Court File and Parties

COURT FILE NO.: FS-16-0171 DATE: 2019 07 26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JENNIFER ALLMAN Self-Represented Applicant

- and -

JUSTIN ALLMAN Self-Represented Respondent

HEARD: January 9, 10, 11, 14, 15, 16, 17, 18, 28, 30, 31, February 1, 19, 20, 21, 22, and May 13, 14, 15, 16, 2019

REASONS FOR JUDGMENT

Justice Thomas A. Bielby

INTRODUCTION

[1] The parties herein are husband and wife and were married on November 3, 2014. The Applicant is currently 40 years of age and the Respondent, 39. While the Respondent argues that he left the matrimonial home on September 14, 2016, the Applicant commenced these proceedings on August 16, 2016, alleging a date of separation of August 13, 2016, the date on which she moved out of the master bedroom and into a spare bedroom.

[2] For the purposes of this application the parties have appeared to use the September 14th date as the “valuation date”.

[3] At the time of separation the parties had one child, Mackenzie Allman, born October 20, 2015, and the Applicant was pregnant with their second child, Rebekah, who was born on October 22, 2016.

[4] The Applicant has custody of a child from a previous relationship, Tahlya Findlater, born March 19, 2008.

[5] While Tahlya’s biological father resides in the Barbados, the Respondent does not dispute that he showed a settled intention to treat Tahlya as his own child.

[6] Since separation Tahlya has resided with the Applicant and for some time now, has not seen the Respondent. The Respondent is not seeking access with Tahlya and is prepared to abide by Tahlya’s wishes in that regard.

[7] On September 14, 2016, the Respondent left the matrimonial home, known municipally as 87 Bear Run Road, Brampton, taking Mackenzie with him. He moved to his mother’s home at 25 Hall Crescent, Brampton, where he continues to reside.

[8] Currently the children equally share their time with both parents, on a 2:2:3 rotation schedule.

RELIEF SOUGHT

[9] The Applicant seeks:

1. An order granting her sole custody of both Mackenzie and Rebekah with the girls’ primary residence to be with her;
2. An order granting access by the Respondent on an alternate weekend basis together with every Wednesday evening;
3. Alternatively, an order that the parties shall have joint custody on the understanding the Respondent would take an anger management course and be the subject of a psychological assessment and co-operate in arranging counselling for the children;
4. An order that the parties shall exchange the children at the police station;
5. An order requiring the police enforcement of terms of custody and access;
6. An order restraining the Respondent from removing the children from a specific geographic area and a non-harassment provision;
7. An order that all communications between the parties are to be through Our Family Wizard;
8. An order imputing an income of $75,000 to the Respondent;
9. An equalization of net family properties with a set-off for the monies owed to the Applicant by the Respondent; and
10. The release to her of funds presently held in trust from the sale of property which was registered in the sole name of the Applicant.

[10] The Respondent seeks the following relief:

1. An order that there shall be shared parenting on a 2:2:3 basis, as presently exists, with the parties required to make joint decisions relating to the children;
2. An order that the exchanges/transfer of the children to take place at the children’s school or daycare;
3. An order that the parties have an equal sharing of holidays with the children;
4. An order that either party is entitled to seek a second medical opinion with respect to medical diagnoses;
5. An order that any change of address requires 90 days’ notice;
6. A non-harassment order;
7. An order prohibiting the change of either children’s’ names without the consent of both parties, or a court order;
8. A police enforcement provision;
9. An order for child support;
10. Lump sum spousal support; and
11. An order declaring that the Respondent has a constructive trust interest in relation to a condominium property at Glen Erin Road, registered in the name of the Applicant and/or equalization of net family properties.

BACKGROUND

[11] The parties met in 2010 and started dating in 2012. They lived together for a relatively short period of time until the relationship ended. It was later rekindled which resulted in their marriage.

[12] In June, 2012, the Applicant purchased the property at 111-672 Glenn Erin Road, Mississauga, utilizing her RRSP monies pursuant to a government sponsored home ownership plan.

[13] At some point the parties moved out of the Glenn Erin Road property, which was then used as an income property, and ultimately rented the accommodations at Bear Run Road., where they resided at the time of separation.

[14] The Glen Erin property has been sold and the net sale proceeds continue to be held in trust, the Respondent seeking a 50% interest in the funds by way of constructive trust.

[15] The Respondent was employed for part of the marriage but was laid off from his employment in May, 2016. He has not been employed since alleging he continues to look, without success, for full time employment. Initially he received Employment Insurance but since the summer of 2017, is a recipient of Ontario Works. As noted, he continues to live at his mother’s home and continues to be dependent on her. It is the Respondent’s plan to continue residing in his mother’s home, with the children.

[16] As noted above, when the Respondent left the matrimonial home he took the child Mackenzie with him. Thereafter he would only allow the Applicant supervised access arguing, that as a result of the Applicant’s mental health issues, Mackenzie would be at risk without the presence of a third party supervisor.

[17] The requirement for supervised access continued until February, 2017, with the Respondent having an interim order for Mackenzie’s sole custody.

[18] Rebekah was born prematurely, and by court order the Applicant was granted interim sole custody of her. Initially the Respondent was allowed daily access to Rebekah, to be exercised in the Applicant’s home.

[19] To say these proceedings are of a high conflict nature is an understatement. By my count there are at least 27 interim judicial endorsements. It is difficult to understand how two people, who made a decision to marry and have children, in less than two years, became completely alienated with each other and for the last three years, both bent on ruining the reputation of the other.

[20] Since the proceedings were initiated, two case management judges have been appointed. At various times during the proceedings, the parties were represented by counsel, but acted on their own behalf at trial.

[21] The trial lasted 20 days, most of which was spent hearing evidence in regards to the behaviour of both parties, particularly when the children are exchanged.

INTERIM PROCEEDINGS

[22] To understand the history and nature of these proceedings, and the level of conflict, a review of the interim endorsements is required. Such a review will illustrate and highlight the ongoing and relentless issues faced by the motion judges and which remained trial issues.

[23] As noted above, this application was commenced in August, 2016, without the knowledge of the Respondent. The Applicant, on two occasions, August 16 and September 19, 2016, attempted, unsuccessfully, to obtain ex-parte orders with respect to the children.

[24] As early as October 13, 2016, the parties sought an order requiring the police to enforce any orders in relation to the children. While the order was granted it was not without a warning to the parties that the order should only be used in extraordinary situations and that both parties should do everything in their power to de-escalate the conflict.

[25] Further, on that date a consent order was issued granting the Applicant supervised access to Mackenzie. The Applicant testified that she consented to this order as she believed that, while supervision was not necessary, it was the only way the Respondent would allow her to see her daughter.

[26] On that date an order was made requesting the involvement of the Office of the Children’s Lawyer.

[27] Shortly after Rebekah’s birth the parties were back in court. On October 27, 2016, the matter was before Fairburn J., as she then was. The Respondent submitted that the Applicant was psychologically unstable and should not get custody of Rebekah. He submitted that the “consent” order issued by Tzimas J. requiring the Applicant to have supervised access was evidence of the instability. That submission was rejected by the judge, who also noted that the Respondent also had mental health issues.

[28] Fairburn J. rejected any notion that the children were at any risk when in the care of the Applicant and accepted the Applicant’s reason as to why she consented to supervised access. The Applicant was granted interim custody of Rebekah.

[29] From the October 27, 2016, endorsement of Fairburn J., I quote,

“Rebekah is 5 days old. She has come into this world at 34 weeks gestation in the unfortunate situation of having an adult feud cloak her rather than love, admiration and respect. The applicant and the respondent must see the incredible damage that can and will be done to the children if this continues.”

[30] Her opinion and concerns went unheeded.

[31] On February 9, 2017, a case conference was held before the then case management justice, Van Melle J. The parties entered into an interim consent order by which Mackenzie would spend equal amounts of time with both parents on a 2:2:3 basis but the Respondent would make all major decisions for Mackenzie. The Applicant was to make all major decisions with respect to Rebekah. Access time to Rebekah by the Respondent was increased (ultimately Rebekah became part of the 2:2:3 shared parenting arrangement).

[32] This consent was reached after the parties had had an interim disclosure meeting with Tracy Majewski, a social worker appointed by the Office of the Children’s’ Lawyer (OCL), and who was about to release to the court and the parties, her interim report.

[33] The parties were to utilize a computer program entitled, Our Family Wizard, to communicate with each other. Transfer terms were set out, which included the use of a third party person to supervise the transfers.

[34] At this time neither of the parties were working. The Respondent was unemployed and the Applicant was on disability leave. The order attempted to minimize or remove face to face contact between the parties. While the OCL recommended both parties take a course on parenting after divorce, neither party agreed to same.

[35] The arrangement was to continue pending the completion of the final OCL order.

