Court File and Parties

COURT FILE NO.: FS-12-379691-003 DATE: 20190214

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Natasa Lazarevic Applicant – and – Djordje Lazarevic Respondent

Counsel: In Person (for Natasa Lazarevic) In Person (for Djordje Lazarevic) Karen Lindsay-Skynner for the Office of the Children’s Lawyer

HEARD: January 21-23, 2019

Akbarali J.

Overview

[1] Both parties to this proceeding bring a motion to change. Collectively, the motions seek changes to parenting time with the parties’ three children, changes to custody arrangements, and prospective and retrospective changes to child support. In addition, the parties seek various ancillary orders respecting the children, damages, and costs. The Office of the Children’s Lawyer represents the interests of the parties’ children.

[2] In truth, however, the motions to change are not really about the children. They are the latest battle in the war that began between these parties on their separation ten years ago, if not earlier. The Children’s Lawyer described this case as “more clinical than legal”, a description with which I fully agree. Before me, the parties uttered barely a word about their children’s needs, and when they did, it was through the lens of their own wants. Much of their focus was on blaming the other for the utter devastation that their conflict has wrought on their and their children’s lives. It is as if they are stuck in their worst moment in the immediate aftermath of the separation, and the ensuing ten years have provided only fodder with which to build new weapons, and new opportunities to launch them at each other.

[3] This proceeding will not give the parties what they want; neither will get a decision that blames only the other for the terrible situation this family is in. Worse still, this proceeding will not give the children what they need most, which is not really a change in parenting time, but a change in their parents’ behaviour.

Issues

[4] The issues raised before me on this application relate primarily to the parties’ three daughters. I will refer to the oldest daughter as A. She is almost 17 years old. I will refer to the middle daughter as B. She will soon be 15. I will refer to the youngest daughter as C. She is 11.

[5] The parties have raised the following issues for determination:

a. What custodial and parenting time arrangements are in the best interests of each child?

In his motion to change, the father initially sought equal time with each child. He now seeks equal time with B, nine days out of fourteen with C, and suggests that A should choose how she spends her time with each parent. The mother resists any increase in the father’s parenting time. The mother also seeks sole custody of all the children. The father disagrees, and suggests decision-making should either remain the same, or he should have custody of all three children.

b. What ancillary orders should be made?

The mother seeks an order that the father’s wife not be allowed to parent the children, at least with respect to major issues. The father seeks an order that the mother’s partner not be allowed to be in the presence of the children. The OCL seeks orders respecting individual therapy for the parents, A, and B, and joint therapy for A and the father.

c. What is the appropriate amount of child support going forward?

The mother seeks an increase in child support based on the father’s increased income. The father seeks a decrease in child support based on his parenting time proposal that would have two children with him at least 50% of the time.

d. Should there be a retroactive adjustment to child support?

The mother seeks a retroactive increase to January 1, 2018 when the father began his new, higher-paying job. The father states that if any retroactive adjustment is to be made, it must consider his claim that B and C spent more than 50% of their time with him in 2018, and his period of unemployment in 2017 during which he paid full child support.

e. Should any amounts be ordered with respect to s. 7 expenses?

The father seeks contribution from the mother for certain medical and dental benefit related expenses. The mother seeks contribution from the father for certain extra-curricular activities.

f. Should any amounts be ordered in damages?

The father seeks damages for what he claims are the mother’s breaches of court orders. The mother seeks damages from the father as a result of her allegation that he has been spreading falsehoods about her.

g. What, if any, costs order is appropriate?

Both parties are self-represented and seek costs of this proceeding.

[6] Before I turn to the analysis of these issues, I will review some of the background to the parties’ conflict and the prior court proceedings.

Background

[7] The parties married in June 2009. They separated in 2012. The history of their marriage and separation is set out in Mesbur J.’s trial decision from the parties’ original trial in November 2014: Lazarevic v. Lazarevic, 2014 ONSC 7348.

[8] The conflict between the parties after separation was high. Goodman J. sought the assistance of the OCL in June 2013. The OCL agreed to take on the case. Mesbur J. thus had the benefit of a s. 112 report under the Courts of Justice Act, R.S.O. 1990, c. C. 43, as well as the evidence of the OCL clinical investigator at trial.

[9] In her trial decision, Mesbur J. considered, among other things, the appropriate parenting and decision-making arrangements for the parties’ children. At the trial before Mesbur J., the father sought equal parenting time with the children, as he does in his motion to change that is now before me.

[10] Relevant to the motions before me, Mesbur J. made the following findings:

a. The OCL clinical investigator expressed the children’s wishes simply: they wanted the conflict between their parents to stop and they wanted a relationship with both parents.

b. The OCL clinical investigator also described that the children had tried to be “fair” and not hurt either parent. She observed the children are protective of their parents. In spite of their parents doing hurtful things, they love both parents and want a relationship with them. Mesbur J. noted, “[s]adly, the children exhibit more parenting skills than their parents. It should be the parents, not the children, who should focus on being fair, protective, and not hurtful”.

c. The OCL clinical investigator concluded that the real issue in the case was the lack of respect the parents have for each other and the quality of the relationship the children have with their respective parents.

d. The clinical investigator observed that A and B would like to feel loved by the father in the same way C feels loved by him. The clinical investigator observed that the father needs to listen to A and B, and needs to learn how to develop a positive, emotionally safe relationship with his daughters and to stop blaming the mother for his relationship with the children.

e. The clinical investigator said that the father was “so focused on his palpable dislike and mistrust of [the mother] that this has blinded him to his own responsibility and accountability for his relationship with the children”. Mesbur J. stated that she observed the same thing during the course of the trial. She noted that the father had nothing positive to say about the mother, criticized her constantly, and belittled her as a parent, a wife, and a human being.

f. Mesbur J. accepted the mother’s contention that the father sought equal time with the children primarily to avoid having to pay table support for the children. She noted that the father was “obsessed” with the idea of equality.

g. Mesbur J. noted that “the conflict between the parents has been extraordinarily destructive to these children. Both parents are to blame.” She referred to the father’s “rigid, relentless and controlling attitude”, and foreshadowed his attitudes being applied to his daughters in the future.

h. Mesbur J. also expressed concern about the children’s continued exposure to parental conflict. She noted the clinical investigator’s recommendation that the children receive counselling, and that the parents receive individual counselling. She stated, “I could not agree more with this recommendation. I only hope it is not too late for these children. I also hope it is not too late for these otherwise intelligent, caring parents to gain some insight into how destructive their conflict has been for their daughters.”

i. In the result, Mesbur J. concluded that the children would remain in the primary care of the mother, and reside with the father every other weekend, and one Wednesday overnight in week one. In week two, she ordered one separate evening visit with A, B, and C. She also ordered counselling for the children. With respect to decision-making, she left day-to-day decisions with the parent who has the children in their care, and ordered that major decisions would be made by the parents first consulting one another and attempting to agree. If no agreement could be reached, she held that the mother would ultimately make the decision.

j. Mesbur J. concluded her discussion of the parenting issues with a warning: “I hope the parents will be able to put their children’s needs ahead of their own and end the conflict between them. If they fail to do so now, their daughters’ future will be bleak indeed. Each girl has clearly articulated a wish for an end to parental conflict. Only the parents can accomplish this. They must do so in order to assist their daughters in growing up to be the happy, well-adjusted women they hope to be.”

