included in them was “Ongoing severe denigration of the other parent”; “Lack of relationship or attachment between noncustodial parent and child”; “Neglect or abuse to a child on the access visits”; and “Older children's wishes and preferences to terminate access”, all of which are confirmed in the evidence presented in the present case.

[53] For me, however, the most serious issue for Mr. Palombi was his lack of insight into the harm he causes the children, especially when speaking with them. I made findings in this regard when considering the nature of the custodial relationship between these parties. Mr. Palombi fails to understand his role in his loss of his relationship with his children and continues to blame Ms. Van for his troubles.

[54] Lack of insight by the visiting parent has been determined to be a factor in terminating access in a number of cases. In Chickwanda v. Bell, 2014 ONCJ 174, Brophy J. terminated access where the father’s access was sporadic and had been terminated on a number of occasions at his behest. The justice attributed this to the access parent’s lack of insight [at para. 60]:

It is a mystery as to why the Respondent was not able to put the needs of the children first. If he understood what the nature of the problem was he would have recognized that only by being constant in his participation in the supervised access would he ultimately be successful. Perhaps he did not see it that way. However the action he did take by walking away from the access was putting his own frustration first and not acting in the best interests of the children. The court fears that this pattern will continue and it is neither healthy nor conducive to the well-being of the children. Simply put it is not in their best interest.

[55] In I. (M.) v. W. (M.), 2010 ONCJ 485, Waldman J. considered a case where the father had said numerous inappropriate things to the child during supervised access. The justice determined that access was not in the child’s best interests where she made findings as follows [at para. 17]:

The documents father has filed in this motion are consistent with the position that he has taken throughout. He continues to criticize mother. He continues to raise issues about the care the child is receiving and risks to the child's health. He continues to be critical of every institution and person involved in this litigation and with the child. Given the length of time that has passed and the totality of the evidence, there is no reason to believe that father's behaviour will change. There is nothing before the court to suggest that father has developed any insight into his behaviour and its impact on the child and therefore it is impossible to conclude that there will be any change.

[56] A similar story might be told of Mr. Palombi. I have already outlined his inability to co-parent these children with Ms. Van, and the reasons for this. In his first assessment, Mr. Musselman determined that Mr. Palombi was causing harm to the children by reason of his attempts to influence the children to demand equal shared custody and to also in his deprecation of Ms. Van. In the second assessment, after Mr. Palombi was exercising supervised access only, Mr. Musselman went further; he concluded that the children cannot be protected from harm from Mr. Palombi through supervised access. He noted that L.P. did not want to see her father because he called her a liar; Mr. Musselman also said that, notwithstanding the supervised access, Mr. Palombi had no ability to follow the rules of the supervised access centre and he noted that Mr. Palombi continued to discuss the children’s mother and deprecate her and her parenting with the children. He noted that this was harmful to the children; he expressed surprise that Mr. Palombi would do this in a supervised access setting, when he knew that a trial was pending and that his statements to the children were being recorded by supervised access workers in their observation notes. [30] I also share these sentiments.

[57] During the trial, I was referred to a number of observation notes from the supervised access visits between Mr. Palombi and the children. These were largely relied upon by the assessor in coming to his conclusions. The observation notes showed the following behavior by Mr. Palombi:

(a) Milk Products

Mr. Palombi provided dairy or lactose-based products to M.P. on five occasions when exercising access. He provided the children with pizza, lactose-free ice cream (containing dairy products) and chocolate. This is notwithstanding the medical report noted above which said such products are to be avoided, the court order that Mr. Palombi consented to which enjoined either party giving M.P. these products as well as the specific rules of the access centre which stated that such products were not to be given to the children. In the end, the access centre issued a directive forbidding Mr. Palombi from bringing any foods to access visits.

(b) Speaking of Past or Future

Mr. Palombi refused at times to focus on the present notwithstanding the rules of the access centre which stated that visiting parents are to stay in the present, and not discuss past events or future expectations with the children.

(c) Whispering to Children

The rules of the access centre state that visiting parents are not to whisper to their children, so that the access supervisor could hear what was being said. The notes indicate that Mr. Palombi was observed whispering to the children on at least seven occasions.

(d) Verbal Abuse

Mr. Palombi called L.P. a liar at a visit with her. After that visit, L.P. refused to see him, and still has not agreed to see him. She required extensive therapeutic intervention with Dr. Tali Shenfield as a result of Mr. Palombi’s behavior.

(e) Attempts to Find Out Information

At times during visits, Mr. Palombi attempted to discover from the children facts about their mother’s home:

• On one occasion, he asked the children what Ms. Van’s address was.
• Mr. Palombi apparently believes that Ms. Van’s partner, Mr. Jeremiah, has sexually abused one or both children; he complained to the C.A.S. about this. He asked the children on one occasion whether Mr. Jeremiah watches them when they are in the shower.
• He asked the children where they were when they missed a previous access visit with him.
• On another occasion, when L.P. expressed hesitancy about answering a question about whether she went swimming, Mr. Palombi told her that it was her choice, not her mother’s, whether or not to tell him.

