Court File and Parties

COURT FILE NO.: FC-18-1901 DATE: 2019/04/16 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Elizabeth Joy Brennan, Applicant AND Eric Wayne Dotson, Respondent

BEFORE: J. Mackinnon J.

COUNSEL: Richard Bowles, for the Applicant Tamara Scarowsky, for the Respondent

HEARD: March 7, 2019

Endorsement

[1]

Endorsement

Two motions were heard on March 7, 2019. The applicant’s motion sought primary residence and shared decision making provided that in the event of a disagreement she would have the authority to make the final decision. Her proposal was that the children would reside with their father for alternate weekends until Monday morning and have a midweek visit every Wednesday after school for four hours. She also sought child support and a sharing of special expenses pursuant to the Child Support Guidelines, O.Reg. 391/97 as am.

2The respondent’s motion sought shared decision-making and equal residential parenting time on a 2:2:5:5 schedule. He asked for child support in the set off amount and proposed equal sharing of the children’s special expenses. He also claimed temporary spousal support.

3Other issues were raised on which the parties reached agreement as the hearing progressed. Agreed terms will be set out below.

Factual Context

[4]

Factual Context

The parties married on October 11, 2008, separating on July 9, 2018. They have two children, Naomi and Nina, ages 8 and 6. Since separation both parents continued to reside in the matrimonial home. It has now been sold, closing on May 3, 2019. The father undertook to move out on April 1, into a townhouse he rented near the children’s school.

5The father had been previously married in the United States. He has three children of that marriage. The marriage breakdown was acrimonious. He became estranged from the children and is in significant arrears of child and spousal support.

6After his marriage to the applicant, the father remained in New Jersey until 2010. In advance of his move to Ottawa he suggested they should sign an agreement to protect them from his foreign creditors and that the house they would live in here should be taken in the applicant’s sole name. A marriage contract was signed on April 3, 2009. Both parties waived all claims to equalization of net family property and spousal support.

7The Respondent has a claim in the action to set aside the marriage contract.

8The mother has been employed throughout the marriage. Her current annual income is $107,693. The father was employed in the IT field. In 2016 he became seriously depressed. He stopped working and remained out of work until January 2019. He now has a position with the Federal Government earning an annual income of $70,439.

9It is conceded that the mother was the primary caregiver to the children when they were infants and toddlers and during the period of the father’s depression. Her position is that she still is. The father disagrees. His position is that for the two years since January 2017 he has been the primary caregiver, while the mother focused more on her career.

Best Interests Test

10Section 16 of the Divorce Act, R.S.C. 1985, c.3 (2nd Sup), as am governs the parenting orders requested here. It provides:

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.

Interim order for custody

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

Joint custody or access

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

Factors

(8) In making an order under this section, the court shall take into consideration 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.

Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

11The Supreme Court of Canada discussed the best interests test in Gordon v. Goertz, [1996] 2 SCR 27 at paras 20, 21 and 24:

20 The best interests of the child test has been characterized as "indeterminate" and "more useful as legal aspiration than as legal analysis": per Abella J.A. in MacGyver v. Richards (1995), 11 R.F.L. (4th) 432 (Ont. C.A.), at p. 443. Nevertheless, it stands as an eloquent expression of Parliament's view that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake. The multitude of factors that may impinge on the child's best interest make a measure of indeterminacy inevitable. A more precise test would risk sacrificing the child's best interests to expediency and certainty. Moreover, Parliament has offered assistance by providing two specific directions -- one relating to the conduct of the parents, the other to the ideal of maximizing beneficial contact between the child and both parents.

21 In s. 16(9), Parliament has stipulated that the judge "shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child". This instruction is effectively incorporated into a variation proceeding by virtue of s. 17(6). Parental conduct, however meritorious or however reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child.

24 The second factor which Parliament specifically chose to mention in assessing the best interests of the child is maximum contact between the child and both parents. Both ss. 16(10) and 17(9) of the Act require that "the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child". The sections go on to say that for this purpose, the court "shall take into consideration the willingness of [the applicant] to facilitate" the child's contact with the non-custodial parent. The "maximum contact" principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact: Young v. Young, [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J.

12These provisions and rulings apply to both the issues of decision making and residential schedule.

Decision Making

[13]

Decision Making

The father’s request for joint decision making is dismissed. In his submissions he took great effort to demonstrate through text exchanges between the parents that they were able to cooperate and communicate effectively in relation to the needs of, and in making decisions for the children.

