Court File and Parties

COURT FILE NO.: FC-16-2267 DATE: 20181102 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: LYLIANE MARIE LINE BEAULIEU Applicant – and – PATRICK BEAUDOIN Respondent

Counsel: Marta Siemarczuk, for the Applicant Gerald Stotland, for the Respondent

HEARD: October 11, 2018

REASONS FOR DECISION Beaudoin J.

[1] The Applicant brings this motion seeking the following relief:

1. an interim access schedule for the Respondent and the children;
2. interim custodial decision-making with respect to medical, educational, religious upbringing and extracurricular issues;
3. police enforcement for access;
4. a requirement that the Respondent be required to follow the children’s diet when the children are in his care;
5. fixing of child support arrears owed to the Applicant for the years 2014, 2015 and 2016 pursuant to the parties’ Separation Agreement dated June 14, 2014 in the amount of $980,000 or, in the alternative, such other amount is deemed appropriate by this court;
6. ongoing Child support payable to the Applicant from the Respondent based on the terms of the parties Separation Agreement;
7. security for costs payable by the Respondent; and
8. fixing the questioning of both parties.

[2] The Respondent brings a cross-motion wherein he seeks:

1. an order of joint custody of the four children as of January 1, 2019;
2. an order that the children be in his care in accordance with the calendar annexed to his notice of motion;
3. an order that they are being no change of the children’s schools be initiated without his consent;
4. an order authorizing the children to be free to communicate with him and that their privacy rights be respected;
5. a declaration that the June 14, 2014 Separation Agreement is valid and binding;
6. an order for the refund of legal costs incurred due to one year delay of questioning, blocking children’s visits and blocking communications with the children; and
7. costs against the Applicant on the full indemnity basis.

[3] These motions were originally scheduled to be heard on June 18, 2018. Justice Parfett determined that the two hours that were set aside were insufficient to deal with the issues before her. She severed the divorce subject to one condition with respect to life insurance and made an order permitting the children of the marriage to travel to Thailand for the Respondent’s upcoming wedding. The divorce was severed and the divorce order took effect immediately. In the end, the children did not travel to Thailand, but that is a matter for another day.

[4] At the conclusion of the argument, I advised the parties that I would reserve my decision on the motion, but made the following orders pending the release of my Decision.

1. The Respondent father was to have access to the children from Friday, October 12, 2018 at 4:00 p.m. until Sunday at 5:00 p.m. and the following weekend from 19 October, 2018 at 4:00 p.m. until 5:00 p.m. on Sunday, October 21, 2018.
2. Access was to be exercised within the 200 km radius of the city of Ottawa. The Respondent father was to notify the mother of access location 24 hours before access was to commence.
3. The Respondent father was to provide email information for contact, otherwise contact between the parties was to be through counsel.
4. The Respondent father was to respect the children’s current dietary regime within reasonable limits and was to ensure that any homework tasks are completed. The Respondent father was to have further access from November 30 to December 2 and on December 7 to December 9, 2018; any further access would be set out in my Decision.
5. The access order was to be enforced by the Ottawa police services and the Sureté de Quebec.

Background

[5] The parties were married in Ontario on July 31, 2004 and separated during the Christmas holidays of 2013. On the date of separation, the parties were resident in Bermuda. The parties signed a Separation Agreement in Bermuda shortly after separation. That Agreement was drafted by the Applicant with input from the Respondent and it was intended to address all issues. The parties are both well-educated individuals. While the Agreement is drafted in English, it appears, from their e-mail exchanges, that French is the parties’ first language. There is no evidence of any independent legal advice prior to execution of the Agreement, although the Applicant admits that she did consult with counsel at times during the parties’ negotiations.

[6] The parties have four children:

1. Zolia Maeva Beaudoin, born September 10, 2005 (13 yrs of age)
2. Lilirose Myrtilia Beaudoin, born June 18, 2008 (10 yrs of age)
3. India Valentina Beaudoin, born September 28, 2010 (8 yrs of age)
4. Myrokiev Hendrick Beaudoin, born April 22, 2013 (5 yrs of age)

[7] At the outset of her motion, the Applicant made it clear that she is not seeking to set aside the Separation Agreement and that she was asking the Court to interpret it and enforce it.

