Court File and Parties

COURT FILE NO.: FS-16-87387-00 DATE: 2019 05 01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

YUAN YUAN GUO Applicant Poroshad Mahdi for the Applicant

- and -

JIAN LI, DONGHUI LI and YU YUN ZHANG Respondent Douglas Beamish for Respondent Jian Li

HEARD: January 7-16, 2019

REASONS FOR JUDGMENT

SHAW J.

OVERVIEW

[1] A trial in this matter was heard over an eight-day period between January 7 and 16, 2019. The central issue in dispute was the custody and access arrangements for the two children of the marriage. Although the bulk of the evidence focused on the parenting arrangements for the children, the following issues were also in dispute:

1. Some minor property issues;
2. Payment for retroactive s. 7 expenses for the children;
3. Retroactive and ongoing spousal support;
4. A claim by the applicant with respect to occupation rent before her interest in the matrimonial home was purchased by the respondent; and
5. A claim by the respondent for credit for payments made to maintain the jointly-owned matrimonial home prior to his purchase of the applicant’s interest in the home.

BACKGROUND

[2] The applicant wife is currently 46 years of age. The respondent husband will soon be 47 years of age. They were married on June 3, 1999, in China, where they were both born and raised. They immigrated to Canada in 2001. There are two children of the marriage: a daughter, CL, who will soon be 11 years of age, and a son, EL, who will soon be 8 years of age. Both attend school in Mississauga and are doing well at school.

[3] The children are enrolled in a number of extra-curricular activities. CL is enrolled in ballet dancing, drawing classes and piano. EL attends dance class and drawing class. Both have also taken swimming lessons. The respondent takes the children to a gym, the Science Centre and an art museum, where he has membership status.

[4] The parties separated on June 30, 2014, although they continued to live separate and apart in the matrimonial home until September 2016. At that time, the applicant left the home with the two children and stayed in a shelter until December 2016, when they moved into a rental accommodation. In July 2017, an agreement was reached between the parties, and in August 2017, the respondent paid the applicant $512,655 for her half interest in the matrimonial home. The applicant used those monies to purchase a home in which she and the children reside. Both of the parties’ homes are near the children’s school.

[5] The respondent and his parents, who came to Canada when CL was born, continue to reside in the former matrimonial home. The respondent’s parents have lived with the applicant and the respondent since they moved to Canada from China in May 2008. From the applicant’s perspective, the grandparents’ extensive involvement with the children was a significant source of conflict during the marriage, whereas the respondent viewed them as a great source of support. A great deal of evidence was presented during the trial regarding the role of the grandparents in the children’s lives.

POSITIONS OF THE PARTIES

Applicant’s Position

[6] The applicant’s position is that given the high degree of conflict between her and the respondent, it is in the children’s best interests that she have sole custody. She testified that she was subject to abuse and violence in the matrimonial home before she left in September 2016. She also stated that although the children reside primarily with her, the respondent has been attempting to alienate her from the children. Furthermore, there is a lack of communication between herself and the respondent that would make a joint‑custody arrangement unworkable. She proposes an access schedule that is similar to the existing schedule: that the respondent have access every Monday and Thursday overnight; two Sundays per month from 10 a.m. to 4 p.m.; and two full weekends per month, one from Saturday morning to Monday and the other from Sunday morning to Monday.

[7] With respect to child support, the parties agreed on most but not all issues involving retroactive s. 7 expenses, which will be reviewed in these reasons.

[8] The applicant’s position is that she is entitled to spousal support both on a compensatory basis based on the roles she assumed during the marriage, and on a needs basis based on the disparity in the parties’ incomes.

[9] The applicant also seeks occupation rent for the period of time that she and the children did not live in the matrimonial home until she was paid her interest in the home.

Respondent’s Position

[10] The respondent’s position is that the parties should share joint custody of the children, as that was the status quo prior to September 2016. He proposes that there should be a shared parenting arrangement dividing the days of the week on a 2-2-3 schedule. His position is that the applicant unilaterally changed the status quo parenting arrangement when she unnecessarily left the matrimonial home in September 2016 with the children. That created a false status quo that the court should not consider when determining what is in the best interests of the children.

[11] The respondent disputes the applicant’s claim for spousal support. He testified that during the marriage, the applicant returned to school, obtained her MBA and Certified Public Accounting designation and has been working full time, other than two maternity leaves after the birth of the children. She has therefore not suffered any economic disadvantage as a result of the marriage, its breakdown or the roles assumed during the marriage.

AGREED STATEMENT OF THE FACTS

[12] During the trial, the parties were able to reach an agreement on a number of financial issues.

[13] For the purposes of dealing with retroactive child and spousal support claims, the parties agreed that their incomes were as follows:

APPLICANT	RESPONDENT
2013 $48,810.89	2013 $108,825
2014 $49,800.99	2014 $108,099
2015 $50,559.61	2015 $84,816
2016 $51,524.92	2016 $100,145
2017 $52,766.68	2017 $105,270.64

[14] With respect to expenses the respondent paid for the home, the parties agreed that from the date of separation until September 2016, the respondent paid $23,342.27 for the carrying costs of the home, which included payment of utilities, insurance, taxes and the line of credit. The total amount that the respondent paid from September 2016 until he paid the applicant her interest in the home on July 30, 2017, was $5,063.59.

[15] With respect to s. 7 expenses incurred since the date of separation, the parties agreed that the applicant would owe the respondent s. 7 expenses that he has incurred. The respondent claims $17,734.43 in s. 7 expenses, which includes a disputed fee for his gym membership. If the gym membership is excluded, the amount is $13,008.40.

[16] The parties agree that the respondent would owe the applicant s. 7 expenses of $10,735.86, which includes daycare fees. Without daycare fees, the s. 7 expenses are $4,171.34.

ISSUE ONE: EQUALIZATION OF NET FAMILY PROPERTY

[17] The first step in the equalization process is to determine each parties’ respective net family property on the date of separation. In this case, the date of separation is not disputed. The party whose net family property is greater than the other party must make a payment of one-half of the difference: Family Law Act, R.S.O. 1990, c. F.3, s. 5(1).

[18] The parties agreed on the value of all assets and debts, save and except for the value of the husband’s 2012 Dodge Caravan that he owned on the date of separation. The applicant, relying on the Canadian Red Book, valued it at $18,450. The respondent valued that asset at $10,000, relying on the Canadian Black Book, which valued it in the range of $12,665 to $14,265 and $18,115 for retail. The respondent’s evidence was that after the applicant was in a car accident in July 2015, repair costs were $5,371, which negatively impacted the value of the car. He testified that half of those repair costs should be deducted from the low value of the vehicle from the Black Book, resulting in a value of $10,000.

[19] No evidence was called regarding the difference between the Red Book and Black Book values and how repairs impact the value of a vehicle. In the absence of that evidence, for the purpose of the calculating the Net Family Property, I am prepared to use the value of $14,699 which is the average of all of the values listed in paragraph 18. Using that figure, the respondent’s net family property on the date of separation was $147,398.83 and the applicant’s was $58,383.66. The respondent therefore owes the applicant an equalization payment of $44,503.58.

ISSUE TWO: POST-SEPARATION CREDITS AND OCCUPATION RENT

[20] Although not pleaded in the Application, following submissions, I delivered an oral ruling granting leave to the applicant to claim occupation rent from the time she left the home in September 2016 to August 2017, when the respondent bought her interest in the matrimonial home. I granted leave to the parties to present evidence regarding rental costs for comparable homes in the same area as the matrimonial home.

[21] In Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (C.A.), at paras. 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.

[22] In Higgins v. Higgins (2001), 19 R.F.L. (5th) 300 (Ont. S.C.), at para. 53, Quinn J. stated 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. [Footnotes omitted.]

[23] In this matter, as the respondent is seeking recovery for half 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 for the period of time that she and the children did not reside in the jointly-owned home.

[24] Some of the factors I have considered are that the applicant requested the sale of the home in her Application; that the respondent only paid her when there was a motion before the court for the sale of the home; and that the children resided with the applicant during the time for which she is seeking occupation rent.

[25] As the respondent resided in the property and paid all expenses to maintain it, he should be credited for a portion of those expenses that were the joint responsibility of the applicant. Likewise, it is only fair and equitable that the respondent pay the applicant occupation rent for the period of time that he resided in the home while she lived in the shelter and rental premises.

[26] Given my mid-trial ruling to grant the applicant leave to claim occupation rent, for the purposes of trial fairness, I allowed both parties to lead reply evidence regarding the cost to rent a comparable home. Both parties presented evidence from various online real estate listings. The dispute between the parties focused on whether the comparable homes were in the same neighbourhood as the former matrimonial home or were of comparable size and value.

[27] The applicant presented listings that were between $4,000 and $4,700 per month to rent a house of a similar size. The respondent challenged those listings as being in a more upscale neighbourhood than the former matrimonial home. He suggested that the monthly rental cost would be $2,500 for properties in the neighbourhood of the former matrimonial home. The applicant responded that those properties were not of comparable size or quality.

[28] No viva voce evidence was presented by anyone, such as a real estate agent. As such, I am prepared to use a compromise figure of $3,000 for the purpose of calculating occupation rent.

[29] While living separate but under the same roof from June 2014 to September 2016, the applicant did not pay anything towards the carrying costs of the home. As noted above, the parties agree that the respondent incurred $23,342.27 in carrying costs until September 2016 and costs of $5,063.59 until August 2017. The respondent seeks half of these costs from the applicant.

[30] The applicant’s position is that she should only be required to contribute a third towards the utilities until September 2016, as the respondent’s parents were living there and not paying any rent. I agree with that position. Accordingly, between June 2014 and September 2016, the applicant’s share of the expenses for the house were $11,121.89. Between September 2016 and August 2017, her share of the line of credit, taxes and insurance is $2,531.59. In total, she therefore owes the respondent $13,653.48.

[31] The respondent owes the applicant occupation rent for the months that he lived in the home before he purchased the applicant’s interest in the home. During that time, the applicant and the children were residing in rental accommodations. Using a rental cost of $3,000 for 10.5 months, with the applicant receiving half of that rent, the occupation rent owing to the applicant would be $15,750. As the applicant owes the respondent $13,653.48 for her share of the carrying costs for the home, the respondent owes the applicant the difference or $2,096.52.