14Some of the texts did support this. Others did not. Be that as it may, there is compelling evidence of a serious lack of trust and confidence between the parents which speaks volumes against joint decision making and for which I find the father overwhelmingly responsible.

15After the separation the father set up surveillance cameras in the matrimonial home. The cameras were pointed out of his personal space into communal areas of the house. They were motion activated so that if he was not home his phone would alert him that a camera had been triggered. The mother was aware of the location of three cameras and asked him to remove them. He refused. When she closed doors to obstruct the cameras, he took down the doors to his bedroom and study. The father explained the cameras were to proactively protect himself from unfounded allegations being made against him by the mother.

16I find this explanation unbelievable. No such allegations have been or were ever made by her. Removing the doors as he did was not the action of an individual wanting to protect himself. Nor was the use of a motion activation system to alert him when he was not even home. Further, he planted a recording device in the mother’s vehicle, told her he was intercepting communications on her cell phone, and repeated details to her of some of her conversations. None of these actions had anything to do with his stated purpose.

17I find that the father’s surveillance activities were a purposeful breach of the mother’s privacy done with intent to obtain an advantage for himself, not to protect himself. The respondent has not accepted responsibility for the consequences of his actions. Instead, in his affidavit he states that he now understands that this behavior is generally frowned on.

18The most egregious breach of the applicant’s privacy was one to which the respondent made no response, either to deny or to explain. He showed a fifteen year old photograph of her in a compromising position to her father. Then just prior to a court case conference in November 2018 he threatened her that he would email the photograph to members of her parents’ church if the conference outcome was not satisfactory to himself.

19In the face of these actions the mother’s agreement to a joint decision making regime with him, subject to her having the final say, is generous. Contrary to his submission, this is not sole custody in disguise. It requires notice of all important issues and decisions upcoming for the children, discussion and input from both parents, and real efforts to reach an agreement. It will provide the father with an opportunity to redeem himself by demonstrating to the mother and to the court that he can be trusted to engage in straightforward, child focused discussions with the sole motivation of accomplishing what is best for the children.

20The parents shall share decision making for the children on the terms set out in [19] provided that in the event of a disagreement the mother shall have the authority to make the final decision. There is evidence the mother made an audio recording of the father threatening her. Accordingly, I order that neither party shall make any audio or video recordings of the other party or the children, or of any conversations between themselves, the other party or either of their children.

Residential Schedule

[21]

Residential Schedule

The mother proposes primary residence to her and alternate weekends to the father plus a Wednesday visit. The father proposes an equal shared residency on a 2:2:5:5 basis.

22The mother says she has been the primary caregiver throughout, and that the father has only increased his involvement since the separation. She says he has done so to position himself in the case, turning parenting into a competitive activity rather than focusing on the needs of the children. She is concerned about his ability to manage parenting with his return to work. More importantly she submits the children are both special needs such that consistency and stability in their residential arrangement is paramount. She views his proposal as too disruptive with too many transitions for the children.

23The father admits the mother was the primary parent during infancy and toddler stage. He says they shared parenting relatively equally from 2013 to 2016 when they were both working full time. He acknowledges her major role in 2016 when he was unable to do much due to his depression. Since then he submits he has been the primary caregiver and that the mother has focused more on career and has struggled with balancing work and parenting. If a choice must be made, he should have primary residential care, however he prefers an equal residential schedule.

24Both parents plan to live close to the children’s school. Both say their regular work hours will be 8 a.m. to 4 p.m. The father says he may be able to arrange flexible hours or to work from home. He started his employment on January 7, 2019, so this remains to be seen.

25The father relies heavily on the past two years in which he says he was the primary caregiver for the children. He says in those years the parenting and household roles were generally divided between the parents as follows:

a. Beth was mostly responsible for: buying or preparing supper (although she was often running late and I pulled something together), making the children’s lunches, grocery shopping because she controlled all the finances, braiding the girls’ hair, scheduling appointments for the children, communicating with the children’s therapists, taking Naomi to the “Girls on the Spectrum: group, and taking the children to church (although not every week).

b. I was mostly responsible for: dropping the children off to school, picking the children up from school, caring for the children on PD days and sick days, maintaining a daily after-school routine with the children including play time, homework, and baths all before Beth got home from work, teaching them piano on a electric keyboard, arranging car maintenance, lawn care, vacuuming and general house cleaning, brushing teeth, caring for Nina while Beth was at “Girls on the Spectrum” with Naomi, and engaging the children in countless stimulating activities.

c. Beth and I were equally responsible for: dressing the children for school, giving them breakfast, communication with the school, attending various dental/medical/therapy appointments, laundry, tucking the children into bed, and swimming lessons, attending important events for the children.