The Separation Agreement

[8] The Separation Agreement is dated June 8, 2014. It is quickly apparent that it has not been drafted by a lawyer. It contains a number of unusual provisions that do not need to be discussed here. It immediately begins with the issues of custody and access and it indicates that the Applicant will have sole custody of the children. The Agreement then provides that the children will permanently reside with their mother until they are at least 16 years of age, after which time they can decide if they want to stay with their mother or live with their father.

[9] The Agreement provides visitation rights depending on whether the father is living in Bermuda (case 1); or living outside of Bermuda and North America (case 2); or living in Canada or the USA (case 3).

[10] Although they are not signatories to the Agreement, the Agreement extends visitation rights to the paternal grandparents. It has a specific clause for communication with the children when the father does not have visitation rights and it contains an express provision that “each child is free to decide if they want to speak with their father for not.” There is another clause that deals with the possibility of the father obtaining a residence in Canada.

[11] Property division and “money assets” are dealt with in two very short paragraphs; and I note that neither party is seeking any further equalization of their property. Child and spousal support provisions start at page 9 and the Agreement provides as follows:

Children support: for purposes of determining child support for the children, Patrick Beaudoin’s annual income will likely change in the near future if he ends his current employment in Bermuda to live off of his savings and to perhaps make a living differently. To facilitate the payment of child support, the parties have agreed that the child support for the four children will be calculated on a minimum yearly imputed income for Patrick Beaudoin of approximately 302,000 $CAN.

Lilyane Marie-Line Beaulieu does not work and does not have an income in 2014.

Patrick Beaudoin will pay to Lilyane Marie-Line Beaulieu as child support for the children:

a) will pay according to child support guidelines, but subject to a mutually agreed minimum of 70,000 $CAN, which corresponds to an imputed salary of 302,000 $CAN; and

b) 50% of the special or extraordinary expenses as set out in the applicable special or extraordinary expenses sections below;

until there is a change in child support under the sections that follow.

This minimum amount (70 000 $CAN) was arrived after lengthy discussions. The children support minimum of 70,000 $CAN will increase according to inflation each year. If the father is still working after the end of October 2015, the Child Support Guidelines of the Canadian law will then determine the children support, with the two exceptions noted below. But no matter what is his salary, the minimum he will have to pay is still 70,000 $CAN per year. The two modifications made to the child support guidelines are:

1. Gains earned in casinos will be included rather than excluded
2. Only capital gains exceeding 4% per year will be included rather than all capital gains.

If according to the modified Child Support Guidelines, the actual amount that Patrick Beaudoin must pay to Lilyane Marie-Line Beaulieu is above the minimum, then the excess over the minimum for the previous calendar year will be paid with the March 1st payment.

The maximum of child support that the father can pay when he is not working and when his annual revenue is based on capital gains only is 190,000 $CAN per year. However if the father is working and has gains earned in casinos, this maximum is not applicable.

Children support is paid as long as the children are enrolled in school on a full-time basis. This includes primary school, college and post-secondary education. Children support is also paid until the children partly 18 years old. The mother will stop receiving child support for a child that is still enrolled in school but more than 25 years old.

Patrick Beaudoin will pay child support by direct transfer from his bank account to Lilyane Marie-Line Beaulieu’s bank account. Patrick Beaudoin will pay 4 percent interest on any late support payment from the date of default to the date of payment, compounded annually.

The minimum children support to the mother (70,000 $CAN for 4 children) will decrease every time one of the four children is not entitled to receive children support anymore because they will have finished school or because the child has reached 26 years old or because they decided to be under the custody of the father, Patrick Beaudoin (when they were at least 16 years old). Then, the children support will be the following: 60,000 $CAN for three children, 50,000 $CAN for two children and 40,000 $CAN for one child.

If a child ceases to be entitled to child support because he or she has interrupted his or her schooling for any purpose, but he or she later returns to school, then they mother will be entitled to child support for that child again.

Spousal support: whether or not Patrick Beaudoin is working, he will pay 10,000 $CAN in spousal support. This amount will increase according to inflation each year. The spousal support will be paid at the same frequency (6 times per year) as the child support as described above. The spousal support will terminate when the children support will terminate for all the children.