[36] A review of the interim OCL report and the wording on the order makes it clear that the greatest time of conflict was when the parties had to interact with each other when exchanging the children. Both parties attempted to record, at time both visually and audibly, what occurred during the transfers. Words were exchanged and little games played. Control was all important. This conclusion was borne out in the trial evidence.

[37] For example, the Respondent insisted on the Applicant receiving the girls, one at a time. The Applicant was to take one child and place her in the car and then return for the other. She was not allowed to take both children, to her car, at the same time. While the Respondent argued it was necessary for the children’s safety, it can also be seen as an attempt on the part of the Respondent to control the circumstances, a recurring theme within these proceedings.

[38] While I did not admit any of the recordings into evidence and did not review such evidence, the Applicant, it seems to me on the evidence I have reviewed, made overly exaggerated displays of saying good-bye and perhaps unduly extended the time necessary to complete the exchanges.

[39] The dynamics between the parties have not changed and in fact can be said to have gotten worse.

[40] Van Melle J. also endorsed,

“It is contemplated that parties will return to see me in 6 months’ time. However if issues arise before that a meeting or telephone conference call can be arranged.”

[41] Not surprisingly, a telephone conference call was held on March 8, 2017, and Van Melle J. ordered that the Respondent’s access to Rebekah was to recommence immediately. Oddly enough the judge had to endorse that Rebekah was not to be fed breast milk belonging to anyone other than the Applicant. Apparently, the Respondent had researched on the internet the availability of purchasing breast milk. It would appear that the Respondent believed that the Applicant’s continuing need to breastfeed Rebekah was an attempt to minimize his time with Rebekah.

[42] It was further endorsed that the Applicant was not to share the OCL report with anyone other than a person directly involved in this case. She was cautioned she was not to share any documents received with anyone other than the retained experts.

[43] The fact that an order such as this was needed is another indication of the level of conflict.

[44] Throughout much of the interim stage the parties had lawyers but, as is all too often in matrimonial matters, the parties ultimately represented themselves. Presumably any monies set aside for legal costs were quickly depleted as a result of the numerous attendances on interim motions.

[45] In December, 2017, and on the basis of the final OCL report, the Applicant, representing herself, brought another ex-parte motion for custody and the release of monies held in trust. Quite properly, the motion was adjourned to December 19th and was to be on notice. Such ex-parte attempts only added to the atmosphere of mistrust.

[46] Justice Seppi, in her endorsement dated December 19, 2017, noted that the Respondent in November, had been charged with assault following an incident that occurred during an exchange and which resulted in the arrest of the Respondent and his release from custody on bail conditions which had the effect of restricting the access that had been occurring.

[47] By the time the matter was before Seppi J. the bail terms had been varied to permit contact for custody and access purposes pursuant to a family court order.

[48] The matter was adjourned to a case management session before Van Melle J. on January 8, 2018. Pending this, terms of access were made, including Christmas. The exchange of the children was still to be supervised, that is to say the conduct of both the Applicant and the Respondent needed to be supervised. There was no longer any issue about the ability of either parent to care for the children.

[49] Further, during the trial there was no real concern expressed in relation to the children’s safety when in the care of either party.

[50] One does not need a degree in psychology to understand the significant and adverse impact the exchanges must have had and continue to have on the children. On the evidence heard by me, I see no substantial concerns when the children are alone with each parent. Both seem to be able to parent in a manner that is in the best interests of the children. They just cannot behave in such a manner when in the presence of the other or the other’s surrogates and third party exchange supervisors.

[51] Since February, 2017 the Applicant and Respondent have equally shared time with Mackenzie and with Rebekah.

[52] The case management session proceeded on January 8, 2018, and because the Applicant sought an ex-parte order, Van Melle J. ordered that no motions were to be brought without timely notice to the other side. The Justice also had to endorse that neither party was to correspond with the judges or their staff unless it was to arrange a meeting.

[53] It was ordered that the 50-50 time arrangement for Mackenzie and Rebekah was to continue with the transfers to take place at the Two Sisters’ Meadowvale Home Daycare.

[54] The Applicant was allowed to bring a motion for the release of trust funds. More importantly, the matter was set for trial for the May 2018, sittings, in Brampton.

[55] Interestingly, the trial was estimated to only take 6-7 days.

[56] Subsequently, on March 15, 2018, the parties both brought motions returnable before Coroza J. Justice Coroza, given time constraints and the fact the matter was to be tried in two months’ time, restricted the issues to,

“First, should a parenting schedule be set on an interim basis until trial? Second, if a parenting schedule is set, where should the children go when their mother is at work?”

[57] Coroza J. concluded that,

1. It was in the children’s best interests that the mother continued to work.
2. It is in the children’s best interests that the parties have minimal contact with each other.
3. The interim order of March 8, 2017 had expired.
4. The order of March 8th was made in the spirit of cooperation and the parties agreed to the terms of the consent. The dynamic had changed materially in the intervening period. The conflict had escalated, noting the laying of criminal charges.
5. The parties were unable to cooperate or agree. They were incapable from working together.
6. The applicant had returned to work as of March, 2017 and this presented a material change. The applicant was entitled to find reasonable arrangements for the children’s care during her work hours. He rejected the submission that the children should be with the respondent when the applicant was working.

[58] With respect to the children’s care when the Applicant was working, Coroza J. wrote at paragraph 25 of his endorsement,

“It is the best interests of the children that each parent be as far removed from other’s life as possible. In my view, the mother can decide where the children will stay and on what terms while she is at work. Equally, when the father has the children, he can decide where the children will stay and on what terms.”

[59] The Applicant, in February, 2018, had made arrangements for the children to attend Play and Learn Children’s Centre when she was at work (the children were no longer welcome at the Two Sisters’ Daycare as a result of the Respondent’s interaction with the daycare staff). The Respondent opposed this placement because he did not approve of this daycare provider. He argued that exchanges should take place at the Circle of Children Daycare Centre (although not contributing to the cost of daycare). Again, I see this as a further attempt to impose his will on decisions involving the children.

[60] Coroza J. concluded the children should stay at the daycare arranged by the Applicant until the matter is resolved at trial. The shared parenting regime was to remain in place.

[61] From paragraphs 34 to 36, I quote,

“As would be expected in a high conflict case, the parties do not trust each other. They are highly litigious and suspicious of one and other.

I urge the parties, in the strongest terms, to try and put their differences aside. Their personal difficulties should not be visited on the children. As I said to counsel at the outset of this motion, my interim order will only place a band aid on a festering wound. A trial is pending and perhaps some finality can be reached once the trial judge decides the case. In the meantime, it is clearly in the best interests of the children that the parties make an effort to be civil to each other.

I suspect my pleas may be ignored. For the sake of these children I hope not.”

[62] Coroza J. ordered that there be no further motions on this matter before trial.

[63] Notwithstanding this order, on April 8, 2018, Peterson J. heard a motion brought by the Applicant, in part, for the release of the monies held in trust. She noted the order of Coroza J. and ruled the release of funds would be a trial issue and dismissed the motion. Costs were awarded to the Respondent.

[64] The trial obviously was not heard in May, 2018 yet interim motions continued throughout the spring and summer of that year. The Applicant continued to try to change the children’s schedule, relying on the OCL final report. The litigation continued unabated despite the earlier order of Coroza J.

[65] On July 20, 2018 Price J. made an order setting out, in detail, the parenting schedule. He too had to deal with the conflict which occurred during the exchanges of the children. Of particular note is paragraph 4 of the order which reads,

“The party assuming care of the children shall pick up the children at 22 Division, Peel Regional Police services at 7750 Hurontario Street, Brampton Ontario. The father shall use the Hurontario Street Entrance and exit and the south Lobby door. The mother shall use the Sir Lou Drive entrance and exit and the North Lobby door. The parties shall not communicate during the transfers.”

[66] This portion of the order is indicative of the judicial frustration with respect to the continued level of conflict, particularly in regard to the exchanges. Price J. felt it was necessary for each of the parties to use a separate parking lot entrance and exit and separate doors for entering and leaving the building.

[67] Nevertheless, a conflict issue arose when the Respondent chose to interpret this order in a different way and felt he was entitled to use the Applicant’s entrance to the building without having regard to the intent of the order, which was clear. The reason for the change became apparent during the trial. While the Respondent initially believed his interpretation of the order of Price J. was the correct one, the Respondent testified that because when he became aware of the suspension of his driver’s licence, he began utilizing public transit. It was more convenient for him to use the entrance to the police station used by the Applicant because it was closer to the bus stop.

[68] Justice Kurz was appointed as the new case management judge. He noted, in a September, 2018, endorsement that the Applicant had been off of work since March, 2018 and that the matter was to proceed to trial in January, 2019.