26During these two years the children were in full time day care/school attendance. The mother was fully employed as the family’s sole financial support. It makes sense and I accept that the father who was not working outside the home during these two years was mostly responsible for the school drop offs and pick ups and after school care. This assumption of greater responsibility clearly pre dated the separation.

27The father made a significant effort to prove that the mother was often late getting home from work. He prepared a spread sheet covering the 12 month period from January 2018 to January 2019 which he submits shows when she was late. There were 27 occasions in the one year period. However, on closer examination her texts on which the spread sheet is based reveal only 14 occasions when she would not or might not have made it home by 6 p.m.

28The mother commutes by bus. The texts the father provided include her telling him she missed a bus by mere minutes and waited 20 minutes for the next one. Some of her texts report significant traffic delays extending her commute to an hour.

29During this time the mother had taken a new position at work. This was stressful and she did put in more hours due to the learning curve. The respondent did send her many supportive texts at work which she acknowledged with appreciation, including for the coverage he was providing at home. She is now settled into the new job and is typically home by 5:00 p.m. After the closing of the sale she plans to live with her parents temporarily and then obtain her own place. In both situations she will have better bus routes, with more frequent and express buses for her commute. In both situations she will live close to the children’s school.

30I was not persuaded that the mother was frequently late home from work from 2017 to date, or that the father had established that her work responsibilities were or would impinge on her ability to fulfill her day to day parenting responsibilities to the children.

31Since the father went back to work in January 2019 his records show that up until February 1 he has completed school pickups or drop offs on ten days, with the mother or her mother on her behalf handling nine days. One day was shared.

32I do not accept the father’s assertion that during the most recent two year period he and the mother have been equally involved in the children’s appointments. The mother has always handled most of logistics for Naomi’s appointments to address her diagnosis with Autism Spectrum Disorder.

33The children’s family physician since 2011 deposed that either the mother or maternal grandmother and sometimes both, had accompanied the children to every appointment with her. When the children started school, she said it was the mother who liaised between her office and the school with respect to the children’s allergies. The doctor deposed that the father only attended her office once, in 2018, in relation to routine vaccinations for the children.

34There was other independent evidence. Another parent of a child with ASD deposed that she met the mother and Naomi at a CHEO weekly Speech Therapy program and also at the weekly Girls on the Spectrum program starting in October 2017. She deposed the father’s first attendance was in September 2018 since then he had come on occasion.

35An affidavit was also provided by Naomi’s Applied Behavioral Analysis Therapist. She has worked with Naomi starting in 2016. Her affidavit deposed that the mother made all arrangements for Naomi’s therapy throughout. She said the mother consistently follows up after therapy sessions and shares other information with her from other service providers for Naomi. This therapist has only met the father once, in 2017, when he joined them for supper to hear her report on Naomi’s progress.

36For a three month period when there were occupational therapy appointments for Naomi in the home, the father was present for all. The mother says she made 2/3 of them and was almost always there before the end so that she could speak directly with the therapist.

37The father has been a Parent Volunteer at the children’s school since September 2018. He attends weekly and helps with one on one reading in the grade one class. Another parent who also volunteers confirms this and adds that he has also seen the father at some other school events, naming Halloween and the Terry Fox Run.

38The father prepared a non-exhaustive list of activities he and the children engaged in over the last two years. The first date is October 31, 2016, when he took them out for Halloween. The first entry for 2017 is in June, recording that the family went to a water park. Of the eight entries for 2017, five were family activities; three were him and the children.

39For 2018, the father also listed eight specific events he attended with the children. Three were during the mother’s work hours, one was a family activity including her. He provided other examples of regular activities he engages in with the children, playing outside, piano playing, watching movies, to name a few.

40I accept that this is not a complete or exhaustive list. That said it does not support his position that he has been significantly more involved with the children than has the mother since January 2017. He has established that he has been involved in activities and outings with the children and that he had the primary role in getting then to and from day care and school, and caring for them after school until the mother came home from work, for the two years starting January 2017.

41The father explained why he took a back seat at various times and on various issues pertaining to the children before 2017. Nonetheless I find that the mother was the primary caregiving parent until the end of 2016. This coincides with when both parents were employed outside the home as well as the duration of the father’s depression. As of January 2017, the father increased his involvement with the children as already noted. I find that during this period of time the mother retained her role as primary instrumental parent in terms of medical and therapeutic requirements for the children, and continued to be an active involved parent during her non work hours.

