Soulard v. Soulard, 2019 ONSC 4983

COURT FILE NO.: 35/38/013554/13

DATE: 20190821

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Brian Richard Soulard

Applicant

– and –

Trinidi Elizabeth Soulard

Respondent

George F. McFadyen, for the Applicant

Rose A. Faddoul, for the Respondent

HEARD: October 1, 2, 3, 2018 and May 13, 14, 15, 16, 17, June 5 and 27, 2019

Raikes J.

1The issues at trial are:

1. Custody and access;

2. Child support, both retroactive and ongoing;

3. Section 7 expenses;

4. Spousal support, retroactive and ongoing;

5. Life insurance designation to secure child support obligations;

6. Set-off of costs awards against equalization previously agreed to; and

7. Costs.

The Parties

[2]

The Parties

Brian Soulard (hereafter “Brian”) is 43 years old. He resides in Bright’s Grove, Ontario with his second wife, Michelle, and the children, Kasia and Jacob. Until shortly before the trial resumed in May 2019, Brian was employed as a manager at OLG. His employment was terminated in a restructuring and he was enrolled at Lambton College.

3Trinidi Soulard (hereafter “Trinidi”) is 39 years old. She presently resides in Belle River, Ontario with Shane Murphy. They have been living together since the Fall of 2016, first in Windsor and now in Belle River. Shane has three children from a prior relationship. Trinidi owns and operates two hair salons in the Windsor area.

4Brian and Trinidi were married on June 21, 2003. They separated February 12, 2013 and were divorced on May 25, 2015. They are the biological parents of two children: Kasia Lynn Soulard born August 30, 2002 and Jacob Richard Soulard born August 24, 2006 (hereafter “Kasia” and “Jacob”). Kasia is presently 16 years old and will soon turn 17. Jacob is 12 years old and will soon turn 13.

Procedural History

[5]

Procedural History

This matter has taken a tortured path to trial. Some procedural history is essential to understand the lay of land at the commencement of trial and how the parties got to where they are.

6On March 4, 2013, soon after the parties separated, Brian initiated litigation seeking, inter alia, a divorce, custody of the children, child support, access to the children, and equalization. He alleged that Trinidi is a “chronic liar”.

7In her Answer, Trinidi sought, inter alia, sole custody of the children, supervised access by Brian, child and spousal support, equalization, and an order that Brian designate Trinidi as beneficiary on life insurance for so long as he is obligated to pay child or spousal support. In her Answer, Trinidi alleged that:

1. Brian had been physically and verbally abusive of her and Kasia during the marriage;

2. Brian suffered from a serious alcohol addiction;

3. Brian threatened suicide three times;

4. Kasia suffered anxiety as a result of the abuse. She disclosed that abuse during counselling and her counsellor reported same to the Children’s Aid Society;

5. Kasia suffered an anxiety attack following her first court ordered access visit with Brian;

6. Trinidi did not encourage the children to embellish stories; rather, the children witnessed verbal aggression by Brian and the abuse;

7. The children were afraid of Brian and consistently indicated that they were afraid to go to access visits. They were “traumatized by the prospect of seeing” Brian;

8. Brian was charged with four counts of assault on February 19, 2013 – three involving Trinidi and one involving Kasia.

8In his Reply, Brian denied any abuse of or physical violence toward Trinidi or Kasia, or that he was an alcoholic. He asserted that the access visits had gone “extremely well” and that the Children’s Aid Society had closed its file. He alleged that Trinidi was trying to alienate the children from him.

9Thus, this litigation had the hallmarks of high conflict from the outset. Regrettably, the allegations made by each side against the other have permeated their dealings throughout.

10Various interim orders were made dealing with custody and access in 2013, 2014 and 2015. On September 2, 2014, Justice Korpan requested the involvement of the Office of the Children’s Lawyer (“OCL”). Mark Van Luven was appointed clinical investigator. He produced a report on February 6, 2015. I refer to the fact of the report being made, not its content, which is not before me on this trial based on my ruling at the commencement of trial.

11On March 26, 2015, Gates J. ordered that the matter be considered number one on the May 19, 2015 trial sittings. The trial had been previously adjourned on consent from earlier sittings.

12On May 25, 2015, the parties came before the court with Partial Minutes of Settlement which resolved all issues of custody and access. On that date, I granted their divorce effective 31 days later, and approved the terms agreed upon for custody and access which became part of my order (hereafter “the divorce order”). In broad terms, the final order issued that date provided, inter alia, that:

1. The parties would have joint custody of the children;

2. Brian had sole decision-making power relating to education, all other issues to be jointly decided;

3. Kasia and Jacob would split their time between parents on a week on/week off basis with one mid-week evening visit with the other parent except during the summer when no mid-week visit would occur;

4. Holidays, extracurricular activities and access to information were all addressed;

5. Kasia was to get counselling for her anxiety;

6. The parties and children were to take various courses to aid in communication and ongoing parenting issues;

7. Neither party was to discuss the litigation or adult issues of custody, access, support or equalization with the children, nor were they to discuss the other party with the children;

8. Dr. Anne Toth was to act as a parenting coach to assist the children with the transition;

9. Neither party would contact police to enforce access or residency provisions;

10. Therapists and Dr. Toth would be given a copy of the OCL Report; and

11. The remaining issues of support and equalization were adjourned to permit further resolution discussions.

13As at May 25, 2015, there was hope that the parties would be able to move forward under the custody and access regimen they had mutually agreed to and the remaining issues could be settled. That hope was misplaced.

14The week on/week off shared custody did not go as agreed. Brian brought a motion to enforce the May 25, 2015 order. On September 10, 2015, Desotti J. ordered that Trinidi comply with the May 25, 2015 divorce order and, if she failed to do so, the said order would be immediately varied so that Brian had sole custody of children. Police assistance to apprehend the children to carry out the week about schedule was ordered. If police assistance was required by Trinidi’s purposeful actions, her access was terminated until such time as she satisfied the court that she would return the children in a timely and appropriate way.

15No appeal was taken by Trinidi from Justice Desotti’s order.

16On August 21, 2015, Brian brought a Motion to Change the divorce order dated May 25, 2015 as it relates to custody and access. He asked for sole custody of the children.

17On September 21, 2015, Brian brought a motion for contempt against Trinidi for breach of the divorce order dated May 25, 2015. The motion was triggered by the failure to return the children to Brian’s care on September 11, 2015.

18On October 22, 2015, Templeton J. adjourned the contempt motion sine die to permit cross-examinations on the affidavits filed.

19On December 10, 2015, Hebner J. ordered that the contempt motion be heard at the same time as the trial on the financial issues by way of viva voce evidence. CAS records were ordered disclosed. The trial in January 2016 was peremptory on both parties. Additional financial production was ordered.

20In December 2015, Trinidi brought her own contempt motion against Brian. He responded by bringing a motion to strike same. Both motions were adjourned by Carey J. on January 14, 2016 to a date to be fixed by the Trial Coordinator once questioning was complete.

21The motion for contempt brought by Brian together with the trial of the remaining financial issues commenced January 19, 2016. It was agreed at the outset of the trial that the contempt issue would be heard first. After several days of evidence, the contempt motion was eventually resolved without a determination on the merits. The financial issues were never addressed and were adjourned to allow settlement discussions to take place.