[69] On October 16, 2018 it was ordered that the OCL be requested to update their report, given the passage of time since its release however, the OCL declined to do so. A number of other motions and issues were addressed by Kurz J. over the fall of 2018. One of the issues he was required to consider was the Respondent’s refusal to give to Rebekah iron supplements prescribed by her doctor. The Respondent demanded a second opinion but took his time in arranging it. It is to be remembered that the Applicant was, by order, allowed to make the major decisions on behalf of Rebekah. The Respondent demanded a second opinion and seemed unable to concede the Applicant’s obligation and right to make such decisions and was not prepared to simply abide by the treatment prescribed by Rebekah’s doctor.

[70] At trial the parties both testified in regard to the circumstances that lead to the interim orders. They took issue with the other’s compliance with the multiple orders. Both testified as to the innocence or justification of their conduct in direct contrast to the conduct of the other.

[71] The Applicant and the Respondent were and remain, at war. The risk has always been in regard to the collateral damage suffered by the children. Endorsement after endorsement reflected this concern but the conflict has continued unabated.

[72] Notwithstanding this, the children seem to be, for the most part, thriving when in the care of either party. The exchanges continue to be the issue. There was some evidence about Mackenzie going through a phase of biting and of both children having what were described as night terrors. There was evidence in regards to the Respondent refusing to give prescribed medications to the children or following up with medical appointments. While I do not mean to minimize the importance of these issues, the question is whether such evidence has reached such a level which would suggest it is in the best interests of the children that there be a change in parenting time.

[73] Given the ages of the children, they only know a 2:2:3 parenting schedule. They have two homes and continue to grow and thrive.

[74] The primary issue continues to be the volatility of the exchanges and how the parties conduct themselves during such exchanges.

[75] I am not sure if either party sees any fault in regards to their own conduct.

[76] Has the conflict reached a point that multiple weekly exchanges are too damaging to the children?

[77] If the children were older, shared parenting could include a “week about” schedule which would reduce the number of exchanges.

[78] Also, one of the basic causes of the conflict relates to the issue of who is to make the decisions in regard to the children. There were conflicts over the choice of daycare providers and the administration of inoculations and prescription medications.

[79] The Applicant, in accordance with the final recommendations of the OCL, submits that she ought to be given sole custody, arguing that the conflict is so severe that it is unrealistic to believe the parties could make joint decisions. The parties can simply not communicate in such a fashion that requires some level of trust.

[80] The Respondent submits that he believes he and the Applicant can in fact make joint decisions but in making that submission testified that it falls on the shoulders of the Applicant to change her behaviour.

[81] If one of the parties is granted the sole decision making right does that necessarily mean that the sole decision maker is to be the sole custodial parent? Should it affect the time the children spend with each parent?

OFFICE OF THE CHILDREN’S LAWYER

[82] As noted previously by her order dated October 13, 2016, Tzimas J. requested that the OCL provide an assessment pursuant to s. 112 of the Courts of Justice Act.

[83] Tracy Majewski is the clinician appointed by the OCL and she was a witness at trial. Her interim disclosure meeting with the parties, as noted above, took place on January 24, 2017.

[84] The meeting was followed in a week or so with an interim report of the Children’s Lawyer. The report can be found in the Applicant’s Trial Record.

[85] Ms. Majewski referred to the dispute between the Applicant and the Respondent as “particularly challenging” and noted that the emotions were still “very raw”. From page 8 of her interim report I quote,

“To this writer, one of the most challenging parts of this investigation is that, despite the various allegation of each party and despite the fact that both parents have mental illnesses at this time, all evidence suggests that both Ms. Allman and Mr. Allman are individually good parents. In addition, while I have no doubt that both Mr. Allman and Ms. Allman each desperately want to resolve their issues with the other, they each feel that the other parent is preventing them for doing so. If the parents continue to act in this manner, where they expose their children to years of heightened conflicts, it is likely they will put their children at risk of emotional and possibly physical harm. This family is in desperate need of structure and guidelines so that each parent knows where their responsibility for each child starts and ends and so that each parent knows what exactly is expected of him or her in each and every day.”

[86] From page 22, I further quote,

“While both parents want to co-parent the children, they have been totally unable to make decisions and focus on the needs of their children together as yet. They are not ready for joint decision-making at this time. This writer sincerely hopes that both parents be able to grow and learn how to co-parent in the next few months, so that they can experience the other as a co-parent rather than an enemy.”

[87] These observations and hopes are as true today as they were when this interim report was released in February, 2017. The parties are not able to make joint decisions nor behave properly on the exchanges but may still be good parents when the children are in their care.

[88] Ms. Majewski, on page 21 of the interim report, opined that any custody plan for the children will need to take their individual ages, stages and preferences into account and be structured in a manner to reduce the conflict between the parties.

[89] Ms. Allman was said to be a capable and loving mother at all times. She found that there was no evidence to suggest that she was not a capable parent and did not require supervision with any of the children (pg. 22), while noting that the Applicant suffers from anxiety and depression.

[90] It was also noted that Ms. Allman becomes emotional in her texting with Mr. Allman and can get irrational and start making threats, using abusive language and make ultimatums. She was said to get pulled into unnecessary communications and over shares adult information with Tahlya.

[91] Mr. Allman was described as a strong and committed father and that Mackenzie was doing extremely well in his care. His mental health was noted as under control. Reference was made to Mr. Allman being prescribed testosterone supplements which have a side effect of increased aggression.

[92] Ms. Majewski had some concerns with Mr. Allman and noted that he had shown a great deal of rigidity in his attitude towards Ms. Allman which have caused him to act in ways that were not always in the best interests of the children. Examples were noted. I share this observation and will have more to say on the issue.

[93] Ms. Majewski, on behalf of the Office of the Children’s Lawyer, recommended an interim parenting plan which included the following:

1. Mr. Allman was to have custody of Mackenzie and should make an effort to discuss medical decision about Mackenzie with her mother.
2. The parties should spend equal time with Mackenzie on a 2:2:3 rotation.
3. Should either party start work in the interim period, then the other parent should provide childcare for the children.
4. Ms. Allman should have custody of Rebekah and should make every effort to discuss with Mr. Allman major health decision for Rebekah.
5. Mr. Allman was to have access to Rebekah which was to be increased over time.
6. The parties were to communicate through the “Family Wizard” website.
7. In regards to the transfers of the children, the parent who is starting their parenting time should be responsible for picking up the children and the parties should not communicate with each other during these exchanges.
8. Both parties were to take a course on parenting after divorce.
9. Mr. Allman should work with a counsellor to help him get over his anger and work towards being less rigid in his decisions.
10. Both parents during their parenting time should be able to travel within the province of Ontario.

[94] As noted previously, as a result of these recommendations the parties consented to an order. Ultimately, Mr. Allman’s time with Rebekah was expanded to adopt the 2:2:3 shared-parenting arrangements.

[95] The agreement included a condition that access transfers were to be supervised by a third party approved by Mr. Allman or that the transfers were to occur in a public place.

[96] One recommendation I take issue with is paragraph 3 wherein it is recommended that if one party is working, the other should be allowed to care for the children during such periods. In that regard I share the opinion of Coroza J. For the times when the children are in the care of one or other parent and that parent is working, that parent should also arrange for the care of the children when at work. Otherwise, the number of exchanges would increase. I also believe that such a requirement may encourage either party not to work nor seek employment.

[97] A final report of the OCL, prepared by Ms. Majewski, was released in November 2017, subsequent to a further disclosure meeting with the parties.

[98] Ms. Majewski noted that the parties continued to experience frustration with the other and noted that the exchanges continued to spawn conflict.

[99] Ms. Allman had returned to work on March 20, 2017, but was not allowing Mr. Allman to provide the childcare. Ms. Allman had flexible hours and was able to work from home a great deal. While she initially used Mr. Allman for childcare, it became, in her opinion problematic and she hired a home-care provider.

[100] Ms. Allman had been discharged from Women’s Reproductive Mental Health Team Services and was said to be working with a psychologist and taking medications.

[101] Mr. Allman was said to be receiving continued psychiatric help for his Bi-Polar disorder and had completed two counselling sessions with Catholic Family Services of Peel. He was said to be unaware that the interim report had recommended he complete counselling.

[102] It was noted that Mr. Allman had been in a new romantic relationship for about one year.

[103] Ms. Allman was, by this point, seeking sole custody given the recommendation of Ms. Majewski and the level of conflict. Mr. Allman, on the other hand, believed that shared and equal time parenting of the children was in their best interests as long as Ms. Allman released her full medical records and he was satisfied that her mental health was good and she would not put his children at risk. It would appear he still wanted to be the final arbitrator of the Applicant’s ability to care for the children.

[104] Ms. Majewski visited the homes of both parties. In Ms. Allman’s home things appeared relaxed and natural. Ms. Allman was noted as having insight into the children’s’ personalities and, for example, took steps to prepare Mackenzie for the transfers.

[105] Ms. Majewski arranged a home visit with Mr. Allman and observed he was able to meet the functional needs of the children. The author noted however, that he appeared weaker at meeting the emotional needs of the children. Mr. Allman at times spoke in a stern authoritative voice where he appeared to be giving out orders when the children appeared to be very well behaved.