(f) Criticisms of and Interference with Ms. Van’s Parenting

Mr. Musselman noted that Mr. Palombi was critical of Ms. Van’s parenting to the children during visits. Some examples as set out in the access centre notes are as follows:

• He told M.P. that it was “not good enough” for her mother to take her to the walk-in clinic regarding a medical issue that Ms. Van had dealt with; he said that Ms. Van should have taken her to the doctor.
• He criticized Ms. Van to the children for waiting five years to paint their bedrooms. When L.P. disclosed that she had made a mess on the walls with her dirty hands, he “high fived” her.
• During one visit, Mr. Palombi was critical of the medical care being provided to the children by Ms. Van. He also criticized Mr. Jeremiah’s assistance with the girls’ schoolwork and told them that they could bring the homework to the access centre so that he could help, if they wanted to.
• On another occasion, when the girls told him that they had urinated in the hallway of their mother’s home, he praised them, saying “good, good, you guys be kids, it’s ok.”

(g) Issues Raised by Mr. Palombi During His Cross-Examination of Daniel Musselman

I had mentioned earlier that Mr. Palombi dismissed his lawyer near the end of trial and completed the cross-examination of Mr. Musselman on his own. Some of the conversations during access visits which were raised by him in his cross-examination were surprising as these confirmed that Mr. Palombi saw nothing wrong in discussing adult issues with the children. Included in these conversations raised by Mr. Palombi in cross-examination were the following:

• Mr. Palombi raised with Mr. Musselman (presumably to show that Ms. Van fed the children dairy as well) a conversation where he asked L.P. about what she ate the previous night; it was apparent that he was attempting to determine from L.P. that she had been given a milk-based product and he referred to this conversation in cross-examination to prove that Ms. Van gave the children dairy products just like him;
• Mr. Palombi brought to Mr. Musselman’s attention a conversation during a visit where he asked the children who had erased his picture on their phone. When he was told that it was “grandma” (presumably the maternal grandmother), he told the children that was “not very nice”. Again, this conversation was raised to show that Ms. Van deprecated him as well, but the strategy backfired, as it showed that he was intent upon discussing with the children his mother’s and the maternal grandmother’s behavior.

[58] Mr. Palombi’s own lack of insight is demonstrated by both of these points of cross-examination. Neither Mr. Musselman nor Ms. Radley on behalf of the Applicant had raised these conversations during the course of trial. Mr. Palombi was completely unaware of the fact that these conversations did not paint him in a favorable light; it was also more important to him to prove that Ms. Van was a parent with a double standard about dairy than to avoid confirmation that he was discussing adult issues or Ms. Van’s parenting with his children. I pointed this out to him when he cross-examined about the dairy issue; he then came back to the notes about the second conversation about erasing the pictures on the phone. He appears to be an intelligent man; however, he does not seem to have the capacity to learn when his parenting and emotions are involved.

[59] Combine this with the fact that Mr. Palombi has not seen his children for about 22 of the 40 months that have elapsed since June of 2015, it can be seen that supervised access is not a solution for Mr. Palombi. He continued to cause harm to the children notwithstanding the fact that he is under observation, and one child has elected to stop seeing him and has required therapy as a result. Another solution is required.

[60] What would that solution be? Mr. Musselman was asked how therapeutic supervised access would look and he testified that it should be as dictated by the therapist, Dr. Tali Shenfield. He mentioned the Willow Centre in Toronto, but very little evidence was provided as to the terms and details of the program at that agency. There was a dearth of evidence as to the exact terms of what therapeutic access would be in the children’s best interests. Mr. Palombi complained of this in his own submissions and said that it was “disingenuous for an Assessor to recommend a plan with which he is not familiar, and a plan that would only be an experiment.” [31]

[61] It is well established that, unless specifically authorized by statute, the court cannot delegate the decisions regarding access to a third party: see Children’s Aid Society for Durham (County) v. C (S), [2002] O.J. No. 4339 (S.C.J.) at para. 152; Children’s Aid Society of Durham (Region) v. W. (K.) (1991), 4 O.F.L.R. 112 (Ont. Gen. Div.), as aff’d by (1992), 5 O.F.L.R. 125 (Ont. C.A.); and Behrens v. Stoodley, 1999 ONCA 1626, 1999 CarswellOnt 4141, [1999] O.J. No. 4838 (C.A.). It would be contrary to law to delegate the nature of the access visits to the children’s therapist as suggested by Mr. Musselman.

[62] Outside of an order for no access, there are three options for access: therapeutic access, continued supervised access, or regularized or shared access (or sole custody to himself as suggested by Mr. Palombi).

[63] I hesitate to order therapeutic access when I have no idea what it is going to look like. Although Mr. Musselman adopted the suggestion of Dr. Shenfield of the Willow Centre in Toronto, I received no evidence as to what the program at that centre involves, or what the costs might be.

[64] I also cannot leave it to the parties to negotiate or work out a plan for therapeutic access. The evidence shows that these parties are unable to negotiate anything between them whatsoever, and in light of the history of these parties, it is extremely unlikely that they will be able to work out a plan for therapeutic or reintegration access which is in the best interests of the children. Moreover, Mr. Palombi is unlikely to accept the recommendations of Dr. Shenfield; he certainly ignored the advice of the physician regarding milk products. The parties cannot be left to craft a therapeutic access plan between them and I am unable to delegate the nature of the access to the children’s therapist as discussed above. Therapeutic access as presented to me at this trial is not a viable option.