22During the evidence on Brian’s contempt motion, an issue arose involving counsel for Trinidi. On February 5, 2016, I made an order removing Ms. Faddoul as Trinidi’s counsel as she was then in a conflict of interest: see 2016 ONSC 4271. On the same day, I adjourned the motion/trial to February 22, 2016 to allow Trinidi to obtain new counsel. The matter was adjourned at Trinidi’s request on subsequent return dates as she had no success finding replacement counsel. Legal Aid offered to have senior counsel, Mr. Oxley, act for her and she ultimately agreed to same.

23Discussions took place between the parties through counsel and a settlement was reached to resolve the contempt motions and the Motion to Change brought August 21, 2015.

24On April 14, 2016, the parties presented Minutes of Settlement which were accepted by me and a final order made. The order dealt with ongoing custody and access of the children. Many of the terms are the same as or similar to those in the divorce order dated May 25, 2015. The order provides, inter alia:

1. The parties shall have joint custody of the children;

2. The parenting schedule is week on/week off with exchanges at the receiving parent’s home;

3. Wednesday visits from after school until 7:30 PM with the parent who does not have the children that week;

4. The mid-week visits are suspended during summer holidays;

5. Trinidi will ensure that Kasia is assessed by a child psychologist for her anxiety;

6. Trinidi will not use the counsellor at the Women’s Interval Home for counselling the children;

7. Brian and Trinidi will meet with and cooperate with the Children’s Aid Society;

8. Both will complete a parenting capacity assessment with Dr. Hussey or other agreed upon qualified assessor;

9. Neither party will speak negatively about the other parent and shall encourage the children to comply with the residency agreed upon;

10. If Trinidi fails to produce the children for residency exchanges, sole custody shall be granted to Brian;

11. If Trinidi fails to produce the children for return on the intended week about, police will apprehend the children and return them to Brian;

12. The remaining issues of child and spousal support are adjourned to a date to be fixed by the Trial Coordinator; and

13. Certain specified costs issues were reserved to the trial judge.

25Once again, the parties had reached an agreement to resolve custody and access which had the potential to provide a practical and workable way forward. All that was required was adherence to the terms agreed upon; in other words, the application of good faith and common sense. Sadly, the path to a normalized parenting arrangement would not be used.

26On May 31, 2016 Trinidi brought an emergency motion returnable June 2, 2016 to give her sole custody of Kasia and to terminate Brian’s access to Kasia except in accordance with Kasia’s wishes. Trinidi was then self-represented.

27Brian served his responding motion materials by email which Trinidi denies receiving. In any event, the matter came before Bondy J. on June 2, 2016. Trinidi was not present as she was with Kasia at the hospital. I will review the circumstances surrounding the bringing of the motion in greater detail below.

28On June 2, 2016, Bondy J. made the following interim order:

1. Brian shall have sole custody of the children including the making of treatment decisions;

2. Trinidi shall have no access to either child unless supervised by an agency approved by the court;

3. Police shall assist in locating, apprehending and delivering the children to Brian;

4. Trinidi, the Children’s Aid Society and Bluewater Health Sarnia Hospital are to be served with a copy of his order and endorsement forthwith;

5. The matter was to be returned before Bondy J. on June 6, 2016;

6. The Court recommended that the treating physician consider the potential for Kasia to injure herself if released before June 6, 2016;

7. Brian’s counsel may bring the order to court for approval and signature without Trinidi’s approval.

29When the matter came back to court on June 6, 2016, Trinidi was present although not represented by counsel. Further material was filed and the matter was adjourned briefly. Justice Bondy ordered the June 2, 2016 order to remain in effect.

30On June 13, 2016, Bondy J. ordered:

1. Brian shall have sole custody, including without limitation, the making of treatment decisions for the children;

2. Trinidi shall have no access to either child “unless it is supervised by the Supervised Access Centre. In the interest of clarity, the order for no access means that Ms. Soulard shall not be physically present with Kasia or communicate with her directly or indirectly by any means. The communication prohibition includes, without limitation, telephone, email or through third parties such as friends, relatives, hospital staff or any other person or means. While Kasia remains in treatment, access may be supervised by employees at the particular facility who are approved by this Court. In the event that Ms.Soulard seeks access at a facility where Kasia is being treated, she shall apply to the court and include evidence in the form of a letter or affidavit from Dr. Hussey as to Kasia’s best interests, in addition to anything else she finds appropriate”;

3. Police shall assist in locating, apprehending and delivering the children to Brian;

4. On the court’s motion, an updated OCL report was requested;

5. Brian’s counsel was to serve upon Dr. Hussey a copy of Justice Bondy’s reasons, the February 6, 2015 OCL report and the December 10, 2015 reasons of Desotti J.;

6. Any further motion brought in relation to custody, access and decision-making related to either child shall include evidence in the form of a letter, report or affidavit from Dr. Hussey as to his observations of the children’s best interests;

7. Brian’s counsel was to serve a copy of Justice Bondy’s reasons on the Sarnia – Lambton Children’s Aid Society and OCL.

31No appeal was taken from any of the temporary orders of Bondy J. (See 2016 ONSC 3853 for his June 13, 2016 endorsement).

32On June 21, 2016, Trinidi brought a motion for access to attend Kasia’s graduation on June 27, 2016. The motion was dismissed by Verbeem J. on June 23, 2016. On the same date, he ordered that Brian’s obligation to pay child support for the children was terminated effective June 2, 2016 and his payment made for the month of June 2016 was to be credited against his ongoing spousal support obligation.

33The OCL took up the request by Bondy J. for an updated report. On March 13, 2017, Morrison Reid, a clinical investigator, produced an updated report which I will discuss in greater detail below.

34In August 2017, Kasia travelled alone to Windsor by taxi to be with Trinidi. Again, I will address the circumstances surrounding that event in greater detail below. Trinidi brought an urgent motion for interim custody of Kasia. Trinidi was represented by counsel, Tamra Mann. Munroe J. dismissed Trinidi’s motion and ordered that Kasia be restored to the care and control of Brian by 5 PM that day. Police were directed to assist, if necessary.

35On May 31, 2018, Justice Campbell directed that the Motion to Change and remaining issues from of the original Application be tried together. The matter then came before me on September 4, 2018 for trial.

36At that point, Ms. Faddoul applied to once again be counsel of record for Trinidi. As my reasons in the contempt motion indicate, Ms. Faddoul was removed as counsel of record at that time because she had a conflict of interest that derived from her failure to appeal the order of Desotti J. dated September 10, 2015. With the resolution of the contempt motion, the underlying conflict of interest disappeared. I found that Ms. Faddoul could act as counsel at trial.

37A second issue was raised concerning the Motion to Change; specifically, the only Motion to Change before me was that issued by Brian on August 21, 2015. As indicated earlier, the parties resolved the contempt motion brought by Brian and the related August 21, 2015 Motion to Change through Minutes of Settlement which were incorporated into my order dated April 14, 2016. That order was a final order which varied the divorce order dated May 25, 2015.