[106] Both parties recorded a number of the child transfers to further their position in this litigation and to highlight the fault they find in the other. Some of these recordings were done surreptitiously. They were reviewed by Ms. Majewski. Mr. Allman was said to be extremely stiff and rigid during exchanges and rarely said hello or good bye to the children and appeared a little rough with the children at transfers. Whereas, Ms. Allman was generally very chatty and up beat with the children prior to a transfer, all in an effort to make the transfers easier for the children.

[107] I chose not to watch any such recordings. I believe that the making of such surreptitious recordings ought not to be encouraged. Further, I do not believe such evidence would have any objectivity. The person recording would act in a manner to make them out as the better or innocent party. The uninformed party can be, “set up”.

[108] At the time of the second report Mackenzie had just turned two and Rebekah was one year old. Mackenzie was observed to be an easy-going and a social child. Rebekah was observed to be a happy baby, although quite passive.

[109] It was the opinion of Ms. Majewski that both parents remain very committed to parenting the children and making them their priority. The mental health of both parties appeared to have been stable.

[110] However, from page 17 I quote,

“Unfortunately, however, there have remained significant ongoing conflicts between the parties, where most of the concerns that each parent raised about the other, in the interim investigation and report of the OCL have not changed. These conflicts are difficult and distressing for all family members and are of concern for the children. The intensity of this dispute is enormous. If the parent continue, or are allowed to continue in this manner they likely will put the long term emotional health of the children at risk.”

[111] Ms. Majewski in her interim report recommended counselling for both of the parties and noted in her final report that neither parent had done any significant therapeutic work in some of the recommended areas.

[112] The weaknesses of both parents persisted. Ms. Allman continued to have some boundary issues with Tahlya and allowed the child to view some of the Family Wizard entries. She tried to communicate with Tahlya too often when Tahlya was in the care of Mr. Allman.

[113] Mr. Allman was said to behave in a rigid and controlling manner and demonstrated ongoing anger. On page 18 of the final OCL report Ms. Majewski spoke of two examples of the type of conflicts between the parties.

[114] In the summer of 2017 there was an issue of Mackenzie biting her sisters and mother and Ms. Allman reached out to Mr. Allman on this issue. The Family Wizard messages include Mr. Allman’s initial response that such behaviour did not occur when Mackenzie was with him and must be the result of the environment and home provided by Ms. Allman. He also suggested that Tahlya was lying about the biting. In subsequent messages Mr. Allman admitted that Makenzie had bitten others when residing with him in his mother’s home.

[115] Ms. Allman was simply seeking to address a behavioural issue exhibited by Mackenzie. Mr. Allman’s responses were combative and was initially aimed at Ms. Allman as opposed to be directed to Mackenzie’s best interests.

[116] The other example relates to Mackenzie getting her immunizations in a timely way. She was due for such shots when she was 15 months old. It appears that Mackenzie did not get her 15 month immunizations and was due to receive her 18 month shots. Ms. Allman was aware that immunizations were due and made a medical appointment for Mackenzie on October 25, 2017. Mr. Allman either attended or called the doctor and advised him that he was McKenzie’s custodial parent and that the doctor was not to immunize the child. He advised Ms. Allman that he would take care of Mackenzie’s immunizations but would not provide details. For a long period of time he failed to do so.

[117] While it can be said that Ms. Allman may have overstepped her boundaries, the positions taken by Mr. Allman represented an effort to impose control when it was in McKenzie’s best interests to be immunized sooner than later.

[118] Ms. Majewski was of the opinion that the interim recommendations were an opportunity for the parties to try co-parenting however the children continued to be exposed to significant and frequent conflicts. From page 19, I quote,

“The children cannot wait for their parents to make the necessary gains to make a co-parenting scheme arrangement work for them. It is time, now, to focus on the children and to make longer term recommendations that will set the children up, for best success, as they grow.”

[119] From further down on page 19 I quote,

“Each parent is, individually, able to provide stability and routine for Rebekah and Mackenzie. Both parents love their children and make efforts to put them first. However, Ms. Allman reports that the children are showing signs of distress; the video evidence and some collateral evidence support this. Specifically, Mackenzie is showing some aggression is experiencing difficulties with the transitions and is having night terror and Rebekah is showing some separation anxiety from Ms. Allman and night terrors. While the symptoms that Mackenzie and Rebekah are showing could be developmental, it seems highly likely that, given the ferocity of this dispute, their difficulties could be caused by stressors related to their parents and this dispute.”

[120] From further down on the page I quote, in relation to the signs of distress,

“However, evidence indicated that Ms. Allman was the more reliable source of information when it came to the idiosyncrasies of this dispute and the behaviours of the children.”

[121] Ms. Majewski concluded that Ms. Allman is the parent who is most capable of meeting the emotional and developmental needs of both Rebekah and Mackenzie.

[122] She also concluded that given the stressors of transfer it would be in the best interests of the children that neither party have physical contact at transfers.

[123] From page 22 under the title, “Concluding Comments” around custody and access of the children, I quote,

“Unfortunately, evidence would indicate that joint custody for this family is not an option due to the extreme conflict between the parties. Having considered the evidence, in depth, there are some weaknesses and strengths that each parent bring to this dispute. Ms. Allman has some work to do on around boundaries with Tahlya and her use of social media, and she has not always kept the court order. However, at this time, she is the parent who is best able to meet the children’s developmental, emotional, social and medical needs and she has also promoted a relationship between the children and Mr. Allman. As such, Ms. Allman should have custody and primary residence, of the children. The children will need ample opportunities to have a safe and meaningful relationship with their father. Mr. Allman should complete some parenting education and counselling. So that he is better able to meet their needs.”

[124] The recommendations of Ms. Majewski reflect these opinions. They include the need to have the transfers take place at a daycare centre chosen by Ms. Allman (subject to a geographical limitation). When the daycare is closed, transfers were to be completed by a third party, selected by Ms. Allman.

[125] It was recommended that the Applicant be granted sole custody.

[126] It is recommended that Mr. Allman should be able to attend the children’s schools/daycares and doctor’s office to get medical and educational information about the children.

[127] Mr. Allman was to have Mackenzie and Rebekah with him on alternate weekends from Friday at 4:00 pm to Sunday at 4:00 pm and every Wednesday, overnight.

[128] Further recommendations related to holidays and special days.

[129] Communication between the parties was to be minimized and done through Family Wizard.

[130] Again it was recommended that both parents take a course on parenting after divorce along with other counselling.

[131] When testifying at trial, and notwithstanding her final report was released in November, 2017, now over a year and a half ago, and the continued shared parenting schedule, Ms. Majewski stood by her recommendations in the final report.

[132] It was Ms. Majewski’s evidence that between her interim report and final report the parties had the opportunity to share parenting, hoping the tension and conflict between the parties would abate. It had been and continued to be a negative impact on the children. It, in her opinion, put the children’s mental health at risk.

[133] Ms. Majewski is of the opinion that the Respondent lacks empathy and at times lack of judgment. She believes that the Respondent at times is dishonest, without perhaps knowing it, noting the previous examples in regard to immunizations and McKenzie’s biting.

[134] Ms. Majewski testified that she tried to get the Respondent to understand that there was an alternative to fighting. He remained focused on blame and not alternatives.

[135] It was believed that both parties required clinical work to develop their skills.

[136] It was Ms. Majewski’s opinion the exchanges continued to be the issue. She noted that the Respondent’s idea of exchange was “grab and go”.

[137] Ms. Majewski testified that while the Respondent wanted to co-parent, he wanted to make all the decisions even with respect to Rebekah.

[138] Ms. Majewski had hoped the shared parenting arrangement would have worked however, it was her opinion that the children’s continued exposure to conflict was unabated.

[139] For that reason her opinion changed to that of awarding the Applicant sole custody, notwithstanding the Applicant’s issues.

[140] In her report, Ms. Majewski, as noted above, believed only the Respondent focused on blame and not the best interests of the children. In my opinion, after reviewing all of the evidence, both of the parties since separation to and including the trial, have focused on blame.

[141] On cross-examination Ms. Majewski agreed that her evidence is based upon the circumstances at the time of her report and was unaware of any changes since November, 2017. She was unaware of any diagnosis that the Applicant suffers from PPSD. She did testify that if she had been allowed to update the report she would have interviewed the Respondent’s new girlfriend who, in November, 2017 was pregnant.

[142] Ms. Majewski was of the opinion that Ms. Allman’s major weakness was her involving Tahlya in the conflict. She noted that by the time of the second investigation Tahlya’s feelings towards Mr. Allman had changed in that Tahlya was not happy with Mr. Allman. She opined that Ms. Allman had influenced Tahlya and her perception of the Respondent.

[143] Ms. Majewski testified that she believed that the Applicant had boundary issues and had breached court orders, behaviour which needed to be resolved.