[65] As discussed above, supervised access as it stands is also not a solution. Mr. Palombi has used opportunities within the supervised access regime to discuss adult issues with the children, whisper to the children and to criticize and undermine Ms. Van. He managed to damage his relationship with L.P. to the extent that she does not want to see her father. L.P.’s need for therapeutic intervention as a result of her visits with her father obviates the fact that supervised access between Mr. Palombi and the children has proven to be harmful to them.

[66] Regularized or unsupervised access is obviously not an option. If Mr. Palombi made harmful statements to the children during supervised access, it can only be imagined what would occur if Mr. Palombi is left to his own devices when seeing the children.

[67] What about the views and preferences of the children? Both Dr. Shenfield and Daniel Musselman have canvassed the children’s views and preferences.

[68] Dr. Shenfield confirms that L.P. was deeply hurt by her father’s calling her a liar and his later comments about the appearance of her hair at the same visit. She told Dr. Shenfield that “she dislikes the visits and does not want to attend them.” Although L.P. was only nine when she expressed these views, Dr. Shenfield felt that it would be “damaging to make this girl go to the visits against her will.” [32] This was confirmed by Daniel Musselman, who stated that L.P., when interviewed on August 27, 2017, said that “she felt good about not seeing [Mr. Palombi]. She also said, however, that she would like to see Mr. Palombi at the shopping mall “so that he could buy her things.” [33]

[69] M.P. is more ambivalent about seeing her father. She misses him and says that she would like to see him. According to Mr. Musselman, she wants to see him “only at the …supervised access centre”. [34] Mr. Musselman said that M.P. had also wanted to see her father during the first assessment, but that these expressions of her desire to see her father were not consistent.

[70] Mr. Musselman testified that he took the views and preferences of the children into account in preparing his recommendations, but that he did not give these views and preferences the same amount of weight as he might have if he was dealing with teenagers.

[71] I agree with Mr. Musselman that the views and preferences of the children should be given limited weight. Although, in making my findings, I specifically do not rely upon Dr. Shenfield’s conclusion that L.P. would be harmed by contact with her father against her will, [35] I also accept that Dr. Shenfield was told by L.P. that she did not want to see her father and her therapeutic observations of the results of that encounter. This statement by L.P. is inconsistent with her suggestion that she wanted to see her father at the mall and that statement was apparently motivated by the suggestion that she would like him to buy her things.

[72] M.P. was only seven when she told Daniel Musselman that she missed her father and wished to see him at a supervised access centre. Because of the age of the children, and the evidence that Mr. Palombi has used his access with the children to influence them into his camp, I discount the importance of the children’s views and preferences in making my findings as to the children’s best interests in this proceeding. Although they may be ambivalent about seeing their father, because of their ages, they are not aware of the harm being caused to them by access, including the supervised access. And even if I took the children’s wishes into account, it is clear that L.P. does not feel safe in seeing her father; M.P. only wants limited and supervised contact with her father.

[73] Taking all of this into account, the only option I am left with is to make an order for no access to Mr. Palombi. As suggested by Waldman J. in I. (M.), supra, “this should only be done only after all other options have been tried and failed.” That, however, appears to be the case here. The Respondent’s unsupervised access to the children had to stop because Mr. Palombi used the opportunity to attempt to further his own agenda with the children in the litigation and because of his verbal abuse of L.P.. Supervised access has been harmful to the children as Mr. Palombi has used every opportunity to undermine Ms. Van’s parenting with the children. As well, Mr. Palombi has been sporadic and inconsistent in his exercise of the access, seeing the children for less time in the last 27 months than he has seen them. That inconsistency is harmful to the children for obvious reasons. For similar reasons, I cannot possibly permit unsupervised access based upon Mr. Palombi’s role prior to June of 2015. I also cannot order therapeutic access without evidence as to a plan for that type of access. The only available option which can address the best interests of the children and to avoid further harm to them is to order that Mr. Palombi receive no access at this time.

[74] I am therefore going to make an order that Mr. Palombi have no access to either of his children except at the discretion of Ms. Van or on agreement between the parties.

[75] I am going to open that issue to a review under very limited circumstances. This is because, had there been sufficient evidence as to what therapeutic access entailed, I might very well have ordered it. Dr. Shenfield has the children’s confidence and there was no evidence other than that her relationship with both children is beneficial. I am therefore going to request that she prepare a plan for therapeutic access between Mr. Palombi and the children with a view to reintegrating Mr. Palombi with his children. This would have to be done at the request of Mr. Palombi and at his sole expense. That plan is to include specifics of what therapeutic access would look like, the estimated costs of the therapeutic access and, if the Willow Centre is to be involved, the services offered by that agency.

[76] Considering Mr. Palombi’s behaviour, the cost of preparing the plan is to be paid for by Mr. Palombi. In light of the evidence that I have of Mr. Palombi’s refusal to pay for his share of the children’s s. 7 expenses, and especially the costs of the children’s therapy, Dr. Shenfield need not commence preparing the plan until Mr. Palombi has paid for the estimated costs of the plan for therapeutic access. Moreover, the costs of any therapeutic access shall be solely at the cost of Mr. Palombi; he is responsible for the situation in which he now finds himself and is also responsible to repair the damage that he has caused to his relationship with the children.

