COURT FILE NO.: FS-14-80487-00

DATE: 2019 02 14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

BIBI GANIE,

Plaintiff

Fola Adekusibe, for the Plaintiff.

• and -

ROSHAN GANIE,

Defendants

Self-Represented

HEARD: In Brampton

REASONS FOR DECISION

Shaw J.

Contents

Introduction and Overview. 1

Background. 6

Issues and Positions of the Parties. 8

Litigation History and Interim Orders. 9

ISSUE ONE: CUSTODY AND ACCESS. 14

a) Legislative Framework. 14

REVIEW OF THE EVIDENCE. 17

a) The Children’s Current Situation. 17

b) Allegations of Abuse. 28

c) CAS and Police Involvement with the Family. 39

d) Evidence of Kevin Neil 46

e) Evidence of CAS Workers. 48

f) Evidence form Family Members. 51

Bibi Barkata. 51

Sofeena Barakat 52

Bibi Leung. 53

Bibi Hussain. 55

CUSTODY AND ACCESS ASSESSMENTS. 55

a) CLRA s. 30 Report 55

OCL Report 60

ANALYSIS. 72

ISSUE TWO. 92

Spousal Support 92

i. The Law. 92

ISSUE THREE: IMPUTATION OF INCOME. 98

a) The Law and Analysis. 98

ISSUE FOUR: EQUALIZATION OF NET FAMILY PROPERTY. 102

Introduction and Overview

1There are four young children aged 10, 9, 7, and 4 who are the centre of this custody dispute. The issues of custody and access have remained unresolved since the parties separated in March 2014. To describe this as a high-conflict dispute would, unfortunately, be an understatement. Although there are also some property and support issues to be determined, the vast majority of the evidence heard during this trial was, in some way, connected to the custody and access dispute.

2The respondent moved to Canada from Guyana in 1998 and was living in Canada at the time of the marriage. The parties were married in Guyana on February 14, 2003. The applicant moved to Canada on February 22, 2004, one year after the marriage, and has lived in the Greater Toronto area since. The parties separated on March 17, 2014, 11 years after they married. There are four children of the marriage.

• DG, a son, was born February 21, 2008 and will soon be 11 years of age. He is in grade six.

• AG1, a daughter, was born May 28, 2009 and is nine years of age. She is in grade five.

• AG2, a daughter, was born August 30, 2011 and is seven years old. She is in grade three. (As the two daughters’ initials are both AG, I will refer to them in these reasons as AG1 and AG2.)

• The youngest, AB, a son, was born on June 19, 2014, after the parties separated. He is four years of age and should be in junior kindergarten this year.

3The children have been attending the same school in Mississauga since September 2015. Prior to that, they had attended a school in Markham.

4The trial was heard over a number of days between January 24, 2018 and April 2018. Final written submissions were received in June 2018. The respondent was self-represented at trial. There were some delays during the trial as the respondent failed to comply with various orders regarding the filing of his affidavit and supporting documentation.

5The applicant testified that her marriage to the respondent was arranged. The respondent does not dispute that it was initially arranged but testified that he and the applicant carried out an exchange of correspondence prior to their marriage and had formed a relationship before they married. The respondent presented a great deal of evidence regarding this issue although the manner or the extent to which they communicated prior to their marriage does not have any bearing on the issues that must be resolved. I accept the respondent’s evidence that he and the applicant were committed to each other and had deep feelings for one another when they married.

6The primary issue in dispute and on which the evidence should have been focused is what is in the best interests of the four children. Unfortunately, much of the evidence presented focused on each party trying to prove that the other was an unfit parent for different reasons. I will say upfront that I have serious concerns about both parents’ ability to put their anger and resentment towards each other aside to focus their attention on raising their children in a positive and supportive environment. As with most parents, the parties each have their own strengths and weaknesses as parents. The concern in this case, however, is the complete lack of respect each parent has for the other and how both are unable to see any redeeming quality in the other as a parent. Both parties continue to accuse the other of not acting in the children’s best interests and view each other as an unfit parent.

7As will be reviewed in these reasons, the applicant sees herself as a victim of both physical and emotional abuse that she claims she experienced throughout her marriage. When she testified, she referenced this victimization in almost every answer, even when it was not necessary. Many of her answers included comments about the respondent’s negative treatment towards her and the children. That was her focus throughout her testimony, regardless of the question asked of her.

8After the applicant left the matrimonial home, the respondent was charged criminally with a number of offences as a result of the applicant’s report to the police of various incidents of physical abuse during the marriage. His criminal trial was heard over a number of days in May 2017 and he was found not guilty of all charges.

9Following their separation, the Peel Children’s Aid Society (“CAS”) became involved with the family for an extended period of time. Both the Peel and York Regional Police were also contacted by both parties on a number of occasions for various issues. The applicant contacted the police and CAS numerous times to report that the children told her of the respondent’s ongoing abusive behaviour towards them when the children were with him. Each incident was investigated and the children were interviewed a number of times by the police and CAS. The respondent was not charged with any offence and the CAS never found that the children were in any danger when they were with the respondent. The CAS closed its file in March, 2017 and there is no evidence of any further involvement with the CAS or the police.

10The respondent’s position is that the accusations that he assaulted the applicant during the marriage are not true and were used by her to support her claim for custody. He also alleges that her behaviour post-separation of repeated reports to the police and CAS of false claims of abuse has been a deliberate attempt by her to alienate him from the children and destroy his relationship with them. He also expressed a legitimate concern that exposing children to repeated interviews with the CAS and police was harmful to them and not in their best interests.

11Understanding the applicant’s conduct is much more nuanced than to simply see her behaviour as one parent who wants to alienate the other. Having said that, if her behaviour continues with ongoing unfounded reports of abuse by the respondent against the children, it will be a basis to review my final decision regarding parenting arrangements. It cannot continue. As has been stated by others, the applicant needs counselling to, amongst other issues, gain insight into her behaviour.

12I also have concerns about the respondent’s lack of insight into how his behaviour has also been harmful. The respondent has always seen the applicant as an incompetent parent, even during the marriage. He questions and challenges the ability of the applicant to provide even the most basic of care to the children. For example, when she cut their daughter’s hair, he saw it as a reflection of her inability to care for her hair. His attitude towards the applicant during the marriage and the ongoing challenging of her competency as a parent has left the applicant feeling insecure and over-compensating for her perceived inadequacies as a parent.

13At trial, the applicant called her sister and mother as witnesses. She also called teachers who were involved in an incident that occurred on October 3, 2013 at the school the children were attending at the time. The respondent called his sister and aunt to give evidence. He also called a person who ran the Partner Assault Response program he attended, a police officer, and two individuals who work for the CAS. A social worker who completed a parenting assessment in 2014 was called as was a psychologist who completed reports in 2015 and 2017 on behalf of the Office of the Children’s lawyer (“OCL”).

Background

14The applicant and respondent moved from Toronto to Markham in February 2011. The respondent always worked full time and together they were able to buy and sell houses before purchasing their last home in Markham. When the applicant left the matrimonial home in March 2014, she moved to Mississauga with the children and currently lives there with her parents, who moved from Guyana to Canada permanently after the separation. The applicant’s two sisters also live in Mississauga. The applicant was six months pregnant when she left the home. Since October 2015, following a number of interim orders, the children have been living primarily with the applicant and attend school in Mississauga. The respondent has access to the children every second weekend and every Wednesday evening.

15The respondent remained living in the matrimonial home until it was sold in September 2017. The net proceeds of sale remain held in trust and have not yet been distributed. The respondent has been living with his aunt, Bibi Leung, in a two-bedroom apartment in Toronto since the home sold but plans to move to Markham if it is ordered that the children are to live with him.

16At the time of separation, the respondent was employed as a portfolio manager at Infrastructure Ontario. He earned $85,000 in 2014. He testified that he had to leave that job after the parties separated as a result of the applicant’s deliberate interference with his work. He also testified that he believed she has caused him to lose other employment opportunities. At the time of trial, he was working as a driver for three ride share companies and earing approximately $28,000 per annum. However, he filed no proof of his income.

17The respondent had been paying child support of $2,040 up until August 2016. After that date, he had paid a total of $900 for the support of his four children up to the date of trial. As a term of an adjournment of the trial on March 5, 2018, which was granted as a result of the respondent’s failure to file material, I ordered a lump sum payment of child support of $31,989, which was the table amount for four children based on the respondent’s 2016 income of $73,000. At the time that order was made, that was the most recent income tax return information available from the respondent. That support was paid from the husband’s share of the joint proceeds of sale of $648,000 that have been held in trust from the sale of the matrimonial home.

18The applicant was employed part-time from 2005 to 2009 as a cashier at retail stores including The Bay and Canadian Tire. Her income ranged from $9,000 to $10,000 per year. Before she moved to Canada, she was working in human resources in Guyana. She finished high school in Guyana. She has not upgraded or attended any other schooling since living in Canada. She has not worked or attempted to work since the parties separated. She has been supporting herself and the children on the child tax benefit and child support, when paid, by the respondent. Her plans are to enrol in an early childhood education program at Humber College. Now that the youngest child is in school, she should be pursuing those plans if she has not already done so.

Issues and Positions of the Parties

19The following are the issues to be determined at trial:

• Custody and access;

• Child support and imputation of income;

• Spousal support; and

• Equalization of net family property–primarily post-separation expenses and occupation rent.

20The applicant’s position is that she should have sole custody of the children, with the respondent exercising access as per the recommendations set out in a report from the OCL. The respondent’s position is that there should be an order for joint custody with the children to live primarily with him in Markham. He proposes that the applicant have access every second weekend and mid-week during the week.

21With respect to child support, the applicant’s position is that income ought to be imputed to the respondent and that he is currently deliberately underemployed. She also seeking an order for spousal support on a compensatory basis as she has not worked outside the home since 2009, following the birth of their second child.

22The respondent’s position is that the applicant ought to be re-entering the workforce and that she has not done anything to move towards self-sufficiency. He proposes a lump sum payment to assist with her education.

23The property issues have been resolved except for issues of post-separation adjustments with respect to the carrying costs of the matrimonial home until it was sold, as well as the applicant’s claim for occupation rent. There is also an issue with respect to some burial plots which were purchased during the marriage.

Litigation History and Interim Orders

24This application was commenced on April 25, 2014. The respondent brought a motion as he had not seen the children since the applicant left the home in March 2014. She had proposed supervised access but the respondent did not agree. In the first interim order of Andre J., dated June 26, 2014, he ordered that the respondent would have access every weekend from Friday at 4:00 pm to Monday at 10:00 am. It was also ordered that a custody and access assessment pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, (“CLRA”) as amended would be conducted by Ms. Eileen Spraggett.

25Following that order, the assessment process began. In August 2014, following a disclosure meeting with Ms. Spraggett, the applicant agreed that the three oldest children would return to live in the matrimonial home with the respondent and attend school in Markham. The applicant’s evidence was that it was her understanding that the respondent was on a year-long paternity leave to care for the children.

26The matter was back before the court on October 31, 2014 on an emergency basis as the applicant informed the respondent, through her lawyer, that she would not be returning the children following a weekend visit as she learned that he was returning to work full-time in November 2014. The applicant believed it best that the children reside with her during the week.

27The section 30 assessment dated September 9, 2014 was released prior to the October 31, 2014 motion. The assessor, Ms. Spraggett, recommended that the respondent have custody of the three older children and that there be joint custody of the youngest child.

28On October 31, 2014, Seppi J. ordered that the matter be adjourned and that, pending the adjournment, the children would be forthwith returned to the interim custody of the respondent in Markham and to their schools where they had been enrolled in September 2014. An order was also made to obtain the CAS file as it had been involved since October 2013. The CAS records were produced on December 2, 2014.

29The matter was then heard by Price J. on December 18, 2014. He released a very thorough decision on December 31, 2014 and ordered that the applicant would have sole custody of the children on a temporary basis pending a clinical investigation by the OCL. He also ordered that commencing January 6, 2015, the three older children would reside with the respondent during the week to continue attending the schools in which they had been enrolled. He ordered that the children would reside with the applicant every weekend and every Wednesday overnight. It was also ordered that the youngest child, who was only six months of age, would be with the respondent every Saturday from 10:00 am to 5:00 pm and that at all other times he would continue to reside with the applicant. The order also dealt with holidays including March break, Easter, Christmas and the summer months.

30At para 117 of his reasons, Price J. commented as follows:

During the hearing of the party’s motions, Mr. Ganie was visibly scowling at Ms. Ganie and seeking to maintain eye contact her. He was so persistent in his efforts to do this that he changed positions when the court officer sat between him and Ms. Ganie in order to prevent him from intimidating her. It was necessary for the court officer to caution him about his conduct, which I found and stated on the record, was consistent with the domineering behaviour that is reflected in the evidence of Ms. Ganie and those whose affidavits she has tendered.

31The matter was assigned by the OCL to Dr. Kanagaratnam on March 3, 2015. In her initial report dated August 19, 2015, she recommended that the three oldest children be transferred to schools close to the applicant’s residence in Mississauga and reside with her with access to the respondent.

32Price J. heard a second motion on September 18, 2015 to determine if there had been a material change in circumstances since his order of December 31, 2014 and whether it was in the children’s best interest to implement the OCL’s recommendations on an interim basis.

33Price J. released very detailed and thorough reasons on October 14, 2015. He found that there were exceptional circumstances that made it necessary to vary his order of December 31, 2014. He therefore ordered that the applicant would continue to have temporary sole custody and that the children would live with her in Mississauga and attend school in Mississauga. He ordered that the Respondent would have access to the three older children every second weekend and every Wednesday evening. He made a more limited access order for the youngest child and indicated that his access would be expanded when he was three years of age and according to his developmental needs at that time. As a result of the respondent calling two of the children by different names in his home, he also made a specific order about what names the children should be called in both homes, neighbourhoods and at school. His order also dealt with holidays and extra-curricular activities.

34When the youngest child turned three, the parties could not agree on expanded access and so a further motion was before Price J. At a case conference on March 16, 2017, he ordered that a request be made to the OCL for an update of Dr. Kanagaratnam’s report before determining whether access to AB should be expanded. It was also ordered that the updated files from the CAS, Peel and York Regional Police be produced to the OCL.