[144] Ms. Majewski said that she believed Mr. Allman suffered from a lack of empathy and at times lacked judgment in some of the decisions he made in regard to the children. She went on to say that she believes Mr. Allman, on many occasions attempted to be dominant.

[145] Ms. Majewski was of the opinion that Ms. Allman encouraged the children to go with their father. She agreed that some of the observed behaviours of the children (biting and aggression) could be the result of stages of development and not the result of the conflict within their parent’s relationship.

[146] Ms. Majewski spoke of the Respondent’s rigidity concerning the children’s’ eating habits and his expectations of the children and the Applicant.

[147] What I take from all of this is that the conflict between the parties continues. Such conflict could put the well-being of the children at risk.

[148] In considering the evidence of Ms. Majewski, on behalf of the OCL, in the period of time since her final report was released, Mackenzie and Rebekah presumably have matured and have become, to some extent, more adept at voicing their needs and preferences.

[149] I take note of the fact that Ms. Majewski was of the opinion that both parents’ mental health was stable. Both were committed to parenting. There was no issue as to the children’s stage of development. It was said by her that each of the parties were able to provide stability and routine for the children.

[150] The time that has gone by since the final OCL report was released represents a significant portion of the girls’ lives. As noted previously, the only custodial arrangement the girls know is the current 2:2:3 schedule. It is a way of life for the children.

[151] For those reasons the report of the OCL can be considered somewhat out of date. However, what can be said, as observed by Ms. Majewski, is that the exchanges of the children continue to be a problem.

[152] There is no timely clinical third party evidence before me which would suggest the children are not being properly cared for and not thriving in the care of either parent.

[153] It would be easy for me simply to accept the recommendations of Ms. Majewski. Her observations and opinions were, for the most part, correct. Her recommendations however, as noted, are dated.

[154] What I conclude from the report is that the children were doing relatively well. If I am to make a change in the current arrangements, I need to be persuaded that such a change is in the best interests of the children.

ANALYSIS AND THE EVIDENCE OF THE PARTIES

[155] There can be no doubt that the current dynamics of the exchanges of the children are not in the children’s best interests.

[156] The dysfunctional aspects of the exchanges of the children and the communications between the parties, apart from the parties’ behavioural issues, in part relate to their inability to jointly make decisions on behalf of the children.

[157] The parties testified on their own behalf. They called witnesses which included friends and family, including both mothers. Mr. Allman’s current girlfriend, Julia, also testified.

[158] It is not my intention to include in this judgment the details of their evidence. With some exceptions, as noted above, they concentrated their evidence on the other party’s behavioural issues and the stress of the exchanges. Clearly the dynamics between the parties requires a change.

[159] I am not however persuaded that the time the children spend with each parent needs to be changed.

[160] To that extent I agree with the Respondent. However, where I disagree with him is that the parties should be required to make joint decisions. It is clear from the evidence given at trial that there lacks any foundation for joint decision making. Nor is it likely to change.

[161] Too often, each of the parties and especially the Respondent challenged the decisions of the other, particularly the Respondent who saw the acceptance of any decision by the Applicant as relinquishing control. It did not seem to matter that the decision was based on a medical diagnosis or medical prescription, provided by the children’s doctor.

[162] More disturbing is the submissions of the Respondent that it is his belief that the parties can make joint decisions if the Applicant (and only the Applicant) changes her behaviour.

[163] I do not believe for a second that the Applicant bears no fault for the inability to make joint decisions or for the dynamics of the exchanges. In that regard I am taking into account her various attempts to get ex-parte orders, of multiple reports to the police, and her introducing some of the court proceedings to Tahlya. Some of her text messages to the Respondent are of concern.

[164] However, what concerns me is that the Respondent does not believe any fault lies with him. I agree with Ms. Majewski that the Applicant is better able to determine the emotional needs of the children and make the right decisions in that regard. She sees to ensuring the children’s medical needs and seeks the appropriate treatment, in a timely manner.

[165] At the risk of repeating myself, I use as an example that the Respondent, when faced with allowing Mackenzie to have inoculations when it is appropriate, saw it necessary to specifically tell the doctor he was not to immunize the child and that he would take care of it himself, keeping in mind he did not follow it up in a timely manner.

[166] He challenged the Applicant’s selections for daycare demanding the selection required his approval. He demands the right to seek a second medical opinion in situations where medicine has been prescribed.

[167] For those reasons and for the reasons set out hereinafter, I will continue the regime of equal shared parenting but will order that the Applicant is to be the sole custodian and the sole decision maker, subject to seeking input from the Respondent. The Respondent will not be entitled to seek a second opinion on such things as medical issues and will have to accept that, after consultation, the final decisions are to be made by the Applicant.

[168] In my opinion awarding sole decision making to the Applicant will reduce the conflict and the number of times the parties will need to interact.

[169] The Respondent needs to know and understand that his ongoing need to control has to be addressed. In that regard counselling would be of benefit.

[170] If there is a conflict in the evidence of the parties I have chosen to believe the Applicant. The Respondent has significant credibility issues. This too goes to the issues as to who is to make the decisions and the exchange of information.

[171] For a period of years the Respondent lied to his parents and told them he was enrolled in university both at the undergrad level and at law school. He told them he was articling at Microsoft. For each of these years his parents supported him financially.

[172] The truth is that he never attended university. Nor did he work at Microsoft. For a long period of time he simply lied. During those years there is no evidence that the Respondent ever worked to support himself financially.

[173] While I recognized that it was after he came “clean” about his life of deceit he sought treatment and was diagnosed as Bi-Polar, I believe he has not always been truthful thereafter.

[174] I again refer to the issue of Mackenzie’s inoculation and the Respondent saying he would take care of it.

[175] The Respondent testified that his trip to Chicago was for a job interview. On the other hand, the Applicant submits he went to visit a girl and was gone for a few days. The Respondent has not produced one piece of paper which would confirm the employment inquiry, or the interview.

[176] The Respondent challenged the Applicant’s choice of daycare but was not working and could not assist in paying for it. The Applicant, for work reasons, enrolled the children in the Two Sisters’ Daycare. The Responded demanded the right to inspect the premises, without prior notice. It was explained to him that there were only two staff members (the two sisters), and notice was required to ensure one of them could conduct the inspection and the other watch the children. That was unacceptable to the Respondent who also decided to report the facility to the appropriate government ministry.

[177] The Respondent denied that he was rude or demanding. Yet his behaviour was such that the daycare operators asked the Applicant to remove the children from the program.

[178] The Respondent would not for the longest time admit to the Applicant that his new girlfriend, Julia, was pregnant or that he was the father.

[179] As noted previously and in regards to the issue about Mackenzie biting, the Respondent initially denied that Mackenzie was biting when residing with him and his mother. He later conceded that she had bitten him.

[180] The Respondent told the Applicant that he was advised by the CAS to not allow the Applicant unsupervised access to Mackenzie. The witnesses for the CAS never expressed such a concern.

[181] The Respondent’s “interpretation” of the order of Price J. is revealing. As noted, it was clear the intent of the order was to separate the parties on exchanges as much as possible. It was felt by the motion judge that the parties had to use separate parking lot entrances and separate entrances into the police building. The Respondent after a time chose to interpret the order in a manner that favoured him. He had lost his licence and was utilizing public transit. The bus stop was closer the entrance which was to be used by the Applicant.

[182] The Respondent’s actions in relation to the Price J. order, go well beyond any ambiguous wording or interpretation. He unilaterally ratcheted up the stress level experienced on the exchanges.

[183] I also note the opinion of Ms. Majewski who testified that she believed the Respondent was not always truthful, even without knowing it.

[184] I also take note and accept the Applicant’s evidence of an incident in April, 2018, when the girls were home sick and did not attend daycare. The children were to go into the Respondent’s care that day. However, he would not pick up the children anywhere but the daycare and the Applicant was required to drop them off so that they could be picked up.

[185] When questioned about his initial demand that the Applicant’s time with Mackenzie be supervised, the Respondent testified, “I made an unpopular choice but an entirely legal one”. He made the unilateral decision to demand supervision.

[186] I also have a concern in regards to the Respondent driving a car with the children as passengers when his driving licence has been suspended. This has occurred more than once. In August, 2017 the Respondent was driving a car in which his children and his mother were passengers. He was pulled over by the police. His nephew had to come and pick up his passengers and the car the Respondent was driving was towed away.

[187] In the summer of 2018 the Respondent was the subject of a traffic stop. He failed to attend court. His licence remains suspended.

[188] The Respondent’s driving licence issues go back to 2016.

[189] The Respondent alleges he was unaware of the court date or the suspension of his licence while conceding he has not updated his address with the Ministry of Transportation. He would not take any ownership of driving without a licence.