[11] A motion to change child support was brought before Myers J. on December 29, 2015. At that motion, he changed the child support arrangements to, among other things, set monthly child support in the amount of $1,628.13 per month beginning April 1, 2016. After addressing the financial issues, Myers J. noted the parties’ submissions about each other, including the father’s submission that the mother is “full of hate and makes his life and the children’s lives miserable”, and the mother’s submission that the father lies.

[12] Myers J. wrote that “the children are necessarily hurt by ongoing disputes between the parents. Taking badly about the other parent is like torturing a child.” He then implored the parties to find a way to settle their arguments and communicate decently and factually, without judgment or complaints. He wrote:

Start today – right now. No more accusations without real evidence. No more telling the other what you think of their ideas or plans. You can say “I disagree” without labelling the other a liar or being motivated by hate.

[13] Myers J. directed the parties to mediation services and to the OCL for recommendations for helpful services and available programs to help them communicate better.

[14] The mother began her current motion to change Myers J.’s order on February 28, 2017. In it she seeks sole custody of the children, and adjustments to child support based on her allegation that the father is not adequately disclosing his income.

[15] The father brought a motion to change Mesbur J.’s order on March 7, 2017. In it, he seeks equal time with all the children, custody of the children and adjustments to child support.

[16] These are motions to change that are before me.

[17] In the course of the motions to change, with the assistance of Goodman J., the parties entered into a temporary consent order with respect to parenting time, to address a logistical challenge. At the time of the order, both B and C attended a school much closer to the father’s home than the mother’s, and sometimes had early morning sporting activities at school. The mother’s work hours begin at 4 am. As a result, to facilitate B and C getting to school for their sports activities, the parties agreed that the father would have parenting time with the children as follows:

a. A. – as she wishes;

b. B – In week one, Wednesday overnights. In week two, Wednesday, Friday, Saturday and Sunday overnight. In addition, if B has a scheduled sport activity that precedes the school day, she may stay overnight at the father’s home if she prefers to do so rather than stay at the mother’s home.

c. C – In week one, Wednesday overnights. In week two, Wednesday, Friday, Saturday and Sunday overnights. In addition, if C has a scheduled sports activity that precedes the school day, she will stay overnight with the father.

[18] With the assistance of Goodman J., the parties also agreed to counselling for A and B. C was assessed for counselling and it was determined that she does not need it at this time. The parties also agreed to attend family therapy. Unfortunately, the sessions involving both the mother and the father were not successful, and very quickly broke down.

[19] Despite a number of conferences before Goodman J., the parties were ultimately unable to resolve the parenting and custody issues on a permanent basis. They have been unable to control the conflict that rages between them. Despite Mesbur J.’s warnings, despite the concerns expressed by the OCL, and despite Myers J.’s direct plea to the parties, the war continues, unabated.

[20] With this background, I turn to the analysis of the custodial and parenting arrangements for each child.

The Framework for the Determination of a Motion to Change Custody and Parenting Time

[21] The motions to change are brought under s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Section 17 provides, in part:

(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

[22] Although not the applicable statutory provision, the legal framework for determinations of custody and access set out in s. 24(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, assists in identifying factors relevant to children’s needs and circumstances. It provides that an application for custody of or access to a child shall be determined on the basis of the best interests of the child. It then describes factors that must be investigated in determining the child’s best interests:

Best interests of child

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

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

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

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

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

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

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

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

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

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

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

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

Has there been a material change in A’s circumstances necessitating a variation in the custody order, and if so, what order is in A’s best interests?

A’s Needs and Circumstances

[23] A is the parties’ oldest child. She is almost 17 years old. Of all the parties’ children, A is struggling the most. The separation and conflict has been hardest on her.

[24] Nancy Webb, an OCL clinical assist, gave evidence at trial. She has met with the children seven times, most recently less than a week before the trial began. She has been involved with the family since July 2017. I will review her evidence about the children’s views and preferences in more detail later. At this juncture, I note Ms. Webb’s description of A as very mature for her age, strong-minded, reflective and empathetic. She acknowledged that A had made some mistakes with her parents, as teenagers do, but Ms. Webb had found her able to take ownership of those mistakes. Ms. Webb expressed A’s love of her parents, and her loyalty to her sisters.

[25] Ms. Webb said that the parents’ conflict has had a tremendous impact on A. Notwithstanding, she described A as a child who has done remarkably well in the situation she is faced with, and as committed to her schooling.

[26] A has been diagnosed with ADHD and may have other conditions. She is currently in counselling, with regular sessions every two weeks. This therapeutic relationship is positive for A, and she wants to continue her therapy.

[27] A has experienced conflict with both parents, and with their partners. She is also affected by the conflict between her parents.

A’s Relationship with the Father

[28] The father, as I have noted, has remarried. He lives with his wife and one of her children. The wife has a second child who attends university and lives away from home.

[29] The father expresses his love for A; however he says she is on the “wrong track”, and has integrated the least well of all the children within his blended family. He states that A needs boundaries, and blames the mother for not parenting A properly. Throughout the trial, he made reference to what he described as A’s illegal and criminal behaviour.

[30] On May 6, 2017, A, who was then fifteen, had a party without permission at the home the father shares with his wife while the father, his wife, her child, B, and C were at the family cottage. The father states 90 teenagers were there, and they were drinking and taking drugs. He states that there was damage to the walls of his house. He blames the mother for not properly supervising A on the weekend A held the party. The mother states she only learned of the party after it was over.

[31] The father’s reaction to the party was, together with his wife, to write A an email about it. In the email he refers to the “illegal and destructive behaviour” she engaged in. He reported his expectations, including (i) an apology in person; (ii) “proper amends” by coming and cleaning up the damage as well as paying for new locks, wall repairs and repainting. He stated, “[u]ntil such time as these amends are made you are not to come to the house under any circumstances”. He then went on to say that until he had received an apology he would conclude that A had decided to live with the mother full-time effective immediately. This, of course, was not A’s decision, but the father’s and his wife’s decision, and contrary to the court-ordered parenting schedule. The father also refused to allow A to attend a family vacation at a camp that was planned for the summer, and refused to allow A to stay with him during the mother’s planned trip to Serbia that summer.

[32] The father went on to say that A no longer had permission to be in his house. He wrote, “[i]f you do enter without our permission you will be reported to police and charged”.

[33] He concluded by expressing love for A, and said he was “completely distressed that [their] relationship [had] come to this and we mean so little to you.” He then said, “[w]e hope you can find a way to heal over time and reintegrate into our family in the future”.

[34] The mother testified that after the party, A spent a lot of time in her bed, crying. On June 6, 2017, the mother came home from work and found A passed out on the floor. She had attempted to overdose on over-the-counter medication. The mother called an ambulance. A spent 10 days in hospital as a result of this suicide attempt.

[35] While she was at the hospital, both parties were also at the hospital, but the parties could not be together, finding even joint meetings with hospital staff difficult. At what can only be described as a traumatic and grave crisis when A’s wellbeing and her very life were in jeopardy, the parties still could not set aside their conflict to focus on her.