42Now that both parents are fully employed outside the home, the school pickups and drop offs are more evenly shared, with the mother having some help from her mother. In so far as the father returned to work very recently, the passage of time will help him demonstrate how he manages the various demands of being a working parent.

43Both children have serious allergies. On August 3, 2018 Nina had a serious allergic reaction. She was downstairs with her father. The mother was upstairs and could hear her wheezing. She ran down and observed Nina’s eyes were swollen almost shut and she was covered with hives. The mother rushed her to hospital where she received treatment and was kept under observation for six hours.

44I concluded the father did not respond appropriately to Nina’s symptoms on this occasion.

45On November 2, 2018 Naomi told her teacher that her daddy hates her mommy. She said he had been yelling at her mommy on the weekend, and that she wished he wouldn’t. She also told her teacher her father had been really mad. In his reply to the teacher the father said this was not happening at home. In his affidavit he added that the teacher is a friend of the mother’s.

46I concluded that the father did not have sufficient sensitivity to or understanding of the importance of Naomi’s impressions of what was going on between her parents and the impact it was having on her. Naomi’s school also reported a decline in her emotional regulation and in other aspects of her performance there, since September 2018.

47The mother had picked up on Naomi’s need for additional support in the summer, when she asked the Applied Behavioral Analysis Therapist to provide additional support for her.

48The father points out that on one occasion in the last year the mother spanked Nina. Spanking is not condoned. The totality of the evidence does show though that Nina seems comfortable in expressing her feelings to her mother.

49I accepted the mother’s evidence with respect to other incidents showing the father less than fully attuned to the needs of the children. Nina told her mother that her father “doesn’t see” her. This lends support to the mother’s assertion that the father was giving preferential treatment to Naomi. The mother was also aware that Nina was upset by the recording devices in the home, whereas the father did not appear to be. Nor did the father seem to recognize that setting up surveillance cameras in the house showed a lack of good parenting judgment.

50On another occasion the children told their mother that their father was the boss of them. This is concerning. It provides some support for the mother’s contention that the father is competing for the children.

51The father relied on a text the mother sent him on June 21, 2018. Their exchange makes it clear that she was keen to have the house sold whereas he would not agree until a permanent parenting plan was in place. He pointed out she has her parents to move in with, whereas he did not want to be out in the cold with nowhere to live. The mother’s response was that she was not interested in being one sided, was not trying to leave him out in the cold and did want to “respect his equal shared parenting role.” The father argues that she has now deviated from this position. The mother says she made the statement but not in the context of what he is asking for in his current motion.

52The text establishes the mother said the words as a general statement of intention. It is clearly not determinative of the issues before the court. The texts do not reflect any agreement being reached. Specific parenting terms were not addressed. The father did not agree to list the house.

53It is difficult to assess reliability and credibility on affidavit material. It did appear that the father took several opportunities to diminish the mother’s role with the children and contribution to the family. Rather than acknowledge the strong importance of the early years to the children’s development when the mother was admittedly their primary caregiver, he adds, “This was before the children can even remember.” He acknowledges she did the grocery shopping, but adds, this was “because she controlled the finances.” He was critical of the groceries she brought home. He includes in his list of things he did with the children trick or treating in 2016 and notes, the mother stayed home. A small point, but one of them had to stay home to answer the door on Halloween.

54On one occasion she texted him at 5:15 p.m. that she was leaving work. Part of his reply was that they would work on “time management” when she got home.

55The father detailed his belief that the maternal grandparents exert a negative control over the mother, to the father’s detriment, and that they and she want to establish a parenting regime that will favour the grandparents over the father. The record does establish that the maternal grandparents have been very supportive of the family financially and in hands on child care as needed. The mother does plan to live with them for some time after the matrimonial home is sold and before she obtains her own accommodation. Undoubtedly her parents will continue to be a source of support for her. The motion record does not support the type of adverse inferences that father wishes the court to draw against the motivations of the grandparents and the ability of the mother to function as a single parent.

56I note these examples in support of my impression that the father had an animus towards the mother that at times impacted on the reliability of his evidence. This is not to say that the mother did not express negative comments about the father, but she did not make the sort of “digs” against him that did of her.