35Dr. Kanagaratnam produced a second report dated October 5, 2017. As a result of that report, the respondent now has access to AB on the same terms as the three oldest children.

36A trial management conference was conducted on October 13, 2017 and the trial was set to proceed for seven days during the trial sittings commencing January 8, 2018. Pursuant to the order made at the trial management conference, the parties were to file affidavits by December 15, 2017 to be used as evidence in chief at trial of all witnesses, subject to cross-examination.

37On January 10, 2018, the respondent requested that the trial be adjourned given the volume of disclosure received from the CAS in December 2017. The matter was therefore adjourned to commence after January 17, 2018. The respondent was granted an extension to file his affidavit to January 12, 2018. On January 17, the respondent requested a further adjournment. He was again granted a further extension to serve his affidavit by January 20, 2018 and the trial was adjourned to commence sometime after January 24, 2018.

38The trial commenced on January 24, 2018. Although the respondent had not yet complied with any terms of the Trial Scheduling Endorsement Order, the matter proceeded and the applicant and her witnesses gave evidence and were cross-examined. By February 2, 2018, the respondent had yet to serve his complete affidavit despite the various orders made prior to the commencement of trial. I therefore ordered that he file and serve his affidavit by February 16, 2018 and the trial was adjourned to continue on March 5, 2018. When the trial resumed on March 5, 2018, despite my order, the respondent served the applicant with his 419 paragraph affidavit that morning together with exhibits that took up a banker’s box. The trial was therefore adjourned to April 23, 2018. It was a term of the adjournment that the respondent would pay lump sum child support from his share of the proceeds of sale of the matrimonial home.

ISSUE ONE: CUSTODY AND ACCESS

a) Legislative Framework

39The applicant and respondent have advanced claims for custody and access in a divorce proceeding and as such the applicable legislation is the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Section 16(1) of the Act provides as follows:

Order for Custody

16(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

40Section 16(8) of the Act sets out the general test for determining custody and access issues. According to that section, the court is consider “only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.” According to s. 16(9), past conduct of a person is not to be considered unless the conduct is relevant to the ability of that person to act as a parent of the child. Section 16(10) refers to the maximum contact principle, which is that a child should have as much contact with each spouse as is consistent with the best interests of the child.

41The Divorce Act does not provide any specific factors for the court to consider in assessing the best interests of the child. Guidance can be found in s. 24 of the CLRA which provides as follows:

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.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the

person’s ability to act as a parent.

42According to subsection (4), in assessing a person’s ability to act as a parent, the court shall consider whether the person has committed violence or abuse against his or her spouse or child.

43As the Supreme Court of Canada stated in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 44, applying Appleby v. Appleby (1989), 1989 CanLII 8821 (ON SC), 21 R.F.L. (3d) 307 (H.C.J.):

Every child is entitled to the judge’s decision on what is in its best interests; to the extent that presumptions in favour of one parent or the other predetermine this inquiry, they should be rejected: “No matter what test or axiom one adopts from the many and varied reported decisions on this subject, each case must, in the final analysis, fall to be determined on its particular facts and, on those facts, in what way are the best interests of the children met.”

REVIEW OF THE EVIDENCE

a) The Children’s Current Situation

44Much of the evidence at trial focused on the behaviour of the applicant and respondent and accusations about the poor parenting of the other. As the focus must be on the best interests of the children, it is important to review the evidence that was presented regarding the children’s current situation.

45At the time of trial, the three oldest children were attending school in Mississauga and were in grades one, three, and four. The youngest had not yet commenced school. The children had been at the same school since October 2015 – a period of 2.5 years. The school is very close to where they live in Mississauga. The applicant has volunteered as a classroom assistant since 2015 and, in April 2017, received an award of distinction from the Peel District Board for her volunteer work with the school.

46Ms. Deirdre Mitchell, a teacher at the children’s school, gave evidence. She testified that the applicant had been a parent volunteer in her class room between 2015 and 2017. In the first year, the applicant volunteered almost every day. In the second and third year, she was there multiple times each week. The applicant would text her on days she could not attend. Although she had not taught any of the children, she had observed them in the school. Based on what she observed, the children seem well cared for, happy, and excited to do activities at school. She described the applicant as being very involved with their education and participated in school events.

47At the time of separation, the two oldest children were attending a school in Markham. The respondent’s evidence is that he and the applicant moved to Markham because of the high ranking of the schools in that city. I heard no evidence, however, regarding any concerns about the school the children currently attend.

48Before the eldest, DG, began attending school, he was assessed as having some mild delayed language skills. The respondent sought out treatment for him and he attended speech therapy treatment for a number of years. He no longer requires those services.

49DG’s report cards and examples of his school work were filed as evidence. I did not hear evidence from any of the children’s current or past teachers. His most recent report card, as at February 2018, was positive. He was described as a great student who did not need much reminding to hand in his work on time. He was also described as truthful and demonstrating empathy in his social interactions with peers. There was no indication of any concern about his behaviour or performance at school. His attendance during the 2017-2018 school term was concerning as he was absent 13.5 days and late 4 days up to February, 2018. The prior year, he had only been absent four days and late one day.

50AG1 has some challenges at school. In 2016, the applicant had meetings with AG1’s teacher and principal who recommended that she be assessed. She was diagnosed with autism by Dr. Sheinin, a psychiatrist, in January 2017. Prior to that diagnosis, the school provided a letter for AG1’s family doctor dated November 1, 2016. The letter stated the following:

AG1 is a very polite and kind student who tries to do her best in school. She appreciates positive comments and has begun to demonstrate pride with her work. She works well with one on one support. She is reading above grade level. Since September she has become more chatty/social with her peers in class. Although she is able to perform academically, AG1 has difficulty maintaining focus and getting any work completed on time. Other behaviours observed in the classroom:

• Requires a significant amount of extra time for all tasks including tests

• Chats to herself/ laughs and makes inappropriate noises.

• Seems to be day dreaming at times during the day.

• Very easily distracted - needs constant prompting/reminders and is removed from table area to reduce distraction/chatting.

• Talks to her imaginary friend during class time.

• Lacks focus most of the time and even with reminders has short attention span.

• Demonstrates anxiety in social situations, when asked to stop chatting, when involved in a peer conflict – cannot respond or speak about her feelings or reactions to make decisions but how to solve a problem.

• She also has problems in social situations

• Often observed running around outside at recess by herself and not always interacting with others.

• Requires direct supervision during outdoor play as she is observed taking items from the ground (eg. Chewing gum) and putting in her mouth.

51In January 2017, AG1 was referred to see Dr. Sheinin, a psychiatrist. Dr. Sheinin was not called as a witness but her report was filed. She noted in her report that there had been consultation with a private speech and language pathologist in 2013 and she had pursued a speech and language assessment through the school board in 2015. She indicated that AG1 continued to have difficulties making gains academically in the classroom and the mother reported that the teacher was requesting one-to-one assistance. Dr. Sheinin thought it was of significance that AG1 was having trouble not only with receptive and expressive language, but also with the pragmatics of language and play behaviours. She noted that AG1 had difficulty making eye contact and engaging in back and forth conversation. She indicated that she did not really engage with peers and would not engage in any back and forth in play or conversation. She indicated that her mother had mentioned that autism spectrum disorder had been discussed in the past but no one had ever made a formal diagnosis. She reported as follows:

AG1 presented as a girl looking her stated age, dressed in pink snow pants. She had a lot of difficulty maintaining eye contact, and would only do so on occasion. She would make eye contact when asking for help spelling a word to get the interviewers attention. She tended to almost talk in a “nonsense” sing-song, not really interacting but just speaking. Sometimes when she was asked questions, she would make an effort to make more reciprocal conversation. It was difficult to assess her receptive language. Her expressive language was definitely delayed. Although she did produce a lot of language, it was not organized in a coherent way. Her affect was generally flat. She did not interact in a socially appropriate way. She seemed in good spirits. She was not obviously depressed or anxious. She was not suicidal. She drew her wrote characters and repeated stock phrases. There was no obvious psychotic content to her thought or her perception. Her mother was very concerned about her and accessing appropriate help. It was difficult to tell whether AG1 was oriented. Her cognition was difficult to assess. There were no obvious delays to her gross motor or fine motor skills. She evidenced no stereotypical wrote or repetitive motor mannerisms while we were meeting. Her judgement and insight were poor.

52Dr. Sheinin diagnosed her as having autism spectrum disorder. In her report she stated:

This is a seven year old girl who is presenting with persistent deficits in social communication and social interaction across multi contexts, as manifested by: deficits in social/emotional reciprocity, ranging from abnormal social approach and a failure of a normal back and forth in conversation to a reduced sharing of interest, emotions or affect. AG1 evidences a failure to initiate or respond to social interactions. She demonstrates deficits and non-verbal communicative behaviours used for social interaction including poorly integrated verbal and non-verbal communication, diminished eye contact, flat affect and diminished non-verbal communication. She evidences deficits in developing, maintaining, and understanding relationships, including difficulty in adjusting behaviour to suit various social contexts, difficulties in sharing in imaginative play and making friends, and an absence of interest in peers. AG1 demonstrates restrictive and repetitive patterns of behaviour, interest and activities as manifested by stereotyped and repetitive motor movements, use of objects and speech, ritualized patterns of verbal and non-verbal behaviour, highly restricted, fixated interests that are abnormal in intensity and focus. AG1 presents without known accompanying intellectual impairment, but with accompanying language impairment. The latter is likely presenting at this point as a language based learning disability. The doctor indicated that with the diagnosis

53Following her diagnosis, an Identification, Placement and Review Committee (I.P.R.C.) meeting was held in October 2017 to address her educational needs. The applicant testified that as a result of that assessment, AG1 now has an Individual Education Plan which includes a teaching assistant who works with her one-on-one in the classroom. She has now been moved from the special needs class to the regular classroom.

54The respondent does not agree with the autism diagnosis but he did not present any medical evidence to support his view. He wants a second opinion regarding the diagnosis.

55The respondent has been very diligent about AG1 attending speech therapy on a weekly basis in Markham. Although no one was called to give evidence regarding this treatment, the respondent filed a number of records confirming AG1’s and DG’s attendance at speech therapy. A Speech and Language Assessment Report dated November 25, 2017 was prepared by a speech-language pathologist who works for a company called Speech Therapy Centres of Canada. It concluded that AG1 presented with a moderate delay in social communication and a moderate-severe delay in receptive language. Treatment was recommended. The respondent’s evidence is that he brings AG1 to treatment on Wednesdays, during his access visit. This treatment has been ongoing for a number of years.

56The applicant testified that AG1 acts younger than her age group. She said her happiness is drawing and writing stories. In her report card from February 2018, the teacher reported that AG1 continued to improve her learning skills and that with one-on-one teacher support, she is able to complete her daily work. The teacher commented in the report card that she still struggles to complete her assignments independently. The teacher also commented that AG1 was encouraged to attend class regularly as irregular attendance was impacting her academic growth. Her report card noted that she had been absent 19.5 days in total that year and late 6 times. In the prior year’s report card, she had only been absent 4.4 days and late 3 times by February, 2017.

57The applicant testified that AG1 has had autism traits since she was quite young and that she is now finally getting the help she needs. Her evidence was that prior to the separation, the respondent did not think there was anything wrong with AG1. She testified that before she was diagnosed, there were times when other children made her unhappy because she was acting in a funny way. Because she loves to draw so much, the applicant made arrangements with her teacher so that AG1 can have her art book to draw at lunch.

58The applicant was asked about a medical note from Dr. Yeung, a doctor in Markham. He saw AG1 in June 2017 as she was reporting feeling sad and unhappy at school and being harassed and bullied. He referred her to Child & Adolescent Services in Markham. There is no evidence about what transpired with this referral. The applicant’s evidence is that AG1 is now happy, has a best friend and loves her teacher.

59AG2’s report card for the period ending February 2018 did not identify any concerns. The teacher commented that she demonstrated responsibility in attendance, punctuality, and transitions, and followed routines and completed her homework on time and with care. She was described as being a polite and pleasant member of the classroom. She was absent 15.5 days and late 4 days up to February 2018. In the prior year, she was absent 5.5 days and was never late.

60When asked about the children’s poor attendance record in the 2017-2018 school year, the applicant’s evidence was that this was the period when she was attending the criminal trial and then this trial, and she would have to leave home early to be in court. She said she was not there to bring the children to and from school. This explanation seems difficult to understand as her parents live with her, her sister is only five minutes away, and the school is close enough that they walk to and from class. It is not clear why someone else in the family could not walk the children to and from school. Attendance was not a problem the prior year. If attendance continues to be an issue going forward, that is also a factor that could constitute a basis to review this final custody and access decision. Children, particularly those with special needs, must attend school on a regular basis unless there are health or other extraordinary issues that prevent them from attending.

61AB was born on June 19, 2014, after the parties had separated. When he was born, he had to see some specialists about a heart issue. He was seen by a Paediatric Cardiologist in July 2014 and had an echocardiogram of his heart. AB was referred to another paediatric cardiologist who saw him in September 2014 and concluded that at three months of age, he had a structurally normal heart with a soft innocent flow murmur. He noted that he was continuing to gain weight well and no further follow up was arranged.

62In a note from the paediatrician dated September 10, 2014, he indicated that he had no concerns with AB’s health and that the applicant had brought him to see him for check-ups and immunizations.

63When the children are with the applicant, they go to summer camp for one week in the summer and also attend swimming lessons. They go to the library which is near their home. The applicant’s evidence was that she helps them with their homework each night.

64The respondent’s evidence was that prior to their separation, he had to arrange the children’s medical and dental appointments and also enrolled them in a number of extra-curricular activities. He also was involved with their school and was a member of the parent’s council. He continues to enrol the children at activities on weekends in Markham such as martial arts, soccer, floor hockey, skating and basketball. He also assists the children with their homework and is in contact with the school regarding their education. He continues to be an engaged and active parent.

65His evidence was that during the marriage, the applicant spent an enormous amount of time on the internet while his mother and aunt looked after the home and the children. His evidence was that he encouraged her to learn to drive but she did not pass her test on February 5, 2014. His evidence was that the applicant does very little to help the children with their homework and he believes she struggles with it. The respondent expressed concern that because the applicant does not drive, there is little done after school to engage the children and he is concerned for their development.