38Both parties had proceeded in the mistaken belief that a motion to change was extant. Numerous interim motions were brought by both Brian and Trinidi dealing with custody and access after April 14, 2016 but no new Motion to Change had been brought after April 14, 2016.

39Rather than wipe out the previous two years’ litigation history and set the parties back to square one, I directed that Brian issue a fresh Motion to Change so as to expedite the determination of the underlying dispute between the parties on custody and access. I then set timelines for the filing of material and dispensed with the need for conferences so that the trial could proceed at the October 2018 sittings. My intent was to regularize the litigation from a procedural standpoint. I ordered that pending trial, the order of Bondy J. dated June 13, 2016 remained in effect.

40Thus, when this trial commenced before me on October 1, 2018, the issues to be determined were the remaining financial issues from the original application together with those matters raised by the Motion to Change issued by Brian in September 2018.

41In his Motion to Change, Brian seeks sole custody of the children with Trinidi’s access limited to two hours on a Saturday or Sunday on alternating weekends supervised by the Supervised Access Centre in Sarnia. He asks that supervised access continue until Trinidi demonstrates insight into her over-alignment with the children, such insight to be proven by reports of therapists or medical doctors. He also asks that the children’s primary residence be with him.

42In her Response to Motion to Change dated September 20, 2018, Trinidi seeks to vary the final order of April 14, 2016 so that she has sole custody of the children and Brian has access to them in accordance with the children’s wishes. She also seeks to set aside the orders of Bondy J. dated June 2, 6 and 13, 2016, Munroe J. dated August 10, 2017 and Verbeem J. dated March 8, 2018. Alternatively, she seeks an order removing any reference to those orders in Brian’s pleading.

43In reciting the above procedural history, I have omitted other orders dealing with child and spousal support. I will address them to the extent necessary when I deal with those issues.

44In addition, the parties reached an agreement on equalization by which Trinidi was to receive $35,000. That payment was reduced by a $2,000 cost award against her. No money has actually been paid to her by way of equalization despite the final order. In the meantime, there are further outstanding costs awards against Trinidi and unpaid child support which Brian asks be offset against the equalization payment. Again, I will address same when I get to that issue below.

45I will deal first with custody and access which occupied most of the time at trial. I will then deal with the remaining issues in the same order found in para. 1 above.

Custody/Access

[46]

Custody and Access

The custody and access issues arise in the context of a Motion to Change. Both parties seek to change the final order dated April 14, 2016. That order provided for joint custody of the children with a week about parenting schedule.

47To succeed on a motion to change a final order dealing with custody and access under s. 17(5) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am., the moving party must prove on a balance of probabilities that: 1) there has been a material change in circumstances; and 2) it is in the best interests of the child that a change be made.

Material Change

[48]

Material Change

The leading decision dealing with variation of custody and access is Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.). The threshold issue is material change in circumstances. In Gordon, the court defined a material change in circumstances to be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the child’s needs which materially affects the child and which was unforeseen or could not have been reasonably contemplated by the judge who made the initial order.

49It is undisputed that the test for a material change in circumstances has been met. Both agree that a material change has occurred although they differ as to what that material change is. Brian pleads and relies on Trinidi’s conduct starting almost immediately after the April 14, 2016 order was made which he says demonstrates her refusal and/or inability to comply with the order made thereby undermining and frustrating his efforts to spend time with Kasia. That conduct led to Justice Bondy’s June 2016 orders.

50Trinidi disputes Brian’s version of what transpired and why but agrees that her move to Windsor in the Fall of 2016 and the orders made by Bondy J. that gave Brian interim sole custody with only supervised access to her constitute material changes. As at the commencement of trial on October 1, 2018, Trinidi had not exercised any supervised access with the children save for one visit arranged through the OCL. She points to Brian and his counsel as the reason why the ordered supervised access did not occur. Thus, as at the commencement of trial in October 2018, she had not seen her children for almost 2 ½ years.

51I am satisfied that the evidence amply demonstrates a material change in circumstances following the order dated April 14, 2016. That order expressly contemplated joint custody with equal shared parenting time. That simply has not occurred. Moreover, the parties were both residing in the Sarnia area when the April 14, 2016 order was made. A week about schedule was a reasonable and workable arrangement as it would not require the children to change schools or move away from their community. Since then, Trinidi has moved to Windsor and now Belle River. The distance from Belle River to Sarnia makes week about parenting time entirely impractical. No move was contemplated when the April 14, 2016 order was made.

52The events that led to the interim orders of Bondy J. might also justify a finding of material change in circumstances but that finding is unnecessary. I will deal with each party’s account of what happened after the April 14, 2016 order to the extent necessary in the assessment of the children’s best interests. I preface that analysis by the following observations:

1. There is nothing in the order of Bondy J. that imposed a precondition on supervised access; specifically, the order did not require that Trinidi obtain counselling or demonstrate insight into her behaviour and how that might have caused an over alignment in the children;

2. Brian’s counsel frustrated Trinidi’s right to supervised access by insisting that she demonstrate such insight and obtain such counselling as recommended in Mr. Reid’s report;

3. Trinidi could have and should have brought an earlier motion to compel compliance with the supervised access ordered by Bondy J.. She was unrepresented for some portion of the time but even when represented, did not bring such a motion;

4. Although Trinidi denies any wrongdoing, any attempt by her to influence the children’s willingness to spend time with their father, or any conduct contrary to the order made, her conduct reflects that she has always held the view that the children should be with her and her alone; and

5. It is impossible to know with certainty whether Kasia’s behaviour including attempts at and threats of suicide are a consequence of Trinidi’s poisoning of the children’s relationship with Brian as Brian alleges or is attributable to other causes. What is clear is that Kasia in particular has had far too much awareness of what is going on in the litigation and when. She has not obtained that knowledge from Brian.

Fresh Best Interests Analysis

[53]

Fresh Best Interests Analysis

Once the material change threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of each parent to satisfy them. The inquiry is based on the findings of the judge who made the original order and the evidence of new circumstances. The only issue is the best interests of the child in the particular circumstances of the case: Gordon at para. 49.

54The term “best interests of the child” is not defined in the Divorce Act. Courts in Ontario routinely refer to s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, as am. (“CLRA”), which enumerates the following factors to be considered in determining the best interests of the child having regard to all of the child’s needs and circumstances:

(a) the love, affection and emotional ties between the child and each person claiming custody of or access to the child, other members of the child’s family that reside with the child and persons involved in the child’s care and upbringing;

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

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

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

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

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

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

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

55Under the CLRA, the court shall consider whether a person has at any time committed violence or abuse against his or her spouse or any child when assessing the person’s ability to act as a parent: s. 24(4). This litigation is, of course, brought under the Divorce Act where the only consideration is the best interests of the child. If past violence and/or abuse is likely to affect a party’s ability to parent, that is taken into account in assessing the child’s best interests.

56The maximum contact principle is found at s. 17(9) of the Divorce Act. That principle requires the court in making a variation order varying custody to give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child. There is no presumption of equal contact; rather, the best interests of the child will drive the extent and degree of contact.

Exhibit 2

[57]

Exhibit 2

Before I embark on the analysis of the best interests of the children, including necessary findings of fact, I pause to address an issue that arose during closing submissions.