ISSUE THREE: CUSTODY AND ACCESS

Review of the Evidence - Overview

[32] Both parties called a number of witnesses dealing with the issue of custody and access. In addition, Todd Perreault from the Office of the Children’s Lawyer (the “OCL”) gave evidence with respect to an assessment report dated March 14, 2017, pursuant to a Court Order dated October 6, 2016. The respondent called as a witness Dr. Sol Goldstein, a psychiatrist, who was qualified to give opinion evidence with respect to whether joint or sole custody was in the best interests of the children.

[33] Both parties also requested that I watch a video of the two children when they were interviewed by a police officer on September 30, 2018. The evidence is hearsay; it was admissible not for the truth of its contents, but rather as evidence that the children were taken by the respondent to the police and they spoke to an officer about an incident that occurred on September 26, 2018. It is also evidence that underscores the ongoing conflict between the parties and their inability to deal with issues regarding the children in a constructive manner.

[34] Both parties gave evidence about incidents of conflict in the home, some of which led to the police being called and, on two occasions, the applicant attending a hospital for treatment of injuries she claims were caused by the respondent and his father. The respondent denies that there was ever any such abuse but does not dispute that there was conflict. He presented photographs of scratches on his hands and elbow, which he testified were caused by the applicant during two separate episodes of conflict. Thus, neither party disputes that conflict was present in the home, but both point to the other as being the source of the conflict or the perpetrator of the violence.

[35] I will review the evidence presented by the parties regarding these incidents and the home environment prior to September 2016, but the evidence is of limited assistance in determining what is in the current best interests of the children. My sense during the trial was that the parties wanted an opportunity to vent their anger towards the other regarding what they saw as various transgressions that occurred during the marriage for which the other was at fault. Both parties generally appeared to lack insight into their behaviour or accept that they both, at times, made poor decisions.

[36] When the applicant left the matrimonial home with the children, the respondent did not see them between September 21 and October 6, 2016. He currently has access every Monday after school until Tuesday morning; every Thursday after school until Friday morning; and alternate Sundays from 10:00 a.m. until Monday morning drop off at school.

a) The Role of the Grandparents

[37] It is not disputed that the respondent's parents came to Canada to assist with the birth of the parties' first child, CL, but decided to stay in the country. The parties disagree, however, on the impact of the grandparents’ involvement on the applicant’s role in raising the children.

[38] The applicant's evidence is that she never wished for both parents to visit, given their small one-bedroom accommodations at the time, and she never wished for them to stay permanently. She submits that they took over caring for CL and excluded her from her parental role; for instance, they insisted that CL sleep in their bedroom and would not allow her to take CL anywhere on her own. She was permitted to care for EL when he was born, however.

[39] The respondent disagrees, claiming that the applicant wished for his parents to stay and assist with child care, and that she was never excluded from parental roles. Rather, the applicant took care of CL when she got home from work; on weekends, the parties and the children would go to the zoo or the park; the entire family, including the grandparents, would vacation together, such as to Banff and Vancouver; and the applicant could and would take CL out alone to such places as the library, mall or park. He denies that she ever told him that she wanted his parents to leave and live elsewhere.

[40] The respondent’s mother, Yu Yun Zhang, testified and also denied that the applicant was prohibited from taking CL out of the home alone. On her account, the applicant was involved in child care. Many photographs were filed as exhibits depicting the extended family enjoying happy times.

[41] Ms. Zhang initially denied sleeping with CL, but then said that at night she cared for her so as not to bother the respondent. When asked if she continued to sleep with CL after she had her own room, she said that she went to CL’s room to care for her. She would change her diaper or comfort her when she had a nightmare. Ultimately, she would not answer the question directly about whether or not she slept with CL. She appeared evasive when answering this line of questioning.

[42] Ms. Zhang viewed her relationship with the applicant as friendly and that they got along. Her evidence was that everything in the home was normal and there were no fights up to September 2016, when the applicant left the home. I do not accept this evidence, given the various incidents of conflict that occurred in the home, as will be described in these reasons. Ms. Zhang minimized the conflict and tensions that were present in the home leading up to the applicant’s departure.

[43] Kathleen Williams, a worker from Peel CAS, had a different perspective on the nature of the grandparents’ relationship with the children and, in particular, CL. She testified that based on her observations in the home, CL was very attached to the grandmother, to the exclusion of the applicant. She observed that the relationship between the applicant and CL only blossomed after the applicant left the home with the children.

[44] Regardless, the significant role that the grandparents played in the children’s lives was recognized by Mr. Perreault in the OCL assessment report. The respondent testified that until the applicant left the home in September 2016, his parents made breakfast for the children, walked them to and from school, cared for them after school and made dinner. They also participated in activities after supper, such as going to the playground. Before the children went to school, they cared for them full time in the home. Ms. Zhang similarly described providing care, such as making meals, bathing, going to doctor’s appointments, haircuts, washing clothes and feeding them. They were involved in all aspects of the children’s care. The routine was to make the children breakfast, prepare their lunches and walk them to school. They would also pick the children up after school. They would play with the children, help with their homework and prepare dinner. After dinner, the children had extra-curricular activities. Given this active role, the limited access schedule after the applicant left the home would have been difficult for the children.

b) Daily Routine Prior to September 2016

[45] The applicant’s evidence was that in June 2014, the respondent told the applicant that he did not want his parents to return to China and wanted a divorce. Thereafter, the respondent would spend three to four nights away from the home between June 2014 and June 2015.

[46] Until she left the home in 2016, the applicant’s evidence was that she would look after EL in the morning before she went to work, but she was not allowed to take care of CL. The respondent’s parents would walk CL to school and then look after EL while the applicant and the respondent were at work. She agreed that the grandparents would pick up CL after school and look after the children until she got home from work. Her evidence was that when she was home, CL would primarily stay in the bedroom with the grandparents.

[47] She testified during cross-examination that commencing in the latter part of 2015, during the evening, the respondent and his mother left the house with the children until around 9:30 p.m. and she was not told where they were going. She did not want to stay alone with her father-in-law, who had previously assaulted her, so she would spend time in her car. When she was asked during cross-examination if the children had activities during the week, she answered that she was not allowed to approach CL and was not given any information about her activities. Before this litigation was commenced, she testified that she was unaware that CL was taking dance, drawing classes and piano lessons.

[48] Her evidence was that her father-in-law first assaulted her in November/December 2013 when he opened the door to the backyard and he pushed her out and tried to lock the door. Another incident occurred in the kitchen, when he threw a brush at her.

[49] She was asked whether the children were comfortable in their home in September 2016 before she left the home with the children. She would not answer the question, simply stating that she did not know, as many evenings the children were not at home. She also would not agree that when they were home they were comfortable, as she said the atmosphere in the home was very depressing and CL was not allowed to see her.

[50] I found her to be very evasive and defensive when being asked these questions.

[51] She also alleged that commencing at some point in 2015, CL would be taken from the home early Saturday morning and would not return until Sunday night. Her evidence was that CL told her that she stayed in someone’s basement with her father and grandparents. She and EL would spend the weekend at home alone. There was some inconsistency with her evidence, as she later said that both children were taken away on weekends. It was also not clear when, exactly, the children started to spend evenings away from the home.

[52] The respondent denied that he, his parents and CL spent weekends away from the home. His evidence was that it was the applicant who spent less time at home and came home later after work starting in September 2013. She would sometimes come home as late as midnight. Her explanation was that she was doing extra work. He testified that he and his parents cared for the children during the evenings that she worked late. Ms. Zhang also testified that after 2013, the applicant would not arrive home after work until close to 10:30 p.m., after the children went to bed at 9:30 p.m., so they would eat dinner without the applicant.

[53] The respondent testified that when the children turned four or five, he enrolled them in drawing, piano, dance and swimming classes. The children were busy most weeknights with these activities. The respondent’s evidence is that he took the children to their activities on weeknights. That was the reason why the children would not be home on weeknights. They also had dance class on Saturday mornings.

The respondent’s evidence was that he, the applicant and his parents attended to the children’s medical needs.

c) Incidents in the home

(i) February 2014 Incidents

[54] The applicant’s evidence was that there was a dispute on February 7, 2014, involving the respondent’s sister who was visiting from China. The applicant described being pushed by the respondent’s sister as she tried to take EL away from her. She testified that the respondent also choked her and hit her on her head. She tried to run into CL’s room but the respondent grabbed her hair. The respondent and his sister hit her, and his father pushed her into the wall.

[55] She attended Credit Valley Hospital that day but refused to say how she had sustained the injuries.

[56] The respondent’s evidence was that on February 7, 2014, the applicant came home from work at 10 p.m. She tried to take EL out of his arms, grabbing one of his legs so that he ended up hanging upside down as the respondent held him. The applicant started kicking the respondent, so he turned to protect EL. He tried to block her using his arm. She then ran upstairs to where CL was, and the respondent testified that in trying to protect CL, the applicant scratched his arms. She was going to call 911, but changed her mind when he then showed her the bleeding scratches on his hand. Photographs of his hand that he testified were taken the next day show some scratches.

[57] Ms. Zhang also testified about the incident. She testified that she was upstairs caring for CL and she heard EL crying downstairs. She went downstairs and saw the respondent holding EL and the applicant kicking the respondent on the back. She took EL from the respondent.

[58] The applicant testified that there was another incident on February 14, 2014. Her evidence was that she tried to go into CL’s room, and her father-in-law stood in front of the door and pushed her several times. She hit her head on the wall. She went to the hospital again that day, and on that occasion, she said she was a victim of domestic abuse. Injuries listed in the emergency room record included bruises to her chest area. A social worker at the hospital contacted the CAS. The applicant testified that she did not contact the police following either incident as she was embarrassed and did not want the marriage to end.

[59] The respondent’s evidence was that nothing happened on February 14, 2014, and he had no information about how she could have been injured.