[190] I do note that the Respondent, when testifying, admitted that he made his fair share of mistakes during the marriage and after. He fears if the Applicant is awarded sole custody, his relationship with the children would be severed. The order I will make will protect the time the Respondent is to have with the children and thereby protect their relationship.

[191] To his credit the Respondent testified that the Applicant should be congratulated for her assisting in the raising two wonderful children.

[192] I agree with his opinion that the exchanges should be done quickly but must also take into account the children’s emotional needs and anxieties.

[193] I acknowledge that the Applicant has exhibited numerous short comings. On occasion she unilaterally decided not to follow orders. She repeatedly brought motions without notice to the Respondent. She has attempted to “set up” the Respondent and has acted and spoken in a manner unacceptable at any time but especially in front of the children. She has made multiple complaints to the police (the Respondent also made his share) resulting in charges but no convictions.

[194] The Applicant admitted that she sought the arrest of the Respondent in her effort to get custody. The police were constantly involved in the parties’ conflicts and even had to be called on Christmas Day, 2017.

[195] She appeared to be obsessed with collecting evidence against the Respondent.

[196] However, as I have expressed previously, I share the opinion of Ms. Majewski that the Applicant has exhibited a better ability to meet the children’s emotional needs and is more empathetic.

[197] In conclusion, with respect to the issues of custody and access, I do not believe a change in parenting time has been proven to be in the best interests of the children. That is not to say a change in custodial responsibilities is not warranted. I believe it is in the best interests of the children that the Applicant be allowed the right to make the decisions in the children’s lives and as such, ought to be the custodial parent.

[198] Accordingly, I will order,

1. The Applicant, Jennifer Allman, is to have sole custody of the children, Mackenzie Ilene Allman, born October 20, 2015 and Rebekah May Allman, born October 22, 2016.
2. The Applicant and the Respondent shall share the parenting time with the children on an equal basis, employing a 2:2:3 schedule as exercised at the time of trial.
3. The Applicant will make all major decisions regarding Mackenzie and Rebekah, including and in regards to medical health and education issues including what school they shall attend, after consulting with the Respondent.
4. The Respondent shall have the right to attend to the children’s schools, daycares, doctor’s offices, and other health professionals, to get medical, health and educational information about the children.
5. For all communications the parties shall employ the Our Family Wizard program.
6. Neither party shall change residences without providing 60 days’ notice to the other and under no circumstances are they to move outside of the Region of Peel without the consent of the other or a court order.
7. Neither party are entitled to change the names of the children without a court order or a consent.
8. The children shall be exchanged at the daycare center or if not available at the Division 22 police station in accordance with paragraph 4 of the order of Price J. dated, July 20, 2018.
9. All exchanges shall take place at 5:00 pm or as the parties agree.
10. If the children are residing with the Applicant on Father’s Day they shall be returned to the Respondent’s care from the hours of 10:00 am to 6:00 pm.
11. If the children are residing with the Respondent on Mother’s Day they shall be returned to the Applicant’s care between the hours of 10:00 am to 6:00 pm.
12. The children shall spend the first half of March Break from Friday after school/daycare until Tuesday at 5:00 pm with the parent who is scheduled to have them on the first weekend of March Break. The children shall spend the rest of March Break with the other parent until Sunday at 5:00 pm, when the regular schedule will resume.
13. With respect to Easter, in even numbered years, the children should spend from Thursday after school/daycare until Saturday at 5:00 pm with the Respondent. In odd numbered years, the children should be with the Respondent from 5:00 pm Easter Saturday until Easter Monday at 5:00 pm. The children shall be with the Applicant for the remainder of the holiday weekend.
14. With respect to Family Day, Victoria Day, Civic Holiday, Labour Day and Thanksgiving Day, the children shall spend those days with the parent they are scheduled to be with until the Tuesday school/daycare drop off.
15. In regard to Christmas, in odd years the children shall be with the Applicant from the last day of school/daycare until 3:00 pm Christmas Day when they should be transferred to the Respondent who shall keep the children until 3:00 pm New Year’s Day when the parties shall revert to the regular parenting schedule. In the even years such schedule is to be reversed.
16. Commencing in 2020, and with respect to summer holidays, both parties shall spend two non-consecutive weeks with the children each summer during which time the regular parenting schedule shall be suspended. In even number years the Respondent shall confirm with the Applicant which two weeks he would like to have the children by April 30th. The Applicant can then choose her two weeks with the children in the summer and shall advise the Respondent of her choice by May 15th. In odd numbered years, the Applicant shall confirm with the Respondent her choice of two weeks by April 30th and the Respondent shall then choose his two weeks and notify the Applicant of his weeks of summer vacation by May 15th. For the rest of the summer the regular parenting schedule shall continue.
17. Unless it is an emergency when the children are with one parent the other parent shall not attempt to contact the children. If however the children, or either of them, wish to speak to the other parent, they shall be permitted one contact per day.
18. With respect to the Applicant’s daughter, Tahlya Jayme Findlater, born March 19, 2008, for whom the Applicant has custody, the Respondent shall be entitled to reasonable access in accordance with Tahlya’s wishes.

SUPPORT AND PROPERTY

[199] The Applicant has historically worked as a personal privacy counsellor. She continues in such employment.

[200] She has been continuously employed except for maternity leaves and disability leave.

[201] She is able to do much of her work at home.

[202] Exhibit 20 is the Applicant’s financial document brief.

[203] In 2016, the Applicant earned $87,732. At the time of separation she was working on a contract with Trillium Health Partners. She worked there between June 20, 2016 and October 20, 2016, when she went into labour with Rebekah.

[204] The Applicant commenced employment with the Ontario Telemarketing Network in March, 2017 and left on medical leave in April, 2018.

[205] The Applicant was hospitalized for a period of one week. She was suffering severe pain as a result of fibromyalgia. She was also treated for depression and anxiety exacerbated by this litigation.

[206] The Applicant was in counselling from February, 2017 until January, 2018. She now only requires counselling as needed.

[207] The Applicant and the Respondent share the child tax benefit.

[208] In October, 2016, post separation, the Applicant bought a condominium at 609-2301 Derry Road West, Brampton, for $250,000 and put $40,000 into renovations. She took possession of the unit in January, 2017.

[209] To finance the purchase she refinanced her income property at 111-6720 Glenn Erin Dr. Mississauga. As part of the refinancing she paid out a line of credit in the amount of $17,000 and her car loan of $11,000. It is this property in which the Respondent claims a constructive trust interest.

[210] The property was purchased in June, 2102, for $191,000. The parties resided in the unit from January, 2014 to May, 2014 at which time they moved into the Bear Run property, which they rented until shortly after they separated. The Bear Run property was the matrimonial home.

[211] The Glen Erin property generated $1,975 per month rent which covered the costs of ownership.

[212] The property was sold on or about November 1, 2017, and the net sale proceeds of $55,615.06 were placed in trust.

[213] Pinday Syam, an expert witness called by the Applicant, valued the Glen Erin property at the time of marriage at $222,000. The date of separation value was $256,000. While Mr. Syam was not able to inspect the interior of the unit, his evidence was the only evidence presented by either party in regards to the value.

[214] The Respondent did not contribute any monies to the purchase of the Glen Erin property, nor did he contribute to the ongoing expenses. He, along with friends, did assist with the renovations, particularly the painting.

[215] The Applicant testified that at the time of renovations she and the Respondent were not dating.

[216] The parties started dating in September, 2012, a time when the Respondent was residing with his mother. From then until January 2013, while the Respondent stayed overnight at the Glen Erin property he still maintained a home at his mother’s. During that period the Respondent had no source of income.

[217] In January, 2013, the Respondent confessed, as noted previously, that he was living a lie in regards to his level of education and his employment. As a result, his relationship with his mother broke down and he commenced living with the Applicant.

[218] In January, 2013 the parties started discussing marriage and agreed that the Applicant would continue to pay the costs of the Glen Erin property and the Respondent would pay for the wedding.

[219] In July, 2013 the wedding was called off and the Applicant asked the Respondent for $2,500, being one-half of the wedding venue deposit. The parties worked on a spread sheet to establish the financial contributions they both made while living together. A settlement was reached in August, 2013, and the Applicant returned the engagement ring to the Respondent who then gave the Applicant $5,000.

[220] The Applicant testified that this agreement included the Respondent releasing any interest he had in the Glen Erin property.

[221] The Respondent, in his trial testimony said that he thought the agreement was unfair but did not provide any particulars to support such a claim.

[222] Taking in consideration my findings of credibility and the trial evidence, the evidence of the Applicant is the “best’ evidence in regards to this period and I will accept that the settlement terms were mutually agreed upon and as of August, 2013 the Respondent had no interest in the Glen Erin property.

[223] Regardless, and as noted below, the 2013 settlement agreement, the Respondent’s role in the renovations, the relatively short period of time of cohabitation and his lack of income, falls well short of establishing any type of interest in the property by way of a constructive trust or any kind of trust, for that matter.