58By way of background, Morrison Reid was appointed as clinical investigator for the OCL to provide an updated s. 112 report. He testified and his report was marked as Exhibit 1 at trial on consent. Mr. Reid’s report attaches two Appendices. Appendix A lists the sources of information relied on by him in preparing his report. The list includes who was interviewed and when, collateral contacts, and documents obtained from several sources. The collateral contacts listed include Dr. Hussey - Kasia’s treating psychiatrist, social workers, the children’s family doctor, the vice-principal of Kasia’s high school, and the parties’ new partners, Michelle and Shane.

59The documents listed include police reports, a report from Dr. Hussey, a report from CAS, a report from the Supervised Access Centre, social worker reports, a report from Dr. Fisman, a psychiatrist from Parkwood-St. Joseph’s hospital in London who treated Kasia, and reports from each of the children’s schools. In addition, Mr. Reid listed various court documents including court orders, affidavits that each party had filed with the court during the litigation and the earlier OCL reports of Mr. Van Luven.

60Appendix B comprises several pages in which Mr. Reid summarized information obtained from the various documents.

61When Mr. Reid was being examined in-chief, he was asked questions about the documents he had reviewed and the interviews he did as part of his due diligence in the investigation. The documents he referred to in his report had been produced to counsel for the parties. Those collateral documents were organized by source by Trinidi’s counsel and, at her suggestion, they were made an exhibit at trial. An extra copy was provided by her to me for my use.

62As Mr. Reid’s examination in-chief continued, he was asked questions about information referenced in his report that came from third party sources like police, CAS, social workers or Dr. Fisman. I interrupted the examination and specifically asked whether the documents in Exhibit 2 were admitted for the truth of their content, and would the authors of the documents be called to testify. I was advised by both counsel that there was no dispute as to the content of the documents. The opinions expressed by the doctors and others are those made by them at the time. The doctors and social workers would not be called.

63I understood, therefore, that the information contained in the collateral documents in Exhibit 2 was admitted without limitation as to admissibility or use. The opinions expressed by doctors and social workers were admissible as if they had testified to same before me.

64In her closing submissions, Ms. Faddoul took a different position. She argued that the materials comprising Exhibit 2 were hearsay and could not be relied upon for the truth of their content. They were admitted “as non-hearsay documents for the purpose of furthering Mr. Reid’s cross-examination as they were listed in his report as referenced material”: see para. 186 of Trinidi’s written submissions.

65I note that in cross-examination, Mr. Reid was referred to some of the documents in Exhibit 2. At no time before Brian closed his case did counsel for Trinidi alert me or Mr. McFadyen that the use of the documents in Exhibit 2 was restricted as she now asserts.

66It seems to me that the time for counsel to have taken the position she now asserts is when the documents comprising Exhibit 2 were first tendered for admission as an exhibit. Moreover, she had a second opportunity to draw attention to the restrictions on use now asserted when I specifically asked counsel whether the documents were admitted for their truth and whether the authors needed to be called to testify to the information and opinions expressed in those documents. Trinidi is bound by the position taken earlier in the trial; to hold otherwise would be highly prejudicial to Brian who proceeded through completion of his case and the trial unaware that Trinidi would seek to impose limitations on use of that evidence. He could have called Dr. Fisman or Dr. Toth or others but did not given the admission made.

67Accordingly, I reject the submission made that the documents comprising Exhibit 2 can only be used for a non-hearsay purpose such as for the fact a complaint was made. The opinions expressed by doctors, social workers, etc. are admissible without the need to call same to testify.

68I turn now to the fresh consideration of the best interests of the children. Some history is necessary for context.

Separation

[69]

Separation

The parties separated on February 12, 2013 when Trinidi and the children left the matrimonial home to stay at Women’s Interval Home. They were there for a month before she returned to the home after the locks were changed.

70Trinidi testified that prior to separation, Brian was verbally and physically aggressive. He punched her. He yelled at her and threatened her. He was drinking heavily and when he drank, he was violent. She was afraid of him. The children saw and heard Brian’s abuse. They were likewise afraid of him.

71She testified that Kasia wanted to be with Trinidi all the time. This enraged Brian. One time he pulled Kasia off their bed by her feet causing her to fall onto the floor. Another time, he pushed Kasia down by her hips and left marks on her back. He also once slapped Kasia across the face leaving a five point star on her face.

72Trinidi also described an incident where Brian carried Kasia into the bathroom and threw her into an ice-cold shower and would not let her out. Kasia was screaming and pleading to be let out. When she got out of the shower, Kasia continued screaming at him. Brian picked Kasia up and threw her into a wall which knocked a picture off.

73According to Trinidi, she discussed Brian’s behaviour with his mother, Marilyn, who gave her some advice. She also started seeing a counsellor, Barbara Nichols, for a couple of months. Marilyn suggested that Kasia see Ms. Nichols as well because Kasia was acting out. Ms. Nichols met with Kasia and following that session, she asked Trinidi about the bath tub incident. Trinidi related what she had seen. Ms. Nichols advised that she had no choice but to report the incident to CAS.

74Brian was then away in Mississauga for training. CAS came to the house to meet with her and the children. She told them what she had seen. CAS then met privately with the children. Trinidi was advised that CAS would be contacting Brian in Mississauga and that Trinidi and the children should leave the house for their own safety. That is when she went with the children to Women’s Interval Home.

75After she returned home with the children, she went to the OPP to ask for a peace bond against Brian. She was interviewed. She told them what had happened to her and Kasia. The OPP then indicated that Brian was going to be charged with assault. She testified that she did not want Brian to be charged; she only wanted a peace bond.

76Brian was initially charged with three counts of assault of Trinidi and one count of assault of Kasia. He was subsequently charged with breach of his recognizance when he was observed by Trinidi driving by the home where she and the children resided. He was also later charged with a breach when he attended Jacob’s baptism at the church where Trinidi worked part-time. With respect to the latter charge, she had informed Brian that he and his family were welcome to attend but that he had to clear it first with the Crown.

77According to Trinidi, Brian called her after he was released on the initial assault charges. He threatened that he was going to take everything away from her. He was going to take the children from her and she would never see them again.

78Trinidi also testified that Brian controlled their finances during the marriage. He was very controlling of her and had trust issues.

79One of the submissions advanced by Trinidi’s counsel in closing submissions is that Brian has made good on his threat to take the children from her. She asserts that Brian’s conduct throughout the litigation has been punitive. He is motivated by the desire to hurt Trinidi; that he does not really care about the impacts of his conduct on the children.

80Trinidi points to the pre-separation abuse that Kasia experienced and the children witnessed as the primary cause of their fear of Brian and their reluctance/unwillingness to have access with Brian after access arrangements were in place. She also points to Brian’s denial of the abuse and assaults. He or his family tried to apply pressure to Kasia to change her story before his criminal trial. His failure to acknowledge what happened and to apologize to Kasia is at the root of their damaged relationship.

81For his part, Brian completely denies the allegations of physical violence and abuse of the children or Trinidi. He says they are fabrications and distortions concocted by Trinidi. He points to the fact that the CAS investigated, was unable to verify the abuse and closed its files. CAS was satisfied that the children were safe in his care.