[36] When asked on cross-examination how he felt now about the email he wrote then, the father stood by it. Even when the children’s lawyer asked him whether writing about A’s “reintegration” into the family in the future would signal to A that she was not, at that moment, part of the father’s family, he was steadfast that he had done the right thing, because A needed boundaries.

[37] The father states that A has had two other “parties” since that time. I understand one was in March 2018 when the father states she gathered with a few friends at his home drinking. Not much was said about this incident.

[38] The father also gave evidence about a “party” in December 2018. It appears the December “party” may have been A getting ready at the father’s house with a friend for a party they were going to elsewhere. A couple of other friends may have stopped by the father’s house on the way to the party. Ms. Webb described this as A taking a few friends to her home. However, the father’s reaction made clear to A that she could not treat his home like her home.

[39] After this December 2018 incident, the father and A had a conversation about it at the father’s home. During the conversation, the father says A asked if she would still be allowed to travel with the father’s family to California during a trip that is planned for this upcoming March. He said they first had to deal with this party. A grew upset, went to the front door and started banging and kicking it. The father says he tried to get her to stop but she would not. The father’s wife then called the police. The father is very quick to say it was not he who phoned the police about A, but he also supports the wife’s decision to do so.

[40] I am troubled by the father’s apparent ease with invoking or involving the police when parenting gets difficult, and his penchant for using language of criminality to describe A’s teenage mistakes. I am troubled by how he washes his hands of her when she behaves in a way he does not approve of.

[41] The mother testified that in December 2018, A made threats of suicide. The mother telephoned the police, who came to the apartment. The mother says A understood the police would take her to the hospital, where she did not want to go, so A sought to reassure the police that she was fine. The threats may have been precipitated by the mother denying A her wish to wear the mother’s gold earrings. It is not clear to me whether these threats were made before or after the incident with the father about the December party, and whether they have any relationship to the conflict with the father.

[42] In any case, the father is fixated on the “parties”. In cross-examination of Ms. Webb, he expressed surprise at her evidence that A was reflective, and had taken ownership of her error in throwing the party in May 2017. He said he was waiting for her to do exactly that. He wondered how she could have taken ownership of that mistake and yet had another “party” afterwards.

[43] Ms. Webb explained that teenagers often need to be told things repeatedly before they can integrate them, and that teenagers make mistakes. She also explained that a child needs to feel that the parent will not ultimately reject them, no matter what mistakes they make. Shortly thereafter, the father told Ms. Webb that “when things were going well [A] was part of the family.”

[44] I have laid out this evidence in some detail because I think it is instructive to understand the father’s mindset.

a. Just as Mesbur J. foreshadowed, the father’s rigid, controlling attitude has now been aimed squarely at A. He allows her into his family when “things are going well”, and excludes her when they are not. I accept that the father loves her, but the conditions he places on his love are heartbreaking and damaging to A. I will come to the effect of these on B and C later.

b. He demands atonement from A in the form of apology, reparations, and changed behaviour. In the meantime, he takes no responsibility for the difficulties and stresses A is under, either through his marginalization of her or his part in maintaining the conflict with the mother. He asks for a level of reflection, responsibility and maturity from A that he does not display himself. Amazingly, as Ms. Webb testified, A has demonstrated the ability to self-reflect and take ownership of her mistakes – something that has never been modelled to her. Indeed, when before me, the father repeatedly disavowed any responsibility for the situation with this family, saying “[t]he problems are not with me.” He is wrong. His conduct is part of the problem.

c. The father’s primary concern is keeping peace in his new, blended family, and not with the best interests of A. He prefers his own interests to hers.

A’s Relationship with the Mother

[45] The mother is more understanding of the difficulties A is facing. She provides a more accepting environment for A. However, her home is not without problems either. The most serious of these is her partner, Mr. S.

[46] Mr. S has engaged in behaviour towards the children that was troubling enough for the Children’s Aid Society of Toronto to become involved, and remain involved, with the family. (CAST is also involved due to its concern about the effect of the parents’ conflict on the children.)

[47] Claudia Spirito of CAST gave evidence about Mr. S’s behaviour which has concerned it. This includes Mr. S striking C in church, and making other intimidating and threatening physical motions towards her.

[48] The behaviour has also included very troubling messages sent to A. The father testified, and the mother agreed, that mere weeks after A’s suicide attempt, through text messages, Mr. S told A that she was fat, ugly, and that nobody wanted her. On another occasion, he used a Serbian word to refer to her that means something like “prostitute” or “whore”.

[49] The mother does not exactly support this behaviour, but neither does she adequately disavow it. Ms. Spirito explained that when CAST and the OCL raised with the mother that Mr. S had called A a “prostitute”, the mother was offended by their comments, and indicated that A had been going out late and drinking. The mother was inappropriately defensive of Mr. S. Ms. Spirito pointed out what should have been obvious to the mother: she should be protecting the children, and not allowing Mr. S to put A down.

[50] CAST explained repeatedly that all three children did not feel safe around Mr. S. Three times the mother agreed with CAST’s request to keep him away from the children, but despite that, she kept allowing him to come back. The mother states that since the last time she promised CAST he would not be around the children, he has not been to her home while they are there. This is about a three month stretch of time during which the children have not reported seeing him. However, CAST remains concerned because the mother has repeatedly gone back on her word and invited Mr. S back to her home, notwithstanding her knowledge that his presence makes the children feel unsafe.

[51] The children feel unsafe with good reason. There have been repeated calls to police from the mother’s home, including calls involving Mr. S. Recently, A called the police when Mr. S was making threatening motions towards C. In doing so, A demonstrated a protectiveness towards C that the mother fails to show. The mother’s inaction has placed A in the position of being the parent when she is still at an age when she should be free to be a teenager. Mr. S’s actions towards the children are entirely unacceptable. I have no confidence that Mr. S is truly out of the children’s lives for good. Rather, I suspect the mother has kept him away pending this trial, but I am concerned that he may be back shortly after these reasons are released. The mother is incapable of seeing the primary importance of creating a home for the children where they feel safe and secure. She prefers her own interests to those of the children.

[52] In part, this is because the mother remains fixated on the conflict with the father. She does not understand why the father’s wife should be in a different position than her partner, Mr. S. I recognize that there has been conflict with the father’s wife, largely arising out of the father’s and his wife’s joint decision to exclude A from their blended family, placing their own needs before A’s. However, Mr. S is independently and actively endangering the children. Just as the father is fixated on equality of parenting time, the mother is fixated on equality of status for their respective partners. Neither parent is thinking about the children’s needs.

A’s Views and Preferences

[53] Ms. Webb gave evidence about A’s views and preferences, which have been consistent over time. Ms. Webb believes these views were arrived at independently. A seeks to be able to spend time with each parent according to her own wishes. Ms. Webb expressed A’s desire to attend counselling with her father to improve her relationship with him, and to continue her own individual therapy.

[54] The children’s lawyer noted that, at A’s age, there are no contemplated major decisions. A is old enough to make her own health care and educational decisions. The children’s lawyer thus seeks an order that A be allowed to make her own decisions and spend her time with each parent as she wishes.