[77] Once the plan has been prepared, the parties may consent to implementation of the plan. If the parties disagree, either party may request a review of my order for no access considering the therapeutic access plan prepared by Dr. Shenfield. This review may only take place once a plan for therapeutic access has been prepared and distributed to the parties by Dr. Shenfield. Otherwise my order is final, and can only be changed in the event of a change in circumstances within the meaning of s. 17(5) of the Divorce Act.

[78] If possible, I should be designated to hear the review if it is brought back before the court. I would be hearing - not seized with - that matter, as it would be de novo between the parties.

[79] If access is to take place, Mr. Palombi is under the same constraints as set out in the various interim orders made in these proceedings: he is not permitted to deprecate the Applicant during access or give M.P. dairy products during any access visits.

FINANCIAL ISSUES

[80] Mr. Palombi’s pleadings have been struck. He was not permitted to participate in the trial of the financial issues before the court, which involve retroactive and ongoing child support, including s. 7 expenses. These issues are effectively to be dealt with by way of an uncontested trial and on the affidavits and financial information in both the Trial Record and the Continuing Record referred to in the Applicant’s final submissions.

[81] As stated above, the issues are ongoing child support and retroactive child support.

What ongoing child support should Mr. Palombi pay including s. 7 expenses for the children?

[82] Under the separation agreement, the Respondent paid child support of $832 per month for the two children. That child support was based upon Mr. Palombi’s 2011 income of $57,000 per annum.

[83] On March 12, 2014, Rogers J. ordered the Respondent to pay temporary child support of $902 per month based upon Mr. Palombi’s 2012 income of $60,700. That support began to run on May 1, 2014.

[84] These proceedings were commenced by way of application dated November 8, 2013; Mr. Palombi filed a financial statement sworn June 25, 2014 and acknowledged income of $60,474.18; he provided a Notice of Assessment from 2012 indicating his income for 2012 of $60,700 and T4 slips for 2013 which showed total income during that year as being $60,473.58.

[85] Mr. Palombi did not file a further financial statement until the last day of trial. That financial statement was sworn on May 14, 2018 and Mr. Palombi acknowledged that his annual income was $73,000. There were no notices of assessment attached; Mr. Palombi attached his 2017 T4 which showed income for that year of $73,328.82 and a pay stub dated May 13, 2018 which showed year to date income of $28,619.31. This works out to anticipated income for 2018 of $74,410.21. [36]

[86] Ms. Van also provided evidence that Mr. Palombi was employed part time as a dance instructor. She suggests that an extra $5,100 per annum (about $100 per week) be added to Mr. Palombi’s income for dance instruction. This is not an unreasonable amount, especially considering the fact that Mr. Palombi has never disclosed what his income is from dance instruction. [37]

[87] Mr. Palombi acknowledges that he worked as a dance instructor, but provided correspondence attached to his financial statement indicating that he had resigned as a dance instructor. That correspondence does not state what caused him to resign. However, a voluntary reduction in employment or income does not permit a payor to reduce his income for employment purposes: see s. 19(1)(a) of the Child Support Guidelines.

[88] I therefore find that Mr. Palombi’s annual income for ongoing child support purposes is $79,510. [38] This would give rise to ongoing base guideline child support of $1,203 per month. That child support shall commence on May 1, 2018.

[89] There are also ongoing special expenses for the children. Ms. Van indicates that she is willing to share these expenses on a 50% basis rather than her sharing being proportionate to income as required by s. 7. Considering that Ms. Van’s most recent income information confirms that she makes less than Mr. Palombi, even excluding his dance instruction income, [39] this is more than fair.

[90] The expenses that the Applicant says that she has for the children are their therapy expenses with Dr. Tali Shenfield, their swimming and karate expenses, uninsured medical costs and summer camp. The Applicant deposes that she has had serious difficulties in collecting past s. 7 expenses; she says that Mr. Palombi had previously taken the children out of activities in order to avoid paying for them, and that she has had to file the special expenses with the Family Responsibility Office (“FRO”) for enforcement because Mr. Palombi refused to pay for them. She says that the requirement to have Mr. Palombi consent to any activities will result in the children not participating in those activities: he will, according to Ms. Van, consent to nothing because he is not willing to pay for any activities.

[91] Ms. Palombi has asked for an order that Mr. Palombi pay 50% of “the children’s special and extra-ordinary expenses, which shall include but are not limited to uninsured medical, dental, therapy, orthodontics, summer camp, swimming and karate.” So ordered.

[92] Mr. Palombi is to maintain medical and dental insurance for the children as requested by Ms. Van.

[93] Paragraph 11 of the separation agreement had provided that Mr. Palombi and Ms. Van each maintain support insurance for the children; she says that maintained her $600,000 life insurance policy pursuant to that agreement and that she thought that Mr. Palombi had continued to maintain his policy in a similar amount. She says that she discovered midway through trial that he failed to do so and only had a $146,000 policy available through his employment. As requested, an order will be made that the Respondent name the Applicant as beneficiary in trust for the children, in order to secure child support for so long as child support is payable to the Applicant. I accept the suggested terms of the order for support insurance as set out in the Applicant’s submissions.

Is Ms. Van entitled to retroactive child support and s. 7 expenses and if so, in what amount?