[60] Ms. Zhang testified that she never saw the respondent, her husband or her daughter hit or push the applicant.

ii) September 2014 Incident

[61] In September 2014, the police were called to the home by the applicant. The applicant alleged that the respondent had tampered with her car. The respondent did not dispute that he removed the battery from her car as the applicant had not confirmed with him that she had obtained her own insurance for the car that was in his name. The applicant testified that the respondent disconnected the battery on other occasions. The police informed the parties that this was not a criminal matter.

[62] The respondent’s evidence was that the applicant injured his fingers when she tried to take the car keys from his hands that morning. He filed, as an exhibit, photographs of his injuries.

iii) July 2015 Car Accident

[63] In July 2015, the applicant was in a car accident while driving with the two children and the respondent’s mother. She did not inform the respondent of the accident, and he later learned of it in July when he received a letter from the insurance company. Although the applicant said that the car was just scratched, the motor vehicle report suggested that the accident was more serious.

[64] I heard a great deal of evidence with respect to this accident, which was disproportionate to what assistance it could offer, if any, to determining a parenting arrangement in the best interests of the children. The applicant should have told the respondent about the accident, but it was an isolated event that happened over three years ago. This incident demonstrates nothing more than the lack of communication between the parties while they were living under the same roof.

iv) December 2015 and January 2016 Incidents

[65] Another incident occurred five months later, again demonstrating the lack of communication between the parties. During the 2015 Christmas holidays, the respondent took the children to Niagara Falls with his father for a holiday. (His mother was in China.) The applicant testified that the respondent did not tell her he was leaving on Christmas Day with the children and she sent him messages to which he did not respond. As she did not know where he was, the applicant contacted the police, who were able to locate the respondent. Her evidence was that the police told her that she should have a court order in place regarding the children, which she suggested to the respondent when he returned home three days later.

[66] The respondent’s evidence was that the applicant knew about the holiday, as he discussed it in her presence. He did not recall receiving a text message asking where the children were and if they were safe.

[67] After the respondent arrived home, still over the Christmas holiday, the applicant described an incident where the respondent was banging on her bedroom door. She told him not to come into her room, and she put a chair against the door as she did not feel safe. She contacted the police. No charges were laid.

[68] The respondent’s evidence was that he heard his son crying in the applicant’s bedroom and he went in to comfort him.

[69] Just days later, on January 1, 2016, two police officers and two workers from a mental health agency attended at the home at the request of the respondent, who wanted the applicant’s mental health assessed. His evidence was that he was concerned with her behaviour, as she had contacted the police twice over the holidays. Both the children were home at the time. The workers spoke with the applicant and determined that no further steps were needed to assess her mental health. No evidence was led at trial that the applicant suffers from any mental health issues.

[70] During this period of time, there were clearly heightened tensions between the parties and a lack of communication and trust. Based on this series of events over a short period of time, the family situation was quite unstable and would not have been a healthy environment for the children.

v) June 2016 Incident

[71] The applicant testified that she was out with EL in June 2016, and when she returned home, her purse was gone, which included her identification and credit cards. This made her feel even more unsafe in her home, and she began carrying a backpack in her house with all of her personal identification documents.

[72] The respondent denied that he or his parents took the applicant’s wallet.

d) Lawyers Retained

[73] The parties each retained a lawyer around June 2014. During cross‑examination, the applicant was asked about a series of letters exchanged by the lawyers between October 2014 and July 2015, where she refused to agree that the letters contained no mention of violence or abuse in the home. Her counsel pointed to a letter dated July 29, 2015, claiming it identified concerns with the respondent’s and his parents’ behaviour, such as opening the door when the applicant was in the washroom. The applicant’s evidence was that incident was an act of violence.

e) The Shelter

[74] The applicant testified that as a result of the accumulation of events in the home, she decided she had to leave the home with the children and take them to a shelter. She left the home in September 2016 and stayed at a shelter until early December 2016. Her evidence was that she stayed at the shelter for that length of time as she could not find another place to live as a single mother with two young children. The shelter was also free and gave her and the children support while she looked for alternative living arrangements.

[75] The applicant was questioned about her financial statement sworn September 1, 2016. On that date, she had savings that totalled $135,000. Her evidence was that this money was going to be used to buy a car and for legal fees. She also testified that when she initially left the home, she was still contemplating seeking exclusive possession of the home, so she did not want to sign a lease for a rental property until she had firmer plans about the house.

f) Communication Issues Post-Separation

[76] The applicant’s evidence is that she and the respondent have an inability to communicate. They used Our Family Wizard until October 2016. The respondent would not open any messages she sent, so she stopped using it.

[77] It was also her evidence that she had wanted EL to take piano lessons. Her lawyer contacted the respondent’s lawyer, but she received no response and so was unable to enrol him in piano. The respondent testified that he understood the existing interim order to mean that the children were not be enrolled in any other activities, although he never communicated that to the applicant.

[78] The applicant also referred to the difficulty she had dealing with the respondent over the transfer of one of the vehicles.

[79] The applicant agreed during cross-examination that she and the respondent do communicate via text to make arrangements for the children.

g) Office of the Children’s Lawyer

[80] Mr. Perreault is a clinical investigator at the OCL. He has a Masters in Social Work and has worked with the OCL since 2002.

[81] Pursuant to s. 12 of the Courts of Justice Act, R.S.O. 1990, c. C.43, he was appointed to conduct a custody and access assessment. As part of the process, he interviewed the applicant and respondent in November and December 2016 on one occasion and then had observational visits in each of their homes in December 2016. He also interviewed both children, once in December 2016 and once in January 2017. He interviewed other collateral sources, including employees at the shelter, teachers at the children’s school and Ms. Williams at Peel CAS.

[82] In his report, he recommended that the applicant have sole custody of the children. He recommended an access schedule from Wednesday after school until Thursday after school; and then for week one, from Friday after school until Monday morning, and for week two, from Wednesday after school to Friday morning. He also made recommendations for Christmas, summer holidays, Mother’s day and Father’s day. He recommended that the parties use Our Family Wizard for communication.

[83] He testified that both parents said the other had been verbally and physically abusive. Given the high-conflict situation, sole custody is appropriate, as in those types of situations it is difficult for parents to make decisions together. A parenting schedule with the children spending equal amounts of time with both parents would also not work in such a situation.

[84] He testified that the applicant presented as being intelligent, kind and caring. She was very detail and routine oriented. The respondent also presented well with the children and he had no concerns. He described the respondent as a very caring parent.

[85] He also made observations of the respondent’s parents. His evidence was that the grandmother was very doting towards both children. He described CL as being polite, intelligent and well-mannered. He had no concerns based on his observations, but when he spoke with workers from the shelter, they indicated that they felt she struggled to show emotion.

[86] He spoke with CL’s teachers, who said she did not have a consistent group of friends and preferred to be by herself. His evidence was that this was not abnormal for a child of her age, as some are more introverted. He was also told that CL had tantrums at school if there were changes to her routine. She would get upset and cry.

[87] He testified that he had no concerns that the applicant was purposely keeping the kids away from the respondent. That is, this was not a situation where either parent was trying to alienate the children from the other. He recalled that the applicant felt that the grandparents were trying to keep the children away from her when they were living separate under the same roof.

[88] He also had no concerns that either parent was using any physical force with the children. The children did not appear to be afraid of either parent or the grandparents.

[89] He noted that his report had an error, as it should have included a recommendation that the applicant consult with the respondent to make decisions and he could provide input, but if they could not agree, then the applicant would have final decision-making authority.

[90] His evidence was that the applicant told him that the respondent, his father and her sister-in-law had physically abused her. The respondent told him that the applicant had hit him and left a scratch on him as well. His evidence was that based on this information, there was domestic violence in the relationship.

[91] Mr. Perreault testified that the respondent showed him photographs of the injuries of the scratches to his hand and elbow. He testified that he had no context to assess these injuries. With respect to the applicant’s injuries, there were hospital records confirming her two attendances.

[92] His evidence was that the grandparents were a significant part of the children’s lives and had access to the children when the father did. He agreed that the role of the grandparents was positive.

[93] Mr. Perreault noted that his report was two years old and he would have liked to have done an update for the court. There was evidence that the applicant had requested an updated report but the respondent did not respond. It is problematic that the Mr. Perreault did not meet with the parties or children again before trial. His report is now quite dated. The respondent gave no explanation with respect to why he did not agree that the report be updated.

h) Evidence of Kathleen Williams

[94] Ms. Williams, a Child Protection Worker at Peel CAS since 2006, testified that she first met the applicant and respondent around March 2014 when she was given carriage of the file from an intake worker. The file was closed in June 2014 or 2015, and then reopened in 2016 and closed again in 2017.

[95] The CAS first became involved after being contacted by Credit Valley Hospital about a situation of domestic violence. Some bruising was observed on the applicant’s ribs, but the hospital reported that she was not forthcoming about the injury, so the social worker felt it was necessary to contact the CAS. Ms. Williams testified that when she initially contacted the applicant, she told her that her goal was to focus on her marriage and the children. She also wanted to focus on her relationship with the respondent without the grandparents being in the home.

[96] Ms. Williams testified that she met with the respondent on three or four occasions. She wanted him to participate in counseling but he did not agree and stopped meeting with her. Thereafter, she only met with the applicant and the children. She noted that the respondent told her that the grandmother was the primary caregiver, and she corrected him, saying that the parents were.

[97] When she first met EL, she had little communication with him as he did not speak much English. CL did not want to have much interaction with her. She observed that CL had little interaction with the applicant and would always go into the room with her grandparents. EL appeared to have a closer relationship with the applicant.

[98] She met the grandparents a few times when she was first involved with the family in 2014. She testified that the children appeared to have a good and loving relationship with their grandparents.

[99] She became involved with the family again in 2016. She spoke with the principal at CL’s school, as it was reported that CL expressed suicidal ideation and it was recommended that the applicant take her the hospital to be assessed.

[100] Ms. Williams testified that she encouraged the applicant to move to a shelter when she was contemplating commencing court proceedings in September 2016 out of concern for the safety of the applicant and the children. Those concerns were based on not knowing how the respondent was going to respond when he was served with a court application. She also encouraged the applicant to retain a lawyer and even met with her to review questions to ask the lawyer.