[12] The Agreement goes on to provide for special expenses and the parties agree to pay for these equally, regardless of their respective incomes. The Agreement of both parties is required for the children to attend a private school.

[13] There is no text of the Child Support Guidelines, S.O.R./97-175, as amended (“Guidelines”) and no financial statements are attached. Both parties were aware that the father was earning in excess of $1 million US tax free at the time of the execution of the Agreement.

[14] The Applicant maintains that the Separation Agreement is clear and that the Respondent was to pay child support as follows: for the period June 2014 to October 2015, if he was working, he was to pay child support based on the Guidelines; if he was still working in November 2015, he was to pay based on the Guidelines and include capital gains and gambling proceeds in his income; and, if he ceased working, he was to pay child support based on an imputed income of $302,000 annually.

[15] The Respondent has disclosed his income. It was $1,004,893 US in 2014; $1,038,536 US in 2015 and $817,985 US in 2016. It is conceded that the Respondent is not working at the present time. The Applicant has applied the average annual exchange rate and has grossed up the Respondent’s income on account of income taxes to arrive at income figures of $2,138,783 for 2014, $2,540,583 for 2015, and $2,265,163 for 2016. After crediting the Respondent for amounts paid, the Applicant arrives at a calculation and claim of arrears of child support in the amount of $980,000. According to the Applicant, the Respondent paid a total of $96,998.13 in 2015 and a total of $134,464.07 in 2016. From those totals, the Applicant has deducted $10,000 for spousal support and has also deducted sums for section 7 and travel expenses.

[16] The Respondent takes the position that the amount he has paid is the amount the parties had agreed to in their Agreement. He submits that the parties knew that he intended to retire early and that he would be paying child and spousal support based on income from his investments; and that child support and spousal would be guaranteed regardless of his income.

Interpretation of the Agreement

[17] This Agreement is far from clear. The Respondent was working at the time of its execution and, if the parties wanted to calculate child support based on this high income, they could have easily provided some projected calculations to demonstrate their understanding of the Guidelines. There is no text of the Guidelines and specifically no reference to section 4. There is no mention of a gross-up for taxes.

[18] The Federal Child Support Guidelines provides that, where the support payor’s income is over $150,000, the following applies:

Incomes over $150,000

4 Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is:

(a) the amount determined under section 3; or

(b) if the court considers that amount to be inappropriate,

(i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;

(ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and

(iii) the amount, if any, determined under section 7.

There are two options set out in section 4. The preferred option is not set out in the Agreement.

[19] In the face of this ambiguity, I have looked to any evidence of the parties’ understanding of their Agreement. In her affidavit of May 16, 2017, the Applicant says at paras. 17 i) and j):

i. The Respondent would pay me child support for our four children based on the Canadian Child support guidelines

j. If the Respondent changed jobs, he would pay me child support based on the higher of, his actual income from all sources, including gambling proceeds.

[20] In her affidavit of June 1, 2018, she further expands by saying at para. 24:

Patrick indicates that we had a verbal agreement that I would not ask for child support until 2015 from him in accordance with the guidelines. I acknowledge that we did have this discussion as we had discussions for all other clauses written. For example, one discussion we had was about the option of him simply paying me a lump sum of approximately $3 million on account of everything in exchange for a full and final release, however, that is not the agreement that we ultimately signed. In any event, even in 2015 and 2016 Patrick earned the equivalent of over $2 million of taxable CAN funds. And accordingly, he still did not pay based on the CAN guidelines. What he is ignoring is that his income is tax-free (which is why believe he refuses to live in Canada) and is therefore worth much more than $1 million of taxable income in Canada.

[21] While that affidavit provides some evidence of her current position with respect to the Separation Agreement, it does not assist in appreciating her understanding at the time of its execution.