66The respondent has the children with him every second weekend and on Wednesday evenings. This schedule has been in place since October 2015. Other than the motion for access to AB in 2015, there have no further court proceedings prior to this trial.

67The applicant’s concern with access is that the respondent returns the children late following access – sometimes as late as 11:30 pm – and that this makes it difficult to wake the children for school the following day. She also testified that AG1 will cry and is upset when she has to leave to see the respondent.

68The applicant was also concerned that after separation, the respondent was calling AG1 and AB by different names at home. He was also using these other names when dealing with school or health care providers. In October 2015, as part of his order, Price J. ordered that the children be called by their names given to them at birth.

69The respondent testified that given the applicant’s emotional, psychological and other issues and her struggles with day-to-day care tasks for the children, he has been the hands-on parent taking them to the majority of their activities and appointments. His evidence was that he has done the majority of the parenting and has hundreds of videos showing the children happy, focused and engaged in various activities.

70His evidence was that during the marriage, the applicant was fearful, cried easily, hypersensitive, hyper-anxious, sensitive to light and overly protective. He testified that she did not accept any of his invitations or encouragement to take personal development classes or to attend counselling to curb her high-level emotions and mood swings. His evidence was that she would become easily overwhelmed and he would have to take time off work to assist with family routines.

71He gave evidence about his involvement in the children’s school such as securing a $1,000 grant for one of the schools, and being on the school council and then co-chair of the parent council.

72His parenting plan for the children, once they are returned to live with him, is to secure a second opinion for AG1’s autism diagnosis and continue with her speech therapy in Markham. He plans to move to Markham and his aunt and mother will live with him. He identified four rental properties in Markham that are less than a five minute walk from the children’s former school and near the community centre, library and doctors. He will continue to be actively involved in their education, health care and extra-curricular activities.

b) Allegations of Abuse

73Given the significant amount of evidence I heard regarding the allegations made by the applicant that she suffered both physical and emotional abuse during the marriage, and as this informs understanding her behaviour post-separation, I will spend some time reviewing the evidence. In addition, s.24(3) of the CLRA specifically directs the court to consider a person’s past conduct if the court is satisfied that the conduct is relevant to a person’s ability to act as a parent. The court is also directed in s. 24(4) to consider whether the person has committed violence or abuse against his or her spouse or child.

74The applicant’s evidence is that after she started living with the respondent in February 2004, he became violent and abusive towards her. She testified that some of the incidents occurred in front of their children. She described the respondent as domineering and a dictator. Her evidence was that the respondent had to make every decision in the house and schedule and book every appointment for the children. She testified that whenever they had to take the children to a clinic or school meeting, she was directed not to talk. Her evidence was that the respondent had control over her and she depended on him financially.

75The applicant gave evidence about various incidents of abuse commencing in 2007 as follows:

• August 4, 2007 – during an argument, the respondent hit her with his belt;

• November 1, 2010 – the respondent punched and choked her in front of DG and AG1 and he pushed her. She was pregnant and miscarried;

• August 29, 2011 – the respondent held a mop stick to her eye and threatened to poke her eyes out;

• In early 2014, he threw a piece of tangerine at her eye;

• April 11, 2012 – the respondent hit the applicant with a closed fist, bottle of body bream and sandals in front of the three children; and

• March 9, 2014 – the respondent forced the applicant to have violent sexual intercourse.

76The respondent denies ever being abusive towards the applicant. He described a loving relationship and filed, as exhibits, numerous photographs which he testified depicted a happy and loving family.

77There were problems early on in the marriage. In 2005, the applicant became pregnant. She claims that the respondent forced her to terminate the pregnancy. The respondent’s evidence was that it was the applicant’s decision to terminate the pregnancy as it was too early in their marriage to have a baby and she was on cold medications and antibiotics for a few months. In the report of the OCL, he told the assessor that it was agreed that the applicant would terminate her pregnancy as she was not healthy enough at that time.

78The applicant testified that she was very upset by this and, upon her return from a visit to her parents in Guyana in 2006, did not live with the respondent. She testified that she did not want to return to the marriage as there already had been incidents of abuse. She eventually did return to live with the respondent.

79The respondent agreed that the applicant did not initially live with him when she returned from Guyana but his evidence was that the applicant was facing pressure from her parents throughout their marriage to end the relationship. It was also the respondent’s evidence that the applicant told him that she did not want his mother to live with them and that was a condition of her returning.

80According to the respondent, the influence of the applicant’s parents was so great that he believes they orchestrated the separation in 2014, and it was all part of a plan to enable them to move to Canada and secure permanent residence. Although the respondent presented a great deal of evidence regarding his position that the applicant’s parents were a negative influence on the applicant throughout the marriage, as well as evidence surrounding the circumstances of the day of separation, it is not a factor that I consider relevant in assessing the current best interests of the children.

81I find that based on the evidence of both the applicant and respondent, there was conflict between the applicant and respondent from early on in their marriage. In addition to conflict between the parties, there were issues with their extended families. The respondent clearly continues to harbour a great deal of anger towards the applicant’s parents based on the extent of the evidence he presented to support his view that the applicant’s mother, in particular, was interfering in their marriage and was an adverse influence on the applicant. Again, that is not a factor I consider relevant to assessing what is in the children’s current best interests.

82There were no witnesses to any of the incidents when the applicant alleges she was physically assaulted by the respondent. The incident of October 8, 2013, which triggered the involvement of the CAS and police, was as a result of a report being made by the vice principal at the children’s school. The applicant called a number of witnesses regarding that incident.

83It was the applicant’s evidence that on the morning of October 8, 2013, the respondent hit her several times in front of the children as there was an issue about the children’s communication folder. Her evidence was that he ordered her to go in to the children’s school to learn from the teachers how to arrange and submit the communications folder. When she was contacted by the police, on the instructions of the respondent, she denied that he hit her.

84The respondent denied that he struck the applicant. His evidence was that there was a discussion about the communications folder that morning, applicant had gotten herself worked up, and she was upset about the different ways the teachers handled the folders. He testified that, while she was getting out of the car at the school to go talk to the teachers, the seat belt brushed across her face causing the red mark. He was nonetheless charged by the police but the charges were withdrawn after he attended a Partner Assault Response program with Ms. Julie Freedman in November and December, 2013. The parties then reconciled.

85Ms. Sarbgit Minhas was a teacher at the school in Markham. She taught AB1. She testified that on the morning of October 8, 2013, the applicant came into her classroom crying. She asked her what had happened and the applicant could not answer at first. She then asked Ms. Minhas about her daughter’s communication folder. Her face was covered with her hands, but when she took her hand down Ms. Minhas testified that she saw a red mark on the applicant’s face. She did not ask Ms. Ganie about it. The applicant then left the classroom. Ms. Minhas told the vice principal about what she saw. She said the red mark looked like fingerprints on the applicant’s face. Ms. Minhas presented as a very credible witness. She gave her evidence in a very direct fashion.

86Judith Addison is a teacher who taught DG in both Junior and Senior Kindergarten between 2012 and 2014. On the morning of October 8, 2013, she recalls the applicant coming into her classroom. She testified that the applicant was upset and immediately asked about the communication folder that was to go back and forth with her son. She was upset as she did not know where the communication folder should go, and said that she was not doing it right and that her husband wanted her to do it right. Ms. Addison testified that she tried to reassure the applicant. The applicant told her she did not understand what her world was like. She testified that she wanted to get the vice principal involved as she felt that the applicant needed attention as she was so distraught. She therefore brought the applicant to the vice principal’s office. She testified that she had never seen any other parent in that kind of state. She did not recall seeing any mark on the applicant’s face. She testified that the applicant said something about having to get things right and that this little routine had to be right. Ms. Addison was also a very credible witness who gave her evidence in a very straight-forward and candid manner.

87Ms. Addison also testified about her dealings with the parties in 2012 when their oldest son, DG, was in her junior kindergarten class. She was concerned about some of DG’s behaviours and so she scheduled a meeting early in the school year to discuss her concerns with the parties. She testified that she had a clear recollection of the first meeting as they had to wait for one hour for the respondent to arrive and the applicant said she could not talk until he arrived. When he arrived, she recalled that he did a lot of talking about himself which was not relevant, as the purpose of the meeting was to discuss her concerns about DG’s language development and social interactions. She also wanted to get some background information about DG and about some of the programs he was involved with before he started school.

88Ms. Addison’s evidence was that as a result of the respondent’s conduct during that first meeting, she requested that someone from the administration always be present at any other meeting where important issues such as report cards were discussed. Accordingly, at the second meeting, the principal was also present.

89She testified that at a meeting that the parties attended with her and the vice principal, the respondent told the applicant she was not to talk. She could not recall exactly what the respondent said to the applicant but she testified that she recalled his tone of voice.

90On cross-examination, she testified that she could not recall having a meeting to discuss her teaching style or about moving DG out of her class. She testified that, in fact, he remained in her class the following year. It was her evidence that DG progressed well but she remained concerned.

91When cross-examined about the first meeting, she described it as difficult, challenging, and intense, and so she decided to have someone from administration present for the next meeting. Her evidence was that she normally did not have anyone else present when she met with parents to discuss their children.

92Heather Purcell was the vice principal at the school. She testified that she recalled an incident in October 2013. She was coming back from the library and she ran into Ms. Addison in the hallway, who told her that she had brought the applicant to her office as she was very upset. Ms. Purcell’s evidence was that when she went into her office, the applicant quickly left with her head down and so they had no time to talk. After the bell rang, she recalled that Ms. Minhas came to the office to speak to her to let her know what she had witnessed as the applicant was upset. Ms. Purcell indicated Ms. Minhas was concerned as she saw a hand print on the applicant’s face. Ms. Purcell testified that she then called the applicant and asked if she was okay. She described the applicant as sounding subdued but she said she was okay. Ms. Purcell told her that Ms. Minhas said she had seen a handprint on her face and the applicant answered that it was true. She testified that she decided to ask the applicant a direct question that she could answer with a “yes” or “no” in the event she was not alone and could not speak freely so she asked the applicant if her husband did it and she said yes. She also testified that the applicant told her that her life was not a bed of roses but she had three small children.

93Ms. Purcell’s evidence was that she shared this information with the principal, who called the CAS. The CAS told her to contact the police as well.

94Julie Freedman gave evidence at the request of the respondent. She was a co-facilitator for the Partner Assault Response (PAR) program. She had provided parenting, counselling and other services in criminal court matters. She was first contacted by the respondent in November/December 2013. She was aware there were allegations in the criminal court and he was seeking counselling to resolve the court matter. He completed the program by December 2013. She described the respondent as being proactive and motivated. He attended a combination of group and private sessions. She described him as engaged and very sincere. He was open-minded and took the materials seriously. She wrote a letter dated December 16, 2013 confirming that he had successfully completed the program. It was her understanding that with this letter, the charges were going to be withdrawn.

95Ms. Freedman testified that she contacted the applicant, as that was her practice, to ask her if she had any questions near the end of the program. Before she could delve into anything, the applicant told her she was going to have an abortion. Ms. Freedman testified that she never had a phone call like that. Her evidence was that the comment came out of the blue and it was very dramatic. The call ended quickly. The respondent was in her office and she told him what the applicant said and he looked taken back and shocked.

96The applicant testified that after the October 8, 2013 incident, she gradually gained the courage to leave the respondent. For the first time, she disclosed to the family doctor on February 6, 2014 that she had been in an abusive relationship with the respondent and was concerned for her safety.

97She was in contact with the CAS and police leading up to the day she left the home, with the children, without telling the respondent. It occurred during March break. Her parents were visiting from Guyana The respondent’s aunt and mother were staying with the family at the house during March break.

98The applicant did not report any of the prior incidents of abuse to the police until after she left the home with the children. On March 7, 2014, she contacted the York Regional Police and reported historical physical and verbal abuse by the respondent. He was charged with 11 offences for alleged assaults that occurred between 2007 and 2014. The charges included assault with a weapon, sexual assault and uttering threats and assault. The charges related to some of the incidents describe above and the following:

• January to June 2008 – in the course of an argument, the respondent threw a box at the applicant that hit her on the elbow;

• January to June 2008 – while holding the oldest child who was six months of age, the respondent pushed the applicant and she fell onto her bed;

• August 29, 2011 – the respondent hit the applicant on her head and face with his hands and held a broomstick and told her he was going to poke her eyes out; and

• April 11, 2012 – the respondent hit the applicant with his hands and a slipper while arguing about feeding the baby, and he told her he wanted to kill her.

99The respondent's criminal trial was conducted over a number of days in 2017 and the judgement was released in May, 2017. He was found not guilty on all counts. In his decision, Bourke J. indicated that there were some problems with the respondent's evidence. He commented that the respondent had a significant obsession with material advancement and a lack of contrition and justification for an angry tirade which was caught on audiotape. During the criminal trial, the court heard audio recordings of the respondent made on three separate occasions in 2014. According to Bourke J., the respondent was heard on that tape using a loud voice and on several occasions using the work "fuck" and other language directed at the applicant. He also spoke of her and her family in derogatory terms. Bourke J. noted that the applicant responded and, although she did not sound agitated, she was also raising her voice. This tape was not introduced as evidence in this trial.

100Bourke J. commented that the applicant expressed a very strong animus towards the respondent and his family. He described her as giving long-winded answers which were not necessary other than to pour more scorn on the respondent. I made the same observation when the applicant testified during this trial. Her animosity towards the respondent was evident in most answers she gave, even when the answer required no comment about the respondent’s behaviour.

101Bourke J. held that the obvious inconsistencies and deficiencies in the applicant’s evidence left the court with a reasonable doubt about the allegations and that, accordingly, he could not convict the respondent.