82He also points to the acquittal on all charges save for the breach when he attended Jacob’s baptism. He testified that he was unaware that Trinity was being paid for the work that she was doing at the church; he believed that she was merely a volunteer. The release order prohibited him from attending at her place of work. She was being paid an honorarium as he subsequently learned.

83Brian also testified that Trinidi brought Kasia to the courthouse when Brian was being brought before the court for the breach involving attendance at the baptism. His daughter saw him in handcuffs being led into court by police. He maintains that there was no reason for Kasia to be in court or to have seen that. This was simply part of Trinidi’s plan to alienate the children from him.

84Brian denies any threat to take the children from Trinidi. Throughout the litigation, he has simply wanted to have a good relationship with the children, to spend time with them and to be an involved parent. Trinidi has resisted that despite the orders that she has agreed to.

85The burden of proof in a criminal case is beyond a reasonable doubt – a very high standard. A defendant may be found not guilty because the Crown was unable to meet that burden. In a civil or family case, the burden of proof is lower – on a balance of probabilities.

86On the evidence in this case I am not satisfied even on the lower standard of balance of probabilities that the physical abuse alleged by Trinidi occurred. To a large degree, that finding rests on my assessment of the credibility and reliability of Trinidi and Brian’s evidence about which I will have more to say below.

87The essence of Trinidi’s evidence is that at all times, she acted to protect her children – to do what was best for them. However, Trinidi twice entered into Minutes of Settlement to share care of the children with Brian on a week about basis. It is unfathomable to me that she would do so if, as she contends, Brian abused Kasia.

88Further, I find that there was no violence or mistreatment of the children by Brian post-separation. He has been adamant and consistent in his desire to spend as much time with the children as was contemplated by the early interim orders and subsequent final orders including the April 14, 2016 order. There were no problems with Brian returning the children. He did not cancel visits. The failure to adhere to court orders was consistently on Trinidi’s part, even court orders to which she consented.

Access Orders Not Followed

[89]

Access Orders Not Followed

Each party advances a different narrative as to how and why the agreed upon access did not occur as ordered. For her part, Trinidi asserts that Brian was abusive (as described) during the marriage. Kasia, in particular, was affected by what she saw and experienced. She was angry and is still angry with her father. His failure to acknowledge and apologize for what he did exacerbated the problems in their relationship. Kasia perceives her father’s denial as calling her a liar.

90According to Trinidi, the children often did not want to go to Brian’s for access. Jacob almost always went although there were times when he followed his sister’s lead and indicated that he would not go. Once there, he always seemed to have a good time. The same could not be said for Kasia.

91Kasia feared her father and his temper. If she saw him drinking during an access visit, it brought back the memories and feelings that she had. If she saw Brian and Michelle fighting or arguing, it had the same effect. Kasia wanted to be with her mother with whom she felt safe. Trinidi encouraged the children to go with their father for access visits. She even told them that their father was a good dad.

92Kasia was so opposed to access visits that she began threatening to self-harm and engaged in self-harm behaviours including attempts at suicide. Trinidi asserts that Brian pushed too hard and too fast for access. By involving the police, he ratcheted up the pressure on Kasia to the point where she did things to herself or threatened to do things to herself to avoid being with him. She maintains that Kasia feels that she has been ignored or her voice has not been heard in this court process.

93As mentioned, Brian advances a different view as to why access did not proceed as it should and as was ordered. He asserts that, from the outset, Trinidi poisoned the children’s minds against him. She encouraged them to be fearful of him. She discussed the litigation with them and encouraged them to take her side.

94In Brian’s view, Kasia has borne the brunt of the pressure resulting from Trinidi’s conduct. He notes that the children have flourished since being in his care following the orders of Bondy J. in June 2016. Kasia is getting the care and treatment she needs from professionals. She is doing well in school. She has a circle of friends. She is participating in community theatre and in church activities including Christmas choir productions. She and Michelle are close. She and Brian sing together and enjoy being with each other. Her behaviour when with him is affectionate. Kasia only has problems when exposed to Trinidi.

April 22, 2016 Incident

[95]

April 22, 2016 Incident

The final order settling the contempt motion and varying the custody terms of the divorce order was made April 14, 2016.

96Eight days later, on April 22, 2016, the children were to begin a week of access with Brian. Trinidi and Shane drove the children to Brian’s home. The children were seated in the back. When they arrived, Brian, Michelle and Brian’s mother, Marilyn, came out the front door and stood on the front steps waiting for the children to come up. The children initially refused to get out of the car. After a couple of minutes during which Brian was encouraging the children to come in, Jacob got out and got his bag. He walked to the front steps and went into the house.

97By contrast, Kasia refused to get out of the car. This was not the first time she had refused to get out of the car on an access visit.

98Trinidi asked Kasia to get out and go in. Kasia refused. She was quite vocal in doing so. Brian came down and asked her to get out of the car and come inside with him. He did not get too close to the car. Kasia simply refused to go with her father. She said that if she was forced to go, Brian would find her dead in her room before morning. Again, this was not the first time that Kasia had threatened self-harm.

99Brian spoke with Kasia to try to persuade her to come inside the house to no avail. Kasia was swearing. Brian told her that if she did not come in the house, he would have to call police. She said she did not care. Brian went back in the house.

100Trinidi stood away from the car while this played out. After a couple of minutes, Brian came back out and told Kasia that she needed to come in. Kasia refused and said that nobody could make her. Soon after, two Sarnia police officers attended at Brian’s house. One officer went to the car and another to the house.

101The officer who spoke with Kasia got her to walk with him to his cruiser. He spoke with her alone. Kasia was given the option to go into the house or to the hospital. She chose the hospital. Trinidi and Shane followed Kasia and police to the hospital. Brian and Michelle did likewise in another vehicle.

102Trinidi and Shane waited in the waiting room for 30 – 40 minutes while Kasia was in the crisis area of the emergency department. Brian was permitted to go into the crisis area where he spoke with the nurse caring for Kasia.

103According to Trinidi, she was told by the nurse that she was in contempt of a court order which she denied. She was then told by the nurse that Brian had a court order giving him access and that Kasia would be going with Brian. She was escorted off the property by a security officer. Before she was escorted, Kasia ran through the doors and told her that she was going to be okay, and that she was not going to hurt herself. Trinidi and Shane then drove off. When they got to Petrolia, they saw that Kasia’s bags were still in their vehicle. She messaged Brian that they had the bags and they agreed to meet at a Tim Horton’s to give him her bags.

104Brian’s version of events on April 22 is not significantly different from the evidence given by Trinidi. He was supposed to have access for a week starting that day. Trinidi and Shane brought the children to his house. Kasia refused to get out of the car despite encouragement from him to do so. Police were called because she had threatened to kill herself. After speaking with police, Kasia was taken to the hospital.

Kasia Cutting

[105]

Kasia Cutting

Trinidi testified to another incident that occurred during an access visit when the children were with Brian for his week about access. She received a text from a classmate of Kasia who advised that she was concerned that Kasia was cutting herself. She reached out to Kasia to see if she was okay. Kasia responded that she was not okay and wanted to come home; she had had an argument with Brian and Michelle. Trinidi told her that she had to stay and asked her to work things out with Brian. Kasia responded that she was going to hurt herself.