[94] Financial disclosure from Mr. Palombi has been slow in coming. It continued to come in during the trial, and an updated financial statement from Mr. Palombi was served on the last day of trial. On the eve of trial, Ms. Van did not know what Mr. Palombi’s income was after 2013; she only found out what Mr. Palombi’s income was for 2013, 2015, 2016, 2017 and anticipated income for 2018 over the course of trial. There was no disclosure ever made of Mr. Palombi’s 2014 income. Child support under the separation agreement of $832 per month was based upon Mr. Palombi’s 2011 income and the last adjustment to child support was made in 2014 when Rogers J. ordered child support of $902 per month based upon Mr. Palombi’s 2012 income.

[95] The court’s analysis of child support arrears is generally based upon the two-stage analysis as set out in D.B.S v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231. The court must firstly determine whether a retroactive award should be made; the next step is to what extent or how far back.

[96] In order to determine whether there should be a retroactive award, the court must determine whether the payor is entitled to the certainty that a court order or agreement might give him. However, a pre-condition for this expectation of certainty is that the payor is in good standing under any court orders or agreements presently extant: D.B.S. at para. 63. That is certainly not the case for Mr. Palombi; his pleadings were struck because he was in default of his child support obligations [40] and he has continued to be in breach of his support obligations since December 22, 2015. [41] Mr. Palombi cannot complain of any expectation of certainty as he certainly has not complied with child support orders made in this proceeding.

[97] Moreover, under D.B.S., supra, the court must examine four criteria for a retroactive award: namely the reason for any delay, the conduct of the payor, the circumstances of the children and the hardship that may be caused by a retroactive order. I would note, however, that this inquiry may be stopped by review of the first criteria, namely the issue of delay. I cannot find that there is any unreasonable delay in seeking increased support. The original child support was based upon an agreement made in March, 2012 and Ms. Van brought these proceedings in November, 2013, about 19 months afterwards. That cannot be characterized as unreasonable delay.

[98] Moreover, any delay in adjusting child support can be laid at the doorstep of Mr. Palombi: he failed to provide the disclosure necessary to make those adjustments. During these proceedings, he filed only one financial statement sworn on June 25, 2014; he waited until trial to provide any further financial disclosure, which consisted of the evidence noted above. Mr. Palombi has still not disclosed proof of his 2014 income for child support purposes. Outside of the interim order of Rogers J. dated March 12, 2014, which adjusted support based upon Mr. Palombi’s 2012 income, there was no disclosure allowing the Applicant to request other adjustments to the child support until the disclosure provided at trial.

[99] I find both misconduct on the part of Mr. Palombi in failing to make disclosure, and also that there was no unreasonable delay on the part of Ms. Van in bringing these child support proceedings. Based upon these factors standing alone, I find that Ms. Van is entitled to maintain a claim for retroactive child support.

[100] Regarding the second part of the D.B.S. analysis, there is no issue that Ms. Van is entitled to have the child support reviewed from 2013 on. She was entitled, under the separation agreement, to annual financial disclosure from Mr. Palombi [42] and there is no evidence of any such disclosure until Mr. Palombi provided the financial statement sworn June 25, 2014. Mr. Palombi is clearly guilty of blameworthy conduct as is witnessed by his failure to provide ongoing disclosure as required by the Rules and the Child Support Guidelines. He has also breached court orders requiring him to pay his share of the children’s therapy, costs and other s. 7 expenses resulting in the striking of his pleadings.

[101] Mr. Palombi has provided basic disclosure of his income for all of the years since the separation agreement other than 2014. His income has increased every year and for 2014, I can take a midpoint between Mr. Palombi’s 2013 and 2015 income. In light of Mr. Palombi’s lack of disclosure, I have no difficulty in imputing income to him for 2014: see s. 19(1)(f) of the Child Support Guidelines.

[102] Therefore, based upon the evidence, Mr. Palombi’s income for the years 2013 to present as well as the support paid and payable are as follows: [43]

Year	Income	Table Amount Payable	Child Support Actually Paid	Retroactive Child Support Payable
2013	$60,474.19	$899	$832 [44]	$432
2014	$62,988.60 [45]	$936	$832 (four months) $902 (eight months) [46]	$688
2015	$65,503 [47]	$974	$902	$864
2016	$71,909 [48]	$1,064	$902	$1,944
2017	$73,382.82 [49]	$1,082 per month to November 30 $1,115 per month after December 1	$902	$2,193
2018	$79,510 [50]	$1,203	$902	$1,210 [51]
Total Retroactive Child Support Payable				$7,331

[103] I therefore find that there are arrears of base child support in the amount of $7,331.

[104] With regard to special expenses for the children, Ms. Van claims 50% of the children’s uninsured therapy and medical expenses, and the costs of swimming and karate. Based upon the Director’s Statement of Arrears filed [52] as of the date of trial, Mr. Palombi owed $736 in s. 7 expenses to that date. In addition, Ms. Van has provided evidence of additional s. 7 expenses submitted to but not yet posted by the Director of $525. [53] Finally there is an additional claim for $45 not yet submitted to FRO. [54] Total s. 7 arrears owing as of May 31, 2018 are therefore fixed at $1,306 including the children’s extraordinary expenses owing by the Respondent to the Director of the Family Responsibility Office as of May 22, 2018.

[105] I therefore find that the Respondent’s total child support arrears are $8,637. [55]

VEXATIOUS LITIGANT

[106] The Applicant seeks an order declaring the Respondent to be a vexatious litigant and that he be forced to seek leave of the court prior to bringing any proceedings subsequent to the trial of this matter.