102The standard of proof in a criminal trial is a much higher one as it requires proof beyond a reasonable doubt to convict. In the context of a civil proceeding, as is this matter, the standard is much lower, only requiring proof on a balance of probabilities. Nonetheless, the decision of Bourke J. is a factor that I must consider in determining the parenting arrangements that are in the children’s best interests.

c) CAS and Police Involvement with the Family

103Both the applicant and respondent sought to introduce as evidence various notes from the CAS. The CAS notes total approximately 2,278 pages. Many of these case notes were prepared by Ms. Tasha Theaker who was the primary case worker involved with the family between May 2014 and sometime in 2016. She was not called as a witness at trial. There were notes prepared by other workers who were also not called as witnesses. The notes dealt with conversations with the parties, the children, and other third parties, and recorded observations made of the children in various settings. This is hearsay evidence but the notes, made in the ordinary course of business, are an exception as a business record. Ms. Theaker, who was not called as a witness at this trial, was not available to be questioned or cross-examined regarding her involvement with the family or her observations and, as such, I place little weight on any of the case notes from Ms. Theaker for the truth of their contents. Her notes, and the notes of other workers not called, are not admissible for the truth of their contents but are admissible as a record of the various complaints made by both parties regarding the other’s parenting ability, what was discussed with the parents, the recording of conversations with the children, and of observations made of them.

104The parties do not dispute that both the police and CAS were contacted on numerous occasions for a three-year period between March 2014 and March 2017. There were a number of times that the children reported incidents of being hit by the respondent. The CAS reports indicate, however, that what the children said was often contradictory and inconsistent and was not reliable to support any claim that the respondent was harming the children.

105Copies of all Occurrence Reports completed in connection with numerous investigations conducted by the Peel and York Regional Police by both parties were filed by the respondent. Only one police officer was called to give evidence about what transpired during one of his investigations. Again, given the hearsay nature of the documents, they are not admissible for the truth of their contents but are admissible as business records. The documents record the reports made by each party and are admissible for the accuracy of what was reported to the police and what steps the police took in response. The parties do not dispute that the police were contacted on numerous occasions.

106These occurrence reports recorded the complaints made by both parties about access and parenting issues. There were also reports made by the applicant that the children told her that the respondent was hitting them or harming them. The police responded to each call. After investigating, no steps were taken and the respondent was never charged with respect to any report that he was harming the children. The following is a summary of the reports to the Peel and York Regional police:

October 8, 2013

107This was a report made by the principal following an incident that occurred at the children’s school. It was investigated and charges were laid and later withdrawn.

December 7, 2014

108At the time of this complaint, the three oldest children were residing with the respondent during the week in Markham, and the applicant and youngest child were residing in Mississauga. The applicant complained that the respondent breached a term of his bail. The investigation concluded that the complaint was unfounded.

December 21, 2014

109The respondent called the police asking that an officer check on the children as the applicant was not letting him speak with them.

December 23, 2014

110The applicant reported to the police that when AG2 returned after being with her father, she had a small cut on her nose. The applicant took AG2 to the family doctor and said she had been slapped by the respondent. The matter was investigated and no steps were taken.

January 10, 2015

111The applicant reported that when AG2 returned home from being with her father, she was observed to have a bruise on her right arm, scratches on her left arm near her elbow, and marks on her hip area. Her daughter told her that the respondent put the marks on her body. The matter was investigated and the file was closed for being unfounded.

January 18, 2015

112The applicant contacted the police complaining that the respondent had not provided her with a valid email address for communications about the children, which was in breach of a court order.

March 2, 2015

113It is not clear why the applicant contacted the police but it appears connected with access issues involving one of the children. The following day, on March 3, 2015, the respondent contacted the police to ask for assistance during the transfer of AG2.

March 5, 2015

114The applicant reported to the police that AG2 had been harmed by the respondent as she was complaining of foot pain and saying her father hurt her. The allegations were reported as being unfounded and no further steps by the police were taken.

May 22, 2015

115The applicant contacted the police. The Occurrence Report simply indicates that there was no evidence to support an allegation of assault or child abuse and no steps were taken.

May 25, 2015

116It is not clear from the records if this was a separate complaint made by the applicant or a follow-up on the prior incident. The police did not take any action.

June 21, 2015

117The respondent contacted the police as the applicant was not allowing him to spend father's day with the youngest child, AB. According to the report, AB had chickenpox. The police spoke with both parties and it was agreed that the respondent would have access to AB for three hours rather than overnight.

June 25, 2015

118The applicant contacted the police to complain about child abuse. The children were interviewed by the police. DG said he saw his father hit his sister with an open hand but was not able to provide any details and seemed to get the event confused. He later said his dad hit his mom. When he was asked to tell the truth, he then said his sister did not get hit but he got hit. He then said everything was good at his father's home. No further steps were taken by the police.

July 30, 2015

119The respondent contacted the police to report that the applicant was sending him excessive emails about the children. The police spoke with the applicant and no further steps were taken.

October 15, 2015

120At the time of this complaint, the children had returned to live with the applicant during the week and were attending a new school in Mississauga. The applicant contacted the police to report that the respondent had breached his bail as he was present in the children's new school when she was present. The police spoke with the parties and no further action was taken.

March 20, 2016

121The respondent contacted the police as the applicant had not returned the children. No steps were taken by the police.

April 24, 2016

122The respondent contacted the police asking that the police check on his children as he was not able to speak with them that day. He reported that two of the children had been sick that weekend and he was concerned for their wellbeing. The police note indicates that a check was made and the mother and children were in good health and spirits.

June 17, 2016

123The respondent contacted the police as he had emailed the applicant to arrange to pick up the children for access but he had not heard from her. The police spoke to both parties and no further steps were taken.

124There were other times that the parties contacted the police. The applicant contacted the police in January and March of 2015 as the children were not home from access visits. The respondent informed the police he was late as the children were at after-school activities. On another date in March 2015, the respondent contacted the police as there was an issue with access arrangements with one of the children.

125On September 14, 2016, the respondent contacted the police as he was to talk to the children each night around 7:00 p.m. but he was unable to reach them.

126As these reports indicate, both parties contacted the police to make various complaints about the other. The most serious complaints were the reports made by the applicant about the respondent harming the children, none of which were found to warrant any further investigation or charges. This pattern of using the police to deal with parenting issues appears to have ended as there is no evidence of reports since September 2016. These reports reflect the high-conflict nature of this matter and demonstrate the inability of each parent to effectively communicate with the other or use a form of dispute resolution that does not involve contacting policing authorities. Again, should this behaviour continue, by either party, it will be a factor in determining if there needs to be any change to this custody and access decision.

d) Evidence of Kevin Neil

127Kevin Neil, a police officer with York Regional Police since September 1990, was called as a witness. He spent ten years in the Child Abuse Unit and is now in the Special Victims Unit. He recalled being involved with an investigation of allegations of abuse involving AG2 in December 2014 and January 2015. The December 2014 incident involved a scratch on her nose. The incident in January of 2015 involved a bruise on her arm and some scratches on her arm. As part of his investigation, he interviewed the parties and the children. It was determined that the allegations that the respondent assaulted AG2 were unfounded.

128He was also involved in an investigation in June 2015 when the applicant sent an email to the police saying they were not doing enough to investigate the abuse. The allegation in June 2015 was that AG2's eye was red and she had some bruising on her knee. She initially said that her father hit her, then said it was a lie, and then said she fell running. According to Officer Neal, he concluded that the injuries were from accidental play and her eye looked like it might have been pink eye.

129He scheduled a meeting to meet with the applicant and the CAS caseworker, Ms. Theaker, on June 24, 2015 to review the outcome of the police investigation. He testified that he spoke to the applicant about his concern with the children being interviewed a number of times by the police and the Children's Aid Society. He testified that he cautioned the applicant about coaching the children although he was not accusing her of doing that. He described it as an amicable discussion and he had no further contact with the applicant. His evidence was that it was hard to determine if the children were in fact being coached and he could not come to that conclusion.

130In cross-examination, he agreed that AG2 could have told her mother that something had happened and that it made sense that she told the police what the children told her even if it was determined to be unfounded.

e) Evidence of CAS Workers

131There is no dispute that there were 13 occasions when the applicant contacted the CAS, primarily, Ms. Theaker, to report allegations that the respondent was harming the children and using excessive discipline. It is not in dispute that each of those complaints were investigated and each time the CAS determined that the children were not in need of protection as there was insufficient evidence that the respondent was physically harming the children.

132Ms. Maurice Gervais testified. She is the team leader of the domestic violence team at the Peel Children's Aid Society. She had been involved with the family since June 2015, primarily as a supervisor of the caseworkers who worked with the family. She was aware that there were multiple investigations and she described it as a high-conflict file. Her evidence was that both parties reported numerous concerns about each other's care and the CAS was concerned about the children given the high conflict between the parents. She testified that there was no evidence to support a finding that the respondent ever used excessive discipline with the children. Her evidence was that this did not mean that the event had not occurred, but rather that there was insufficient evidence to support a finding that he had used excessive discipline. She testified that it was hard to get a clear clinical picture as the children were interviewed so many times.

133Ms. Gervais testified that when allegations are made back-and-forth between parents, children can develop loyalty conflicts and their stories can change when they are with each of the parents. She explained that a loyalty conflict means that a child might say something that they think the parent wants to hear and speak negatively about the other parent.

134She testified that if a child makes an allegation, even if there is a concern about loyalty conflict, the CAS is required to conduct an investigation. In this case, the CAS was worried about the stress on the children caused by the continued investigations.

135She testified that the CAS had requested a parenting capacity assessment in 2015 for the applicant but that she did not agree to participate. She described such an assessment as a tool to help with the parent's strengths and other areas where they might need help building skills and ability. She confirmed the CAS did not ask for a parenting assessment for the respondent.

136Ms. Gervais had a couple of interactions with the applicant. She said that while it was difficult to schedule appointments, when she met her, she was forthcoming and answered her questions.

137The file was closed in March 2017. At the time, the CAS was not convinced that the conflict would stop. While there was still a concern about the children, those concerns were not substantial enough to keep the file open.

138On cross-examination, she testified that both parents were influencing the children. She also confirmed that the CAS received emails and concerns about various issues from both parents. For example, the CAS was contacted by the respondent numerous times with concerns with the youngest child's weight after he was born. A follow-up with the doctor revealed there was no issue. Her evidence was that this was a pattern of behaviour and each parent would contact the CAS to express various concerns about the other.

139With respect to the parenting capacity assessment, she testified during cross-examination that there was concern that the applicant may have experienced trauma while living with the respondent and that the trauma was being projected onto the children. The CAS was looking for a parenting capacity assessment to deal with this hypothesis. Her evidence was that there were some indicators that some conflict had occurred during the relationship.

140In 2017, when she saw the children and reviewed the file, she concluded that each parent was parenting well. Both were involved with the school, both provided the children with their basic needs, and both interacted well with the children, so she did not have any worries about their parenting skills.

141Satnam Sihota, a worker for the Peel Children's Aid Society, also testified. She was involved with the family for one month. She was told that the applicant wanted a “culturally matched worker”. She met with the applicant in September 2016 at the Milton Community Centre. She said she presented well and had no concerns with her parenting skills at the time. She also testified that the applicant cooperated with her when she took over the file. She met with the respondent and children in his home in 2017. She observed good affection and attachment. She had no child protection concerns when the file was closed.

f) Evidence form Family Members

Bibi Barkata

142Ms. Barkata is the applicant’s mother. She and her husband visited the applicant and respondent for the first time for 4.5 months in October 2011. They returned a second time in November 2013. In November 2014, they moved to Canada on a permanent basis and now reside with the applicant and the children. She helps the applicant take care of the children.

143She testified that when she stayed with the applicant in 2011 and 2013, she observed the respondent get angry and swear and shout at the applicant in front of the children, and they would cry. She described an incident where the respondent came home with food for himself and the children and he started yelling at the applicant about why she was not eating with them. Her evidence was that he said he was going to take the children and drive away and sell the house with the applicant inside. On another occasion, the applicant did not put the respondent’s flask of water in his lunch bag and he started to shout and swear and then picked up the flask and hit his head with it.

144She testified that the applicant never told her about being physically abused by the respondent until she returned in November 2013. She testified that her daughter then told her about the October 2013 incident at the school, as well as another time when he pushed her downs some steps and she miscarried. Her evidence was that the applicant told her she did not want to call the police as she was afraid she would lose the children as she did not work.

145On cross-examination, she denied speaking negatively about the respondent in front of the children as described in the OCL report.

Sofeena Barakat

146Ms. Barakat is the applicant’s sister. She testified that the applicant told her about being mentally and verbally abused by the respondent. She testified that she saw some photographs of marks on the applicant’s hands and forehead near the end of 2013. The applicant told her that the respondent hit her with her sandal. She testified that she told the applicant that she did not have to stay with the respondent, but she said she was scared as the respondent threatened to take the children away.

147She testified that in 2006, the applicant told her that she was going to have an abortion and that she did not want to go through with it. The applicant called her again and told her she had to go through with it as the respondent had booked it.

148She sees the children several days each week. She recalls seeing AG1 upset, saying she did not want to see her father.

149On cross-examination, she agreed that she had never heard the respondent threaten the applicant or see him abuse her. Her knowledge was based on only what the applicant told her. She did recall hearing a recording of him shouting and saying bad things about their family.

Bibi Leung

150Ms. Leung is the respondent’s aunt. She has lived in Ontario since 2006. The respondent has been living with her since September 2017. She testified that after DG was born, in 2008, she would spend at least one night per week and sometimes more with the applicant and respondent helping to care for DG. This pattern continued in 2009 and 2010. She described their relationship as wonderful and she never saw anything out of the ordinary. She continued to help care for the children after the second child was born. She said she had a good relationship with the applicant. She testified that after they moved to Markham in 2011, she continued to spend weekdays helping the family. She testified that she did not see any problems in the home.

151Her evidence was that things changed when the applicant’s parents came for a visit. She said that the applicant did not speak as much and was not as pleasant to be around when her parents visited.

152She testified that after AG2 was born, she continued to spend weekdays with the family and everyone seemed happy. Up to 2014, she described it as a happy home and the children were loving and caring.

153Her evidence was that in the winter of 2013, the applicant told her about a seatbelt brushing her face when she got out of car. The applicant told her that the respondent had been charged and had to do a program, but that the charges against him were not true. She testified that she did not discuss anything with the respondent and did not understand why he was charged.