[101] She testified that the source of her concerns was based on what the applicant told her about the respondent, his sister and father assaulting her in 2014. She also testified that the respondent had acknowledged that there was some pushing and shoving between himself and the applicant in the first incident in 2014. There were no child abuse issues raised at all.

[102] Ms. Williams met with the applicant and the children after they left the shelter in December 2016. She testified that there was a change in CL’s relationship with the applicant. CL would talk to her mother and tease her, and she never saw that behaviour when the grandparents were present. CL was more engaged and opened up and talked to her. The relationship between CL and the applicant appeared to blossom. When she was with her father and grandparents, however, she would give only one-word answers.

[103] It was her evidence that that the applicant was afraid to parent and did not have confidence when she first met her in 2014. Her confidence as a parent grew once she moved out on her own.

[104] Ms. Williams was cross-examined regarding case notes she prepared between June and September 2016 leading up to the time that the applicant left the home. Ms. Williams become quite defensive when being questioned as to why she encouraged the applicant to go to a shelter.

[105] She was asked about her case note of June 24, 2016, in which she stated the following:

I suggested that Ms. Guo file an application at court as she is not sure what the father plans are for the children and I stated the father having a basement apartment where he takes the children are very suspicious and I stated he might be planning on taking the children when school is finished. I stated that I don’t know but we have to think like him.

[106] Ms. Williams testified that this case note was made after a meeting with the applicant when she told Ms. Williams that the respondent was taking the children to a basement apartment but she did not know where it was. She also told Ms. Williams that she did not where the respondent was working. In that case note, Ms. Williams also recorded, “I stated that she has to start making decisions or else she is going to lose her children.” She also told her that because the respondent was acting suspicious, she should not wait to commence court proceedings. Further,

I suggested to Ms. Guo that her other option is calling the police on Mr. Li for previous DV and she can ask that the parents are removed at the same time as Mr. Li. Caregiver stated that she prefers to wait for the matter to go to family court.

[107] On cross-examination she acknowledged that she had not spoken to the respondent about the assault that occurred in February 2014. It was also her evidence that whenever there is domestic violence in the home, regardless of how remote the incident is, anything can happen and safety concerns for the children never go away. That is, if an incident happens once, it can happen again. She also noted that the respondent had told her that he and the applicant were both involved with some pushing. She was satisfied that he was the perpetrator of the violence. She was not shown any photographs of the respondent’s injuries. The only documents that she had were copies of the records from when the applicant attended at the hospital in February 2014.

[108] Her evidence was that when she suggested that the applicant consider calling the police to have the respondent arrested regarding the incident from two and a half years earlier and taken out of the home, she did not think he was a danger to the children but rather a danger to the applicant. She was concerned that the applicant’s risk would increase if the respondent found out that the applicant was commencing court proceedings. She acknowledged that she was unaware of any domestic violence in the home between February 2014 and June 2016. Her recommendation to contact the police was done to protect the applicant when she applied for custody and she wanted to err on the side of caution.

[109] In her case note dated September 9, 2016, Ms. Williams reported that the applicant told her that she was thinking of only taking EL when she left the home, as CL cried for her father for an hour. In her case note, she recorded that she told the applicant that she had to take CL if she was being brainwashed by the father and grandparents.

[110] During cross-examination, she testified that having the applicant leave the home and go to a shelter without telling the respondent was done for safety reasons. She explained that if the mother was hurt, the children would be hurt. It was therefore in the best interests of the children to be removed from their home and go to a shelter if their safety would be impacted by the mother leaving.

[111] She also expressed a concern that the grandparents had taken over the role of parenting and that the applicant was not given the opportunity to parent fully. It was her view that the children were bonded with the grandparents and the father, but nonetheless she thought it was best that the applicant leave the home and go with the children to a shelter.

i) CL’s Behaviour

[112] The applicant described CL as being very sensitive, quiet and not making friends at school. She is very intelligent and does well in her classes. CL has tantrums when she hears a loud noise or has to deal with change, which the applicant ascribed to the long-term unpleasant atmosphere in the home before she left with the children in September 2016. She testified that she has seen improvement with CL over the past two years.

[113] The respondent’s evidence was that he has never seen CL have a tantrum. There is no evidence that the parties ever discussed CL’s behaviour with each other. As will be discussed further below, I find this to be at odds with the totality of the evidence presented not just by the applicant, but also from the principal and the medical records of her attendance at the hospital on more than one occasion.

[114] The respondent described CL as being very smart, having a good memory and being very good in math and learning languages. He testified that he enrolled her in different classes to build up her intelligence and skills. She loves to play piano and practices 40 minutes per day. She has her grade 4 in the Royal Conservatory program, and the plan is that this year she will work on her grade 6. His evidence was that she is friendly and has close relationships with family, friends and classmates. Both she and EL frequently have friends over to his home. He helps CL with school projects and supports the plan for her to be placed in a gifted program, given her intelligence.

[115] When cross-examined, he did not agree that CL was an anxious child. He agreed that she gets nervous depending on the situation, which he considered to be normal.

[116] A Psychoeducational Consultation Report dated February 24, 2014, was filed as an exhibit. That report predates the date of separation. According to that report, CL was having difficulty establishing and maintaining appropriate peer relationships. It was observed that she did not seek the company of her peers. It was also noted that she had a great deal of difficulty initiating and maintaining appropriate social conversations with both peers and adults. Transitions and change were difficult for CL. It was recommended that there be a formal investigation for the presence of an Autistic Spectrum Disorder. This assessment has not yet been conducted so there has been no such diagnosis.

[117] The respondent never addressed whether CL had any special needs or behavioral issues when he was questioned. Presumably he was aware of her issues at school, as the Psychoeducational report predated the date of separation.

i) Evidence of Kerri Dunford

[118] Ms. Dunford has been the principal at the children’s school since January 2018. She presented as a very thoughtful and caring individual who had spent time with CL and has been very supportive of her.

[119] She testified that CL is involved in a learning-enhanced program, given her academic achievements. She ranks high on the gifted rating, and as a result, a recommendation will be made at some point with respect to which middle school she should attend. She confirmed that there has been no diagnosis of autism spectrum disorder.

[120] She also testified about CL’s behavioural problems. She witnessed CL having problems with anxiety and controlling her feelings, and she saw CL have breakdowns or tantrums at school, which could include screaming, crying and kicking her legs, sometimes while lying on the floor. The episodes have lasted two to ten minutes.

[121] Ms. Dunford’s evidence was that loud noises such as fire alarms are a trigger for CL. She has also had these tantrums when there has been a change to her routine, such as having a supply teacher. She testified that CL has access to voice-controlled earphones that she will use if there is something such as a school-wide assembly. There are also times that CL comes and spends time with her in her office to take a break.

[122] Ms. Dunford described one incident in the spring of 2018 when CL was screaming and crying. She said she hated herself, wanted to kill herself and did not like her life. Ms. Dunford explained that when this type of situation occurs, there is a protocol the school follows that involves telling the custodial parent about concerns and making recommendations to access treatment.

[123] Her evidence was that she spoke to the applicant, whom she described as being wonderfully supportive of CL socially, emotionally and academically. Ms. Dunford identified emails she received from the applicant in April 2018 in which the applicant provided her with a copy of a report from Peel Children’s Centre confirming that she had sought professional assistance for CL.

[124] Ms. Dunford’s evidence was that she also had contact with the respondent. She spoke with him on the phone and he had also dropped by to see her at the beginning of the school year.

[125] Ms. Dunford testified that CL has a small social circle and prefers to work independently, but with encouragement she will work in small groups. She might have one or two friends but there are no consistent relationships. She will not play alone when she is outdoors but will play with different friends.

[126] She testified that since September 2018, the number of these incidents have decreased immensely, as CL has been able to use some coping strategies such as positive self-talk and asking for some quiet time. Her evidence was that CL was having a good school year.

ii) Evidence of Elsa Torrejon

[127] Ms. Torrejon is the program director for the before- and after-school program at the school the children attend. She testified that she has observed a big difference in CL’s behaviour this year as compared to the last school year. During the last school year, she would observe CL crying. She also heard her say that she wanted to kill herself. She contacted the CAS when this occurred.

[128] On another occasion, she heard CL say that she wanted to love her mom, but her dad did not allow her to, even though her heart told her that she should love her mother. She heard CL say that she did not like her life. Ms. Torrejon testified that she would offer comfort to CL.

[129] Ms. Torrejon’s evidence was that a couple of times per week, CL would become very upset. She observed CL lying on the floor, screaming and throwing things. She testified that it was hard at times to calm her down.

[130] Ms. Torrejon did not have any interaction with the respondent. She had called the applicant in the past, who appeared concerned. She recalled speaking to the applicant once about her concerns about a letter CL wrote saying that she hated her mom. She testified that she encouraged CL to write another letter saying how much she loved her, which she did.

[131] These letters were filed as exhibits. The note from CL to her mother dated February 27, 2018, said:

Dear mom, I hate you. It was your fault that I’m here. I’m turning 10 this year. That’s old enough for me to be completely independent. And now is your final order “die”. Unsincerely [CL] (your daughter not).

[132] The letter on the following day that Ms. Torrejon encouraged CL to write said:

Dear mom, I apologize for the mean letter that I wrote to you Tuesday. I know that you are my mother, no matter what. I will try to improve my behaviour for the future. Mom, I love you. Sincerely, [CL] (your daughter).

[133] Ms. Torrejon testified that this year, CL appears more settled and calm than last year.

iii) Medical Reports

[134] Records from Credit Valley Hospital were filed with respect to CL’s attendance to their emergency department on April 21, 2017, and then again on January 31, 2018. There were also records of a counselling session on March 28, 2018, at the Peel Children’s Centre. The health professionals who saw CL and prepared the reports were not called as witnesses, and these reports are therefore hearsay evidence. I can rely on the reports not for the truth of their contents, but as evidence that CL attended on the hospital on those occasions.