Conclusions Respecting Custody and Parenting Time for A

[55] In my view, there has been a change in the condition, means, needs or other circumstances of A since Mesbur J.’s order that requires a variation of her order with respect to custody and parenting time. Specifically, A’s fractured relationship with her father, the fact that she has grown older and expressed her views and preferences, and the difficulties with the mother’s partner are all changes in A’s circumstances that require a variation of the original order. The question is, what order with respect to custody and parenting time is in A’s best interests, having regard to the change in circumstances?

[56] While I accept that both parents love A, it is clear from the foregoing that neither parent is capable of placing A’s interests above their own. The father applies rigidity and conditions to his relationship with A, when he needs to apply understanding, love and acceptance. The mother does a better job of accepting A, but still subordinates A’s needs to her own.

[57] In these circumstances, and given A’s age and maturity, I am of the view that A should be in charge of her own decision-making. She is the only person who can be trusted to put her interests first when making decisions that affect her.

[58] I am also of the view that A should be entitled to spend time with each parent as she chooses, including during holiday periods. The parties accept that A is likely to spend most of her time with the mother.

[59] In addition, I have determined it is in A’s best interests to make a series of orders respecting therapy. In my view, I have the jurisdiction to make these orders under ss. 16(6) and 17(3) of the Divorce Act, which allow me to make to impose terms, conditions or restrictions in connection with an order for custody as I consider fit and just. The circumstances that I have reviewed make plain the emotional damage that the parents have caused and continue to cause to A (as well as the other children, which I describe below). As a result, it is fit and just to order the following terms regarding therapy:

a. I order the parents to facilitate A’s ongoing therapy.

b. I also order the parents to each engage in individual therapy. Perhaps there is some hope that with individual therapy, they may eventually come to gain some insight into how their behaviour is hurting their children.

c. In addition, I order the father to engage in separate family therapy with A.

[60] The children’s lawyer described A as having no one. This is heartbreakingly accurate. She has no home that is completely safe, loving and accepting. That she is doing as well as she is in these circumstances is a remarkable testament to her resilience and fortitude. I ask the children’s lawyer to convey a message to A from me. I want A to know that I am proud of her, and that I have faith that she can make a good and happy life for herself, because she has already proven how strong she is.

Has there been a material change in B’s circumstances necessitating a variation in the custody order, and if so, what order is in B’s best interests?

[61] B will soon be 15 years old. She is in her first year of high school.

[62] Ms. Webb described B as very mature – more so than her peers of the same age. B has a sweet, gentle nature, and can be shy and cautious, but is also very determined. B is very loyal to her sisters and to her parents. B is a good student, and very athletic. More than her sisters, however, B appears to be influenced by the pressures put on her by her parents. Her views and preferences, which I will address in greater detail later, were the most inconsistent of all the children. Ms. Webb thought B was influenced the most by the events happening in her life.

[63] Like A, Ms. Webb testified that B is also affected by the conflict in the family. She has recently been receiving therapy at CAMH, but the therapist is no longer with the organization. Apparently CAMH is trying to arrange a new therapist for her. B wishes to continue in therapy as she finds it helpful to her. Ms. Webb said B needs help navigating the conflict in the family.

[64] Overall, B has a good relationship with both her parents, but I have concerns about each of them.

[65] First, the father. In court, he said that B, and also C, have “turned the corner”. He made reference to their “recovery” which I understood to mean from the conflict of the separation. The father seems to think that because B is achieving at school and is generally well-behaved that everything is fine. It is not.

[66] There can be no recovery for B (or any of the children) while the parents continue their conflict; the children are still being hurt. Moreover, with B just about to turn 15, it is entirely possible that she will go through behaviours that are typical of many teenagers. What will the father do then? I am concerned that, as with A, he will apply the same rigid and unforgiving “boundaries”, and do damage to B as he has done to A.

[67] Even if he does not, B has seen what happened to A when she did not toe the line. She will naturally feel insecure about the conditions attached to the love her father feels for her. Ms. Webb gave evidence that it is not good for siblings to see one sibling being treated in an unequal manner. In the parties’ earlier trial, Mesbur J. noted that B had expressed a wish to feel as loved by her father as C feels. There is a history of B feeling insecure about her father’s love. I am concerned that this situation has the potential to get worse, not better, through B’s high school years.

[68] I am also concerned about the father denigrating A in front of B and C. The mother testified about her belief that the father does this. I accept that her concern is reasonable, having regard to the ease with which the father uses language to criminalize A’s behaviour, talks about her being on the wrong track, and makes statements about A not being part of the family. Listening to the father or others in his family denigrate A would be damaging to B, who has a loyal and protective relationship with A. Hearing the father or others denigrate A would also underscore for B the consequences for a child who does not toe the line in the father’s home.

[69] Neither is the situation at the mother’s house ideal. I have already reviewed the many issues around Mr. S. Although the evidence at trial did not focus on any behaviours of Mr. S directed towards B, the evidence of Ms. Spirito was clear that all three children feel unsafe in Mr. S’s presence. There is thus risk to B at her mother’s house as well.

[70] In addition, my earlier observations that neither parent was capable of putting A’s interests above their own applies equally to B. The parents are so wrapped up in their conflict with each other and their own needs that I have no confidence they will be able to put B’s needs first if her needs should conflict with their own.

[71] Like A, B has displayed remarkable resilience. She is succeeding on many fronts, despite the terrible pressures she is under as a result of her parents’ conflict. But she is rounding into challenging years for any teenager, and she remains at grave risk from the parents’ conflict.

[72] Ms. Webb explained that B’s wishes and preferences varied over time according to the circumstances. Initially B wanted four to six days a month more with her father. However, Ms. Webb noted that in the past, B has tended to stay with one parent over the short term when there had been arguments with the other. By October 2018, B wanted to live with her mother, see her father every other weekend and have some flexibility with her schedule. She has expressed concern about going back and forth during the school week, which she finds disruptive. Just before the trial she indicated she would like to do a trial week-about with each parent. She also wishes to be with C as much as possible.

Conclusions Respecting Custody and Parenting Time for B

[73] In my view, there has been a change in B’s condition, means, needs or other circumstances since Mesbur J.’s order that requires a variation of the custody and parenting terms of the order. Specifically, B is affected by the parties’ conflict to such a degree that she needs therapeutic assistance in navigating it. It is very important for B that the conflict between the parties be managed as much as possible for her to grow into a healthy, well-adjusted woman. She is at risk from the parents’ conflict, and also from her father’s controlling and unforgiving attitude (which gives me particular concern given her age), and from her mother’s partner. The question is what order is in B’s best interests having regard to these changes in her condition and circumstances.

[74] B is a very mature teenager. Had she different parents, I would have no hesitation in leaving it up to B where she spends her time, allowing her a trial period of a week-about schedule, or working flexibility into her schedule.

[75] But B has the parents she has. The parents cannot cope with a trial period. They cannot cope with flexibility. Any hint of flexibility in B’s schedule will lead each parent to pressure B relentlessly to spend more time with them at the expense of time with the other. B is most influenced by the pressures her parents place on her. Thus, while I wish I could give her all the flexibility she wants to determine her own schedule, I do not believe it is in B’s best interests to do so when the result will be near-constant haranguing from each of her parents to spend more time with them.