154After the respondent was charged in March 2014, she did the driving to pick up and drop off the children. She never asked the respondent about the charges even though she was his surety. She testified that when she would bring the children to the applicant’s home, the applicant would ask them “where dad hit you?” She never saw the children crying when she was with the respondent to pick up the children.

155On cross-examination, Ms. Leung’s evidence was that on Wednesdays, the children are dropped off at 10:30 or 11:00 pm following the visit with their father. She agreed that sometimes it could be as late as midnight. She agreed that it was possible that the children would get home between 11 pm and midnight on Sunday evenings.

Bibi Hussain

156Ms. Hussain is the respondent’s sister. She testified that she sees the children two to three times per month. Her evidence was that she had a wonderful relationship with the applicant. The applicant told her that was happy to be part of the family and have a loving husband. She never observed any problems. The children appeared happy.

157She testified that when the applicant’s parents arrived, the applicant started to be cold towards her and would not talk.

158She testified that after the incident at the school in October 2013, the respondent lived with her for one month. Her evidence was that the applicant told her that the teachers were making problems for her.

159She testified that the children are happy.

CUSTODY AND ACCESS ASSESSMENTS

a) CLRA s. 30 Report

160Ms. Eileen Spraggett prepared a custody and access assessment report dated September 9, 2014. Ms. Spraggett has her Masters of Social Work. She worked as a clinical investigator for the OCL between 2006 and 2015. Since 2015, she has been working as a clinical social worker in Nova Scotia. She had not seen the children or any of the parties or updated her report before she gave evidence at trial.

161To prepare her report, Ms. Spraggett met with both the applicant and the respondent on four occasions. She had home observations with the children and each of the parties on three occasions. She observed the children at a community centre. She conducted interviews of the eldest and second eldest child. She conducted interviews of a number of collateral sources, such as family members, as well as telephone interviews with a family doctor, paediatrician, Tasha Theaker, the CAS caseworker, and the principal at the school the two oldest children were attending at the time. She also reviewed various collateral reports including a report from the York Children’s Aid Society and a letter from Ms. Theaker. Her investigation was thorough.

162At the time of her report, the respondent had been charged with assaulting the applicant. Her evidence at trial was that the domestic abuse issue was only an allegation and there had been no legal determination of those charges. Accordingly, she did not consider it a factor in her analysis. She indicated that the CAS did not have any protection concerns with respect to the children.

163She testified that she focused on the children’s needs, how the parents could address those needs, and each parent’s willingness to maintain the children’s relationship with the other parent. Her evidence was that on this latter issue, she had concerns.

164Her evidence was that in her meetings with the applicant, she found her to be warm and cooperative, although she focused a lot on the allegations of domestic abuse. She was adamant that the children had been traumatized by what they had witnessed in the home. Ms. Spraggett also testified that she was concerned as the applicant indicated that she did not want the youngest, who had only been born in June, to have a relationship with the respondent. She was not confident that the applicant would be able or willing to sustain a relationship between the respondent and the children.

165Ms. Spraggett testified that before the separation, the children were connected to the respondent, not just in day-to-day matters but also, for example, in dealing with medical issues. When the school identified that the oldest had issues with speech delay and social skills, it was the father who initiated the speech therapy. She indicated that it was also the father who initiated and dealt with dental issues. Ms. Spraggett also indicated that she was concerned that the father had not seen the children for 102 days after the separation. She indicated that during the first weekend of access, the oldest was ill and the father brought him to see a doctor, who determined that he had mononucleosis. During the following visit with the respondent, the second child had strep throat and it was the respondent who brought her in for treatment. Overall, she indicated that the applicant did not initiate treatment. She concluded, therefore, that it was the respondent who was the parent who actively met the children’s educational, medical, and social needs by enrolling them in activities.

166Ms. Spraggett obtained information from collateral sources including Dr. Gunawardena, a paediatrician who had treated the children since 2012. The information from the doctor was that the respondent was the parent who attended to the children’s medical needs; the applicant had limited capacity to do so and would defer the responsibilities to the respondent. She described the applicant as appearing overwhelmed and ill-equipped to manage the children when she attended the clinic with the respondent.

167Ms. Spraggett also reviewed the information she had obtained from Farooq Shabbar, who was the principal of the school that DB attended between September 2012 and March 2014 and that AG1 attended between September 2013 and March 2014.

168She testified that Mr. Shabbar said that it was the respondent who took the initiative to obtain services needed for DG, as he was suspected of being special needs in reading, organization, and speech and language development.

169Ms. Spraggett testified that she saw strengths and weaknesses in both parents. She indicated that the respondent was most attuned to what the children needed and he initiated medical and social activities. She indicated that the applicant was a warm and affectionate parent. For example, she was seen sitting on the floor with the kids crawling on her. However, she was not the parent who dealt with issues. For example, she did not detect her son’s problem with speech delay. Ms. Spraggett testified that she was concerned with the applicant’s anger towards the respondent and the fact that she talked about it constantly. Her concern was that this would interfere with the relationship with the father and that it would continue. She described the applicant as being very easy to talk to and appropriate with the children, but she also recommended that she have counselling to process her feelings regarding the separation. She was concerned that when the applicant left the home with the children, they did not complete their school year. Also, the activities in which they were involved in Markham came to an end. She was also concerned as the applicant did not want the respondent to have a relationship with the youngest child.

170It was Ms. Spraggett’s opinion that the respondent should have sole custody of the three oldest children with a temporary joint custody while parenting program for the youngest. She recommended access to the applicant every Saturday at 6:00 pm to Sunday at 6:00 pm, as well as Tuesday’s and Thursday evenings. She made other recommendations for holidays.

171On cross-examination, she testified that it was her role to focus on the physical, education, social, emotional, and psychological issues of the children, and how the parents could address those needs and build a relationship with the other parent regardless of dispute between the parents. She said her role was not to deny or verify any allegations of abuse or to adjudicate that dispute, but to focus on how the children would have meaningful relationships with both parents.

172On cross-examination, she testified that she was made aware of the October 2013 incident at the school. She did not follow up and speak with any of the teachers or the vice-principal who were directly involved.

OCL Report

173Dr. Pushpa Kanagaratnam is a clinical psychologist and also works as a clinician for the OCL. Price J., in his order dated December 31, 2014, requested the involvement of the OCL. On March 3, 2015, the matter was assigned to the clinical investigator to provide recommendations for custody and access. Dr. Kanagaratnam’s first report was completed in August 2015. She met with the family on a second occasion to update her report at the request of Price J. Her second report was completed in October 2017, just three months before this trial commenced, so it was a very recent report.

174Dr. Kanagaratnam obtained her PHD from the faculty of psychology at the University of Bergen in Norway in 2005. Since 2012, she had been on the clinical panel with the OCL preparing custody and access reports. Since 2016, she has done psychological assessments. She has an extensive CV including writing, presentations, teaching, and research. She has a background in the area of intimate partner violence on immigrant women. She has worked and studied areas unique to immigrants and refugees. She was the co-investigator in a number of research papers including "Health, Social and Economic Impacts of Intimate Partner violence on Immigrant Women who have Left an Abusive Husband." Given the high conflict nature of this matter, coupled with the many accusations made and the investigations conducted by both the police and CAS, Dr. Kanagaratnam has qualifications that are of assistance in this matter.

175Similar to the report prepared by Ms. Spraggett, Dr. Kanagaratnam interviewed the parties on more than one occasion, observed the children with the parents, and interviewed the children. She had contact with extended family, teachers, principals, healthcare workers, and CAS workers. She reviewed the Report prepared by Ms. Spraggett and the Report from the Peel and York Children's Aid Society. She also reviewed the various police Reports from Peel Police between December 2014 and June 2015. She reviewed the York Regional Police Records for the period of October 8, 2013 to January 2015. She described receiving more than 200 emails between the parties and an extensive list of documents from the parties, which included communication between the parties, various photographs showing each parent involved in activities with the children, and audio transfer situations. Her investigation was thorough.

176She testified that there was a power imbalance in the relationship. Her evidence was that the respondent focused on the applicant’s incompetency as a parent and believed that her family was a negative influence on her. Her evidence was that the applicant suffered trauma from abuse during the marriage.

177Her evidence was that both parents seemed to have a good relationship with the children, but given the power imbalance, it was in their best interest that the applicant have sole custody with access to the respondent. She also recommended counselling for the children who had been exposed to the high conflict.

178Her evidence was that when she conducted the second assessment, the respondent continued to speak about the applicant’s incompetency and the power imbalance continued. She testified that the children were more stable and were doing much better. The applicant was providing good care and she recommended that the applicant have sole custody. It was her opinion that given the respondent’s controlling behaviour, joint custody was not possible. It was also her opinion that the youngest child should have the same access schedule as the other children. She testified that there was no evidence of any abuse of the children by the respondent.

179According to Dr. Kanagaratnam, both parties were influencing the children. She observed that they acted differently when with each parent. At the applicant’s house, they were open and talkative. She described them as being more relaxed with the applicant and being playful and communicating with her in a natural way.

180At the respondent’s house, they were much quieter and did not talk to her. She observed that the children did not feel free to talk to her at the respondent’s home and she was not sure if the children felt that they should not be nice to her in front of the respondent. They were also relaxed at the respondent’s home. He had an agenda of what activities they had to do. The respondent gave the children structure.

181In her second report, her opinion remained that joint custody would not be feasible given the power imbalance. She testified that the respondent continued to demean and devalue the applicant.

182She was also concerned as AG1 had been diagnosed with autism and the respondent told her he is against the diagnosis and wanted a second opinion.

183The respondent filed a Notice of Dispute regarding her report and raised a number of issues. His position is that the report is biased and ignored the concerns raised by the police and CAS regarding the number of investigations launched as a result of the applicant’s repeated reports of the respondent abusing the children.

184On cross-examination, it was Dr. Kanagaratnam’s evidence that an assessment must be objective and not biased in favour of one party over another. The report is to stay child-focused and, in her opinion, her report was child-focused. Throughout her investigation, she was always thinking about what was best for the health, development, and future of the children. She was not an advocate for either parent.

185She testified that she received the files from the police and CAS and although she could not recall the details of each incident reported, she was aware that none of the allegations were confirmed and that the police found no evidence of any abuse. Her evidence was that she did not know if the events occurred but only that the police found no evidence.

186She was asked on cross-examination whether there were any red flags given the number of investigations conducted by the police and CAS. Her evidence was that her clinical impression was that the applicant was traumatized by her relationship with the respondent and it was making it difficult for her to differentiate between what she went through and his relationship with the children. She described the applicant as being hyper-vigilant. Things would trigger her and she would contact the police as she was worried about what was happening. Her evidence was that the applicant was a woman under the control and power of the respondent. She testified that the applicant felt that she had to prove to herself that she was doing the right thing.

187She testified that a power imbalance means there is no mutual respect or understanding and that one party constantly puts down the other and sees that person as inferior. It was her evidence that the respondent had constantly criticized the applicant’s parenting, even down to such items as being unable to cut the children’s nails.

188She testified that other than the October 2013 incident, there was no evidence of other physical abuse but there were emotional and control issues. She testified that the respondent’s attitude to herself, the assessor, was controlling as he delayed coming to appointments.

189Dr. Kanagaratnam was cross-examined about the limited documentation she received from the CAS for her second report. For her second report, she received a summary from CAS of its involvement with the family since her last report and not its complete file.

190In her initial report, Dr. Kanagaratnam discussed a home visit at the applicant’s home as follows:

The children were relaxed and happy with Ms. Ganie. She seemed capable of multi-tasking, engaging the girls in activities, breast feeding AB, cuddling with AG2 and checking on DG. Though her parents were present, Ms. Ganie acted as an energetic and an independent parent in making sure that all four children were comfortable. Though David was acting out, she was able to set limits, give clear direction and took time to try and resolve the difficulties by sitting and talking to him and was also attentive to his need to take this investigator out to watch him play. Ms. Barakat’s open negative expression of Mr. Ganie in the presence of the children, however, was a concern.

191In that same report, she also discussed her observations with the children at the respondent’s home as follows:

This was the third attempt at arranging an observation visit with Mr. Ganie and Mr. Ganie was one hour late for it. However, he seemed oblivious to this fact and was not apologetic. When he came in the children greeted him affectionately and he returned their affection. He seemed excited to be around with the children. He chose child friendly activities for the children and sat on the ground with them to help them pay attention to what they were doing. He started to engage the children in the various activities which he had lined up for them, and moved them rapidly from one activity to the other without reading their cues. There were times when the children were not ready or wanted to move to another activity such as when DG wanted to continue with the computer game and AG1 wanted to watch DG play the game. Mr. Ganie seemed less relaxed and more focused on completing his agenda with the children rather than being child-focused and seemed to have difficulties responding to their cues. The children seemed to be excited to have Mr. Ganie around; however, they seemed affected by the rushed schedule. DG was protesting and the girls were trying to go along with the activities Mr. Ganie had planned for them. AG1 was referred to by Mr. Ganie and as “Ariel”.

192Dr. Kanagaratnam also observed the respondent with AB and stated the following in her report:

Mr. Ganie seemed to enjoy his time with AB and engaged him while eating and playing and AB also seemed to responded well to him. Mr. Ganie seemed interested in sharing with this clinician that AB can, for example, eat by himself. He was focused on AB’s development and seemed to be demonstrating how he is encouraging him to walk and encouraging his independence. AB was observed to be called “Peter” by Mr. Ganie during this observation visit.

193In her initial report from August 2015, Dr. Kanagaratnam summarized the respondent’s allegations that the applicant was an incompetent parent and had negative family influence. He said the applicant had a lack of knowledge of basic child care.

194She concluded that her investigation did not provide any evidence indicating that the applicant is an incompetent mother to her children. She stated that the applicant came across as a parent who shows care and affection, is attuned to the children’s individual needs, has age appropriate expectations for them, and seems capable of giving them a structured environment, in spite of her history of trauma.

195With respect to the allegations made by the applicant regarding violence, Dr. Kanagaratnam noted that according to the police and CAS, there was no verification that either parent abused the children. She indicated that there was some evidence of abuse by the respondent to the applicant and she referenced the incident that occurred on October 8, 2013 at the school.