[135] On April 21, 2017, the applicant brought CL to the emergency department at Credit Valley Hospital. The applicant testified that CL had voiced suicidal ideations at school, and it was recommended by the principal that she bring her to the doctor. CL told the social worker she saw that she did not want to kill herself. The social worker also spoke with the applicant who told her of issues with the separation. No treatment or counselling was provided, and CL was discharged home with her mother and brother for follow-up with the school social worker.

[136] CL also attended at the Trillium Health Department on January 31, 2018. The report indicated that she was brought to the emergency department again with the encouragement of the school, as CL had said again she wanted to kill herself. CL indicated that she was angry that there was a substitute teacher.

[137] A report from the Peel Children’s Centre walk-in counselling dated March 28, 2018, indicated that for the past few years, CL and her mother have reported CL’s temper tantrums at school. CL reported that she screams and rolls around on the floor when she is upset. The applicant reported that she received phone calls from the school about this every few weeks. CL reported that it occurred about one to two times per week. The report also noted that there had been times when CL talked about killing herself during tantrums.

[138] CL reported that she did not really mean that she wanted to kill herself, but said it when she was very upset at school.

[139] The social worker commented that CL’s outward expression of anger may be due to difficulties in expressing other underlying emotions. Recommendations were made to provide CL with some coping skills in implementing calming strategies in moments of distress.

[140] The respondent received a copy of the report from Peel Children’s Centre through his lawyer, so he was aware of CL’s behaviour. There was no evidence of what, if anything, he did to address the issue. There was no evidence that he had any discussion with the applicant about this troubling behaviour. My impression is that he sees his daughter as being a very accomplished young girl, which she is, but does not acknowledge that she has had behavioural issues. Given some of the comments CL has made to third parties, she may be a young girl who feels a need to live up to her parents’ very high expectations. There also remains the issue of possible autism spectrum disorder that has not yet been diagnosed.

[141] The evidence is that it has been the applicant who has been dealing with CL’s medical and educational needs and been in contact with the school since September 2016. The respondent did not even acknowledge any of the concerns regarding CL, saying he did not observe the behaviours in his home. This is not a situation of CL only acting out in the applicant’s care, as these are observed behaviours at school since at least 2014.

j) EL

[142] I heard very little evidence about EL. The applicant testified that unlike CL, she was able to parent EL without interference by the respondent’s parents. He does well in school. There was no evidence of any behavioural issues. The respondent’s evidence was that EL is very friendly and has a lot of friends; good at sports, such as swimming and running; and likes table tennis. As noted previously, EL takes drawing and dance classes.

k) September 28, 2018, Incident

[143] I heard a great deal of evidence with respect to an incident that occurred in September 2018. I will review the evidence in some detail, as it has a significant bearing on my reasons regarding whether a joint custody order is in the best interests of the children.

[144] After the initial interim orders in 2016, there were relatively few court attendances by the parties. Both parties complied with the orders. I did not hear evidence of ongoing conflict between the parties since September 2016 or of any ongoing issues with access involving the children. There was no evidence that the children were not attending for access visits. Unfortunately, despite this relative calm, an incident occurred in September 2018 that demonstrates that despite the passage of time since the applicant and the children left the home, there is an ongoing lack of trust and communication between the parties that makes it difficult to reconcile how a joint-custody order could be in the children’s best interests.

[145] On September 26, 2018, the applicant testified that CL was irritable and did not want to get up and get ready for school. When the applicant told her that she needed to get dressed, CL had a tantrum and was lying on the sofa and kicking her legs. The applicant testified that she tried to “block her” with her arms.

[146] That night there was a prearranged meeting with a CAS worker, Lidia Vieira. Ms. Vieira testified. She has been a child protection worker with the Peel CAS since May 2004 and became involved with the family at the end of July 2018. She was assigned the file regarding some child protection concerns. It was a referral from a summer camp that CL was attending. The staff was concerned as CL had made a statement that she had to get good grades and if she did not her parents would whip her. Ms. Vieira testified that she spoke with CL about this, and she told her that she never said that at summer camp. She and EL both said that neither parents use any physical discipline. She did not speak to the respondent about this incident.

[147] Ms. Vieira’s evidence was that she asked the applicant to contact the family doctor with respect to CL’s emotional well-being regarding the tantrums she had in school earlier that year. She described CL as a sweet child that was socially awkward, not forthcoming and did not engage socially. She had met her in July 2018 and had made a subsequent appointment to see the family on September 26, 2018.

[148] On September 26, before she met with the applicant, she received a call from the school that CL had disclosed to her teacher that the applicant had hit her that morning.

[149] When Ms. Veiria met CL that evening at her home, CL told her that she was tired as she had been up late the night before and she had a tantrum as her mother yelled at her to get ready. CL told her that her mother hit her with her hand. Ms. Vieira testified that after questioning CL further and asking for details, she concluded that she did not believe what CL told her of what had occurred. CL also told her about other incidents of self-harm that had occurred that day at school, but Ms. Vieira concluded that if those events had occurred that day, the teachers would have told her about it.

[150] Ms. Vieira also spoke with EL, and she concluded that she had no concerns that the mother was harming the children.

[151] Neither Ms. Vieira nor the applicant contacted the respondent to inform him of this incident. This failure to communicate about this episode then instigated a chain of events that may have been avoided if the applicant had informed the respondent about what had occurred between herself and CL.

[152] The following day, on September 27, 2018, Ms. Vieira testified that she received an email that the respondent had brought the children to the police station and had scheduled an interview with the police for September 28, 2018.

[153] On September 28, she received a phone call from the respondent, who told her that there was an appointment scheduled with the children at the Special Victims Unit (“SVU”) at the police station at 2:30 p.m. that day. He asked if she could come to the school to transport the children for the interview, as the school would not allow him to remove the children. The respondent told her that CL said her mother had hit her on the left side of her body, and he wanted the SVU to investigate the incident, as they had better skill to do so. Ms. Vieira told the respondent that based on her investigation, she was satisfied the applicant had used her hands to block her body and did not hit CL.

[154] Nonetheless, she subsequently spoke to the respondent several times on September 28, as he was at the children’s school and wanted her to attend to transfer the kids. During one of those phone calls, Ms. Vieira told the respondent about the meeting that occurred on September 26. She confirmed during cross-examination that no one from the CAS had spoken to the respondent about the September 26 meeting prior to this date.

[155] Ms. Vieira also testified that during one of the phone calls with the respondent on September 28, she asked if she could schedule a meeting with him for the following week. Although she had no concerns, she wanted to discuss the report from summer camp in July and other disclosures made by CL about inappropriate discipline used by the parents. He refused, stating that he would only meet with the SVU.

[156] Ms. Vieira testified that she also spoke with a police officer that day. When the officer was informed that she had met with the children and completed an investigation, he said there would be no further investigation.

[157] Ms. Dunford, the principal, was also questioned about this incident. She confirmed that CL disclosed on September 26 to a teacher that her mother had slapped her, who reported it to the CAS per school protocol. She recalled that in September 2018, the respondent arrived at the school saying he was there to take the children to the police station or the police were going to be coming to speak with the children. She explained that the police needed to contact the school, and that the children would stay in class until the police arrived.

[158] Ms. Dunford testified that the respondent stayed in the front foyer of the school for about one hour waiting to speak with the police. When she contacted the police to ask if they were coming to the school to talk to the children and the police told her no, she informed the respondent and he left.

[159] Officer Eric Anderson from PRP was also called as a witness regarding this incident. Officer Anderson testified that he spoke with the respondent at 2:11 p.m. on September 28, 2016, when he was at the school attempting to get the children to bring them to the police station to be interviewed. The principal told Officer Anderson that she did not feel comfortable releasing the children to the respondent as a result of the custody and access arrangements. She also told Officer Anderson that the assault allegations from CL had been reported to CAS on September 26, 2018. He then contacted the CAS and spoke with Ms. Vieira, who confirmed that she had investigated the matter and she did not report anything to the police, as she did not feel the allegations had any substance.

[160] His evidence was that he did not set up a meeting with the respondent, as the police work closely with the CAS. As the matter had been investigated by the CAS and it was determined there was no substance to the allegation, the police do not supersede the CAS and do another investigation.

[161] He testified that he explained this to the respondent but the respondent was not happy; he felt that the CAS was not representing him fairly and he did not trust Ms. Vieira. Officer Anderson’s evidence was that he told the respondent that he needed to contact the CAS so that they could finish their investigation. He told the respondent that he could not set up a meeting with the police to bypass the CAS investigation.

[162] The respondent’s evidence was that on September 27, 2018, CL was upset and told him that the applicant had hit her and said she would do it again. EL told him that he saw the applicant hit CL. He felt that he needed some professional help to identify the severity level, so he took the children to a police station. He did not want the applicant arrested, but wanted the police to listen to the children to determine the proper thing to do. The officer at the station called the SVU, which deals with child abuse, and booked an appointment for the next day. At the time, he was unaware that the CAS had conducted an investigation.

[163] He brought the children to school the next day and told the principal what CL had told him and that there was an interview scheduled that day. He asked if he could pick up the children to bring them to the police interview. His evidence was that he returned at lunch and Ms. Dunford told him that given the custody and access arrangements, he should ask the CAS to pick up the children at school. After various phone calls with the police and CAS, he left the school. While in the parking lot, he received a phone call from the CAS. The CAS told him that the investigation had already been completed the prior day, concluding that the applicant had not hit CL and it was CL who kicked her. The CAS then said there were allegations that he had hit CL. He was surprised. The CAS worker wanted to book an appointment to discuss the matter, but he refused.

[164] He then had access to the children on Sunday morning. He thought that a further investigation was needed with a well-trained professional, so he brought the children to the SVU. An officer met them and he explained what happened, and then another officer met with the children. His evidence was that he told the children to explain what happened Wednesday morning and they were to tell the person exactly what had happened. He denied telling the children what they should say.

[165] After they were interviewed, the police closed the file. His evidence was that the officer told him that there was physical contact but the severity level was such that no further action needed to be taken. He did not hear from the CAS again about this issue or any other matter.

l) Evidence of Quing Kong and Chunta Song

[166] Ms. Kong’s children were in school with CL and EL. Their children go to the same ballet school, and the children have been to her home. She described CL as a nice girl who is smart and friendly. She described EL as a nice, good boy.