[22] In his affidavit dated and sworn March 20, 2017, the Respondent says at paras. 28-34:

Applicant’s claims for Child and Spousal Support:

28. Applicant’s claim that I have defaulted on child support payments is false and my response to that claim is the following;

29. In accordance with the Separation Agreement signed by the Applicant and myself, between July 2014 and October 2015, I was to pay to Applicant $70,000 per year in child support based on an imputed income of $302,000, which I have always paid;

30. Pursuant to the Separation Agreement, as of November 2015, child support would be calculated in accordance with the child support guidelines in Canada, and any necessary adjustment to the minimum payment of $70,000 per year would be made on March 1st of the following year;

31. Accordingly, an adjustment was made in February 2016 for the period between November and December 2015, which the Applicant was satisfied with.

32. I also voluntarily paid to Applicant an additional amount of more than $40,000 in August 2016 in good faith and in anticipation of the adjustment which was made in March 2017 of another $62,632. The total child support for 2016 was $166,025.

33. The minimum amount of $70,000 net per year was more than sufficient to meet the children’s needs.

34. Considering the foregoing, I’ve always respected the Separation Agreement signed by the Applicant and myself.

35. With respect to the Applicant’s claim for support in general, I deny Applicant’s allegation that I earn $2,768,600 since that figure is completely fabricated and in no way reflects my true income, as am currently retired as will be explained.

36. I also referred to the Separation Agreement which stipulates that I will pay spousal support to the Applicant in the amount of $10,000 per year, which was negotiated between the Applicant and myself, and this conforms to the prevailing laws of our last common domicile, Bermuda.

37. During the marriage, it was always understood and planned for years that I would retire at around 40 years old and that the Applicant and I would gradually draw from the accumulated assets to support ourselves and the children. This fact played an important role during our negotiations as regards to the available funds in the future.

[23] In his last affidavit dated September 27, 2018, the Respondent points out that the Separation Agreement does not refer to a tax gross up and he says that this was never discussed during the negotiations. The Respondent claims that there is no automatic amount for incomes over $150K CAN. His evidence reflects a completely different understanding of the Agreement.

[24] In her last affidavit, dated October 5, 2018, the Applicant states her understanding:

33. Moreover, by that point in time, it was clear that Zolia was autistic and that Lilirose had severe behavioural issues. While we were negotiating the separation agreement, I was continuously indicating to the Respondent that I would need much more financial support and security for her future and I was asking the Respondent to work for an even longer period of time so that we could set up a fund for Zolia’s future care and living needs.

34. At the end of our marriage however, the Respondent would threaten to quit his job and I would be left with support payments based purely on his capital gains, which he now claims he does not even earn. This was not our joint plan, but his desire was reflected in our separation agreement, which is why it was important to me to pay child support based on the Canadian Guidelines as I was relocating with the children to Ottawa. This is also why we negotiated imputing income to him for the support purposes at a level of $300,000 in the event that he did leave his job.

35. With respect to the Respondent’s allegation that we discussed income tax gross- ups and agreed to not use gross-ups, this is simply not true. We agreed that child support, while he continued to work, would be paid based on the Canadian Child Support Guidelines. This includes calculating his income based on its tax-free treatment. We then agreed that if he stopped working, that the minimum he would pay child support with the guideline amount based on an income of $302,000 per year.

[25] This contradictory evidence is of no assistance. I have examined the parties’ subsequent conduct to the extent that might assist in the interpretation of the Agreement. There is an e-mail exchange drafted in French for which I provide my own translation.

[26] On June 19, 2015, one year later, the Applicant writes that she has been thinking about it and asks when the Respondent will adjust the amount of support having regard to inflation. There is no reference to Guideline support.

[27] The Applicant writes again on February 22, 2016, and acknowledges payments made for the upcoming months of March and April although she does not understand the amount. She refers to the Agreement which provided for an adjustment if he continued working after October 2015. She says that she does not want to start a conflict and she asks him if they can discuss what a reasonable amount should be having regard to all her circumstances. There is no reference to Guideline support. In reply, the Respondent asks her to tell him what percentage needs to be applied.

[28] There is a further e-mail from the Applicant in September 2016, wherein the Applicant expresses her view that since the Respondent continued to work after October 2015, he was to pay child support in accordance with the Guidelines and that the details are available on official websites. No dollar amount is suggested or quoted.