106Trinidi received another worrisome text from Kasia’s friend soon after and tried to contact Kasia. There was no response. She then called 911 to report what she had been told by Kasia’s friend. Police attended at her house to see the message from the friend. Police then went to Brian’s home. She received a message or text from the officer that they were taking Kasia to the hospital.

107Trinidi attended at the hospital and sat in the waiting room for approximately an hour. She learned that Kasia did not have any active plans for suicide. Kasia had cut her own leg. She was being released into Brian’s care. She heard nothing more from Brian or the hospital.

108I find it astonishing that having been told by Kasia’s friend that Kasia was hurting herself and having spoken to Kasia who said she was going to hurt herself, Trinidi did not contact Brian directly to let him know what was going on. He was closest to Kasia. He could check on her quickly. Instead, she called police. It seems to me that if Trinidi was truly fearful for Kasia’s safety, her first call should have been to Brian.

June 2, 2016 Motion

[109]

June 2, 2016 Motion

As indicated in the procedural history section above, Trinidi brought a motion seeking interim custody of Kasia returnable on June 2, 2016. She was then self represented. At that point, the April 14, 2016 consent final order was less than two months old.

110She testified that she brought the motion because Kasia was cutting herself and threatening suicide when she had to go for access visits with Brian.

111The night before return of the motion, she tucked the children into bed. Kasia was exceptionally affectionate and it took longer than usual to say goodnight. She prepared for court and went to bed. When she heard Jacob up and moving around in the morning, she got up and went into Kasia’s room to wake her. Kasia was lying on her bed and was almost grey in colour. She tried to wake Kasia but she was unresponsive. She pulled her onto her lap on the floor. Kasia’s eyes were rolled back in her head. When Jacob came into the room, she told him to get the cell-phone so she could call 911.

112The OPP and an ambulance were dispatched and arrived at her house within minutes. The paramedics tried to revive Kasia and took her vitals. They were able to get Kasia to respond a little. Trinidi went to the kitchen with an officer.

113She testified that when she went back into the bedroom, the paramedics were putting Kasia onto a stretcher to take her to the ambulance. Kasia was pointing toward a book on her night table. She had been lying on the bed previously with her arm extended in that direction. That is when she found Kasia’s diary which contained a suicide note.

114In his Endorsement released June 13, 2016, Bondy J. had the following to say about the discovery of Kasia’s journal containing the suicide note at paras. 72-73:

[72] Ms. Soulard deposed that on the morning of June 2, 2016, she found Kasia unconscious. It took 10 minutes to revive her daughter. Kasia tried to stand but collapsed. Shockingly, Ms. Soulard deposed that in the time between having discovered Kasia unconscious in her bed and the arrival of the ambulance she searched through Kasia’s bedroom, and in doing so, had come across a private journal. She had taken the opportunity to read the journal and in doing so discovered a suicide note. Ms. Soulard deposed that she had brought the journal to the hospital and showed it to staff at the hospital.

[73] I make the following observations regarding that evidence. The first is that it defies logic that a loving parent confronted with an unconscious and potentially dying child could possibly be compelled into looking through the daughter’s room and reading a journal that had been found. Common sense dictates that a loving parent would be devoting every ounce of energy into ensuring the survival of the child. It is difficult to escape the conclusion that Ms. Soulard’s mission to ensure Mr. Soulard does not have contact with his daughter overwhelms any parental love that she has for Kasia. Kasia deserved better. In her time of need, Kasia deserved a parent who would be focused only on her survival.

115Trinidi’s affidavit sworn June 6, 2016 indicates at para. 6: “While I was waiting for the ambulance to arrive, I picked up Kasia’s coping book and discovered a suicide note.”

116The evidence given by Trinidi at trial as to how she came to find the diary/coping book and when is at odds with the affidavit she swore on June 6, 2016, only days after the events in question. It strikes me that her evidence at trial was intended to cast her in a better light and to overcome the negative conclusion drawn by Justice Bondy on the motion. I do not believe her evidence that Kasia was pointing to her diary as she was being loaded onto the stretcher.

117Exhibit 9 is Kasia’s diary. The last entry is undated and is written in pencil like much of the rest of the book. I note that one of the earlier pages is titled: “Strategies to avoid self-harm”. There is also a page titled: “Things I hate” that includes first “DAD” but also includes a very negative view of herself, her weight and her looks.

118The last entry in her diary indicates that she did not wish to be in pain anymore. She reassured her mother that she is the best, most loving mom in the world. She pointed the finger at her father as the reason for “all this” and her mother should not blame herself. She then indicated at the bottom of the page that she took 13 Tramadol and the rest of her small pills.

119As mentioned, the initial custody motion was brought by Trinidi returnable June 2, 2016.

120Because of Kasia’s attempted suicide and the need to go to the hospital, Trinidi asked an OPP officer to contact the courthouse to advise that she would not be able to attend that day and the reason why. It is evident from the Endorsement Record that the information was provided to Justice Bondy. He proceeded on June 2 on an ex parte basis and made an interim order with a further date to allow Trinidi to appear and argue. His endorsement indicates that he did so out of concern for Kasia who had attempted suicide for the second time in two weeks.

121Much of the evidence adduced by Trinidi surrounding the June 2016 motions focused on how unfairly she was treated by the court, how she was not served properly and did not receive Brian’s motion materials, and how the result was unfair to her. To the extent that evidence collaterally attacks the validity and correctness of the decisions made, it is clearly inappropriate and I disregard it. I do acknowledge, however, that the effect of the orders made was to deprive her of custody and access with the children on an interim basis.

Kasia’s Suicide Attempts/Ideation

[122]

Kasia’s Suicide Attempts/Ideation

After June 2, 2016, Brian had sole custody of the children and Trinidi had virtually no access with the children until the trial started. Before I move into events after June 2, 2016, it is helpful to summarize Kasia’s history of suicide attempts, hospitalization and treatment in 2016. This information is summarized in Mr. Reid’s report (Exhibit 1) and is found in the records comprising Exhibit 2.

123Kasia was admitted to Bluewater Health in Sarnia from January 1, 2016 to January 8, 2016 for suicidal ideation. According to reports and discharge summaries provided by Dr. Hussey, Kasia’s treating psychiatrist, Kasia reported a plan to hang herself because she could not tolerate being in her father’s care. She described historical physical abuse but no current abuse. She was aware of upcoming court proceedings and hoped decisions would be made to alter the parenting plan that required her to live with her father on alternate weekends. She was discharged into her mother’s care with follow-up psychotherapy to be provided by Suzanne McLean, a social worker at the St. Clair Child and Youth Centre. The discharge diagnosis was parent – child relational problems.

124Kasia was next admitted to hospital on January 28, 2016. She remained there until February 10, 2016. She was admitted after being seen in Emergency in crisis. According to the notes provided, this was her fourth presentation to hospital Emergency. Again, Kasia indicated suicidal ideation with a specific plan to hang herself. She indicated that she was being forced by the court to see her father. The records indicate that she was aware of an ongoing court process and expected decisions would be made that she would no longer have to have contact with her father.