[167] Ms. Song has known the parties for 18 years. She travelled with the parties and the respondent’s parents on family trips to Vancouver in 2010 and the eastern provinces. Her observations were that the applicant had a normal relationship with her daughter and her in-laws.

m) Evidence of Dr. Goldstein

[168] As noted previously, the respondent successfully sought leave to qualify Dr. Goldstein as an expert child psychiatrist to provide an opinion regarding custody of the children and the report prepared by the OCL. The applicant consented to his qualifications and his field of expertise. He has extensive training, education and experience dealing with custody and access arrangements for children. He did not meet with either party, the children or anyone else with knowledge of the family, and so his expert opinion was of limited assistance in this matter.

[169] Dr. Goldstein’s opinion was that in high-conflict situations, if sole custody is granted to one party, it ends up being a winner/loser situation which intensifies the struggle between the parents. It was his opinion, based only on his review of the OCL report dated March 14, 2017, that joint custody should have been recommended with a mediator or parenting coordinator to assist with any ongoing disputes.

[170] With respect to the incidents of abuse in the home, his opinion was that each party was accusing the other of abuse and it was not clear who was the perpetrator.

[171] It was also his opinion that Mr. Perreault did not appreciate the major role the children’s grandparents played in the children’s lives and how attached they were to their grandparents.

[172] On cross-examination, Dr. Goldstein’s evidence was that the only situation which warrants sole custody is if the children are at risk of harm either psychologically or physically by a parent. In all other cases, joint custody is appropriate. In situations where there has been domestic abuse, provided there is no possibility of any further violence, joint custody is still appropriate.

n) Custody Analysis

Legislative Framework

[173] The applicant has 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.

[174] Section 16(8) of the Divorce Act sets out the general test for determining custody and access issues, requiring the court to 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 that a child should have as much contact with each spouse as is consistent with the best interests of the child.

[175] The 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 Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“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.

[176] According to s. 24(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.

[177] Before delving into the analysis, I make the following comments about the applicant and respondent. I have no doubt that both parents love their children and want them to be happy and succeed. They both, however, fail to recognize that they have each done or failed to do things that have created an atmosphere of distrust.

[178] I found both the applicant and respondent to be at times evasive and defensive during cross-examination. For example, when questioned about whether or not CL was upset the morning she went to school on September 26, 2018, the applicant would not agree and simply said repeatedly that CL was sleepy. Yet CL must have been upset, as she reported to her teacher that day that her mother had hit her.

[179] She was also questioned about a statement in a case note from Ms. Williams dated September 9, 2016, which stated that she was considering taking only EL to the shelter as CL cried for an hour. She denied that she made that statement, claiming that before she left the home, she could not have known if CL was crying since she was not allowed to even approach her. I found that to be a very weak and unconvincing explanation. It appeared that she wanted to minimize the close relationship between CL, the respondent and his parents by denying any knowledge of CL crying, which she had previously reported to Ms. Williams.

[180] The respondent was cross-examined about why he called the mental health agency to come to the home on January 1, 2016, to assess the applicant. He was asked about his relationship with the applicant at that time, and his evidence was that it was stable and they were on happy terms. He would not admit that he was upset with the applicant for having contacted the police. I found his evidence to be internally inconsistent. Given the circumstances, with the police being called twice over the Christmas holidays, it defies common sense to then describe his relationship with the applicant to be happy. I found his answers to be evasive, and he was reluctant to acknowledge that it was obviously a difficult time in the home. He clearly wanted to downplay and minimize the amount of conflict in the home.

[181] During cross-examination, his evidence was that the home environment was a good one for the children up until the time the applicant left the home in September 2016. Given the evidence of both the applicant and the respondent, the respondent was either wilfully blind to the conflict in the home or deliberately minimized it. His reason for doing so was to call into question the reasonableness and motivation behind the applicant’s decision to leave the home and move to a shelter with the children.

[182] The respondent’s position is that the applicant’s removal of the children from the home to a shelter, when there was no risk of harm to either her or the children, was done solely to gain strategic advantage in this litigation. Relying on Rifai v. Green, 2014 ONSC 1377, 44 R.F.L. (7th) 113; Izyuk v. Bilousov, 2011 ONSC 6451; and Nyari v. Velasco, 2008 ONCJ 272, he asserts that the court must discourage such self-help techniques that create an inappropriate status quo. The court should instead consider the status quo that existed prior to September 2016: that he and his parents were the primary caregivers to the children. Given the children’s close relationship with him and his parents, there should be a joint-custody and shared-parenting arrangement so that the children can have maximum contact with both parents.

[183] I will address the issue surrounding the applicant’s decision to leave the home and move to a shelter with the children without first discussing this move with the respondent. Based on the totality of the evidence, I do not see this as a deliberate attempt to gain a strategic advantage. The evidence regarding the various incidents in the home prior to her departure reflect a hostile environment filled with conflict that was not healthy for either of the parties or the children. There was little communication between the parties while they remained separated but living under the same roof. Compounding the problem was the conflict with the respondent’s parents in the home and the role they had assumed in caring for the children. While the respondent was content to have his parents care for the children, the applicant did not want them to continue to live in their home. In addition, the applicant had no family support to turn to, as her extended family reside in China.

[184] Based on the evidence, I also find that Ms. Williams from the CAS played a significant role in persuading and encouraging the applicant to leave the home and to specifically go to a shelter. Ms. Williams based her recommendations on the information provided to her by the applicant at the time, as the respondent did not agree to meet with her. This included information of the children being taken to an unknown location on weekends, CL expressing suicidal ideations and the past history of the applicant requiring medical care for injuries she sustained when allegedly assaulted by the respondent and his father. While there was no independent verification of those alleged assaults, Ms. Williams had a strong opinion that the applicant could be at risk once the respondent learned of the court application, and, in communicating that concern to the applicant, was no doubt instrumental in the applicant choosing to take the children to a shelter. Were it not for Ms. William’s persuasion, I am not convinced that the applicant would have made the choice to leave the home and go to a shelter with the children.

[185] To be clear, there was no evidence that the children were ever at risk in the home. I am satisfied that the respondent poses absolutely no danger to the children or to the applicant. They did not need the protection of a shelter in September 2016 or at any time. The overwhelming evidence is that both parents and grandparents love the children and have never harmed either of them. Accordingly, it was always open for the applicant to leave the home alone when she left in September 2016. Again, however, it is clear that Ms. Williams actively encouraged the applicant to leave with the children and move to a shelter, which she told her would provide her with the supports she needed.

[186] I also find that the applicant did not fabricate stories of abuse in the home to gain a strategic upper hand as part of her overall plan to leave the home. There was physical contact between the parties of some kind. Both the applicant and respondent claim that the other party caused injury. In February 2014, the applicant went to the hospital and it was at the hospital that the social worker contacted the CAS. That was not the applicant’s decision. She then told the CAS worker at that point that she wanted to focus on her marriage but had concerns with what she saw as the grandparents taking over her parental role. She did not contact the police at the time. Had she been fabricating the conflict in the home for strategic purposes, she would have done so.

[187] Both parties made poor decisions, no doubt fueled by the increasing tensions in the home. The applicant made a poor choice when she did not tell the respondent about the car accident. The respondent made a poor decision when he removed the battery from her car and when he called the police and mental health authorities to assess the applicant. It was also a poor choice for the applicant to leave the home with the children to go to a shelter, as she had the financial ability to secure alternate living arrangements and the children did not need the protection of a shelter at that time. Although going to the shelter was not the best decision, the tensions in the home and Ms. William’s encouragement made it, from the applicant’s perspective, a reasonable decision at the time.

[188] The applicant was living separate and apart from the respondent in the home with the respondent’s parents. It was obviously a period of time of distress. I accept the evidence that the applicant’s role with the children was being marginalized by the parents. The evidence of Ms. Williams was that CL was attached to her grandmother and not the applicant. The applicant did not have any family in Canada to turn to for support. I also accept the applicant’s evidence that this was not a healthy environment for her, given the conflict in the home and the grandparents’ role in raising the children.

[189] I will now deal with the issue of whether an order for sole or joint custody is in the best interests of the children. This issue, however, is really to determine the best parenting and decision-making arrangements available for the children. The respondent fears that he will be deliberately excluded from the children’s lives if an order for joint custody is not made. Given the current legislation, the terms “joint” and “sole custody” are still used, unfortunately, which often becomes the focus of heated litigation when really the focus should be on parenting and decision-making arrangements. Given the legislation and the position of the parties, I must make a decision regarding joint and sole custody with a focus on the best interests of the children.

[190] As Chappel J. stated in 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.

[191] In Jackson v. Jackson, 2017 ONSC 1566, at para. 65, Chappel J. 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. commented that there was 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 that they are able to meet the children’s general needs. A judge must use discretion in considering the quality of past parenting decisions, as well as the presence of conflict between the parents.

[192] Conflict does not immediately preclude joint custody, but there must be some ability on the part of the parties to communicate and cooperate in a workable manner. Where there is an indication that the parties have never been able to communicate or cooperate effectively, evidence that communication and cooperation may improve or that one of the parties intends to improve is not sufficient. The party seeking joint custody must show with evidence that joint custody is feasible. Evidence of the success or failure of interim custody and access orders is highly relevant to a judge’s analysis of a joint custody submission. Additionally, where the child is very young, courts must be especially insistent about the need for effective communication between parties, because “the child is unable to easily communicate their physical, emotional, developmental and other needs”: Jackson, at para. 65.

[193] There is no dispute that the applicant and respondent pass the threshold fitness test. They are both able to meet the general needs of the children, although I have some concerns about the respondent’s failure to acknowledge CL’s behavioural issues. The parties will likely need to make many decisions regarding CL’s education given her gifted status, but there may also be behavioural issues to contend with going forward. Those issues may also require testing for autism spectrum disorder. I am not satisfied that the respondent would be able to work with the applicant to make joint decisions in this area.