57An important point which may straddle the line between reliability and credibility did arise. The father deposed in paragraph 100 of his affidavit dated February 23, 2019 that over the two years between the marriage in 2008 and 2010 when he moved to Canada, “I was in New Jersey working, meeting my support obligations, and still engaged in the New Jersey court system to try to enforce my access to my kids and to deal with outstanding financial issues with Kim.” He does not establish by any document that he was meeting his support obligations in these years. The financial statements he has filed in this action show support arrears at the date of marriage in excess of $77,000, that have now increased to over $145,000. In paragraph 104 of the same affidavit he states that he fell behind in his support payments in his early years in Canada when he was between contracts. Again, this does not jive with the existence of arrears at the date of marriage, unless he intended to say he fell further behind at this time. It is incumbent on the father to produce a complete record of his support payments to his former family to clear this up.

58Both parents love their children, enjoy close relationships with them, and have much to offer to them. There are many issues of disputed facts between the parents that cannot be determined on the motion records. The actual physical separation of the family into two households is very recent as is the father’s return to work. I have made the order requested by the father and unopposed by the mother requesting the involvement of the Office of the Children’s Lawyer. If accepted this will provide valuable, independent information to the court touching on the best interests of the children.

59The father submitted that the mother’s proposed residential schedule did not respect the maximum contact principle whereas his did, by treating the parent’s equally. I disagree that a schedule of 2:2:5:5 is in the children’s best interests. It involves frequent changes for them at a time of many unavoidable changes. The time frame the father relies on so heavily has already been impacted by the significant change in his circumstances brought by his return to full employment outside the home. His surveillance techniques and threat to distribute the old photograph of the mother are not reflective of a parent acting in the best interests of his children. The children’s state of mind as revealed in the statements noted above, combined with the animus the father has shown towards the mother, also support my conclusion that the children’s best interests are served by spending more time with their mother than with their father.

60Since the separation the mother has been the parent who is more attuned to the emotional needs and sensitivities of the children. This is especially important given the conflict and acrimony that presently exists between the parents.

61In determining the temporary residential order I have also considered the years up to the end of 2016. During those years including when both parents were working outside the home, the mother was the primary caregiver for the children in all respects. This is important to consider now that the father is back at work.

62The roles in which the father was definitely more actively involved in the day to day care of the children including the pickups, drop offs and after school care until the mother arrived home have already changed since his return to work in January.

63For these reasons I find that the children’s best interests are met by having their primary residence with their mother. They shall reside with their father during alternate weekends from Friday after school until Monday morning, to be returned to school. They shall also reside with him during alternate Wednesday’s from after school, overnight to be returned to school the next morning. In the event of a statutory holiday or a Professional Development Day falling on the Thursday or Monday of a weekend when the children are resident with him, then the weekend shall commence on Thursday from after school or end on the Tuesday with their return to school, as the case may be.

Child Support

[64]

Child Support

The table amount of support for the two children based on the respondent’s annual income of $70,439 is $1,074 per month. Ordinarily this would be the amount of child support ordered.

65Although it was not argued, I have referred myself to s. 15.1(5) of the Divorce Act which states:

Court may take agreement, etc., into account

(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied

(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

66I invite submissions from counsel on the question whether the reduction in the mother’s living expenses for the children entailed in her acceptance of her parents’ invitation to move into their home is a special provision for the benefit of the children and if so, whether it would render the table amount of child support inequitable.

67Specifically, is the intended living arrangement a special provision that replaces in part the need for child support? If so, would an award in the table amount be inequitable within the meaning of section 15.1(5)? In relation to that inquiry, is it appropriate to consider the father’s ability to pay?

68Pending the determination of this issue I order the father to pay to the mother the monthly sum of $500 commencing on April 1, 2019 to be credited against a future child support order.

69Other than requiring each parent to maintain health, medical and dental insurance available through their employment for the benefit of the children no order is made at this time with respect to sharing section 7 expenses.

Temporary Spousal Support

[70]

Temporary Spousal Support

Should the court order temporary spousal support to the husband given the marriage contract signed on April 3, 2009 containing as it does mutual waivers of spousal support. The Divorce Act, section 15.2(4) applies here and states:

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

71The Supreme Court of Canada has weighed in on how an agreement waiving spousal support is to be considered in Miglin v. Miglin, 2003 SCC 24. The decision applies to temporary orders and to final orders made after trial.

72In Kennedy v. Bowen, 2017 ONSC 3733 the wife sought interim spousal support in the face of the terms of a marriage contract. Horkins J. set out a summary of the Miglin ruling which I adopt:

45 A party claiming spousal support in the face of a fixed spousal support regime in a contract bears the significant burden of establishing that it would be appropriate to award spousal support in the circumstances (see Miglin v. Miglin, 2003 SCC 24 at para. 78).