[29] The Respondent replies that he has looked at the website and there is no provision for gross up for income taxes. If the Applicant intended that, it should have been in the Agreement.

[30] In summary, I cannot interpret the provisions of the Agreement on the record before me and enforce the payment of any arrears that may be owing. The facts of this case are completely distinguishable from those in Turk v. Turk, 2015 ONSC 3165 and Boyer v. Brown, 2017 ONSC 501, cases that are cited by counsel for the Applicant. In my view, this issue can only be determined after questioning or at trial. The Applicant is not seeking any change to the amount of support that is currently being paid.

[31] There is a further difficulty in that the relief sought on this motion is nowhere to be found in the original Application where the Applicant seeks orders in relation to custody and access, child support and spousal support. No equalization of property is sought.

[32] At paragraph 4, the Applicant seeks an order that the Respondent be deemed an annual income of $2,768,666, or as may be otherwise determined following full financial disclosure, for the purposes of calculating child and spousal support.

[33] At paragraph 5, the Applicant seeks an order for temporary and permanent child support for the children of marriage in accordance with section 4 of the Guidelines.

[34] With regard to the important facts in support of her claims, the following is stated:

8. The Applicant was unduly influenced into signing this Agreement. The Respondent had sole access to almost all of the parties’ assets and finances and the Applicant needed an agreement in order to achieve some semblance of financial security before returning to Ottawa. Her main concern was that if she left without any agreement, she would have limited means to provide for her children.
9. Moreover, the support provisions in the Separation Agreement are unconscionable given the Respondents true income, as it provides virtually nothing by way of spousal support.
10. The Respondent also failed to provide full and complete financial disclosure during the negotiation of this Agreement.

[35] While it is not set out expressly, her Application indicates that the Applicant is seeking to set aside the Agreement on the bases of duress, lack of disclosure and unconscionability. This is further supported by her affidavits filed in these proceedings. She does not seek the enforcement of the Agreement in her Application.

[36] On the return of the motion, counsel for the Applicant, denied the submission of Respondent’s counsel that she was “cherry picking” parts of the Agreement and was now seeking to enforce only those portions that could be favourable to her client. She conceded, however, that the issue of spousal support was being deferred pending the Court’s decision on her claim for arrears. A claim to set aside the Agreement may be brought at a later date. In my view, an amendment to the Application is necessary to clarify her position.

Questioning

[37] As for questioning, the Applicant maintains that questioning has not proceeded, due to the Respondent’s failure to provide complete financial disclosure. The disclosure issues relate to two items; his credit card statements and his capital gains.

[38] As for the credit cards, the Respondent has provided statement summaries, but the Applicant seeks the details of the expenditures. The Respondent claims to be reluctant to provide those details as they might be shared with the children so as to involve them in the dispute. The parties seemed to agree with my suggestion that this issue could easily be resolved by a confidentiality order stating that this disclosure was to be shared strictly with the Applicant and her counsel and any expert retained by her. This material does not yet form part of the public record in any event, and does not need to be sealed at this time. If an order to that effect is required, that can easily be obtained on consent.

[39] As for the capital gains, the Respondent maintains that there are none since he does not pay any income tax at the present time and that he has sold very little stock. He maintains that the information is available by reviewing his statements of investments that have all been disclosed.

[40] I conclude that there are no issues preventing questioning which should proceed forthwith.

Security for Costs

[41] The Applicant’s bases her claim for security for costs on the fact of the Respondent’s non-residency and she further alleges that he made statements to her that he will simply disappear if matters do not go his way. Rule 24(13) of the Rules of Civil Procedure provides:

ORDER FOR SECURITY FOR COSTS

(13) A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:

1. A party ordinarily resides outside Ontario.
2. A party has an order against the other party for costs that remains unpaid, in the same case or another case.
3. A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.
4. There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.
5. A statute entitles the party to security for costs. O. Reg. 114/99, r. 24 (13).

[42] The Respondent is a Canadian Citizen. He maintains that he intends to return to Canada where his family resides. His parents have a good relationship with the children. He has attorned to the jurisdiction of this Court. He maintains that the allegations made about his intent to disappear are taken out of context.