196Dr. Kanagaratnam concluded that the power imbalance in the relationship between the parents was an issue. She described the downgrading attitude of the respondent towards the applicant as he viewed her as a women who could not do even basic chores, such as cooking and cleaning, and saw her as incapable of providing basic care, such as cutting the children’s nails.

197At page 20 of her report, Dr. Kanagaratnam addressed the issue of trauma and indicated that in spite of the unverified consistent allegations by the applicant about the respondent’s abusive behaviour towards the children, a persuasive explanation is her trauma as a victim of abuse. She indicated, “it is very likely that Ms. Ganie continues to suffer from the emotional sequelae of abuse and has flashbacks”. At page 21 she stated the following:

Most likely, the police, CAS and other service providers have become wary of Ms. Ganie’s persistent complaints, (which may or may not be true), increase alertness and sensitivity. Putting the past behind her is not an easy task for Ms. Ganie, as she is forced to deal with the same issues on an ongoing basis, including having communications with Mr. Ganie and his family due to the children. She needs to be understood and responded to as a woman who has likely been severely impacted by the abuse she has gone through in her marital relationship, the extent to which is not known at this point. Ms. Ganie is fully capable in functioning as a parent for her four children, but she will need significant support and professional assistance to recover from the trauma.

198With respect to parenting, Dr. Kanagaratnam indicated that both parents showed affection and were able to set limits for the children, and the children also seemed to be affectionate with both parents. She indicated that the applicant seemed to be more relaxed and independent in a role as a mother and adjusted herself according to the different needs of the four children. She indicated that the children were clearly at ease in both home environments but were given an opportunity to be themselves at the applicant’s home. She indicated that the respondent seemed to bring structure to the children’s environment, teaches the children good manners, and engages them in various activities. It was her opinion that he had difficulties in being child-focused and would benefit from getting education and training in being able to read and respond to children’s cues.

199She commented that there was some evidence of the children having witnessed violence and being continuously exposed to the animosity between the parents and their family.

200Dr. Kanagaratnam indicated that while there was no evidence that the respondent was abusing the children, they were exhibiting behaviours that were of concern. She stated that the children and the applicant exhibited symptoms indicative of having lived in maladaptive environment.

201She concluded that joint custody was not a viable option, that the applicant was a competent parent who had been the primary caregiver, and that the applicant should be awarded sole custody. She recommended that the respondent have access one week day and every other weekend. She also recommended that the children attend school close to their primary residence with the applicant. Her opinion was that activities for the children should be reduced to a minimum. She recommended that their weekend access with the father be free of activities, allowing him an opportunity to relax and spend quality time with the children. She indicated that the children required counselling to help them deal with the emotional impact of exposure to violence and family conflict. It was her opinion that the applicant also needed professional help to reduce her anxiety and improve her parenting and co-parenting skills. She indicated that the respondent needed professional help to deal with anger issues and to learn respectful communication and co-parenting skills.

202When she saw the family to prepare her second report dated October 2017, the children were nine, eight, six, and three years of age. At the time of this report, the children had been residing with the applicant and attending school in Mississauga for two years.

203Dr. Kanagaratnam interviewed the applicant, who expressed ongoing concerns about the respondent hitting the girls and reported that AG1 was refusing to see him. She expressed concerns that the respondent’s aggression was having a negative impact on the children and stated that DG, for example, raised his hand to her. She admitted that she did not want AB to have overnight access with the respondent as of yet as he was still breast feeding before bed and was distressed when away from her for long periods of time. She reported that the respondent continued to be late dropping off the children without giving an explanation. She reported communicating with Mr. Ganie through emails.

204With respect to the counselling recommendations in the first OCL report, she reported that she had contacted the Families in Transitions Program at Family Services Toronto, was told there was a wait time, and did not follow up. She stated that she did not know about Our Family Wizard, which was recommended as a tool for communication in the first report.

205Dr. Kanagaratnam also interviewed the respondent. He reported that the applicant was not able to properly discipline the children. He reported that they need structure. He said that the youngest was still using a diaper and he was the one who had potty trained the three children. He reported that he did not think the children were settled into where they go to school. He reported that DG was bullied and AG1 cried because nobody likes her. He said his sister could pay for private school.

206He spoke about AG1’s diagnosis of autism. He said his concern was that the applicant told others that his daughter had been diagnosed with autism as a result of being a victim of spousal abuse. He also told Dr. Kanagaratnam he does not believe in the diagnosis.

207With respect to the late drop off after access, he indicated that it was because he had to do things that the applicant was not doing. For example, he said he had to help the children with school projects, bathe them, and teach them the rules about washing and having, for example, clean ears.

208He told Dr. Kanagaratnam that he attended five sessions with a counselor through the Families in Transition Program at Family Services Toronto. He said it was helpful and “solidified things I already knew”.

209Dr. Kanagaratnam observed the children with the applicant and stated the following:

Ms. Ganie and the children were observed to have positive interaction during my visit. The children were relaxed and happy. DG and AG1 seem to need extra attention from Ms. Ganie. AG1 do to her limitations with communication and DGd because of difficulties following instructions. Ms. Ganie seemed to understand the different needs of the children well and managed the multiple demands. She showed care and affection and was also good at providing the children with instructions and setting limits as needed. DG was observed to be shifting between baby-talk and being somewhat disobedient, whereas AG2 was observed to be “parroting” Ms. Ganie with an adult type behaviour. It was positive that there was space for the children and a mother to talk about Mr. Ganie in the house in a natural way such as when AG2 and Ms. Ganie were talking about the photo album taken when Mr. and Ms. Ganie were living together.

210With respect to her observation of the children with the respondent, she stated as follows:

Mr. Ganie seemed to enjoy his time with the children and also the children seemed relaxed at their father’s house. There was no opportunity for more focused observation between the children and the father, as there were visitors, and the house was sparsely furnished. Mr. Ganie was affectionate to the children, took care of their different needs and checked on them, while also instructing them as needed. A marked difference was noticed in how the children interacted with this assessor compared to Ms. Gaine’s house. They made no eye contact with me other than they greeted me when they first saw me. But at Ms. Ganie’s house, the overtly acknowledged my presence and interacted with me freely.

ANALYSIS

211There have been two assessments conducted in this matter that made significantly different recommendations.

212Generally speaking, a court should not delegate is decision-making authority on parenting arrangements to an assessor: Strobridge v. Strobridge (1994), 1994 CanLII 875 (ON CA), 18 O.R. (3d) 753 (Ont. C.A.). An assessor’s recommendations are only one factor that the court must consider in making determinations as to custody and access: Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 29 O.R. (3d) 417 (Ont. C.A.), at para. 44.

213In this matter, I prefer the reports prepared by Dr. Kanagaratnam for a number of reasons. Firstly, Ms. Spraggett’s report is of more limited value as it was over three years old at the time of trial. Her report is based on what transpired in 2014. She did not update her report prior to trial and there have been significant changes in the family since her report was prepared. In particular, the applicant has had interim sole custody since December 2014. For the past 2.5 years, the children have been living with her and she has been dealing with their educational and health issues. As a result, Ms. Spraggett’s report is of marginal assistance to the court.

214Both assessors presented their evidence in a professional manner. I found that Ms. Spraggett became defensive when questioned about her reasoning for not taking into account the applicant’s allegations of abusive conduct by the respondent. Her reasoning that they were only allegations yet to be adjudicated by the criminal court is not a basis not to consider whether those allegations could have impacted the applicant’s perceived limitations in dealing with the children’s educational and health care issues. She failed to consider the very real possibility that the applicant was excluded from actively participating in those parenting activities as a result of the respondent controlling all decision-making in that regard during the marriage.

215Dr. Kanagaratnam has experience in dealing with immigrant women and trauma, which enabled her to provide much-needed assistance to the court in understanding the applicant’s behaviour. She also had the benefit of assessing the family in 2015 and then again in 2017. Of importance is that in her second report, she commented on how much better the children were doing at that time, which was only three months before trial.

216I did not find her report to be biased or to not be complete due to her not having been provided the full file from the CAS. She was attuned to the issue of the applicant making repeated reports of the respondent harming the children that were determined to be unfounded.

217A review of the CAS and police files and the evidence of the witnesses, including the applicant herself, raise concerns about her inability to recognize the potential negative impact on the children by repeated interviews by the CAS and the police. Concerns were raised about the possibility of the applicant coaching the children by Officer Neil in 2015. Neither the police nor CAS found any of the complaints made about the respondent's behaviour towards the children to be verified. There is no evidence that the children are in any way being harmed by the respondent. This raises the concern that the applicant’s behaviour could be a deliberate attempt to interfere with the father's relationship with the children. The respondent's position is that the applicant is engaged in parental alienation.

218I am troubled by the applicant's behaviour as she does not dispute that there were 13 separate times that she made reports about the respondent's conduct towards the children, and each time the investigation revealed there were no concerns. Fortunately, there has not been any ongoing involvement of the police or CAS for close to two years now.

219Dr. Kanagaratnam had insight into the applicant’s behaviour and provided an explanation for why the applicant continued to report abusive behaviour of the respondent towards the children when there was no evidence of any such abuse. Her behaviour is not necessarily a deliberate attempt to alienate the respondent from the children. In fact, there is no evidence that the children have been alienated from the respondent. According to Dr. Kanagaratnam’s report, the children appeared relaxed and enjoyed their time with the respondent. Other than some issues surrounding transitions involving AG1, there is no evidence that the children do not want to spend time with the respondent. They are not engaging in any behaviour indicative of children who are being influenced by one parent to become alienated from the other parent. The respondent is to be commended for his ongoing commitment to the children.

220I find that there is no evidence that the respondent ever harmed the children either during the marriage or since separation. There have been numerous investigations by the police and CAS. If there was enough evidence to support the allegations, either the CAS or police would have acted on it. There is no risk to the children when they are with the respondent. I accept the evidence from both assessors and from the respondent that he has a loving relationship with his children. He was and continues to be involved with their education, health, and extra-curricular activities.

221Although the respondent raised a serious concern that the applicant’s repeated reports to the police and CAS was an attempt to alienate him from the children, there is no evidence that any such alienation has occurred. Even though there was no expert evidence led on the concept of parental alienation, both assessors saw positive interactions between the children and the respondent. It is imperative that the parties recognize and, most importantly, respect the value and importance of both parents being involved in their children’s lives.

222The repeated reports to the police and CAS have come to an end. I accept Dr. Kanagaratnam’s explanation of the applicant’s behaviour and that she was traumatized during the marriage. Although the respondent was found not guilty at the criminal trial of all allegations of abuse, on a balance of probabilities, which is the civil standard of proof, I find as a fact that there was conflict during the marriage. The evidence from the teachers and vice principal regarding the October 2013 incident is reliable evidence of a traumatic incident involving the applicant and respondent. It was third parties who made the first contact with the police and not the applicant.

223In addition, Ms. Gervais from the CAS testified that the society’s concern was that the applicant may have experienced trauma and that trauma was being projected onto the children.

224The respondent has little respect for the applicant as a parent. In his discussions with Dr. Kanagaratnam, he focused on the applicant’s alleged inabilities to parent. He continues to denigrate the applicant’s abilities as a mother. Based on the evidence I have reviewed, I find that the relationship was not a healthy one and that the applicant left the marriage feeling vulnerable and insecure as a mother. I accept the applicant’s evidence that the respondent was controlling during the marriage. I also note the comment made by Price J. regarding the respondent’s conduct towards the applicant that he observed in court in December 2014.

225Ms. Gervais from the CAS spoke about loyalty conflict. I have no doubt that the children say things to each parent that the parent wants to hear. These children have a right to be parented in an environment where respect is shown to both parents. Both parents must not speak negatively about the other in the presence of the children.

226Based on her presentation at this trial, the applicant appears to be fixated on the respondent’s past conduct. In response to most questions, she repeated again and again how he abused her and the children and how they suffered. She must accept the positive role the respondent has as a parent and that the children enjoy spending time with him. She cannot focus on the past but most look forward and redirect her energy on the best interests of the children. She should seek out appropriate counselling to help her understand and deal with the unfounded fears she has regarding the respondent’s behaviour towards the children. The children should not be subjected to questions about whether their father harms them. If she cannot do this and if she continues to project her trauma and fears onto the children and interfere with their relationship with the respondent, changes to the parenting arrangement may be warranted.

227Likewise, the respondent must demonstrate respect for the applicant’s parenting abilities. His evidence was that the applicant was an incompetent parent in many respects. He even repeatedly criticized her inability to get a driver’s licence as further evidence of her incompetence. The evidence of Ms. Judith Addison regarding her concerns about how the respondent would not let the applicant speak at meetings is reflective of the control he exerted over the applicant during the marriage.

228Parenting is not a competition where one tries to outdo the other. As I indicated at the beginning of these reasons, all parents have strengths and weaknesses. Weaknesses must not, however, be used as a weapon to inflict harm on the other.

229The applicant has demonstrated that she is a capable parent. Since the separation, she has dealt with AB’s health issues following his birth and AG1’s diagnosis with autism. She is involved with the children’s school and, based on their report cards, the children are doing well. While the respondent was responsible for scheduling and organizing the children’s education, medical, and extra-curricular activities during the marriage, the applicant has demonstrated that she is able to attend to their needs.

230There is a concern with the children’s attendance at school in the 2017-2018 year during the criminal and family law trial proceedings. Even if the applicant was overwhelmed by these court attendances, priority must be given to the children attending school. The failure of the children to attend school on a regular basis, unless for health or other extraordinary reasons, will be a basis to reassess the parenting arrangements.

231For 2.5 years, the children have been attending school in Mississauga and living principally with the applicant. While there is no requirement to maintain the status quo arrangement, it is a factor to consider in assessing what is in the best interests of these four children.

232The respondent’s plan of care is that he will move to Markham with the children, if he is granted custody, and enrol them in the school the oldest two had attended up to October 2015. The respondent's position is that the children have an attachment to Markham.