[194] The most recent incident of September 2018 demonstrates that the parties cannot reasonably communicate and cooperate to shield the children from conflict. Firstly, the applicant did not notify the respondent that CL had made an allegation to her teacher that she had hit her. More troubling, however, is that when CL told the respondent, rather than contacting the applicant, he went immediately to the police station. Furthermore, he persisted even when told by Officer Anderson that the police would not conduct any further investigation since the CAS had investigated. While the respondent may have distrusted the CAS, as evidenced by his failure to cooperate with them, he nonetheless was told by the police that the matter was at an end. Undeterred, the respondent waited until the children were with him again to bring them to the police station for a second attempt to have them interviewed. Although the respondent’s evidence was that he fully intends to cooperate with the applicant should there be an order for joint custody, his actions speak louder than his stated future intentions. A parent who believes that joint custody is in his children’s best interests would have contacted the applicant to discuss the disclosure made to him before taking the children not once but twice to the police station, insisting that they be interviewed. Although the parties have been separated for four and a half years, this incident underscores the continuing inability of the parties to communicate. I am satisfied that the respondent’s motivation in bringing the children to the police station was to demonstrate misconduct on the part of the applicant to try and gain a strategic upper hand in the litigation just months before the trial. Had he been motivated solely out of concern for his children, as someone whose position is that joint custody is in the best interests of the children, he would have first contacted the applicant rather then head directly to the police station. This behaviour strongly suggests that the respondent remains unable to trust the applicant or communicate with her in a way that would make joint custody a meaningful parenting arrangement that is in the best interests of the children.

[195] The applicant has alleged that the respondent is attempting to alienate the children from her. I heard no evidence of this other than the letter CL wrote to her in February 2018 and the inference the applicant wants me to draw from comments made by CL in her police interview. The applicant asserts that I should find that the respondent coached CL, based on what CL said in that interview. I am not prepared to make any finding with respect to those statements. That evidence was not before me for the truth of its contents, and was only admissible as evidence that the children were interviewed by the police. I therefore place little weight on the evidence from the police interview, given that it is hearsay.

[196] Parental alienation involves a complex set of behaviours involving all those who are affected. Findings of alienation often require expert opinion: Barrett v. Huver, 2018 ONSC 2322, 9 R.F.L. (8th) 244, at paras. 16-17. No such evidence was presented. Furthermore, there was no evidence heard that the children are refusing to go to either of the parents’ homes or acting in a manner consistent with a child who is being unduly influenced by the other. While there is concern regarding CL’s tantrums and expressions of suicidal ideation, there is no evidence that it is connected to any parental alienation issues. In addition, her behavioural concerns predate the date of separation.

[197] The applicant failed to present any viva voce evidence from the doctors or social workers who spoke with CL as per the recommendations of the school. As indicated, I cannot accept the comments as recorded in the notes made by CL for the truth of those statements. I am left, therefore, with an absence of evidence regarding the cause of CL’s behavioural issues. She has not yet been tested for autism spectrum disorder. Fortunately, the evidence is that her behaviour had improved since September 2018. The parties are encouraged to be vigilant regarding CL’s behaviour and to communicate and discuss any concerns with each other. Both parents must recognize that the children are entitled to a loving relationship with each parent. It is the responsibility of the parents to encourage, support and nurture that relationship.

[198] The respondent has expressed concern with the applicant travelling with the children to China, where her entire extended family lives. He fears that she will not return, and that he will be unable to compel their return as China is not a signatory to the [Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, C.T.S. 1983/35, 19 I.L.M. 1501].

[199] The applicant has lived in Canada for 19 years. She works full time and has had the same employer for close to ten years. She owns a home in Mississauga with a significant amount of equity. Her children have attended the same school and are involved in a number of activities. This evidence demonstrates the close connection the applicant has to Canada and should alleviate the respondent’s fear that she would not return. It is important that the children meet her family and have an opportunity to develop a relationship with them. She is permitted to travel to China, as per the terms of the parenting order set out below.

[200] In determining the parenting arrangements that are best for the children, I have considered the report of the OCL, which, unfortunately, was not updated prior to trial. Generally speaking, a court should not delegate its decision-making authority on parenting arrangements to an assessor: Strobridge v. Strobridge (1994), 18 O.R. (3d) 753 (C.A.), at para. 39; and Mattina v. Mattina, 2018 ONCA 641, at para. 13. An assessor’s recommendations are only one factor that the court must consider in making determinations on custody and access: Woodhouse v. Woodhouse (1996), 29 O.R. (3d) 417 (C.A.), at para. 44.

[201] I have also considered the expert opinion of Dr. Goldstein. His opinion was of limited assistance, as he had no contact with either the parties or the children. A determination of custodial and parenting arrangements is one that is unique to the best interests of the particular children involved. A general opinion that joint custody is preferred is of limited assistance if the expert has done no more than reviewed an outdated report from the OCL.

[202] In addition to the evidence and reports filed with the court, I have considered all the factors set out in s. 24 of the CLRA. Both parents have the ability to meet the needs of the children. They have both been involved in their children’s educational and health needs. I also find that there is a strong relationship between the children and their paternal grandparents.

[203] On a final basis, the applicant shall have sole custody of the children. She must first consult with the respondent and seek his input on all major issues affecting the children, including issues of education, health care and religion. If the parties cannot reach an agreement after consultation, the applicant shall make the final decision regarding those issues.

[204] With respect to extra-curricular activities, if the parties cannot agree, they may each choose no more than two extra-curricular activities for the children to be involved with at any one time (meaning a maximum of four extra-curricular activities for each child). If there are any scheduling conflicts, the parties are encouraged to use the services of a parenting coordinator, whom they should jointly retain and pay for equally. The parties are also encouraged to consider whether fewer extra-curricular activities might be in their children’s best interests.

[205] The following shall be the parenting arrangements for the children:

a) The children shall spend the following times with the respondent:

i) Week One: • Tuesday pick up at school until Thursday morning drop off at school; • Friday pick up at school to Monday drop off at school.

ii) Week Two: • Wednesday pick up at school until Friday morning drop off at school.

b) The respondent shall pick up the children at their school or at a mutually acceptable location.

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

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

e) 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 a.m. until their return to school on Monday.

II. Mother’s Day: If the children are not with the applicant on that weekend, they shall be with the applicant on Mother’s Day from 9:30 a.m. 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 from Thursday prior to the Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m. and with the respondent from Saturday at 10:00 a.m. 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 p.m. to Saturday at 10:00 a.m. and with the applicant from Saturday at 10:00 a.m. to the resumption of school.

V. Summer vacation: The applicant and respondent shall both have uninterrupted vacation time of two weeks’ duration with the children during the month of July and two weeks during the month of August, during which time the other parent’s 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 applicant shall have first choice in even-numbered years and the respondent shall have first choice in odd-numbered years.

VI. Thanksgiving: In even-numbered years, the children shall spend Thanksgiving with the respondent, and in odd‑numbered 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 respondent 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, with the applicant from December 25 at noon until December 29 at noon, and with the respondent from December 29 at noon to the resumption of school.

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

f) When the 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 caregivers to care for the children.

g) 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 at least 30 days in advance, 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. When one parent proposes to travel, the other shall provide the necessary travel consents to facilitate this.

h) The applicant 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. The respondent shall return the passports to the applicant promptly.

i) The applicant shall apply for a Canadian passport for each child, when required. The respondent shall sign the passport application.

j) The children’s OHIP cards shall travel with them when the children are in the care of either parent.

f) Neither party shall arrange for the children to attend at special events at a time when the children are to be in the care of the other parent, unless that other parent consents.

g) 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 well-being. Each of the parties may prepare a direction and a consent to disclose personal health information pursuant to PHIPA, authorizing himself/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 days of receipt.

h) 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.

ISSUE FOUR: CHILD SUPPORT

[206] In dealing with the issues of ongoing child and spousal support, there must be a finding of the parties’ respective incomes.

[207] There is no dispute that the applicant’s 2018 income was $54,005. The respondent’s last pay statement for 2018 indicated that by December 28, 2018, he earned $105,143.62. The pay slip also lists employer-paid benefits totalling $5,814, which the applicant argued are to be included as income for the purpose of calculating support, presumably on the basis that they are a taxable benefit. If so, the respondent’s income in 2018 was $110,957.62. In their written closing submissions, neither party used that figure for calculating support. The applicant used a figure of $115,575 and the respondent used a figure of $108,000. Given the timing of the trial, the parties did not have the benefit of exchanging copies of their 2018 Income Tax Returns. If the issue of the respondent’s income requires further submissions, the parties may file such submissions, together with copies of the respondent’s 2018 Income Tax Return, by May 15, 2019. The submissions are to be no more than two pages in length, double-spaced.

[208] The parties have agreed that the respondent owes the applicant retroactive child support of $6,442.28 for the period of October 2016 to December 2018.

[209] With respect to ongoing child support, based on the above parenting schedule, the parties may wish to make further submissions regarding the quantum of child support owing by the respondent to the applicant and, in particular, whether s. 9 of the Federal Child Support Guidelines, SOR/97-175, applies. If s. 9 applies, I will require further written submissions from each of the parties of no more than two pages, double-spaced. To be clear, if further written submissions are required on the issue of s. 9 or the respondent’s income, the written submissions in total shall be no more than four pages, double-spaced.

[210] If s. 9 does not apply, and provided that the parties do not require further submissions regarding the respondent’s 2018 income, the respondent shall pay the applicant monthly child support of $1,606 commencing January 1, 2019, based on the respondent’s 2018 income of $110,957.62.

[211] With respect to s. 7 expenses, the respondent’s position is that he should not have to pay for any daycare expenses the applicant incurred, as his parents were available to provide such care. I do not agree with that submission. After the parties separated, the children were living with the applicant. She was responsible for child care and was not obligated to have the respondent’s parents provide that care. From the applicant’s perspective, the grandparents had overstepped their boundaries. She testified that the interaction with the other children at daycare has been positive for her children. Accordingly, the s. 7 expenses incurred by the applicant are $10,755.86. The respondent’s share of those expenses, using a ratio of 67/33%, as the parties agreed, is $7,206.42

[212] The respondent’s position is that he has also incurred s. 7 expenses which total $13,008.40 or $17,734.43 if his gym membership is included. The applicant only disputed the gym membership fee. The respondent’s evidence was that the gym membership includes the cost for the children, and they use it for swimming, a climbing wall and playing basketball. No evidence was led with respect to what portion of the gym membership was just for the applicant as compared to the cost to include the children’s membership. Without that evidence, I am unable to conclude whether the expense qualifies. I therefore find that the s. 7 expenses the respondent has incurred total $13,008.40 and the applicant’s share at 33% is $4,292.77.