[43] I note that the Respondent has consistently paid child and spousal support in accordance with his interpretation of the Agreement. The Applicant admits to having received over $220,000 for 2015 and 2016; only $20,000 of that amount would have been taxable as income. Moreover, I cannot find that he is in breach of any court orders. He has provided disclosure, although some details might have been missing; but that issue could have been easily resolved.

[44] He has pursued access to his children whenever he has been in Canada and he is now seeking joint custody. I am satisfied that this is not a tactical move. The parties consented to an order that Dr. Frances Smyth be appointed as the custody and access assessor pursuant to section 30 of the Childrens’ Law Reform Act, R.S.O. 1990, c. C.12. Her report dated September 11, 2018 has been filed on this motion. The Applicant never expressed any belief that the Respondent would abandon his children in the course of that assessment.

[45] The facts of this case are easily distinguishable from the authorities cited by the Applicant. The authorities referred to by both parties suggest that security for costs in custody and access cases should only be ordered in exceptional cases.

[46] The case law suggests that non-residency alone is insufficient to order security for costs. The merits of an opposing party’s claim is a relevant consideration along with a history of breach of court orders. The fact that one party may have more assets than the other is not determinative without looking at the financial picture as whole.

[47] The parties equalized their assets in 2014 and the Applicant is not seeking further relief on that issue. The Applicant is recorded as having received $750,000 in “money assets” upon separation and an additional $1,350,000 for a home. The Applicant’s financial statement of June 1, 2018 discloses a bank account balance of $660,596.72. This has been further reduced to $596,912.00 as of October 3, 2018, but that reduction correlates to the $70,000 in legal fees she claims she has incurred to date. She continues to receive $80,000 annually in child and spousal support, with minimal or no tax liability; she does not seek any current change to that amount. The Respondent’s share of the assets has grown to over $4,000,000, but his ability to post security is not the test.

[48] At the present time, I am unable to conclude that the Respondent is in arrears or that he is default of any court orders. I decline to exercise my discretion to make an order for security for costs at this time, but I leave open the possibility for the Applicant to seek such an order at a later date.

The Children’s Dietary Regime

[49] Three of the four children have special needs. Zolia has been diagnosed on the autism spectrum and has ADHD. A medical report filed indicates that she is also intolerant to fructose. Lilirose has Opposition Defiance Disorder and ADHD; and according to the Applicant, general issues with aggression. According to the Applicant, Mirokyev has exhibited signs of autism. He was tested in 2017 and it was concluded that he was not on the autism spectrum. The Applicant says that he exhibits behavioral and developmental issues. He has been diagnosed with speech delay.

[50] The Applicant says that she has invested significant time and energy into learning how to support the children’s needs and how to stabilize their symptoms through medication and diet. Her research has led her to believe that gluten free and casein free diets have been shown to have positive effects on children with autism and ADHD. She asks that the Respondent be ordered to adhere to their dietary requirements.

[51] The Respondent acknowledges that Zolia and Lilirose have special needs, but he disputes the effect of gluten on their behaviour. He describes long-standing conflicts between Lilirose and her mother. He consulted the children’s doctors (Dr. James and Dr. Ahmed) about the effect of gluten and he says they told him that gluten was unlikely to have any impact on behaviour. He goes on to list the Applicant’s long list of dietary restrictions which he believes illustrates the Applicant’s own obsession with food and her need to correlate everything about the children’s behaviour on what they eat.

[52] Dr. William James is Zolia’s and Lilirose’s pediatrician. In a letter addressed to Applicant’s counsel dated July 15, 2017, he refers to Zolia and says: “with respect to gluten, there is some evidence that this type of diet can be helpful for children who fall into the spectrum.” He goes on to discuss Lilirose and says: “She has also, to the best of my knowledge, been on a gluten-free diet, certainly with Mom and Mom feels that she is doing much better….”

[53] He does not prescribe a gluten-free diet. Dr. James’ letter only reports what the Applicant has told him; this is double hearsay and has very little probative value. I am reluctant to make the Applicant’s dietary demands a term of any order without more persuasive evidence. To do so would expose the Respondent to allegations of a breach of a court order. At the same time, the children are spending most of their time in their mother’s care and it is problematic if the Respondent ignores her concerns altogether. This is a high conflict case. The parties do not need to be looking for new ways to antagonize each other.