[76] Accordingly, I see no option but to define a schedule for B, in the hope of minimizing the potential for the parents’ conflict to do damage to her. I order a week-about schedule for B. In week one, she shall reside with the mother, and in week two, she shall reside with the father. Changeovers shall take place on Sunday nights at 7 pm, after dinner. B shall have a dinner visit with the parent with whom she is not residing on Wednesdays, from after school until 7 pm. This schedule will also maximize her time with C, which I describe below.

[77] The parties have sought only changes to the regular schedule, so I make no adjustments to the holiday schedule ordered by Mesbur J.

[78] In addition, I make the following fit and just orders:

a. The parents shall arrange to re-establish B’s therapy at CAMH as soon as possible and shall facilitate her attendance.

b. The father shall not denigrate A in the presence, or within earshot, of B, nor allow third parties to do so.

[79] With respect to decision-making, I note that there are no major decisions looming in B’s life. Given her maturity, like A, she is capable of making her own health care and educational decisions. In these circumstances, where the parents cannot place their children’s interests first and agree on major decisions relating to B’s education, health and well-being, I find that B is able to and shall be entitled to make her own decisions. Like A, she is the person who can be trusted to place her own best interests first.

Has there been a material change in C’s circumstances necessitating a variation in the custody order, and if so, what order is in C’s best interests?

[80] C is an 11 year old girl. Ms. Webb describes her as quiet, strong, and respectful. Like B, C is a good athlete and does well in school. The mother described C as a child who tries to do everything right, and to follow the rules. Both Ms. Webb and Ms. Spirito testified that C is very affected by the parental conflict. Ms. Spirito expressed concerns that, as C grows older, she is becoming more aware of the conflict and Ms. Spirito is seeing signs that C is not coping well with it. C was assessed for therapy, and the parents were told that she does not need it at this time. C does not currently wish to be in therapy.

[81] Although C is reportedly happy with both her parents, I have concerns for her as well. As with B, the father says C has “recovered” (presumably from the separation) and “turned the corner”. I do not think this is an accurate description. First, as I have already said, there is no recovery to be had while the conflict between these parents continues. C is still being hurt. Second, Ms. Spirito has expressed concerns about C’s ability to cope with the conflict becoming worse, not better, as she grows older and becomes more aware of the conflict.

[82] To this I add that, as C grows older, she may face the challenges that many teenagers face. I am concerned about the father’s ability to parent her when she is not “following the rules” or “doing everything right” – the things the mother says C tries so hard to do now. By his treatment of A, the father has signaled to B and C that his love is conditional. As I have earlier described, I am also concerned with the father or others denigrating A in front of C, which would not only be harmful to C’s close relationship with A, but also highlight for C the consequences in the father’s home for a child who does not “do everything right”.

[83] In the mother’s home, C is at risk from Mr. S., who has already struck her twice in church and behaved in a physically threatening manner to her on other occasions. As I have already noted, the mother has placed her own interests and need for “equality” among her partner and the father’s wife over the needs of the children to have a safe and secure home.

[84] In addition, there is a logistical challenge in the mother’s home due to the mother’s working hours. C has some early morning activities at her school, and it is challenging for her to get herself there from her mother’s house without adult assistance. Her mother has been unwilling or unable to find a responsible adult to take C to school from her house on those mornings. As a result of these challenges, the father seeks an order that C reside with him nine days out of fourteen, so he can get her to school early for her activities.

[85] Ms. Webb described C’s views and preferences in her evidence. She expresses a wish for a week-about with each parent, with a mid-week overnight at the other parent’s home. She described this as a “50/50” arrangement, a phrase Ms. Webb said is unusual for a child to use. She prefers not to be away from either parent for more than four days. She also wants the dog, Rosie, to travel with her. The parties both indicated that, thus far, Rosie stays wherever the majority of the girls are. The parents are amenable to transferring Rosie between them in a way that keeps her with B and C as much as possible.

Conclusions Respecting Custody and Parenting Time for C

[86] In my view, there has been a change in C’s condition, means, needs or other circumstances since Mesbur J.’s order that requires a variation of the custody and parenting terms of the order. Specifically, as C has grown older, she is becoming more affected by the parties’ conflict and is increasingly at risk as a result of it. This necessitates a variation in the order respecting custody and parenting time for C that will calm the conflict down. The question is what order is in C’s best interests, having regard to the change in circumstances since Mesbur J.’s order?

[87] I accept that C’s preference is for equal time with each parent. However, I note Ms. Webb’s evidence that C talked about “50/50” time with each parent, which is not a phrase a child normally uses. In my view, as foreshadowed by Mesbur J., the father has been relentless about pursuing equal time, and this has contributed to the conflict between the parties. I doubt that C’s wish for equal time is an expression of where she wants to spend her time; rather, it is a reflection of her wish that the conflict between the parents end. To C, the best way to accomplish this is an equal time arrangement. Thus, her expressed views and preferences stem from a desire to end the parents’ conflict. How sad that C has to seek to alter her circumstances to try to end the conflict between the parents.

[88] However sad, in my view, C is correct that an end to the conflict is in her best interests, and an equal time-sharing arrangement may assist in at least settling the conflict down. Accordingly, I order a week-about schedule for C. In week one, she shall reside with the mother, and in week two, she shall reside with the father. Changeovers shall take place on Sunday nights at 7 pm, after dinner. C shall have a dinner visit with the parent with whom she is not residing on Wednesdays, from after school until 7 pm. This schedule will also maximize her time with B.

[89] I have ordered a dinner visit rather than an overnight in part to keep B and C together as much as possible, and reflecting B’s concern that she not move between the parties’ homes too much so as not to disrupt her schedule. In my view, a dinner visit accomplishes the important thing – a connection between the children and the parent with whom they are not residing part way through the week-about schedule – without adding the disruption of a mid-week overnight to the children’s schedules.

[90] To deal with C’s early morning sporting activities, I order the mother to make arrangements for a responsible adult, or A, or B, to take C to school during week one on any day she has an early morning activity. For any morning the mother has been unable to make such arrangements in advance, and C has an early morning activity at her elementary school, C shall spend the night before at the father’s house from 8:30 pm.

[91] Rosie shall spend week one with the mother and week two with the father.

[92] The father shall not denigrate A in the presence, or within earshot, of C, nor allow anyone else to do so.

[93] The parties have sought only changes to the regular schedule, so I make no adjustments to the holiday schedule ordered by Mesbur J.

[94] It is not appropriate to leave decision-making for C in her own hands, given her young age. However, my concerns remain about both parents’ ability to place C’s needs before their own, if there should be a conflict. In addition, I accept the father’s evidence that the mother is not consulting him on decisions as she is required to do by Mesbur J.’s order.

[95] Accordingly, I order that day-to-day decisions for C shall be made by the parent in whose care she is. The parties shall consult and attempt to agree on major decisions involving C. In doing so, they shall have regard to the advice of any experts involved in the decision, such as C’s doctor in the case of health care decisions, and her teachers in the case of educational decisions. If, despite receiving advice from professionals and attempting to agree, they cannot reach agreement, then either party may apply to the court to have the major issue determined.