47 At the first stage, the court should look at:

(i) The circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it, including any circumstances of oppression, pressure or other vulnerabilities. A court should not presume an imbalance of power and the degree of professional assistance received by the parties may be sufficient to overcome any systemic imbalances between the parties.

(ii) The substance of the agreement to determine whether it is in substantial compliance with the objectives of the Divorce Act at the time it was entered. The court considers if the agreement reflects an equitable sharing of the economic consequences of marriage and its breakdown. Only a significant departure from the objectives of the Divorce Act will warrant the court's intervention.

48 At the second stage, the court must assess whether the agreement still reflects the original intentions of the parties and the extent to which it is still in substantial compliance with the objectives of the Divorce Act. It is unlikely that the court will be persuaded to disregard the agreement in its entirety, but for a significant change in the parties' circumstances from what could reasonably be anticipated at the time of negotiation.

50 Caution should be exercised when granting interim relief that would contradict or nullify a contract (Jones v. Murray at paras. 6-10).

73On a temporary motion at the stage one inquiry the evidence is required to raise a serious issue to be tried concerning the circumstances in which the contract was negotiated and executed. In Kennedy that onus was not met. The contract was negotiated over many months. Changes were made at the request of the wife’s lawyer. Several months elapsed between completion of the contract and when the wife was asked to execute it. She did receive financial disclosure and despite the passage of time never asked for any further disclosure. The court also found that when signed the contract was in substantial compliance with the objectives of the Divorce Act because it reflected an equitable sharing of the economic consequences of the marriage and breakdown. It required the husband to take financial responsibility for the wife for the duration of the marriage, thereby allowing her to invest and increase her own assets.

74Having found that a serious issue had not been established at stage one of the Miglin test “the court should defer to the wishes of the parties and afford the agreement great weight": See Kennedy para 58.

75At stage two the contract was found to continue to reflect the original intentions of the parties and to still be in substantial compliance with the objectives of the Divorce Act:

60 The Marriage Contract continues to reflect the original intentions of the parties and it is still in substantial compliance with the objectives of the Divorce Act. There has been no significant change in their circumstances. They each have the property that they took into the marriage and Ms. Kennedy's assets have grown.

76Pate v. Pate, 2015 ONSC 2024 also dealt with a motion for interim spousal support in the face of contractual waiver. Mitrow J. found a clear triable issue as to the enforceability of the contract on admitted facts that the contract was prepared by the applicant’s lawyer, the respondent’s signature was witnessed by a clerk in that lawyer’s office, there was no independent legal advice prior to signing and the contract was signed two days before marriage. Mitrow J. also noted that if the trial judge upheld the contract the monies paid pursuant to his order could be repaid.

77Schulman v. Ganz, 2015 ONSC 3254, [2015] O.J. No. 2665 (S.C.J.) again addressed the application of Miglin on a motion for temporary spousal support where a marriage contract contained a waiver of spousal support. Stevenson J. found a triable issue at stage one. She found that that the contract was provided to the applicant only eight days before the wedding and executed four days before the wedding. There was also an issue whether the disclosure provided by the respondent was sufficient to enable the applicant to determine what he was giving up as result of signing the contract. She also found an issue at stage two. After 18 years of marriage and despite the applicant’s contributions to the marriage there was no provision for spousal support or equalization of property. The majority of the wealth was retained by the respondent who also earned in excess of $200,000 annually. The applicant was unemployed at 60 years of age. He had worked during the marriage but was not self-supporting in comparison to the party’s lavish life style. He had stepped out of the work force twice for a total of about 18 months to accommodate their overseas trip and to devote his full time to improving their cottage. Further he moved from employment to contract work to accommodate the life style of the marriage. The court found the applicant had suffered an economic disadvantage and economic hardship from the breakdown of the marriage which the contract did not address.

78Turning to the facts here, it was the husband’s idea to sign an agreement. He proposed they enter into one to protect them and their new family from his foreign creditors. He did not want any negative consequences for his wife or their family from his financial problems. To this end he says he also suggested that when they bought a house in Ottawa it should be registered in the sole name of the wife.

79The parties were already married when the contract was signed. The husband had the draft in advance of signing it. He had the opportunity to seek his own legal advice. Given his previous experience in matrimonial litigation he would know the importance of obtaining legal advice. The wife says he was advised to obtain independent legal advice, but declined, saying it would be a waste of money.