Custody and Access

[54] In their Separation Agreement, the parties agreed that the Applicant would have sole custody of the children. As noted earlier in this Decision, the Respondent was to have access in accordance with different scenarios. The Agreement provided for the possibility of joint custody once the children were 16 years of age.

[55] The mother now seeks an order confirming that she should have sole custody and the father seeks an order of joint custody.

[56] There is no question that the Applicant has always been the children’s primary caregiver since separation. According to the Applicant, the Respondent exercised one overnight access to the children in 2014. In 2015, he exercised less than 15 overnights, and in 2016, only 35 overnights. She states that it was not until 2017 that the Respondent had all four children in his care simultaneously, and this was only at her insistence. Prior to that time, she states that the Respondent typically took the parties’ daughters for one visit approximately every six weeks and visited their son separately.

[57] According to the Respondent, he chose to work demanding hours following separation in order to accumulate a sufficient capital base to provide for future support. He has now stopped working, and in his view, he was now able to be more present in his children’s lives. He argues that his attempts to be more involved are being frustrated by the Applicant. While the parties blame each other for the latest conflicts over access, the father’s access to the children was cancelled by the mother between July 2, 2018 and the return date of this motion. Although Justice Parfett made an order permitting the children’s travel to Thailand for their father’s wedding, the travel to Thailand never took place. Once again, the parties blame each other for that result.

[58] Dr. Frances Smyth’s report has been filed with the Court. Not surprisingly, the parties each take issue with her conclusions and recommendations. Dr. Smyth recommends that the Applicant retain sole custody of the children. She recommends that access be increased should the Respondent establish a residence in the Ottawa area in accordance with a schedule of gradual increase to access. I acknowledge that caution must be exercised before implementing the recommendations of an assessor when making an interim order. Wang v. Grenier, 2016 ONSC 5356.

[59] At para. 3 of page 29, Dr. Smyth sets out a possible path to joint custody where she writes:

Given the fact that the conflict between the parents appears to be detrimental to the children it is clear that that need to be taken to help the parents to collaborate and cooperate more effectively regarding the children before the family can move to joint custody. Therefore, it is strongly recommended that the Court appoint a parenting coordinator who can begin to work with the parents as soon as Mr. Beaudoin relocates to Ottawa. It is recommended that the parents meet regularly with the parenting coordinator (i.e. twice per month) while access is being increased and that the frequency of later meetings be left to the discretion of the parenting coordinator. Assuming that Ms. Beaulieu retains sole custody, she should retain final decision-making authority. However, it is hoped that the parenting coordinator can help the parties communicate more effectively so that Mr. Beaudoin’s input to decisions can be considered. If the family situation is reassessed after a year has passed with Mr. Beaudoin living in Ottawa and a move to joint custody is being considered, it is recommended that the parenting coordinator be requested to provide an opinion as to whether the parents can make major decisions together at that point or whether it would be better to give decision-making power to each parent for specific areas (i.e. health, education, religion).

[60] The Respondent now proposes an order for joint custody and has submitted a calendar with alternating four weeks between the Applicant and himself. He proposes that during his four weeks with the children (which include five weekends), that the children be with the Applicant on two of the five weekends in addition to the Monday of the third week. This would ensure that the children would not be more than one week without seeing their mother during the school year. He adds that his new wife is from Thailand and will be relocating to Canada with him. However, it is her intent to continue to care for her aging parents and to return to Thailand with him several times per year. This is the basis for the proposed four week calendar.

[61] In the course of preparing this decision, I received correspondence for the Respondent’s counsel which said that they had just discovered a crucial document regarding the custody issue which was in possession of the Applicant but withheld from the Court. He said that it was essential that this document be made available to me. Not surprisingly, the Applicant’s counsel wrote to me as well and said that the document was not crucial and it was simply a summary of a meeting between the Applicant, the parties’ daughter Lilirose, a psychologist and a psychiatrist. The Applicant was prepared to disclose it but questioned the weight to be given to it at this juncture. Both counsel raised the possibility of reopening the hearing. I then advised the parties that I would review the document in issue and, if in my view the disclosure required a re-opening of the hearing, I would advise them. This is not to be taken as any kind of encouragement to counsel to continue their arguments by communicating with the Court after a hearing has concluded.