Ancillary Orders

[96] I have already addressed the OCL’s request for orders respecting therapy. The mother seeks an order that the father’s wife not have any parenting rights over the children, while the father seeks an order that Mr. S not be allowed to be in the presence of the children.

[97] During the trial, the mother clarified the order she sought. She stated that she wanted an order that the father’s wife not be allowed to set the children’s schedule. She is concerned that the wife is driving or participating in the exclusion of A from the father’s home. However, the mother agreed that the wife had to be able to exercise some control over the children when they are in the home the father and his wife share.

[98] The mother’s requested order is not practical. In reality, the responsibility for the problems between A and her father lies with the father, not his wife. While I am concerned that he is prioritizing the needs of his blended family over the needs of A, this is something the father must fix. I cannot make orders that would, in essence, be geared at regulating how the father and his new wife manage the challenges that may arise in their home due to their blended family. It is the father’s responsibility to fix things with A, and to parent B and C in a way that works in his blended family. The court cannot dictate terms for how to accomplish that, beyond ordering the therapy that I have ordered above.

[99] As for the mother’s partner, it is imperative that Mr. S not be allowed to be in the presence of any of the children or to communicate with the children. I have already reviewed in detail the evidence about the inappropriate conduct of Mr. S towards A and C, and the fact that all three children feel unsafe in his presence. Mr. S has exercised incredibly bad judgment in dealing with the children, and the mother has not sufficiently protected them. Without an order, I fear that Mr. S will quickly return to the mother’s home and place the children at further risk. Accordingly, I order that the mother shall not permit Mr. S to be in the presence of any of the children or to communicate with any of the children at any time, even if any other person, including the children or any of them, allegedly invite or permit him to do so.

[100] Mr. S is not a parent of A, B or C, and I appreciate that he is not a party to these motions to change. While I have ordered that the mother shall not allow Mr. S to be in the presence of the children or to communicate with them, I have little confidence at this time that she will comply with this provision on a long-term basis. Accordingly, I also order that Mr. S shall not be in the presence of the children, or any of them, at any time, even if the mother or any other person, including the children or any of them, allegedly invite or permit him to be. I further order that Mr. S shall not contact any of the children at any time, even if the mother or any other person, including the children or any of them, allegedly invite or permit him to. These are fit and just orders to keep the children safe while in the care of the mother.

[101] In addition, given the parties’ persistent conflict, and the continued allegations that each is interfering with the other’s parenting time, I make the following additional fit and just orders:

a. The children shall be free to contact the parent with whom they are not residing at any time. The parties shall not interfere in any way with the children’s ability to contact the other parent or attempts to contact the other parent.

b. Each party may initiate contact with the B and C by text, social media, email, or telephone call no more than twice a day on days when B and C are residing with the other parent. To be clear, if B and C are both residing with the other parent, the non-resident parent may initiate contact with each of them twice a day. Moreover, an exchange of messages in the course of the same conversation between B or C and the non-resident parent shall be considered one contact.

c. The non-resident parent shall be free to contact A when she is residing with the other parent as they choose.

d. Neither parent shall denigrate the other in the presence or within earshot of the children, or any of them, or allow any third party to do so.

Should changes be made to child support?

[102] I have already noted that the framework in s. 17 of the Divorce Act allows the court to vary a child support order. In addition, s. 17(4) is relevant. It provides:

Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

Prospective Support

[103] The father seeks changes to child support to reflect the fact that B and C will spending at least 40% of their time with him. The mother seeks changes based on the father’s increased income. I am satisfied that these are changes that fall within s. 17(4.1) such that a reassessment of child support is warranted.

[104] The father’s last year-to-date pay stub in 2018 shows his income for the year was $122,596.08. However, he deposes that his income is $125,000 per year. The father became employed with his current employer in January 2018 but I do not know the exact date. I will use the father’s deposed figure of $125,000 for the purposes of prospective child support calculations.

[105] The mother’s financial statement states that her annual income is $51,041.76, based on a monthly income before deductions of $4,253.48. She has also provided some pay stubs, but unfortunately none to definitively show her year-to-date income to the end of 2018. There is a paystub dating to November 25, 2018 that shows her year-to-date income being $53,042. Extrapolating from that number, her 2018 income would be $58,684.77. There is no T4 for 2018 in her materials, but her Notices of Assessment for 2017 and 2016 show line 150 income of $61,870 and $60,334 respectively. In view of this evidence, I will use the figure of $60,000 for the mother’s income for child support purposes.

[106] As a result of my parenting time orders, above, A will continue to spend most of her time with her mother, but B and C will spend roughly 50 per cent of their time with each parent. What, then, should the child support payments be?

[107] The Supreme Court of Canada explained the proper framework for determining child support when there is shared physical custody of children in Contino v Contino, 2005 SCC 63, [2005] 3 S.C.R. 217. In that case, the court considered the application of s. 9 of the Federal Child Support Guidelines, SOR/97-175. Section 9 provides:

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

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

b) the increased costs of shared custody arrangements; and

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

[108] The Court held that the framework of s. 9 requires a two-part determination. First, one must establish that the 40 per cent threshold has been met. Second, one must determine the appropriate amount of support.

[109] Here, there is no question that the 40 per cent threshold is met in respect of B and C. How must I determine the appropriate amount of support?

[110] At para. 39, the Supreme Court of Canada noted that the language of s. 9 requires flexibility and fairness. It requires the courts to exercise their discretion to determine the child support amount having regard to the overall situation of the parents and the needs of the children. The Court discussed each of the three factors enumerated in s. 9 specifically.

[111] The first factor requires the court to consider the financial situations of both parents. It does not, however, include a conclusive formula to determine how the table amounts are to be considered or accounted for: Contino, paras. 39-40.

[112] While the Court accepted that a simple set-off approach could be a useful starting point, it cautioned against a rigid application of the set off that may not be warranted when a close examination of the financial situation of the parents and standard of living in both households is considered. A court will depart from the set-off amount or make adjustments to it if it is inappropriate in light of the factors considered under s. 9 (b) or 9 (c): Contino at paras. 41, 44. “The court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another”: Contino at para. 51.

[113] With respect to the second factor, in considering the increased costs of shared custody arrangements, the court must be cognizant that the total cost of raising children in shared custody situations may be greater than in situations where there is sole custody. Generally, the court should consider the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally, because the child is effectively being given two homes: Contino at para. 52.

[114] The last factor – the conditions, means, needs and circumstances of the children and the parents – “vests the court a broad discretion for conducting an analysis of the resources and needs of both the parents and the children”. The court must be particularly concerned with the standard of living of the child in each household and the ability of each parent to absorb the costs required to maintain the appropriate standard of living in the circumstances: Contino at para. 68.