125During admission, Kasia changed her presentation from suicidal. She indicated concerns about her body image and was referred to an eating disorder specialist. At the discharge meeting, Kasia again indicated that she would not attend access visits with her father. She then met with Dr. Hussey and denied suicidal thoughts. She was discharged to the care of her mother. Again, the discharge diagnosis included parent – child relational problems.

126Her third admission to hospital occurred on February 26, 2016. She was in hospital until February 29, 2016. She was taken to hospital after engaging in self injury – cutting her upper thighs over several days. Her attendance at the Emergency department coincided with the start of a scheduled access week with her father. According to the notes, she was confident that she would not be forced to visit her father. She expressed suicidal ideation but only in connection with contact with her father.

127In the discharge summary, Dr. Hussey noted that a challenge for Kasia is the secondary gain she received from her symptoms; that is, the threats of suicide and self-harm resulted in reduced visits with Brian. The same diagnosis of parent relational problems was made.

128Finally, on June 2, 2016, Kasia was admitted to hospital after the overdose of medication described above. Kasia reported that she felt hopeless and wanted to die because she was scheduled for a visit with her father. During the admission, she threatened to kill herself if she was discharged to the care of her father. She indicated that she wanted to live with her mother and have no contact with her father.

129The records indicate that during the admission, as in previous admissions, Kasia referred to historical abuse by her father, a never-ending custody and access dispute and that she did not want to be in her father’s care.

130The hospital records indicate that despite her wish not to have contact with her father, Kasia was released multiple times to Brian’s care for short visits and for overnight visits that went well. There was no self-injury behaviour. Brian was cooperative. He attended meetings and participated in planning.

131A decision was made to transfer Kasia to Parkwood-St. Joseph’s Hospital adolescent inpatient treatment site for further treatment. At Parkwood, Kasia was under the care of Dr. Fisman, a child psychiatrist.

132Kasia was admitted to Parkwood on July 13, 2016. She was discharged on August 4, 2016. The purpose of the admission was for a mental health assessment. On admission, Kasia indicated that she did not want to die but that dying was easier than having everyone on her father’s side disappear. She reported depressed moods only when she was with her father. She disclosed that she had been engaging in self-harm (cutting) since grade 5. During admission, she regularly made negative comments about Brian and claimed that she did not wish to live with him.

133Brian and Michelle were actively involved in her treatment at Parkwood. The hospital records indicate that during the stay, Kasia demonstrated an increasing connection with her father. Behaviourally, she demonstrated a positive connection with him, but her words/comments were inconsistent with her behaviour. This is a recurring theme.

134Dr. Fisman concluded that Kasia’s statements reflected an over alignment with her mother. Kasia’s negative statements about Brian were at odds with her behaviour when with him. Her sadness about the loss of connection with her mother was normal. Dr.Fisman observed Kasia’s need to maintain an alliance with her mother at the expense of her father.

135Although there was some discussion about placement into a therapeutic foster home, Kasia was discharged into her father’s care at her request. Ms. McLean provided ongoing follow-up counselling after discharge.

136Thus, Kasia was admitted to hospital on four separate occasions in the first six months of 2016. She had demonstrated suicidal ideation and had made two attempts at suicide. Her efforts in this regard were to prevent spending time with Brian and to remain solely in her mother’s care. She perceived spending time with Brian and enjoying that time as being disloyal to her mother.

Jacob

[137]

Jacob

Jacob is fours younger than Kasia. In general, there has been far less tension and difficulty with his access with Brian. There were times when he told Trinidi that he did not want to go to Brian’s for an access visit; however, he almost always went. He seemed to enjoy his time with Brian and Michelle. He was experiencing some abdominal pains likely related to stress before June 2016. That health issue has resolved and he has done well in Brian’s care.

OCL Report – March 13, 2017

[138]

OCL Report – March 13, 2017

Justice Bondy requested the involvement of the OCL on June 13, 2016. The OCL agreed to provide services pursuant to s. 112 of the Courts of Justice Act. Morrison Reid was appointed clinical investigator. He authored a report dated March 13, 2017 which was marked as Exhibit 1 at trial. By the date of his appointment, Brian had interim sole custody of the children; Trinidi had a right to supervised access which was not happening.

139Mr. Reid interviewed each of Brian and Trinidi. He observed the children with each parent although the observations of the children with Trinidi took place at the Supervised Access Centre in Sarnia. It was the first time the children had seen their mother since June 2016. The children demonstrated appropriate bonds with each parent.

140Mr. Reid also interviewed each child three times. Each child was interviewed separate from the other. Brian brought the children to the interviews.

141With respect to Jacob, Mr. Reid found that Jacob’s views and preferences were consistent throughout. He was happy living with his father. There had been no problems. He enjoyed his new school and had made lots of friends. He was getting along well with his father and Michelle. He liked Michelle. However, he missed his mother and wanted to see her. He was worried about his mother.

142Jacob indicated that his preference was to go back to the way it was when he lived one week with his mother and one week with his father. He considered both to be good parents. In general, Jacob was happy although less so when he missed his mother.

143Like Jacob, Kasia’s views and preferences were consistent through each of the three interviews. She wanted to live with her mother. She did not want access to her father but would do it if it was necessary to be with her mother.

144Kasia indicated that she did not like living with her father. She remained angry with her father because she was abused by him when younger and because he had taken her away from her mother. She expressed that when she turned 16, she would never see her father again and would live with her mother. She missed her mother. She also indicated that she missed her mother’s new partner,Shane Murphy, with whom she was chatting on Facebook. She indicated that when she has children, she will tell them that Shane is her father. She expressed that she did not like Michelle but felt sorry for her because she had to live with Brian.

145Mr. Reid indicated in his report and in his testimony that the children had experienced positive changes since June 2016. Both were doing well in school and attending regularly. Kasia had not been in hospital and there had been no suicide attempts. Jacob’s stomach problems had been resolved without medical intervention. There was no further CAS or police involvement. Their lives had stabilized.

146He contrasted that with their experience and the situation prior to June 2016 where they were experiencing serious difficulties; in particular, Kasia was regularly experiencing mental health crises for suicidal thoughts and gestures. He wrote at page 14 of his report, “To say the children, particularly Kasia, were in serious trouble is an understatement. Since the Court Order of the Honourable Justice Bondy in June 2016, which changed custody, the children’s functioning and stability has changed for the better.”

147He opined that the explanation for the positive change was the children’s removal from adult conflict and the negative influence of their mother. He indicated in his report and testified that the evidence strongly suggested that Trinidi was influencing the children and not supporting their relationship with their father. At page 14, he wrote:

… In January 2016, Kasia and Jacob were expecting to testify at a family court trial to support their mother’s position. Ms. Soulard made it clear to CAS that she wanted to limit or stop access between Kasia, Jacob and their father. Jacob and Kasia would report to CAS that the judge was their father’s friend and would not listen to their voice and concerns. Jacob and Kasia were heavily exposed to adult conflict by their mother and this was destructive for them. Their recent lack of contact with their mother has been protective for Kasia and Jacob.