[62] The document in issue is a consultation letter from a Psychiatrist, Dr. David Palframan. It is addressed to the Applicant, to Dr. James and to Neeti Sachdeva of the school board’s Department of Psychology. It refers to Dr. Palframan’s meeting with Lilirose. Dr. Palframan reports on that interview where the Applicant was in attendance. He cautions that he has had no input from the Respondent and that this represents a serious deficit in the history he has obtained. He writes: “This deficit in the history however does suggest strongly that there is a constant element of conflict between the parents that has cause significant anxiety in Lilirose.”

[63] Dr. Palframan goes on to provide his diagnostic impression:

Axis 1- Attention Deficit Hyperactivity Disorder of Childhood – mixed type, Family dysfunction.

Axis 2 – Excellent Intelligence

Axis 3 – Apparent good physical health; concerns about gluten intolerance

Axis 4- Ongoing psycho-social stressors including disagreements about access with both parents

Axis 5 – Global Assessment of Functioning 55- 60

[64] Dr. Palframam recommends the continued use of medication to manage Lilirose’s ADHD. As for gluten intolerance, Dr. Palframan writes:

I have suggested to Madame Beaulieu that she proceed cautiously and not fall prey to constant disagreements with her daughter about what the child should or should not eat. It may be that the child may have some mild intolerances, but they are unlikely to be very serious and it is more important for the child to discover for herself what she can eat comfortably than to persist in ongoing conflict which Lilirose will pursue intensely. Having a good relationship with her daughter is probably more important than having the perfect diet.

I would suggest of course to both parents that they do everything in their power to arrange for much less conflict in the parental relationship, more cooperation and more predictability in the access arrangements. I understand the Dr. Fran Smyth has produced a report about this matter. If this report fails to produce a more peaceful environment, Lilirose might need access to the Office of the Children’s Lawyer.

[65] In the end, this letter does not change my conclusions. The children have been in the primary care of the mother since 2014. There is high conflict between their parents and there are opposing views from the parents with regard to the children’s special needs. It is apparent that this conflict is negatively impacting the children. As is common in cases such as this, the parents easily find fault with each other and blame the other for the difficulties the children may be experiencing. The harder task is to find a shared parenting plan that promotes the best interests of these children.

[66] Until such time, I conclude that it is in the best interests of their children that sole custody of the children be granted to the Applicant pending any settlement or trial. The Applicant is faced with the day-to-day responsibilities for four young children, and joint decision-making is simply not possible nor is it practical in the circumstances. An interim custody order simply confirms the status quo. There is no history of shared parenting since separation. An interim custody order might introduce one element of stability in this ongoing conflict. I am not prepared to make an order alternating the primary residence of the children in accordance with the calendar proposed by the Respondent. I do not find it realistic in all of the circumstances. If the Respondent obtains a residence here in Ottawa, his access schedule can, and should be revisited.

[67] At the present time, the Applicant travels to Canada on a monthly basis for a period of approximately 10 days. That schedule permits him two weekend access visits. I am advised that this has been the access pattern that had been in place up until July of this year. I am prepared to make an order for the father’s access to continue on that basis; such access to commence on Friday after school to Sunday evening, for two successive weekends when he is in Canada. I may be spoken to in order to provide further details if necessary. In my view, the access provisions will require very specific conditions in order to avoid any future disputes. The Respondent is to have access to information from the children’s treating physicians as well as to their school records and he is further free to contact their physicians and the children’s teachers for additional information. There should be no change in schooling without agreement of the parties or in the absence of a court order. The Respondent is to have access by Skype or by any other electronic means at a minimum of four times per week between the hours of 6:00 p.m. and 8:00 p.m. (Canadian time) during those weeks when he does not have a weekend access.

[68] The parties are to provide me with their brief submissions as to costs, not exceeding five pages, within 20 days of the release of this Decision.

Mr. Justice Robert N. Beaudoin

Released: November 2, 2018