[115] With this framework in mind, I note the following:

a. Based on the father’s income, the table amount he would pay for three children is $2,238, for two children is $1,721, and for one child is $1,076. Thus, the additional table amount for three children as opposed to one is $1,162, or an amount close to that which the father would pay for one child. This recognizes the economies of scale in supporting multiple children.

b. Based on the mother’s income, the amount of table support she would pay for three children is $1,168, for two children is $892, and for one child is $546. The incremental increase for three children over one is $622, which is, again, close to the amount that she would pay for one child. This recognizes the economies of scale in supporting multiple children.

c. The father’s financial statement shows that his monthly expenses are less than his monthly income by $1,627.39, although this does not include his support obligations. After support obligations are factored in, his monthly income and monthly expenses are roughly the same. I note some expenses such as eye glasses or contact lenses are double counted, but these are not significant. The father’s monthly expenses include fixed housing costs as well as certain expenses for the children.

d. The mother’s most recent financial statement discloses monthly expenses that are almost twice her monthly income. Unlike the father, she has no budget for vacations. Her grocery budget is significantly less than the father’s. Her budget also includes items for the children.

e. The father’s income is over twice the mother’s income, and the father’s wife contributes to their household expenses as well.

f. The father’s new blended family includes his wife’s child who primarily lives with the father and wife.

[116] Moving to a shared physical custody arrangement for B and C is going to cost more money because they will have two homes. That is the nature of shared custody arrangements. The question is how that increase in costs should be shared between the parties.

[117] Even without knowing whether the wife receives child support from the father of her children, and in particular the child who spends the majority of the time in the home of the father and his wife, considering the factors in s. 9, it is not appropriate, in my view, to do a simple set-off of support. Doing so would unfairly place too much of the burden of the increased shared custody costs on the mother, whose income is less than half the father’s, and who has no other income-earner in the house with whom expenses such as housing and groceries are shared. A straight set-off would not be in keeping with the legislative goal of ensuring that the children’s standard of living remains consistent as they travel between the two homes.

[118] In addition, in my view, the support arrangements should reflect the fact that there are economies of scale that operate in favour of both parents when supporting the children. At the mother’s house, she will have one child most of the time, and two others half the time. At the father’s house, there will also be one child mostly full-time (the wife’s child from a previous relationship), two others half the time (B and C), and two others occasionally (A, and the wife’s older child who is at university now). The support arrangements for B and C should recognize that each parent has these economies of scale operating in their favour.

[119] In my view, the fairest calculation is as follows:

a. The husband should pay full table support for A, as she will be residing with the mother almost all the time. I calculate table support for A on the basis of one child at the father’s income of $125,000. This recognizes the cost of caring for a child, without any economies of scale factored in. Thus, the starting point is that the father shall pay $1,076 in monthly support for A.

b. With respect to B and C, the father’s additional table amount would be $1,162 if all three children were to reside with the mother at least 60% of the time over the course of a year. There should be some set-off against this amount to recognize that B and C will be with the father approximately half the time. However, in my view, it is not appropriate to consider the mother’s contribution to be the table amount for two children at her income, or $892; this would ignore the economies of scale that the father also benefits from as a result of another child residing full-time in his home. Rather, I will set off against this amount the comparable amount for the mother - $622 - which represents the amount of table support the mother would pay for child 2 and child 3 on her income if all three children were residing with the father at least 60% of the time over the course of a year. As a result, the father shall pay net monthly table support of $540 for B and C.

c. In total, therefore, the father shall pay net monthly table support to the mother for the three children in the amount of $1,616.

Retroactive Support

[120] The mother states that the father’s income went up in January 2018, and his child support obligation should be adjusted upwards as of that date as a result. The father states that B and C were with him for more than 40 per cent of the time in 2018. He also states that he was unemployed for six months in 2017 and continued to pay child support as if he had not been. As a result, he states that if any adjustments are made to child support retroactively, the adjustment should consider these facts as well.

[121] In support of his argument that B and C were with him for more than 40% of the time, the father provided me with a calendar that spans February 2018 to June 2018 which he states he used to calculate where the girls stayed the night. On the basis of his calculations, C was with him around 70% of the time, and B was with him about 50% of the time.

[122] I am not satisfied that the calendar accurately reflects how B and C spent their time in 2018. The father’s evidence is that he counted as “his days” those where the girls spent the night at his house – a formula that would benefit him, given the temporary consent order of Goodman J. It makes little sense for the father to get “credit” for a day if the children only came to him in the evening to sleep so that they could safely travel to their early school activities the next day, given the mother’s early start to her working day. The father stated that often on the nights the children slept at his house, they were there from the after school hours. However, the father’s evidence about where the girls spent their time in 2018 conflicts with the mother’s evidence. She testified that there were periods of time when especially B did not go to the father’s house much or at all.

[123] The father’s income went up in January 2018. Were he to pay full table support for all three children on his income, it would be at $2,238 monthly for 2018.

[124] The father was unemployed for a period of six or seven months in 2017. His Notice of Assessment shows line 150 income of $55,318 for 2017. At that income level, his table support for 2017 for three children would have been about $1,074 per month.

[125] In fact, through 2017 and 2018, it appears he paid about $1,676.80 (though the evidence is confusing on this point).

[126] It thus appears that the father overpaid child support in 2017 and underpaid it in 2018. It is also unclear whether an adjustment to child support in 2018 would have been warranted based on the application of s. 9.

[127] The evidence relating to retroactive support is conflicting and confusing. It does not satisfy me that any retroactive adjustment to support is warranted, even assuming there was a change within the meaning of s. 17(4) of the Divorce Act. Neither party has proven that the adjustment they seek is appropriate.

[128] Accordingly, I order no retroactive adjustments to support.

Section 7 Expenses

[129] The father seeks contribution from the mother for some expenses related to benefit plans he has maintained for the children. The mother seeks contribution for certain extra-curricular expenses.

[130] Neither party adduced any documentary evidence about the expenses for which they seek reimbursement. Without persuasive and clear evidence, I have no basis to make the orders they seek.

[131] I note that Mesbur J.’s reasons provided that the parties shall share s. 7 expenses, with the mother paying 35% and the father paying 65%. Based on the income I have found each party is earning, these numbers should be adjusted slightly. I order that the mother shall pay 32% and the father shall pay 68% of all s. 7 expenses incurred on or after January 1, 2019. If there are payments outstanding for s. 7 expenses, and a party provides the other party with the relevant receipt, the other party shall pay their share of the cost of the expense to the party who incurred the expense.

[132] In these reasons, I have ordered that A and B shall be entitled to make their own decisions. To the extent A or B makes a decision that has a cost associated with it, and the parties agree it is an expense under s. 7 of the Federal Child Support Guidelines, the parties shall each contribute their proportionate share to the expense. If the parties do not agree whether the expense is a s. 7 expense, either party may apply to the court to determine the issue.

Damages

[133] In her draft order filed at trial, the mother seeks “costs regarding all false accusation[s]”. I understand this to be a claim for damages related to what the wife says are the false allegations made against her by the husband in the community. In other words, the mother appears to seek to make a claim in defamation. However, the claim is not properly pleaded, and there is no evidence to support it.

[134] At the same time, the father seeks damages for what he states are the mother’s breaches of the court’s orders. He has given some evidence of these breaches. However, he seems to be making a request in the nature of contempt, but no contempt motion has been properly brought.

[135] Without properly constituted pleadings, and without evidence on the mother’s allegations, I make no order for damages of any kind.