[107] The basis for the declaration is s. 140(1) of the Courts of Justice Act which reads as follows:

140 (1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds, (a) instituted vexatious proceedings in any court; or (b) conducted a proceeding in any court in a vexatious manner, the judge may order that, (c) no further proceeding be instituted by the person in any court; or (d) a proceeding previously instituted by the person in any court not be continued, except by leave of a judge of the Superior Court of Justice.

[108] I would firstly note that this issue was not pleaded by the Applicant in her application. The application has not been amended to include this claim. The first time that the issue was raised was in the Applicant’s closing submissions and her affidavit. I am concerned that it is unfair to make a claim such as this at trial when the issue was not pleaded and the Respondent’s pleadings have been struck, disentitling him from defending this claim. This is supported by the legislation; s. 140(1) states that the relief is available where a judge is “satisfied, on application ”; see also Warren v. Gilbert, [2010] O.J. No. 5168 (C.A.) at para. 15.

[109] I will, however, consider the question as if it had been properly raised before the court.

[110] In Dobson v. Green, 2012 ONSC 4432, [2012] O.J. No. 3593 (S.C.J.), Kenneth L. Campbell J. set out the non-exhaustive criteria for an order for a vexatious litigant as follows at para. 9 [citing Lang Michener Lash Johnston v. Fabian (1987), 59 O.R. (2d) 353 (Ont. H.C.)]:

(a) The bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding; (b) Where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious; (c) Vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights; (d) It is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings; (e) In determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action; (f) The failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; (g) The respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

[111] I firstly note that the only proceedings that have been commenced between these parties is the first application begun by Ms. Van, as well as the subsequent application, again brought by Ms. Van, that is presently before the court. Although it is clear that the Respondent is guilty of litigation misconduct, the Applicant has provided me with no clear narrative showing that the Respondent has commenced vexatious motions or proceedings throughout the proceedings. In fact, although the Respondent had often forced the Applicant to bring the matter before the court because of his conduct, Ms. Van brought the majority of motions in this proceeding, at least as reflected by the index to the Continuing Record: Ms. Van brought seven motions to the three brought by Mr. Palombi. There is no evidence before me or record indicating to me that Mr. Palombi would have brought or will bring numerous proceedings which had no chance of success or were duplicative of other motions or proceedings.

[112] It is also acknowledged that Mr. Palombi owes over $30,000 in unpaid costs to Ms. Van. Those costs are reflective of Mr. Palombi’s failure to conduct litigation in a reasonable fashion and costs are the penalty normally suffered by unreasonable litigants. I note that the failure to pay costs is only one of seven criteria cited for an order of this nature and it is noted in Dobson as being only “one factor to be considered”. Failure to pay costs alone is not sufficient in my mind for an order declaring an individual as being a vexatious litigant.

[113] Even had the issue been properly pleaded, I would not have declared the Respondent to be vexatious litigant on the facts in this case.

[114] However, I wish to also consider whether I make an order under Rule 1(8)(e) of the Family Law Rules that the Respondent not bring any future proceedings until he pays his costs, including the costs of trial. Again, this was not pleaded and no motion was brought for this type of relief; in fact, this issue arises from the request of the Applicant that the Respondent not be permitted to bring any further proceedings because of his litigation conduct.

[115] Rule 1(8)(e) reads as follows:

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including, (e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

[116] I note that there is no necessity that any party bring a motion for relief under this rule; all that is needed is a breach of a court order after which the court may have recourse to the remedies under Rule 1(8): see Hughes v. Hughes, 2007 ONSC 10905, [2007] O.J. No. 1282 (S.C.J.) at para. 17. This is confirmed by the fact that, for a finding of contempt under Rule 1(8)(g), the request must be “on motion”; presumably other claims under Rule 1(8) need not be on motion. Moreover, unlike s. 140 of the Courts of Justice Act, the request for this claim need not be mentioned in the application.

[117] It seems unfair to me that the Respondent would be permitted to bring any further proceedings or request anything further from the court when there is more than $30,000 in costs now outstanding and there is evidence that he has also breached other orders for disclosure and regarding the children. [56] If he is given the right to bring further proceedings, the Applicant would then have to incur further costs to respond to that issue when she is already owed a substantial amount in costs, and will also be owed, presumably, the costs of this trial. It adds insult to injury to allow the Respondent to bring further proceedings as against the Applicant when, at the same time, he owes costs to the Applicant; the Applicant would then need to try to collect further costs when the Respondent already owes costs to her.

[118] The claim to name the Respondent as a vexatious litigant is therefore dismissed. However, there shall be an order under Rule 1(8) that the Respondent may not request further relief from the Applicant in the future unless and until he has satisfied all costs awards then outstanding against him arising from this proceeding.

[119] This will not include any request for a review of my access order as noted above. If the Respondent goes through the expense of Dr. Shenfield preparing a plan for therapeutic access as noted above, and she has presented a plan for access which is in the best interests of the children, then I am not going to let costs stand in the way of the best interests of the children. I note that all therapeutic access would be at the expense of the Respondent, and if access can be resumed with the children in their best interests, I am going to encourage that plan be implemented without obstruction.

COSTS

[120] The Applicant shall have her costs of the trial. There is no information provided in the Applicant’s submissions from which I can fix those costs. The Applicant to provide a bill of costs and costs submissions, including any offers to settle made in the proceedings by either party within 15 days of the date of this endorsement. Because the Respondent’s pleadings have been struck, he is not entitled to make submissions as to costs.