[224] The parties subsequently rekindled their relationship and were married in November, 2014. By May of the following year, they had rented a larger home on Bendigo Circle in Mississauga and a year later, moved into a rental property at 87 Bear Run Road, Brampton where they resided until their separation in August, 2016.

[225] On the evidence presented the Respondent had failed to prove that over the course of the marriage, he acquired any interest in the Glen Erin property by way of constructive trust, especially given their relatively short marriage. To acquire such an interest takes more than the sharing of expenses over a couple of years. There were no new renovations of Glen Erin that required any contribution of any kind from the Respondent. The property, over the period of marriage was earned rental income which offset the expenses of the property.

[226] Martin v. Sansome, 2014 ONCA 14, in part, dealt with the issues of constructive trusts arising as a result of marriage. In that case, it was determined that the trial judge erred by awarding a 50% interest in a farm property via a constructive trust and by not equalizing the parties’ net family properties.

[227] At paragraph 46 the Court of Appeal commenced its analysis of unjust enrichment and constructive trust claims and the relevance to married spouses.

[228] It was said that the Family Law Act (“FLA”) included a detailed statutory scheme for resolving issues arising out of marital breakdown (para. 46).

[229] Before property can be equalized under the FLA, a court must first determine the net family property of each spouse, which cannot be done until all questions of title are settled (para. 47).

[230] If unjust enrichment is established the first remedy to consider is a monetary award. An interest in property will only arise if a monetary award would be insufficient in the circumstances and there is a sufficiently substantial and direct link between contributions and the acquisition, preservation, maintenance or improvement of the disputed property (para. 48).

[231] The Court of Appeal had reference to the decision of the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, where at para. 87, Cromwell J. stated, in relation to unmarried spouses,

“My view is that when the parties have been engaged in a joint family venture, and the claimant’s contributions to it are linked to the generation of wealth, a monetary award for unjust enrichment should also be calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions. In order to apply this approach, it is first necessary to identify whether the parties have, in fact, been engaged in a joint family venture.”

[232] There is no presumption that wealth will be shared equally (para. 85).

[233] To establish a constructive trust the claimant must establish an unjust enrichment and a corresponding deprivation in the absence of a juristic reason (para. 52).

[234] It was determined in Martin that the trial judge erred when finding there was a constructive trust he went right to a proprietary remedy without considering a monetary award (para. 57).

[235] The court then went on to consider how a monetary award is to be calculated in the case of married persons. From paragraph 63 I quote,

“Section 5(7) of the FLA makes clear that the express purpose of the equalization provisions is to address the unjust enrichment that would otherwise arise upon marriage breakdown (para. 63).”

[236] In the vast majority of cases, any unjust enrichment that arises as a result of marriage will be fully addressed through the operation of the equalization provisions of the FLA (para. 64).

[237] In any event, the evidence before me does not prove that the Applicant was unjustly enriched nor did the Respondent suffer a corresponding deprivation. The Respondent’s claim to a 50% interest in the Glen Erin property will be dismissed.

[238] Turning now to equalization, Exhibit 3 is the Applicant’s net family property statement which she submits was prepared using the Respondent’s numbers. The statement accounts for the marriage and separation date values for the Glen Erin property, the equal division of the household contents and the values of the vehicles. It includes the various bank and investment account values.

[239] At tab 2 of Exhibit 20 is a list of the household contents which reflects how these items were divided between the parties. Neither party provided values for the items nor was there any evidence that suggests the contents were not divided to the parties’ satisfaction. For the purposes of equalization therefore I will treat the contents and as being divided equally.

[240] In regard to debts, the statement shows an equal division of a joint line of credit debt and a line of credit debt in the name of the Applicant. As noted previously, when refinancing the Glen Erin property to purchase the Applicant’s current home, the Applicant’s line of credit debt and car loan were paid out after separation.

[241] The Applicant also has a debt to the Government of Canada for the monies advanced via a home purchase plan. It also includes notional disposition costs related to the Glen Erin property. In fact, this property was sold so the disposition costs were incurred as reflected in the Applicant’s net family property statement.

[242] The statement also notes the Applicant’s worth as of the date of marriage.

[243] Her calculations call for an equalization payment from her to the Respondent in the amount of $17,432.04.

[244] Exhibit 4b is the Respondent’s net family property claim, without a trust claim, dated, January 11, 2019, claiming over $45,000 by way of an equalization.

[245] The Respondent’s document reflects the Applicant’s date of marriage debt to be, $299,867.40 whereas the Applicant’s document shows a date of marriage debt load of $258,430.65. The use of the Applicant’s figure in determining date of marriage worth would reduce any growth in worth over the course of the marriage.

[246] In her net family property statement the Applicant provides a breakdown of her debts at the date of marriage. They are as follows:

Mortgage $193,219.91 Joint line of credit 12,561.97 Line of credit 16,591.32 HBP 23,167.00 Notion costs of disposition 12,890.39 Total $258,430.59

[247] The Respondent provides no such breakdown. For that reason and together with the circumstances surrounding the Respondent’s issue with late disclosure and/or no disclosure, I am persuaded to accept the figures as set out in the Applicant’s net family property statement. Further, as stated above, on matters of conflicting evidence I prefer the evidence of the Applicant over that of the Respondent and on a strict equalization calculation the Applicant would owe to the Respondent $17,432.04.

[248] Section 5(6) of the FLA. States the following,

“The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,…

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years.”

[249] In my opinion, an equalization would be unconscionable. The marriage lasted less than two years. I do recognize that the period to be taken into account is that of cohabitation and believe the parties lived together for some period prior to November, 2014. I find that the period of cohabitation was no more in total than 2.5 years.

[250] The major component of the Applicant’s net family property value was the Glen Erin property which was acquired by her prior to marriage. The growth in its value was a significant part of her value as of the date of separation.

[251] I do accept that for the most part, over the brief period of the marriage the Respondent contributed financially. It was during this period the Respondent was, for the most part, gainfully employed.

[252] Accordingly, I will order the Applicant to pay to the Respondent an unequalization payment of $8,700, being one-half of what would be owed on an equalization. The monies are to be paid to the Respondent from the monies remaining in trust from the sale of the Glen Erin property.

[253] I turn now to the issues of child and spousal support. Both parties claim child support from the other. The Applicant asks that I input a significant level of income to the Respondent.

[254] Exhibit 1 is the Respondent’s most current financial statement, sworn January 8, 2019. Therein the Respondent states that he has been unemployed since May 20, 2016, some four months before separation.

[255] The Respondent’s financial exhibit brief was entered as Exhibit 51. At tab 3 therein are income tax returns which reflect the following line 150 income on the part of the Respondent.

2013 $1.00 2014 $51,553.00 2015 $74,350.00 2016 $47,223.00

[256] The Respondent’s only sources of income since the summer of 2017, are Ontario Works from which he receives $857.13 per month and the child tax benefit in the amount of $658.24 per month. He calculates his annual income to be $18,184.44.

[257] The Respondent then sets out his budget which reflects expenses that would be incurred if he was working. He states that these expenses are being paid by his mother and that when he obtains employment he expects these expenses will be repaid.

[258] The Respondent claims monthly expenses of $4,397.99.

[259] The Respondent upon separation took the child Mackenzie and immediately went to his mother’s home where he has continued to reside on a full time basis. It has been over 32 months since the Respondent has been residing at this mother’s so the debt the Respondent would owe to his mother might now exceed $140,000.

[260] At trial the Respondent testified that he plans to continue to live at his mother’s, despite now having a second family.

[261] The Respondent and the Applicant share time with the children equally and the Respondent seems very content to live off of social assistance and his mother’s good will. I cannot help but think he is of the belief that being available every day, for the whole day, for the children, would continue to support his claim that he is the children’s primary caregiver. When the parties separated the Respondent relied on the fact that he had been unemployed for some months and used that fact in his argument to the court that he was Mackenzie’s primary caregiver.

[262] The Respondent filed a number of exhibit books containing job applications and inquiries. He testified that he has filed thousands of job applications. Most, if not all, are via email. He however provided little evidence in that regard other than the exhibit books. Apart from an alleged trip to Chicago there is no evidence of any interviews or personal, as opposed to on-line, follow-ups. As stated previously, there is no documentation to corroborate his claim that the Chicago trip was in fact for an employment interview.

[263] The Respondent provided very little testimony as to his efforts to gain employment relying on the volumes of exhibits filed by him.

[264] The Respondent testified that he has narrowed or restricted his “search umbrella”. He is looking for supervisory positions and is not inclined to apply for retail jobs. He testified, “But the net I am casting is not as large.”

[265] The Respondent did not make any job applications from July to December, 2018. The trial commenced in January, 2019, and I do not believe the Respondent applied for any jobs during that period.

[266] In a short period of time before and during the marriage, the Respondent was able to get three jobs which paid up to $80,000 per year. The Applicant is asking the court to input to the Respondent an income of $80,000 per annum.