233The respondent filed a document brief which he entitled “Kids Connection to Markham Document Brief”. That document brief contained a number of documents dealing with the children’s attendance to see the dentist and speech/language therapy. AG1 continues to attend speech therapy every Wednesday, for which the respondent pays. There were also documents confirming that the respondent had enrolled the children in various sporting activities in the City of Markham between 2012 and 2018. They were also involved in martial arts. The respondent’s position is that while the children have been living with the applicant in Mississauga, he has maintained their connection to Markham through enrollment in programs when he has them on the weekends.

234The children were very young when they attended school in Markham. They have been attending their current school now for 2.5 years. To uproot the children now and return them to school in Markham would be a significant disruption.

235As mentioned, the respondent’s evidence is that he has maintained the children's connection to Markham by enrolling them in activities in Markham on the weekends when he has access. It would, however, be in the children’s best interest to be involved in activities that include their friends from their school and in their neighbourhood.

236The children essentially have two separate existences. One is with their mother living with her and her parents and attending their school in Mississauga. The second is based in Markham. Every second weekend, they spend time with their father and go to Markham for activities in a community where they no longer live or go to school. I find that the respondent is trying to maintain a false connection to Markham and fails to appreciate that it would be in the best interests of the children if they could be rooted in one community. He does not accept that that community is Mississauga.

237The respondent did not give any evidence about considering moving to live closer to the children in Mississauga. He currently lives with his aunt in Toronto after having sold the home in Markham. He is working at a transient job for various ride-sharing companies. There would be no reason, therefore, why he could not move to be closer to the children in Mississauga so that they would not be disrupted from their current schooling.

238If the respondent were to live closer to the children in Mississauga, he could play a more meaningful role in their day-to-day activities. In addition, he and the children would not have to drive such a long distance as they do now between Mississauga and Markham.

239I have considered the evidence of both the applicant’s and respondent’s family members. As expected, they supported and were aligned with either the applicant or respondent, respectively.

240When I consider the factors set out in s. 24 of the CLRA, I find that there is love, affection, and emotional ties between the children and both parents. There are extended family members on both sides of the family who should continue to be a part of their children’s lives. Given the children’s ages, their views and preferences cannot be reasonably ascertained. I have also considered the 2.5 years that the children have now lived and gone to school in Mississauga as a factor. I find that both parents can provide the children with guidance, education, and the necessaries of life. With respect to AG1’s special needs, the applicant has demonstrated the ability to address the concern and she is now receiving assistance at school.

241The respondent filed as an exhibit a book of photographs of the applicant and the respondent together during the marriage and other photographs showing family life. There were also photographs of the respondent and the children post-separation. The applicant also filed a number of photographs. All the photographs depict what appears to be a very happy relationship between the applicant and the respondent while they were married and a happy family both pre and post separation. I find that there were many happy moments as a family, both pre and post separation. I find that there is a great deal of love and affection between the children and with their parents which should be nurtured and fostered by both parents.

242I am concerned, however, with the respondent’s proposed plan of moving the children to Markham should he be awarded custody. He does not live in Markham. There is no evidence he works in Markham. The children went through a great deal of upheaval after the separation. They have now been residing in a stable environment for the past 2.5 years. There is no basis for the children to be moved, once again. That would not be in their best interests. There is no evidence that Markham is in any way a better city to raise children than Mississauga.

243I find that it is in the best interests of the children to remain living with the applicant in Mississauga.

244A joint custody order would not be in the best interests of the children given the high level of conflict between the parents. The focus of joint custody is the decision-making for the four children. Neither the CLRA nor the Divorce Act provides sufficient guidance with respect to determining the appropriate decision-making order. Typically, an order for sole custody means that decision-making rights are granted to the custodial parent. Joint custody describes a situation where both parents are given full decision-making authority and responsibility to be exercised jointly. Neither sole nor joint custody determines the actual living arrangements for the children.

245As Chappel J. stated at para. 54 of Roloson v. Clyde, 2017 ONSC 3642, at para. 54, the goal of the court is to resolve custody and access disputes in a manner that will provide for the healthy growth, development, and education of the child so that they will be equipped to face the problems of life as a mature adult. At para. 57, she held that the child’s best interests must underscore any decision-making framework. This means that if a court chooses to impose a decision-making framework, it must be child-focused and as free from conflict and stress as possible. When a court considers such a framework, it must look at all possibilities, not just those the parties have proposed.

246In Jackson v. Jackson, 2017 ONSC 1566, Chappel J. held, at para. 65, that the decision to grant an order for sole or joint custody based on the child’s best interests is ultimately a matter of judicial discretion. She provided a general overview of the principles that assist a trier of fact in considering joint custody, gathered from an extensive review of case law. Chappel J. explained that there is no default position in favour of joint custody and that each case is driven by the judge’s discretion. A judge should only consider joint custody if both parents pass the threshold fitness test, meaning they are able to meet the children’s general needs. The parents may agree that they are both “fit” parents, but this is not determinative. Rather, a judge must use discretion in considering the quality of past parenting decisions, as well as the presence of conflict between the parents.

247Conflict does not immediately preclude joint custody, but parents must demonstrate that they can communicate and cooperate reasonably in order to shield the child from conflict and pursue their best interests at all times. Joint custody is not appropriate when the parents have shown they are unable to communicate or cooperate, or when one party puts their own interests before those of the child. This review must be objective, as the mere desire that communication and cooperation will improve is not sufficient.

248The applicant and respondent communicate with each other by email. The issue is not the lack of communication but rather the quality of the communication. Numerous emails were filed by the parties. The emails go beyond sharing information about the children and include accusations made by one parent towards the other. The applicant’s emails, in particular, are quite lengthy.

249It is also not clear from the evidence if both the applicant and respondent take the children to separate doctors. If so, that is not a good arrangement for the continuity of care for the children. During this trial, there was a great deal of evidence about the speech therapy that the respondent continues to take AG1 to during his Wednesday evening access. What is not clear is if this treatment is integrated with her autism diagnosis. The respondent’s evidence is that he does not accept the diagnosis. He believes that just as DG attended speech language therapy, AG1’s needs can also be addressed by the same therapy. It is commendable that the respondent wants to maintain an active role in addressing his children’s health needs, but there should be an integrated approach such that the school is aware of the treatment AG1 receives when she is with the respondent. The children should not be cared for in silos where each parent deals with the children’s needs as they consider appropriate when the children are with them. That will not benefit the children in the long term.

250On a final basis, the applicant shall have sole custody of the children DG, AG1, AG2, and AB. The respondent shall have access as follows:

a) Every Wednesday from the end of school, or from 4:30 pm if it is not a school day, until 8:00 pm.

b) On alternate weekends from Friday after school, or from 4:30 pm if it is not a school day, until Sunday evening at 7:00 pm. If Friday is a holiday, the access shall commence on Thursday at 4:30 pm.

c) The respondent shall pick up the children at their school or at a mutually acceptable location. The children shall be returned following access to the applicant’s home.

d) The respondent shall have access to all important education-related information and progress regarding the children which he can obtain directly from the school.

e) Neither party shall involve the children in adult issues or shall disparage or speak negatively about the other in the presence of the children.

f) With respect to holidays and other special occasions, access shall be as follows:

I. Father’s Day: They shall spend Father’s Day, if it is not a scheduled access visit, with the respondent from Sunday at 9:30 am until their return to school on Monday.

II. Mother’s Day: If the children are not with the mother on that weekend, they shall be with the applicant on Mother’s Day from 9:30 am until they return to school on Monday.

III. March Break: In even numbered years, from the close of school to the resumption of school, the children shall be with the respondent. In odd numbered years, from the close of school to the resumption of school, the children shall be with the applicant.

IV. Easter: In even numbered years, the children shall reside with the applicant mother from Thursday prior to the Easter weekend at 6:30 pm to Saturday at 10:00 am and with the father from Saturday at 10:00 am to the resumption of school. In odd numbered years, the children shall reside with the respondent from the Thursday prior to the Easter weekend at 6:30 pm to Saturday at 10:00 am and with the applicant from Saturday at 10:00 am to the resumption of school.

V. Summer vacation: Each of the father and mother shall have an uninterrupted vacation time of two (2) weeks’ duration with the children during the month of July and two (2) weeks during the month of August during which time the other parent’s mid-week access shall be suspended. The parent having first choice of vacation period, shall advise the other parent by May 15 of the chosen vacation weeks with the children. The other parent shall advise the first by May 31 of the chosen weeks. The mother shall have first choice in even numbered years and the father shall have first choice in odd numbered years.

VI. Thanksgiving: In even numbered years, the children shall spend it with the respondent and in odd years, they shall spend it with the applicant.

VII. Christmas: In odd numbered years the children shall reside with the applicant from the beginning of the school holiday until December 25 at noon, with the father from December 25 at noon until December 29 at noon, and with the applicant from December 29 at noon to the resumption of school. Beginning in even numbered years thereafter, the schedule shall be reversed and the children shall reside with the respondent from the beginning of the school holiday until December 25 at noon, etcetera.

VIII. Birthdays: The children shall spend at least two (2) hours with each parent on their parent’s respective birthdays.

g) When children are in the care of one of their parents and that parent is unable to care for them directly, it should be the responsibility of that parent to make arrangements for the children’s care. That parent may ask the other parent to assume care, but shall be under no obligation to do so before engaging other family members, unpaid volunteers, or commercial care/givers to care for the children.

h) Each parent shall be entitled to travel with the children outside of Canada during periods when they are in that parent’s care, provided that parent shall provide an itinerary, with flight numbers and the places of lodging and telephone numbers where he/she and the children may be contacted during any absence from Canada at least 30 days in advance. When one parent proposes to travel, the other shall provide the necessary travel consents to facilitate this.

i) The mother shall hold the children’s birth certificates, social insurance cards, and travel documents, but she will release them to the respondent when he requires them for travel in accordance with this order. She shall also release these documents upon the father’s request for occasional periods not to exceed 72 hours.

j) The children’s OHIP cards shall travel with them when the children’s residence changes from the home of one parent to that of the other.

k) Neither party shall arrange extra-curricular activities for the children or attendance at special events at a time when the children are to be in the care of the other parent pursuant to this order.

l) Both the applicant and the respondent shall have the right to information regarding the children’s school progress, as well as to the release of information pursuant to the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A (“PHIPA”) regarding the children’s health and general wellbeing. Each of the parties may prepare a direction and a consent to disclose personal health information pursuant to the PHIPA, authorizing him/herself to contact teachers, school officials, doctors and dentists and authorizing them to provide information directly to that party. The other party shall sign and return this authorization within ten (10) days of receipt.

m) Each of the parties shall have the right to communicate with the children at any reasonable time by telephone and email. Each parent shall keep the other informed of the children’s email addresses and telephone numbers, as well as their residential address(es), whenever any of these change.

n) There shall be no change in the children’s school without the advanced written consent of both parents or an order of the court.

251If the respondent were to live in closer proximity to the children, his weekend and mid-week overnight access to the children could be expanded to include an additional overnight such that he would return the children to school in the morning rather than to the applicant’s home that night. For example, on the weekends, his access would be extended to Monday mornings when he would drive the children to school. On Wednesday’s, the access would be extended such that he would return the children to school Thursday mornings. At this time, as the children attend school in Mississauga and the respondent is living in the Don Mills area of Toronto, it is too great a distance to drive the children to school in the morning and as such the respondent will be required to return the children to the applicant on Sunday and Wednesday evenings.

252These access arrangements are therefore subject to review should the respondent secure a residence in closer proximity to the children.

ISSUE TWO

Spousal Support

i. The Law

253Section 30 of the Family Law Act, R.S.O. 1990, c. F.3, provides that “[e]very spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with the need, to the extent that he or she is capable of doing so.”

254In accordance with s. 33(8) of the Family Law Act, the purpose of an order for spousal support is to:

a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

b) share the economic burden of child support equitably;

c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

255In Shaikh v. Shaikh, 2016 ONSC 7400, Price J. summarized the following principles in relation to orders of spousal support pursuant to the Family Law Act:

[51] The Supreme Court of Canada, in Moge v. Moge, in 1992, commented on the last of the purposes listed above, relieving economic hardship resulting from the marriage or its breakdown. McLachlan J. stated:

… [T]he judge’s order should...grant relief from any economic hardship arising from the breakdown of the marriage. The focus here, it seems to me, is not on compensation for what the spouses have contributed to or gained from the marriage. The focus is rather post-marital need; if the breakdown of the marriage has created economic hardship for one or the other, the judge must attempt to grant relief from that hardship.

[52] The Supreme Court further held, in M. v. H., in 1999, that the spousal support provisions of the FLA help protect the economic interests of individuals in intimate relationships. When a relationship breaks down, the support provisions help ensure that a spouse who has contributed to the couple's welfare in intangible ways will not find himself or herself "utterly abandoned".

[53] As noted below, the circumstances to be considered when determining the amount of spousal support, in relation to need, include the spouse's capacity to contribute to his or her own support, the measures available for him or her to become able to provide for his or her own support, and the length of time and the cost involved to enable the dependent to take those measures.

[54] Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. Entitlement can be based on compensatory, non-compensatory or contractual grounds.

Compensatory Support

[55] Because marriage is a joint endeavour, spousal support orders are designed to be compensatory, to bring about an equitable sharing of the benefits and burdens of the relationship, having regard to all the circumstances, including the advantages each of the parties derived from their relationship. L'Heureux-Dubé, J. stated in Moge:

Essentially, compensatory support intends that both spouses profit from the joint venture of marriage. The question is not what the disadvantaged spouse would have achieved had he or she not entered into the marriage. Rather the question is what was that spouse's contribution to the marriage and was the other spouse advantaged by that contribution. If so, does equity demand a sharing of any advantage gained should the benefits of an advantaged spouse be apportioned. In practical terms, the issue will generally revolve around whether one spouse has gained an advantage in his or her ability to earn income or acquire assets that should be shared for at least some period of time.

Non-Compensatory Support

[59] Non-compensatory support is a residual basis for ordering support "where it is fit and just to do so."

[Emphasis original to Price J., footnotes omitted.]

256The applicant has a high school diploma from Guyana. She worked for two years in human resources before she moved to Canada. She intended to upgrade her education in Canada. She has not yet done so. She attended Ryerson for a term to upgrade her high school diploma. She worked part-time between 2005 and 2007 for two retail stores. She has been supporting herself and the children on the Child Tax Benefit of $2,408.66 per month. Her evidence was that she has used food banks when needed.