ORDER

[121] There shall therefore be a final order as follows:

Custody

(a) The Applicant Mother, Angela Elizabeth Van, shall have sole custody of the children of the marriage, namely, L.P. born […], 2008 and M.P. born […], 2010, and the children shall primarily reside with the Applicant. (b) Where necessary, the Applicant and the Respondent Father, David Michael Palombi, shall communicate with one another regarding issues involving the children via Our Family Wizard. (c) The Respondent’s consent for the Applicant to travel with the said children is hereby dispensed with on a permanent basis. (d) The Respondent’s consent and signature on the said children’s passport applications and/or any subsequent renewals is hereby dispensed with. (e) The Applicant shall be entitled to enroll the children into any extra-curricular activity without the consent of the Respondent. (f) The Respondent may make inquiries of and be given information from the children’s teachers, school officials, all health care providers, and any other person involved with the children.

Access

(g) The Respondent shall have no access to the said children other than at the discretion of the Applicant or as otherwise agreed to between the Applicant and the Respondent. (h) This access order will be subject to a review on the following conditions and circumstances: i. The Respondent may arrange with Dr. Tali Shenfield to prepare a plan for therapeutic access between Respondent and the children with a view to reintegrating him with his children. That plan is to include input from both parties and the children and shall include specifics of any proposed therapeutic access, the estimated costs of the therapeutic access and, if the Willow Centre is to be involved, the services offered by that agency. ii. The cost of preparing the plan is to be paid for by Respondent. Dr. Shenfield need not begin preparing the plan until the Respondent has paid for her estimated costs of the plan for therapeutic access. iii. Once the plan has been prepared and distributed to the parties, the parties may consent to implementation of the plan. If the parties disagree, either party may request a review with the court of my order for no access and taking into consideration the therapeutic access plan prepared by Dr. Shenfield. (i) If the Respondent exercises access to the children, he shall refrain from making disparaging comments about the Applicant or her family in the presence of the children, and shall discourage others from doing so, or otherwise exposing the children to adult conflict. (j) If the Respondent exercises access to the children, he shall refrain from discussing present or past legal proceedings, his financial circumstances or any issues between the parties relating to any such legal proceedings when the children are present. (k) If the Respondent exercises access to the children, he shall not feed the child, M.P. born […], 2010, any food containing dairy or lactose-based products.

Child Support

(l) Based upon the court’s finding that Respondent’s annual income for 2018 is $79,510, commencing on May 1, 2018, he shall pay Guideline child support to the Applicant for the said children, in the amount of $l,203.00 per month. (m) Commencing on June 1, 2018 and on the first of each month thereafter, the Respondent shall pay 50% of the children’s special and extra-ordinary expenses, which shall include but are not limited to uninsured medical, dental, therapy, orthodontics, summer camp, swimming and karate. (n) Commencing on May 1, 2018, and on the first of each month thereafter, the Respondent shall pay 100% of any costs of supervised access visits and/or therapeutic access visits. (o) The Respondent shall maintain the children under any extended health and dental plan as available through his employment.

Retroactive Child Support

(p) Arrears of guideline base child support owing and payable by the Respondent to the Applicant are fixed in the amount of $7,331 as of April 30, 2018. (q) Arrears of special or extraordinary expenses under s. 7 of the Child Support Guidelines owing and payable by the Respondent to the Applicant are fixed in the amount of $1,306 as of May 31, 2018 including the children’s extraordinary expenses then submitted by the Applicant to the Director of the Family Responsibility Office. (r) Support deduction order to issue.

Life Insurance

(s) The Respondent shall maintain and pay all insurance policy premiums when they become due on his life insurance policy available through his employment, in the amount of not less than $146,000.00. The Respondent shall not borrow against the policy and will ensure that the policy remains unencumbered. The Respondent shall designate the Applicant as the irrevocable beneficiary in trust for the children for as long as he is obligated to support the children. (t) If the Respondent’s insurance policy cannot be maintained for any reason, he shall immediately obtain replacement coverage, ensuring no gap in coverage. (u) This order shall serve as an instrument for registration of a lien and first charge against the Respondent’s Estate for the full amount of the policy, if the policy or the full amount of the policy is not in force on his death. All of the beneficiary's rights and remedies against the Respondent’s Estate are hereby preserved. (v) The Respondent shall direct any and all insurers to provide notice to the Applicant of any changes in the policy or policies, including a lapse or termination for any reason. Any payment made by the Applicant to maintain such policy or policies in force shall be reimbursed by the Respondent to the Applicant, or otherwise be a first charge against his Estate. (w) Child Support including the table amount and special and extra-ordinary expenses shall be a first charge against the Respondent’s Estate.

Other

(x) The Applicant’s claim for a declaration that the Respondent is a vexatious litigant is dismissed. (y) There shall be an order under Rule 1(8) of the Family Law Rules that the Respondent may not request further relief from the Applicant in this court or commence any matrimonial proceedings against the Applicant in this court unless and until he has satisfied all costs awards payable by him arising from this proceeding. This paragraph shall not apply to a review of the access brought by the Respondent under paragraph (h) above. (z) The Applicant shall have her costs of the trial. She is to provide a bill of costs and costs submissions, including any offers to settle made in the proceedings by either party within 15 days of the date of this endorsement.