Costs

[136] The father seeks costs of about $8000 based on an hourly rate of $70, and considering three days of trial preparation, two days of trial, and 14 appearances on these motions to change, including three hours of preparation for each and two hours attending each. He also seeks his disbursements. He does so in reliance on a decision, Roach v. Lashley, 2018 ONSC 2086, wherein the court accepted an hourly rate for a self-represented litigant of $75/hr, noting that the litigant was extremely well-prepared, and that the other party had conducted the trial in a problematic fashion.

[137] The mother sought costs of $500 for preparation of documents.

[138] Modern family costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867 at para. 10. The cornerstone of costs awards are proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840 at para. 12.

[139] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court pursuant to s. 131 of the Courts of Justice Act. By r. 24(10)(a) of the Family Law Rules, O. Reg. 114/99, the court is directed to make a decision on the costs of a step in the case promptly after dealing with the step, in a summary manner.

[140] Pursuant to r. 24 the successful party is presumptively entitled to costs, subject to the factors set out in r. 24 – a caveat the Court of Appeal recently called “important”: Beaver v. Hill, at para. 10.

[141] The factors to consider are set out in r. 24(12), and include the reasonableness and proportionality of a number of enumerated factors as they relate to the importance and complexity of the issues. These factors include each party’s behaviour, the time spent by each party, any written offers to settle, including those that do not meet the requirements of r. 18, any legal fees and any other expenses incurred, and any other relevant matter.

[142] The fact that a party is self-represented is not a bar to costs: Roach at para. 16.

[143] In my view, this is not an appropriate case for a costs award. Neither party is the successful party. The father was the more successful party on parenting time; he succeeded in obtaining an order that B and C spend more time with him, although not as much time as he sought.

[144] The father did not succeed in obtaining the variation to child support that he sought. Neither party succeeded in obtaining the retroactive adjustment to support that they sought. The prospective support awarded was not what the mother sought either, as her position was premised on not increasing the children’s time with the father, but she is the more successful party on prospective support based on my conclusions on the application of s. 9 of the Federal Child Support Guidelines.

[145] Neither party succeeded in obtaining the sole custody order they sought. Neither succeeded in obtaining any damages.

[146] During costs submissions, no party raised any offers to settle that might have impacted the costs determination.

[147] In these circumstances, I conclude that it is appropriate that the parties bear their own costs of these proceedings.

Conclusion

[148] In summary, I make the following orders:

a. A shall be responsible for making her own decisions, both major and minor.

b. A shall choose how she spends her time with each parent.

c. B shall spend time with each of her parents on a week-about schedule. In week one, she shall reside with the mother, and in week two, she shall reside with the father. Changeovers shall take place on Sunday nights at 7 pm, after dinner. B shall have a dinner visit with the parent with whom she is not residing on Wednesdays, from after school until 7 pm.

d. Except for (c) above, B shall be responsible for making her own decisions, both major and minor.

e. Day-to-day decisions for C shall be made by the parent in whose care she is.

f. The parties shall consult and attempt to agree on major decisions involving C. In doing so, they shall have regard to the advice of any experts involved in the issue, such as C’s doctor in the case of health-care decisions, and her teachers in the case of educational decisions. If, despite receiving advice from professionals and attempting to agree, they cannot reach agreement, either party may apply to the court to have the major issue determined.

g. C shall spend time with each of her parents on a week-about schedule. In week one, she shall reside with the mother, and in week two, she shall reside with the father. Changeovers shall take place on Sunday nights at 7 pm, after dinner. C shall have a dinner visit with the parent with whom she is not residing on Wednesdays, from after school until 7 pm.

h. To deal with C’s early morning sporting activities, the mother shall make arrangements for a responsible adult, or A, or B, to take C to school during week one on any day she has an early activity. For any morning the mother has been unable to make such arrangements in advance, and C has an early morning activity at her elementary school, C shall spend the night before at the father’s house from 8:30 pm.

i. Rosie shall travel between homes with B and C, such that she will spend week one with the mother and week two with the father.

j. Week one shall commence on Sunday February 24, 2019.

k. The parents shall facilitate A’s ongoing therapy.

l. The parents shall each engage in individual therapy.

m. The father shall engage in separate family therapy with A.

n. The parents shall arrange to re-establish B’s therapy at CAMH as soon as possible and shall facilitate her attendance.

o. The father shall not denigrate A in the presence, or within earshot, of B or C, nor allow third parties to do so.

p. The mother shall not permit Mr. S to be in the presence of the children, or any of them, at any time, even if any person, including the children or any of them, allegedly invite or permit him to be.

q. The mother shall not permit Mr. S to contact the children, or any of them, at any time, even if any person, including the children or any of them, allegedly invite or permit him to.

r. Mr. S shall not be in the presence of the children, or any of them, at any time, even if the mother or any other person, including the children or any of them, allegedly invite or permit him to be.

s. Mr. S shall not contact any of the children at any time, even if the mother or any person, including the children or any of them, allegedly invite or permit him to.

t. The Office of the Children’s Lawyer shall serve these Reasons and the final order, once it has been taken out, on Mr. S by regular service, which may include service by email.

u. The children shall be free to contact the parent with whom they are not residing at any time. The parties shall not interfere in any way with the children’s ability to contact the other parent or attempts to contact the other parent.

v. Each party may initiate contact with the B and C by text, social media, email, or telephone call, no more than twice a day on days when B and C are residing with the other parent. To be clear, if B and C are both residing with the other parent, the non-resident parent may initiate contact with each of them twice a day. Moreover, an exchange of messages in the course of the same conversation between B or C and the non-resident parent shall be considered one contact.

w. The non-resident parent shall be free to contact A when she is residing with the other parent as they choose.

x. Neither parent shall denigrate the other in the presence or within earshot of the children, or any of them, or allow any third party to do so.

y. Beginning March 1, 2019, and on the first day of each subsequent month, the father shall pay net monthly table child support to the mother for the three children in the amount of $1,616.00.

z. There shall be no retroactive adjustments to child support.

aa. The mother shall pay 32% and the father shall pay 68% of all s. 7 expenses incurred on or after January 1, 2019.

bb. To the extent A or B makes a decision that has a cost associated with it, and the parties agree it is an expense under s. 7 of the Federal Child Support Guidelines, the parties shall each contribute their proportionate share to the expense. If the parties do not agree whether the expense is a s. 7 expense, either party may apply to the court to determine the issue.

cc. If there are payments outstanding for s. 7 expenses as of the date of these reasons, and a party provides the other party with the relevant receipt, the other party shall pay their share of the cost of the expense to the party who incurred the expense.

dd. There shall be no order for the payment of damages by either party to the other in relation to circumstances that resulted in the parties’ requests for damages in their motions to change.

ee. There shall be no order as to costs of the parties’ motions to change.

J. T. Akbarali J.

Released: February 14, 2019

Reasons for Judgment

COURT FILE NO.: FS-12-379691-003 DATE: 20190214 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Natasa Lazarevic Applicant – and – Djordje Lazarevic Respondent

REASONS FOR JUDGMENT J. T. Akbarali J. Released: February 14, 2019