257At the time of their separation, the applicant was the full-time caregiver for the three children and then four children after AB was born. It is not in dispute that she did not work after January 2008.

258The applicant is entitled to compensatory support. She has not worked outside the home for ten years, following the birth of her second child. She has limited education and work experience in Canada. She only worked on a part-time basis for two years. Her evidence is that she intends to study Early Childhood Education at Humber College. She is young and should be encouraged to upgrade her education to increase her employability.

259The applicant has suffered financial hardship as a result of the breakdown of the relationship and is unable to support herself without financial assistance from the respondent.

260Having found she is entitled to support, the determination of quantum turns on whether an income ought to be imputed to the respondent. That finding will also have an impact on my finding regarding the quantum of child support.

261The respondent’s evidence was that he had worked in the real estate and property management industry since 2001. He worked for Brookfield LePage Johnson Controls as an assistant manager for one year and then for Oxford Properties as a tenant coordinator. In 2011, he left that company to join Whiterock Reit as a general manager, earning $103,000 per year. He left that job due to restructuring.

262His evidence was that between 2012 and 2015, he was employed with Infrastructure Ontario as a portfolio manager, earning approximately $85,000 per year. His evidence was that he resigned from the job in January 2015 due to a hostile work environment that developed after the applicant contacted his employer and informed them that they were separated when AB was born. At the time, the respondent was on a paternity leave.

263According to a Notice of Reassessment from Canada Revenue Agency (“CRA”), his employment income in 2011 was $90,176. His income in 2013 was $95,270, and in 2014, it was $103,299.

264His evidence was that in February 2015, he began to work for Dream Unlimited as a senior property manager earning approximately $90,000 per annum. His evidence was that he was terminated from that job in September 2015, without cause, and collected Employment Insurance (“EI”) between October 2015 and February 2016. In February 2016, he worked for a real estate company until August 2016, when he was terminated without cause. He collected EI until May 2017. In July 2017, he began to drive for Uber.

265In August 2017, he started to work for Arrow Truck as a sales representative, but was let go after one month due to restructuring. In December 2017, he began to work for Lyft as a driver. His evidence at trial was that he now earns approximately $28,000 per annum.

266The respondent filed copies of his assessments from Revenue Canada with his closing submissions for the years post-separation. In 2015, his income was $90,191. In 2016, his income was $127,991. Of that amount, $42,250 was RRSP income. He earned $13,624 from EI, $60,447 from employment income and $11,670 of other income for total income, excluding RRSP’s, of $85,541. In 2017, he had total income of $59,751. Of that amount, $28,848 was RRSP income. He earned $11,814 from EI, $7,740 from employment income, and $11,670 as other income for a total income of $30,903. He also had a net business income (or loss) of -$321 based on gross business income of $14,418. There was no evidence led with respect to the nature of the business he operated to sustain an income loss in 2017.

267The respondent’s evidence was that he was close to securing other jobs post-separation but when companies did a background check on him, he was not offered a job. He testified that there is information on the internet about his family law litigation but provided no evidence of that. He also referred to a letter the respondent wrote dated May 20, 2014 addressed “To Whom it May Concern” which describes incidents of abuse. His evidence is that this letter has prevented him from securing employment but gave no specifics about that. Presumably, the suggestion is that the applicant may have been circulating this letter to potential employers.

268The applicant’s evidence was that the letter was written so she could obtain housing. There is no evidence that she has in any way interfered with the respondent’s attempts to secure employment. That would, in fact, work against her as it is in her and the children’s best interest that the respondent secure full-time work so that he can pay an appropriate level of child and spousal support.

269There was, however, an email from the respondent’s employer dated January 12, 2015 confirming that the applicant contacted the employer at the time to report that they were separated at the time AB was born. That is accurate information. (It is not clear if the respondent failed to mention that to his employer when he requested a paternity leave.) Other than mere speculation, there is no evidence that the applicant did anything to interfere with his employment post-separation. Furthermore, the applicant has an interest in the respondent securing full-time employment given her entitlement to spousal and child support.

ISSUE THREE: IMPUTATION OF INCOME

a) The Law and Analysis

270Pursuant to s. 19(1) of the Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”), the court may impute such an income as it considers appropriate in the circumstances, including situations where:

a. The spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse.

271In Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.), the Court of Appeal considered the issue of imputing income. At para. 32, it found that in meeting the legal obligation to support their child, a parent must earn what he or she is capable of earning. This principle was affirmed by the Court of Appeal in Lavie v. Lavie, 2018 ONCA 10, where Rouleau J.A. found at para. 24 that in order to find intentional under-employment and impute income, there is no need to find a specific intent to evade child support obligations. Rouleau J.A. further underscored the principle in Drygala: to meet the legal obligation to support their child, a parent must earn what they are capable of earning.

272In Drygala, the Court of Appeal set out a three-part analysis to be used when assessing intentional unemployment or underemployment pursuant to the Guidelines, at para. 23:

1. Is the spouse intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

3. If the answer to question #2 is no, what income is appropriately imputed in the circumstances?

273In Pey v. Pey, 2016 ONSC 1909, at paras. 85-94, Shelston J. provided a detailed analysis of the factors or principles to be considered in applying the three-part test as articulated in the case law. First, when considering whether a spouse is intentionally under-employed, there is no requirement of bad faith. However, the onus is on the party seeking to impute income to show intentional under-employment. When a court considers a spouse’s income earning capacity, it should consider that spouses have a positive obligation to reasonably maximize their earning potential for their children’s benefit. Further, a spouse’s earning capacity may be influenced by a number of factors, including age, education, health, work history, and the availability of appropriate work. A spouse cannot recklessly or selfishly quit, or otherwise reduce support obligations through intentional income reduction. If a spouse loses their job, the court may recognize a grace period, but will require the spouse to undertake a reasonable job search.

274Second, a court must determine whether the intentional unemployment or under-employment is reasonable. Shelston J. explains that though intentionally reducing one’s income is not presumptively unreasonable, a spouse must demonstrate that the choice to do so was the product of a thoughtful, reasoned and practical decision.

275Third, when making the decision to impute income, Shelston J. notes that courts have wide discretion, and should consider the spouse’s earning potential with regards to age, health, and work experience, and the number of hours at a particular rate that the spouse can be expected to work. Previous income employment can be a factor in this calculation.

276The applicant’s position is that the respondent left his job in January 2015 voluntarily. This was one month after Price J. ordered that the applicant would have interim sole custody but that the children would live with the respondent in Markham to go to school. The respondent alleges he left due to a toxic work environment but there was no evidence called about why he left. When he did leave, he went to another full-time job. He testified that since 2015, he has been terminated from two jobs without cause and lost another job due to restructuring.

277The respondent filed documentation of his attempts to secure employment through employment agencies. He always worked full-time during the marriage and was very proud of his success after moving to Canada from Guyana. I do not accept his evidence that any of his attempts to secure employment have been thwarted by information about this litigation on the internet. He did not present any such evidence at trial. I am not, however, persuaded that he is deliberately underemployed and I am not prepared to impute an income to him. At this time, however, he has not provided any documentation regarding his current employment. While he claims to earn $28,000, no evidence was presented regarding his current income.

278In order to assess the quantum of spousal and child support owing, the respondent must file and serve an updated affidavit by April 1, 2019 disclosing the name of his current employer, nature of his employment, and documentation confirming his income. If the applicant requests it, a ½ day hearing shall be scheduled before me for the purpose of cross-examination of the respondent and for further submissions on the issue of the respondent’s current income for the purpose of determining the quantum of spousal and child support on an ongoing basis. I will also hear submissions about what, if any, adjustment should be made given the lump sum order made in March 2018.

279I also invite the parties to make submissions on lump sum spousal support.

ISSUE FOUR: EQUALIZATION OF NET FAMILY PROPERTY

280The main issue in dispute is the credit for post-separation expenses paid by the respondent and the applicant’s claim for occupation rent.

281The applicant agrees with the Net Family Property Statement filed by the respondent dated January 20, 2018 with two exceptions. First, the applicant’s position is that the 2008 Ford Escape, a vehicle registered in both their names, should be sold as the parties have agreed to do that. There is also an issue about 10 plots at Beechwood cemetery. The applicant’s position is that those plots should be divided equally between the parties. The respondent made no submission on this issue but in his Net Family Property Statement, he attributed ½ the value of the plots to each party. Accordingly, I order that the plots at the cemetery shall be divided equally between the parties. I also order that the 2008 Ford Escape shall be sold and the proceeds divided equally between the parties.

282On April 25, 2018, on consent, I ordered that the existing joint debs were to be paid from the proceeds of sale of the matrimonial held in trust. The parties agree that the joint debt to be paid was $25,097.47. It is presumed that those debts were paid.

283The respondent lived in the matrimonial home at 412 Foshan Avenue in Markham until it sold in January 2017. He paid all of the carrying costs for the home between March 2014 and September 2017. The respondent requests a credit for the payments he made to maintain the property including the mortgage, taxes and insurance. The applicant did not contribute to any of those expenses. The respondent did not ask for this credit in his Answer.

284At the commencement of the trial, the applicant took the position that she would be seeking occupation rent from the respondent for the period of time that he lived in the home. The applicant did not request this relief in her Application, although she did request the sale of the home, whereas the respondent requested exclusive possession.

285The respondent objects to the claim for occupation rent as it was not pleaded in the Application. In Guziolek v. Guziolek, [2006] W.D.F.L. 2523 (Ont. S.C.), Croll J. found at para. 19 that there was no prejudice although the claim was not pleaded as the claim for occupation rent was being used as a shield and not a sword.

286In Griffiths v. Zambosco (2001), 2001 CanLII 24097 (ON CA), 54 O.R. (3d) 397 (Ont. C.A.), at para. 49-50, Osborne J.A. held that a judge has jurisdiction to order that occupation rent be paid if it is reasonable and equitable to do so. The relevant factors to be considered will vary from case to case. However, in a family law context, some factors are consistently taken into account such as: (a) the timing of the claim for occupation rent; (b) the duration of the occupancy; (c) the inability of the non-resident spouse to realize on his or her equity in the property; (d) any reasonable credits to be set off against occupation rent; and (e) any other competing claims in the litigation. The weight to be given to these and other relevant factors is a matter for the judge to determine.

287In Higgins v. Higgins (2001), 2001 CanLII 28223 (ON SC), 19 R.F.L. (5th) 300 (Ont. S.C.), Quinn J., after reviewing the jurisprudence, stated at para. 53, that the following factors must be considered in making an order for occupation rent:

(a) the conduct of the non-occupying spouse, including the failure to pay support;

(b) the conduct of the occupying spouse, including the failure to pay support;

(c) delay in making the claim;

(d) the extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home;

(e) whether the non-occupying spouse moved for the sale of the home and, if not, why not;

(f) whether the occupying spouse paid the mortgage and other carrying charges of the home;

(g) whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support;

(h) whether the occupying spouse has increased the selling value of the property; and

(i) ouster is not required.

288In this matter, as the respondent is seeking recovery for ½ the expenses he incurred to maintain the home, it is only fair that the applicant be able to seek an allowance from him for occupation rent as he was living in a house that she jointly owned. I have also considered that he did not pay any support since August 2016. What is most unfortunate is that significant proceeds of sale of over $600,000 have been held in trust while the applicant has been supporting the children on the child tax benefit and at times resorting to food banks. She has not had access to her share of the equity in the home during a time that she and the children were in need as the respondent had not been paying support. Given all of the circumstances, she is entitled to occupation rent.

289The applicant did not lead any evidence regarding what the occupation rent for the property would be. The respondent, however, testified that he had looked at some homes in Markham to rent that were close to the former matrimonial home and that rental prices were in the range of $1,950 to $2,200.

290As the respondent resided in the property and paid all expenses to maintain it, he should be credited with ½ of those expenses which were the joint responsibility of the applicant. Likewise, it is only fair and equitable that the respondent pay to the applicant occupation rent for the period of time that he resided in the home while she lived in rental premises. Given the respondent’s evidence of the cost to rent a home in the area of the former matrimonial home, a fair rental figure of $2,000 per month should be used to calculate the occupation rent owing to the applicant. Based on that figure, the respondent owes to the applicant $1,000 per month for occupation rent for the time that he lived in the home until it was sold.

291The respondent paid $20,000 for the s. 30 assessment conducted by Ms. Spraggett. He is to be credited for that payment in the calculation of net family property.

292In the respondent’s Net Family Property, he calculated the post-separation credits that he is owed by the applicant to be $78,173.16. That was ½ of the total amount he paid for the mortgages, line of credit and credit cards. In the applicant’s written submissions, she calculated the figure to be $16,318.76. There was no evidence led regarding the differences in the calculation of post-separation expenses.

293The respondent calculated that he owes the applicant an equalization payment of $8,786.78. Based on his Net Family Property Statement, the applicant is to receive $236,288.03 from the net proceeds of sale of the matrimonial home and he is to receive $387.025.47.

294In the applicant’s Net Family Property Statement, she calculates that she is owed an equalization payment of $15,073.56. According to her figures, she is to be paid $304,429.21 from the net proceeds of sale and the respondent is to receive $318,884.29.

295During the trial, I did not hear any evidence regarding the payments made by the respondent to maintain the home nor was I provided with a chart setting out a summary of the payments made. Based on my findings set out herein regarding the payment to Ms. Spraggett and the occupation rent owing to the applicant, if the parties cannot reach an agreement on the equalization payment owing and the division of the proceeds of sale of the matrimonial home held in trust, the parties may present further evidence by way of affidavits and make further submissions. This shall be scheduled on the same day for further evidence and submissions regarding the respondent’s income.

296In the interim, I order that both parties are to immediately each receive a payment of $150,000 from the proceeds of sale currently held in trust by Mr. Irving Wolkowicz. The balance shall remain in trust pending a final resolution of the equalization payment owing. If the joint debts, which the parties agreed totaled $25,097.47, have not yet been paid, those shall also be paid from the proceeds of sale.

297If the parties can agree on the final division and the equalization payment owing, based on my reasons, then the total funds can be disbursed.

L. Shaw J.