Mr. Justice J.P.L. McDermot

Released: October 18, 2018

[1] Mr. Palombi has gone for extensive periods of time without seeing his children. Firstly, he ceased seeing the children on June 23, 2015 after the first disclosure meeting between Daniel Musselman and the parties. He refused supervised access until January 31, 2016, more than six months later. Supervised access resumed at that point, but L.P. decided not to see her father after she became upset by him calling her a liar on April 30, 2017. Mr. Palombi cancelled all visits with M.P. through the supervised access centre on June 23, 2017. He has not seen the children since then.

[2] RSO 1990 c. C.12.

[3] SOR/97-175.

[4] Tab 14 of V. 2 of the Trial Record.

[5] Tab 1 of the Supplementary Trial Record.

[6] Tab 12 of the Supplementary Trial Record.

[7] Tab 12 of V. 1 of the Trial Record.

[8] Tab 13 of V. 1 of the Trial Record.

[9] Tab 14 of the Supplementary Trial Record.

[10] The second affidavit of Tania Morgado failed to make it into the Trial Record. After some effort, I found it at Volume 19, Tab 17 of the Continuing Record.

[11] Trial Exhibit 1.

[12] Trial Exhibit 2.

[13] R.S.O. 1990, c. C.43.

[14] See Bill C-78 (First Session, Forty-second Parliament, 64-65-66-67 Elizabeth II, 2015-2016-2017-2018 which refers to remedies as “parenting order”, “parenting time” and “contact orders” in place of custody or access orders.

[15] Separation Agreement dated March 29, 2012 at pp. 5 to 6 (Ex. D to the Form 35.1 affidavit sworn by the Applicant on October 30, 2017 (Tab 2D of Vol. 1 of the Trial Record).

[16] Trial Ex. 1.

[17] At pp. 20-21.

[18] Ibid, pp. 21-22.

[19] Ibid, p. 22.

[20] Trial Ex. 2.

[21] Ibid, at p. 17.

[22] This was outlined in the Applicant’s affidavit sworn October 30, 2017 (Trial Record V.2, T.14), in paras. 15 to 32. See also para. 12 of the affidavit of Dr. Tran sworn October 19, 2017 (Trial Record V.1, T.12).

[23] See the Applicant’s affidavit sworn October 30, 2017, Affidavit of the Applicant sworn October 30, 2017, Ex. “I”.

[24] Respondent’s closing submissions, p. 13.

[25] Ibid, para. 53 - 58.

[26] Ibid, para. 94.

[27] Ex. 9

[28] R.S.C. 1985, c. 3 (2nd Supp.)

[29] Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11.

[30] Trial Ex. 9: these were clearly business records, and no objection was made to them being entered.

[31] Respondent’s closing submissions, p. 21.

[32] Letter from Dr. Tali Shenfield to Applicant’s lawyer dated May 5, 2017 (Trial Ex. 12).

[33] Updated Assessment Report of Daniel Mussleman (Trial Ex. 2] at p. 10.

[34] Ibid, p. 9.

[35] Dr. Shenfield was not qualified as an expert in these proceedings and did not sign the expert’s acknowledgement necessary under Rule 20.1(10) before she could give opinion evidence. At best, her evidence was that of a “fact expert” and her evidence as to the views and preferences of the children were corroborated by Daniel Musselman. But as she was not qualified as an expert, she cannot provide opinion evidence to the court, which the statement concerning harm to the children constitutes.

[36] Based upon the fact that the pay period in the pay stub was for week 20 of this year, Mr. Palombi’s income to May 13, 2018 was $1,430.97 per week. Multiplied by 52, Mr. Palombi’s anticipated income for 2018 is $74,410.21.

[37] See s. 19(1)(f) of the Child Support Guidelines.

[38] $74,410 + $5,100.

[39] Ms. Van’s 2016 Notice of Assessment for 2016 attached to her financial statement sworn October 30, 2017 shows income of $68,415 per year.

[40] Mr. Palombi failed to pay his one-half share of the children’s therapy costs as provided for in two court orders dated July 10, 2014 and January 14, 2015.

[41] See the affidavit of Ms. Van sworn October 30, 2017 found at Tab 14 of V. 2 of the Trial Record, para. 132 and exhibits DDD and EEE attached.

[42] See para. 5.9 of the separation agreement.

[43] This table is taken largely from the table found at para. 77 of the Applicant’s Closing Submissions.

[44] Pursuant to separation agreement.

[45] Midpoint between 2013 and 2015 income: see above.

[46] As per temporary Order of Rogers J. dated March 12, 2014.

[47] As per Notice of Assessment attached to the Affidavit of Tania Morgado found at Tab 19, V. 17 of the Continuing Record.

[48] Ibid.

[49] T4 attached to the Respondent’s financial statement and found at Tab 15 of Supplementary Trial Record.

[50] See my findings on income above.

[51] To April 30, 2018: Child support under this judgment commences May 1, 2018.

[52] Ex. A to the Applicant’s affidavit sworn May 7, 2018 at Tab 1 of the Supplementary Trial Record.

[53] Ibid, Ex. B.

[54] Ibid, Ex. C.

[55] $7,331 + $1,306.

[56] For example, the order preventing Mr. Palombi from giving milk products to Mia.