80Both parties provided sworn financial disclosure as to income and property that was attached to the contract. The wife’s disclosure showed monthly income of close to $5,898, and a net worth of $348,773. She disclosed the existence of a federal pension but no value was provided. The husband disclosed monthly income of $7,176 per month and child support and alimony payments to his former wife and children of $1,990 per month.

81He showed no assets of any sort, and a net worth of ($60,000) representing student loans he owed. His disclosure did not reveal arrears of child and spousal support. Now he says he owed arrears of $77,382 at the date of marriage. There must have been significant arrears when the contract was signed. For the purposes of this motion I am satisfied that the wife knew this. Accordingly, his actual indebtedness when the contract was signed was likely closer to $140,000 than to the $60,000 set out on his financial statement.

82Although a legal document, the contract is written in clear language. It states that neither party has any claim to share in any property of the other or to any spousal support from the other in any event, including separation, divorce or death. The language of the contract is clear and is consistent with the acknowledged purpose that his creditors would not have recourse against property acquired during this marriage or from the applicant’s income directly or indirectly.

83At stage one the husband relies on the absence of ILA and says he did not understand that the contract meant he would be giving up his claims to share in property and to spousal support. It is difficult to know how he could have read the document and not understood that was what it meant.

84Having regard to the acknowledged purpose of the contract I am not persuaded that there is a serious issue to try with respect to the stage one Miglin inquiry. The parties had been married for six months. They had not actually taken up full time residence together. The husband had not yet moved to Ontario. They did not yet have children. They were both employed and contemplated that they both would continue to work.

85At the second stage I find the contract does still reflect the party’s original intention. The wife still has a positive net worth although pension aside it has declined to $271,455. The husband still has no assets. His debts to his US creditors have increased. The student loan debt has increased to $90,000 on account of accumulated interest. His support arrears are up to $145,000.

86The wife remains employed, currently earning $107,693 per annum. As of January 2019, the husband is employed at an annual salary of $70,439.

87The changed facts the husband relies on are that it took him longer to find a job here than he had expected, that he fell behind in his support payments between the contracts he obtained on first arriving in Ontario, and that he was unexpectedly out of work from April 2016 to January 2019.

88He obtained full time employment in 2011. He explains his departure from that job in April 2016 as due to harassment in a toxic work environment. The reason he left his employment is disputed and he has not produced his Record of Employment. It is not clear whether he fell into the serious depression before or after he left his employment. If before, his wife questions whether disability coverage had been available to him?

89The husband says he was unable to work until the end of 2016 on account of his depression. His evidence is that by early 2017 he was well enough with the assistance of his family physician and began to look for work. There are no medical records or notes from 2016. Dr. Malik is a psychiatrist who began treating the husband for anxiety and depression in January 2017. He wrote a letter in December 2018 advising treatment consisted of medications and psychotherapy, that his patient has made very significant gains in his ability to manage and deal with anxiety and is stable on his current medications.

90This letter does not establish that the husband was unable to work for medical reasons at any point in time.

91The husband states that despite his considerable efforts he was not able to find employment in 2017 or 2018. No proof of a job search has been produced. The parties disagree whether he was diligent in this regard. The wife deposes that she was more active in his job search than he was. With no job by late 2017, early 2018 the husband set about trying to establish an audio video production business. This was not successful. The wife says the effort cost the family money it could not afford.

92The husband provided an affidavit from a friend and mentor who is an international trade lawyer. Mr. La Fortune says they met regularly for breakfast over the last three years or so. In part they discussed the husband’s career and business goals. Starting in early 2017, Mr. LaFortune provided advice about specific employment applications he was working on. Later in 2017 or early 2018 he gave advice about the video production business the husband was thinking of establishing. Mr. LaFortune says he helped him create a framework for a business plan and to develop a marketing plan. He also loaned him money to prepare for and sit an IT security examination.

93The objectives of a spousal support award are set out in section 15.2(6) of the Divorce Act:

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

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

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

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

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

94Arguments can and have been made that the waiver of spousal support in the marriage contract is not still in compliance with the objectives of the Divorce Act. The parties cohabited for 9.5 years. The husband left his employment in New Jersey to move to Ontario. He did have two contract positions before gaining full time employment the following year. He was out of the work force for nearly three years during which he was financially dependent upon his spouse, and during which he was actively involved in the daily child care of their two children.