[267] In February, 2014, the Respondent obtained employment with Crowdcare in Richmond Hill as a “mobile support specialist” and earned $62,500 per year. He changed employment in the spring and was earning $85,000 as a customer support manager with Audioview.

[268] The Respondent was laid off in November, 2014, but in January 2015 he obtained employment with Neo Terra and was earning, the Applicant believes, $80,000 per year. The Respondent was let go from this job in May, 2016 and has not been employed since.

[269] In regard to the last employment, the Respondent testified that he never felt like he fit in and did not get along with his co-workers.

[270] I take judicial notice the unemployment rate in Canada is at an historic low and that over the spring, thousands of full-time jobs have been created.

[271] If the Respondent is serious about paying back his mother, the costs incurred for room and board and for monies loaned to him, or contributing in any meaningful way, in my opinion, he would have found some work which pays a wage. Too much time has gone by to expect the court to find that the Respondent has been unable to find a job despite reasonable efforts to do so.

[272] The Respondent should be working. The Applicant who works, pays for daycare and will continue to do so for a few years given the children’s ages. The Respondent should be contributing to such expenses. Properly parenting children includes contributing to the financial expenses incurred on behalf of the children.

[273] The Respondent may argue that he is available to watch the children every day and if allowed to do so the Applicant will no longer need to place the children in daycare. I will not penalize the Applicant for working full time and requiring daycare. When the children are with their respective parents it is that parent’s obligation to make sure the children’s needs are being met.

[274] At the very least daycare can be used for exchanging the children without the need for both parties to be present. One party will drop the children off and the other parent will pick up the children, thus minimizing confrontation.

[275] While Mackenzie is about to start junior kindergarten in September 2019, she, along with Rebekah will continue to require daycare.

[276] In his 2018 interim judgment in this matter, Coroza J., stated at paragraph 24 and 25,

“I reject the proposition that while the mother is working, the children should be in the care of the father.

It is in the best interests of the children that each parent be as far removed from the other’s life as possible. In my view, the mother can decide where the children will stay and on what terms while she is at work. Equally, when the father has the children, he can decide where the children will stay and on what terms.”

[277] I agree with this opinion. On the days the children are with the Applicant she is entitled to decide on childcare when needed. The Respondent has testified that he is looking for work. If and when he obtains employment he may need to arrange daycare and there may be a change in financial circumstances.

[278] There is no evidence to suggest that the Respondent has completed any post-secondary educational programs. There is no evidence of him returning to school at some level to acquire better job skills. He thought it might be a good idea but has done nothing to implement such an idea.

[279] The Respondent could and should be making a much better effort to obtain employment. He has since separation relied on the incomes of his mother in relation to his living expenses and the Applicant in relation to the daycare expenses. He shows no sign of doing otherwise. He seems financially content.

[280] Historically, the evidence suggests that the Respondent has been, for the majority of the time, financially dependent on others, including his mother and the Applicant.

[281] It cannot be said that the marriage adversely impacted on the Respondent’s ability to work outside the home. When he and the Applicant commenced their relationship, the Respondent was financially dependent on others and when the parties separated he became dependent on his mother.

[282] It cannot be said that the Respondent’s need for support arose out of the marriage. For the most part, the Respondent has always had such a need.

[283] As both parties have sought a divorce, the issues of support are governed by the Divorce Act. Section 15.2(4) of the Act reads,

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

(a) the length of time the spouses cohabited; (b) the functions performed by each spouse during co-habitation; and (c) any order, agreement or arrangement relating to support of either spouse.”

[284] As noted above, the length of the co-habitation was no more than 2.5 years. An earlier relationship had ended and the parties made an agreement resolving the financial issues arising out of that relationship.

[285] While the Respondent was able to get three jobs in a relatively short period of time leading up to a point in time, four months prior to separation.

[286] The fact he was unemployed at the date of separation was not a result of the marriage or the result of any agreement in regards to childcare. His last employment was terminated by the employer.

[287] There is no agreement or arrangement between the parties with respect to spousal support. There is no order with respect to spousal support. The Respondent did not bring any motion seeking interim spousal support.

[288] Section 15.2(6) reads,

OBJECTIVES OF SPOUSAL SUPPORT ORDER – An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above an obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[289] There was no economic advantage or disadvantage suffered by the Respondent arising from the marriage or its breakdown.

[290] With respect to the financial consequences arising from the care of a child, the children spend equal time with each parent. They will continue to do so. In terms of childcare costs, it is the Applicant who pays for daycare for both the children. The eldest, Mackenzie will start junior kindergarten this September.

[291] There was no economic hardship of the Respondent that arose from the breakdown of the marriage. The loss of employment is not related to the marriage and, as noted, the Respondent seems quite content to continue to live at his mother’s, and receive Ontario Works benefits and have his mother cover the rest of his expenses.

[292] It is my opinion that the Respondent ought to be self-sufficient. The parties have been separated for a longer period than the actual period of cohabitation. The Respondent has had ample time to work towards self-sufficiency.

[293]

[294] Accordingly, while I do not agree with the Applicant that an annual income of $80,000 ought to be imputed to the Respondent, I agree that some level of income is to be imputed.

[295] Of the three jobs held by the Respondent over the short course of the marriage, the jobs he had would have paid at least $62,500 per year and for support purposes will impute such level of support to the Respondent.

[296] Taking all these factors into account, the Respondent has not established an entitlement to spousal support and his claim for lump sum spousal support will be dismissed.

[297] Turning now to the issue of child support, The Federal Child Support Guidelines, s. 9, entitled, Shared Custody states,

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

(a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[298] The Applicant’s latest financial statement was sworn on January 9, 2019 and was made Exhibit 2. In 2017 she was assessed has having an annual income of $103,422 which amount included much more than her income from employment.

[299] In her financial statement she claimed a monthly employment income of $7,271.33, which over a year translates into just over $87,000 per annum. She also receives a child tax benefit which increases her annual income to just over $93,000 per year.

[300] The Applicant’s monthly expenses are shown as $8,400.

[301] Included as an expense is a daycare cost of $1,000 per month. She of course pays housing and household expenses. The Applicant testified that when she requires daycare it costs $120 per day. Over a two-week period she estimated the children are in daycare for about 5.5 days.

[302] With a line 150 income of $87,000, the Applicant should pay child support, for two children, in the amount of $1,312 per month.

[303] On an imputed line 150 income of $62,500, the Respondent ought to pay child support, for two children, of $915 per month.

[304] It can be argued that in fact the Respondent has a financial obligation to three children if we include Tahlya for whom he conceded he exhibited a settled intention to treat her as his own child. For three children the level of support would be $1,247 per month.

[305] The set off amount would be $360 per month, or $65 per month whether for two or three children.

[306] However, further to ss. (b) and (c) of s. 9, I also to take into account the fact that the Applicant has a daycare expense. I accept that $1,000 per month is paid and find it to be a reasonable amount.

[307] The Applicant testified that she is able to work from home much of the time but at times requires daycare to be able to get any employment related work done. I accept that.

[308] The Respondent will benefit from the use of daycare if it is used to facilitate the exchanges of the children.

[309] While I have imputed an income to the Respondent, the fact is that he cannot contribute to the daycare costs.

[310] The set off amount of support, at best is less than 40% of the child care costs.

[311] Accordingly, while the Applicant pays the daycare expenses there shall be no child support payable only by her. The Respondent’s claim for child support is dismissed.

[312] I want to make it clear however as the parties’ financial circumstances change, including the costs and utilization of daycare, the payment of support and contributions to s. 7 expenses may be subject to review.

[313] In summary therefore, I order:

1. Order to issue in accordance with paragraph 198.
2. The Respondent’s claim for spousal support is dismissed.
3. The Respondent’s claim for a constructive trust in relation to the Glenn Erin property is dismissed.
4. The Respondent’s claim for equalization is dismissed.
5. The Applicant shall pay to the Respondent, an unequalization payment of $8,500, together with pre-judgment interest and it is to be paid to the Respondent from the net sale proceeds held in trust and resulting from the sale of the Glenn Erin property.
6. The balance of the funds held in trust from the sale of the Glenn Erin property are to be paid out to the Applicant.
7. The parties’ claims for child support are dismissed.
8. With respect to a divorce, either party may proceed to obtain a divorce via written motion, on an uncontested basis.
9. With respect to costs of this matter, the parties may make written submissions to me to be no longer than five pages in length double spaced. The parties are to attach to their submissions any legal bills incurred. The submissions are to be made within 25 days of the release of this judgement and are to be exchanged with each other.

Bielby J. Released: July 26, 2019

COURT FILE NO.: FS-16-0171 DATE: 2019 07 26 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: JENNIFER ALLMAN – and – JUSTIN ALLMAN REASONS FOR JUDGMENT Bielby J. Released: July 26, 2019