[213] Based on these figures, the net amount owing by the respondent to the applicant is $2,913.66.

ISSUE FIVE: SPOUSAL SUPPORT

Review of the Evidence

[214] The applicant attended university in China, studying linguistics and literature. She worked after graduation. In 2001 she and the respondent moved to Hamilton, Ontario. They then moved to Ottawa, where the applicant studied English and the respondent worked as a software developer. In 2002, the applicant was accepted into the University of Toronto in the Master of Business Administration Program (“MBA”). She and the respondent moved to Toronto so that she could go to school. The respondent worked full time while the applicant attended school for two years.

[215] During cross-examination, she agreed that she secured a $50,000 loan to pay for her education and the loan was repaid from their joint bank account.

[216] After graduating from the MBA program, she also studied to become a Certified Public Accountant. She obtained this qualification while also working full time.

[217] When she graduated in 2004 with her MBA, she found a job in Mississauga. She took a one-year maternity leave after CL was born and an eight-month maternity leave after EL was born. She started to work for her current employer, Roy Thompson Hall, as an accountant before EL was born. She has worked on a full-time basis for Roy Thompson Hall, earning $52,767 in 2017, with a current income of approximately $54,000 per annum.

[218] The applicant testified that she has not looked for any other employment, as her current employer allows her to work flexible hours to accommodate her child care responsibilities and she enjoys her work. She also testified that her employer offers various music programs which benefit the children. I note that prior to September 2016, she worked for the same employer and she did not need flexible work hours, as the respondent’s parents were providing full-time child care in their home.

[219] The respondent attended university in China and studied electronics and computers. He completed his Masters in computer science in 1998. Since October 2015, he has worked full time as a software developer at CIBC, earning $105,271 in 2017 and approximately $110,000 in 2018.

Analysis

[220] Entitlement to spousal support can be based on both a compensatory and non-compensatory (needs) basis. Section 15.2 of the Divorce Act allows a court to make an order as is reasonable for the support of a spouse. Section 15.2(4) sets out the factors to take into consideration, including the means, needs and other circumstances of each spouse, the length of cohabitation and the roles performed by each spouse. Section 15.2(6) sets out the objectives of a spousal support award, including recognizing any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown and to relieve any economic hardship of the spouses arising from the breakdown of the marriage. These objectives focus on the spouse’s post-marital needs and are to relieve against need that is induced by the parties’ separation: Moge v. Moge, [1992] 3 S.C.R. 813, at pp. 878-9.

[221] The applicant asserts that she is entitled to spousal support on both a compensatory and needs basis commencing on the date of separation in June 2014. Although she claimed spousal support in the Application, she did not seek that relief on an interim basis. That does not, however, prevent her from advancing the claim at trial.

[222] Marriage itself does not automatically create an entitlement to support. Marriages where spouses maximize their earning potential, pursue economic and educational opportunities in a similar manner and divide domestic labour and make no economic sacrifice for the other or make such sacrifices equally are able to make a clean break: Moge, at pp. 864-5.

[223] There is no evidence that the applicant has suffered any economic disadvantage as a result of the marriage or its breakdown. Both parties came to China after obtaining university degrees. While in Canada, the parties moved to Toronto so that the applicant could obtain her MBA. She was able to attend school full time while the respondent worked. She also obtained her CPA designation. She advanced her education and career opportunities during the marriage. She expanded her employment prospects as a result of the education she pursued during the marriage. She has worked full time. While she earns less than the respondent, her evidence was that she has not looked for other employment, as she enjoys her work, the opportunities it offers her children and the flexibility it provides for work hours.

[224] Although the respondent had started the process of immigrating to Canada before he married the applicant, there was no evidence that the applicant did not also wish to come to Canada. There was no evidence that the move to Canada has caused any economic disadvantage to the applicant.

[225] It is not disputed that the applicant took two maternity leaves after the birth of the children. There was no evidence led that those leaves interfered with her employment or advancement at work. Parental leave following the birth of a child does not automatically create an entitlement to support without evidentiary support that it has directly or indirectly interfered with a spouse’s employment or economic opportunities.

[226] With respect to domestic roles or duties in the home, the evidence was that the domestic labour was performed by the respondent’s parents. The evidence was that they provided child care and performed the domestic chores, such as cooking and cleaning. The applicant and respondent were both able to focus on their employment, knowing that the respondent’s parents were providing full-time care for the children.

[227] On a compensatory basis, I therefore find that the applicant is not entitled to spousal support.

[228] The disparity in the parties’ incomes is an important factor that supports the applicant’s claim for spousal support. Since 2013, the respondent has earned approximately $50,000 more per year than the applicant.

[229] Non-compensatory support claims are based on a loss of marital standard of living that results upon the breakdown of marriage: see Department of Justice Canada, Spousal Support Advisory Guidelines, by Carol Rogerson and Rollie Thompson (Ottawa: Department of Justice Canada, 2008), at p. 55, cited in Cassidy v. McNeil, 2010 ONCA 218, 99 O.R. (3d) 81, at para. 69 (footnote 7).

[230] There is no evidence that the applicant has suffered economic hardship as a result of the breakdown of the marriage or a loss of marital standard of living. To the contrary, after the parties separated in 2014, according to the applicant’s financial statement sworn on September 2, 2016, her savings had doubled from $70,696 to $135,368 and her debts decreased during this same time period. She was able to improve her financial situation, as she was not contributing to any of the household expenses while she lived separate and apart from the respondent in the matrimonial home.

[231] This is distinguishable from the facts in Knowles v. Alachiotis, 2010 ONSC 3665. In that case, Horkins J. found that the applicant was entitled to spousal support for the period of time while the parties lived separate and apart under the same roof. In that case, the evidence was that the applicant’s debt increased, and there was evidence that she continued to pay for some of the expenses for the children. In this case, the applicant’s financial situation improved and she had the financial ability to move into her own rental accommodations, if she had chosen do so. The applicant was not “trapped” in the matrimonial home without the financial ability to move into her own rental accommodations absent payment of spousal support.

[232] The applicant was also able to purchase a new home when the respondent paid her the half interest in the former matrimonial home in August 2017. According to her financial statement sworn October 25, 2018, the applicant’s new home was valued at $770,000. The line of credit owing for the home was $246,427, resulting in net equity of $523,573.

[233] In addition, as of October 25, 2018, her only debt other than the line of credit owing for her home is a small credit card debt of $1,191.49. She has not incurred more debt since she moved out of the matrimonial home in September 2016.

[234] Although the applicant claims a monthly shortfall of approximately $750 per month, her overall debt is not increasing to fund that deficit. She gave no evidence at trial that her income was insufficient to meet her needs or that her lifestyle has declined since the parties separated.

[235] Not only has the applicant not incurred debt since the separation, she has also increased her savings. According to her financial statement sworn October 25, 2018, her savings totalled $99,160 as compared to $70,696 on the date of separation. While this is not a significant increase in savings, when combined with having nominal debt, other than the line of credit owing for her home, the overall picture is that the applicant does not have a financial need for spousal support, nor has she suffered an economic disadvantage as a result of the breakdown of the marriage.

[236] There was no evidence of inequities in the parties’ standard of living post-separation. In the respondent’s financial statement sworn May 4, 2018, his debt had increased from $35,883.37 on the date of separation to $736,104.35. Of that amount, while $580,000 was in connection with the financing to purchase the applicant’s interest in the former matrimonial home, there was additional debt of approximately $110,800 from a new line of credit and credit card debt that did not exist on the date of separation.

[237] If I had found the applicant was entitled to spousal support, based on the calculations provided by counsel, the low end of the range according to the Spousal Support Advisory Guidelines is still zero. Based on all of the factors and evidence reviewed herein, I would have found quantum to be at the low end of the range and no spousal support would have been ordered.

CONCLUSION

[238] The applicant shall have sole custody of the two children of the marriage. The parenting schedule for the children is set out in paragraph 205.

[239] The respondent shall pay to the applicant $55,956.04, which is the equalization payment ($44,503.58) plus the net amount he owes for occupation rent ($2,096.52) plus the amount he owes for retroactive child support ($6,442.28) plus the amount in s. 7 expenses owing ($2,913.66,). The payment shall be made within 45 days of release of these reasons.

[240] The respondent shall pay to the applicant pre-judgment interest on the equalization payment owing of $44,507.58 from the date of separation to January 1, 2019. If the parties cannot agree on the quantum, they may address that in their additional written submissions that I have requested.

[241] If there are no further written submissions regarding the respondent’s 2019 income or the applicability of s. 9, the respondent shall pay to the applicant monthly child support of $1,606 commencing January 1, 2019.

[242] The parties shall designate the children of the marriage as the beneficiaries of their life insurance policies for so long as the children are defined as children of the marriage.

[243] Both parties shall maintain the children on any extended health or dental plan available through their employment.

[244] The parties are to file their submissions for costs, which shall total no more than four pages, double-spaced, together with their Bill of Costs and any written offers to settle. The applicant’s submissions are due by June 1, 2019. The respondent’s submission are due by June 15, 2019. The applicant may file any reply of no more than one page by July 1, 2019.

[245] If I have made any mathematical or calculation errors, the parties may contact my assistant in writing within 30 days, and a court date can be scheduled to address any such issues.

Shaw J.

Released: May 1, 2019

COURT FILE NO.: FS-16-87387-00 DATE: 2019 05 01 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: YUAN YUAN GUO Applicant – and – JIAN LI, DONGHUI LI and YU YUN ZHANG Respondent REASONS FOR JUDGMENT L. Shaw J. Released: May 1, 2019