95Despite these arguments, the evidentiary record before me does not rise to the level of establishing a serious triable issue as to whether the marriage contract still reflects the objectives of the Divorce Act. For example, he may have sustained an economic disadvantage in moving to Ontario, but there is no evidence of what he earned from his contract positions or during his years of employment here until 2015 when his total income was $76,732. There is no evidence of the prospects he left behind. He has established that he has been treated for anxiety and depression since 2017 but not that it was such that he was incapable of working. He says he tried earnestly to re-employ but aside from his own testimony he has provided only the affidavit of a friend and mentor reporting on their discussions and limited observations of some unidentified employment applications.

96The absence of evidence of a concerted job search is important because the husband is asserting a needs based entitlement from the economic disadvantage arising from his unexpected unemployment.

97In terms of a potential compensatory entitlement the evidentiary record is also unclear. The parties disagree as to the extent of the financial contributions the husband made to the family during the marriage. The wife maintains his financial contribution was not in step with his earned income. She also says she incurred debt to help him pursue contact with his children in the US and to sort out his other legal problems there. I have already noted inconsistencies in his evidence with respect to any payments he may have made towards his US support obligations during this marriage. A complete record of payments is important for the light it can shed on how the husband was allocating his income.

98In terms of current need for support the husband allocates $3,528 per month in his proposed budget towards support obligations to his prior family, legal fees to be incurred to change them, and repayment of his student loans. This is almost 80 % of his take home pay and is not on its face need related to this marriage. The husband has asserted but not provided evidence to show that the current amount of these obligations are what they are because he was devoting so much of his earned income to his second family.

99In dismissing the motion for temporary spousal support I also note caution is appropriate here where if the contract is upheld at trial there is no realistic expectation of timely repayment of any temporary spousal support payments already made.

Holiday Schedule

[100]

Holiday Schedule

Counsel advised during the hearing that their clients had agreed to the following terms for a holiday schedule, to override the regular access schedule:

i. The school Spring Break will be shared in accordance with the regular schedule unless the parties agree otherwise in writing. In 2020, the mother may elect to travel with the children for the entire school Spring Break. If she chooses not to, the regular schedule shall apply.

ii. The 4-day Easter weekend shall be shared so the children are with the Father from after school on Thursday to 9:00 a.m. on Sunday and with the Mother from 9:00 a.m. on Sunday until the children’s return to school on Tuesday morning;

iii. If the children are not otherwise with the appropriate parent on Mother’s Day or Father’s Day, the children will reside with the celebrated parent on Sunday from 10:00 a.m. until the start of school on Monday morning;

iv. The children will reside with each party for two non-consecutive weeks during the summer vacation. The parties will advise each other by May 1st of their chosen weeks, with the Mother to have first choice in odd-numbered years and the Father to have first choice in even-numbered years. The party not having priority in a given year, will choose his or her weeks, and advise the other party of same by May 15th. In making plans, each party will take into account the children’s camp and other scheduled activities. For the purpose of this provision, “week” is defined to mean five consecutive days followed or preceded by the parent’s regular weekend. Additional vacation time may be taken as the parents agree, in writing, from time to time;

v. The parties will share equally the children’s school Christmas Break in accordance with the regular schedule except for Christmas Eve to Boxing Day which will be shared as follows: In odd-numbered years the father will have care of the children from noon on Christmas Eve to noon on Christmas Day, and the mother will have care of the children from noon on Christmas Day to 8:00 p.m. on Boxing Day. In even-numbered years, mother will have care of the children from noon on Christmas Even to noon on Christmas Day, and the father will have care of the children from noon on Christmas Day to 8:00 p.m. on Boxing Day; and

vi. Subject to the paragraphs above, when the children have a long weekend (due to P.D. days and/or statutory holidays), the parent regularly scheduled to have care of the children on that weekend, will commence his or her parenting time when the children are dismissed from school at the start of the long weekend until the morning when school resumes.

Death Benefits

[101]

Death Benefits

During the hearing counsel advised that the parties consented to an order in these terms: Each party shall name the other as beneficiary, in trust equally for the children, of his or her death benefit available through their respective employment with the Federal Government, as security for his or her child support obligations.

Appointment of the OCL

[102]

Appointment of the OCL

The father requested the order; the mother did not oppose it. The OCL is requested to prepare a clinical report under section 112 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as am. On consent either party may bring a motion after the report is complete to review the residential and decision making parenting orders I have made.

Costs

[103]

Costs

I will defer this issue until I have heard any submissions the parties may wish to make with respect to section 15.1 (5) of the Divorce Act. Arrangements should be made to do so through the Trial Office.

J. Mackinnon J.