148After reference to Dr. Fisman’s finding of an over alignment between Kasia and her mother, Mr. Reid indicated that the over alignment explained Kasia’s refusal of parenting time with Brian. He wrote:

… Over alignment also means there were no boundaries or poor boundaries between her mother’s thoughts and feelings and Kasia’s thoughts and feelings. Over alignment would encourage Kasia to adopt and hold her mother’s view in the custody and access conflict that she should have no access or little access with her father and be expected to testify in court for her mother. The same process was occurring for Jacob but did not become as established.

This is a very destructive process for children. It has been referred to as the double bind triangle. It is a win/lose situation, having one parent means losing the other. A win/win or a relationship with both is not possible. Children are left feeling hopeless with a deep sense of loss that they may express behaviourally through self-harm and suicide or similarly through stomach pain. The pain of the situation has turned inward. Anxiety and sadness results.

149With respect to Trinidi’s understanding of what she was doing and how that was impacting the children, Mr. Reid found that she demonstrated limited insight. She continued to deflect blame onto Brian and felt that he had fooled the court system into believing he was a good father. Mr. Reid suggested that she should address her own behaviour and responsibilities through therapy.

150Mr. Reid did not express similar concerns with respect to Brian as a parent. To the contrary, he was described as a good loving father with a steadfast and strong commitment to his children.

151Mr. Reid made the following recommendations found at page 16 of his report:

1. Sole custody of the children to Brian;

2. The children to have supervised access with Trinidi for two hours on a Saturday or Sunday on alternate weekends;

3. Supervised access to continue until Trinidi demonstrated insight about her over alignment with the children and her willingness to expose them to adult issues and conflict. Evidence of her progress may be provided by therapist or medical reports;

4. Kasia to continue with her therapy as long as the therapist considers it necessary.

152Trinidi did not deliver a dispute to the OCL report before trial.

153Mr. Reid was vigourously cross-examined by Trinidi’s counsel. Suffice to say that his views and the reasons for same remained unchanged and were consistent with his findings set out in his report. I find that Mr. Reid was an excellent witness. He conducted his investigation with thoroughness and objectivity. His evidence at trial was likewise objective and grounded in his investigation and his observations.

154Trinidi testified that she had no dealings with Dr. Fisman as she was prevented from doing so by the order of Justice Bondy. She disagreed that she exposed the children to adult conflict, that she talked about the litigation with them or showed them paperwork for the litigation. There is no evidence that she did so. She acknowledged that a summons was issued for the two children to testify in her contempt hearing but denied that the children were ever shown the summons.

155She indicated that she saw a counsellor/therapist in Petrolia after the children were placed in Brian’s sole custody. The focus of the first 15 visits was on her emotions and coping. She agreed in cross-examination that in her discussions with her therapist, she blamed Brian. She expressed that he pushed too fast and did not give the children the chance to heal. Her therapist indicated that Trinidi lacked insight as to how she had contributed to the children’s distress.

156Trinidi testified that after she moved to Windsor, she saw a psychiatrist. Through discussions, she can see how some unintentional things said or done by her might have impacted the children; however, she vigorously maintains that she did not involve the children in the litigation. This is a false narrative instigated by Brian and his counsel to paint her in an unfavourable light. This is evident from the frequent characterization by Brian that she is in contempt of court orders.

157In short, Trinidi does not accept the findings by Mr. Reid that she caused or contributed to the children’s distress. She perceives that she did nothing wrong and that the findings made by Mr. Reid are simply a reiteration of incorrect information provided to him. She feels that Brian is carrying through on his early threat to take everything away from her and to hurt her. Brian is the cause of Kasia’s mental health issues. He is the one who resorted to police assistance to force access. He should have respected the children’s wishes and proceeded more cautiously. Brian’s aggressive pursuit of court orders and police enforcement pushed Kasia into crisis.

158Trinidi did accept the views and preferences expressed by the children in this report.

August 2017 Taxi Trip to Windsor

[159]

August 2017 Taxi Trip to Windsor

Following the report of Mr. Reid in March 2017, the litigation was stalled. The children were residing with Brian. Trinidi was entitled to supervised access but was not exercising same. Undoubtedly, the children missed their mother.

160In early August, 2017, Kasia traveled from Bright’s Grove to Windsor by taxi. She did this on her own initiative, per Trinidi.

161Trinidi testified that she and Shane went to a family gathering in Bracebridge. During that weekend she learned that Kasia had reached out to her mother and sister to tell them about issues at Brian’s and to ask that they come and get her. They declined.

162I pause to note that Justice Bondy’s order prevented communication, directly or indirectly, between Trinidi and the children except through supervised access. Kasia continued to communicate with Shane, her maternal grandmother and aunt, all of whom denied sharing that information with Trinidi during their testimony. It begs the question how Trinidi could have learned of Kasia’s request if no one was sharing information with her.

163In any event, Shane and Trinidi returned home from Bracebridge and were in the process of unpacking when Kasia showed up in the taxi. Kasia ran and jumped into her arms. Kasia did not have enough money to pay the full fare so Trinidi and Shane paid the shortfall. Exhibit 14 shows two debit receipts paid by Kasia for the taxi and a third receipt for $60 paid by Trinidi and Shane. Trinidi testified that Kasia emptied her pockets and left the receipts at her home.

164Trinidi did not contact Brian to let him know where Kasia was. Instead, she called the OPP in Petrolia to disclose what had happened. An officer called her back and she provided her address. Soon after, an officer attended at her home. Trinidi also contacted the CAS in Windsor.

165Kasia told her mother that she did not want to go back to live with Brian. She told Trinidi that she did not feel loved at Brian’s. She wanted to stay in Windsor with Trinidi and Shane. Kasia spoke with CAS in Windsor. A file was opened and an investigation ensued.

166Exhibit 15 is a letter dated January 29, 2018 from Gail Skelton, an in-take worker at Windsor-Essex CAS to Trinidi. Ms. Skelton wrote:

Further to our last contact, my investigation has been completed. The conclusion of this investigation did verify concerns of risk that the child is likely to be emotionally harmed resulting from child’s exposure to ongoing post-separation caregiver conflict.… [Bold and italics in original]

Ms. Skelton did not testify and it is not clear to me what is meant by “exposure to ongoing post-separation caregiver conflict”. It is clear that Kasia was deeply troubled by the inability to see and spend time with her mother; however, I do not read Ms. Skelton’s letter to find any inadequacy in the care provided by Brian and Michelle.

167Trinidi retained legal counsel to bring an urgent motion on short notice to give her custody of Kasia. Brian responded seeking to have Kasia returned to his care. The motion was heard August 10, 2017. Justice Munroe ordered that Kasia be returned to Bright’s Grove by 5 p.m. that day. He directed police to assist if necessary to effect her return. Trinidi attended in court for the motion. Kasia remained in Windsor with Shane.

168When she learned of the order and the requirement to return to live with Brian, Kasia again threatened to kill herself. She locked herself in the bathroom and called CAS. She was taken to hospital in Windsor and from there to Maryvale treatment centre where she remained. Kasia refused to go back to her father’s home but did agree to live with his mother who lives in the Sarnia area.

169Kasia lived with her paternal grandmother for several weeks before returning to live with Brian. She has lived there since then.

170Brian urges me to find that the trip to Windsor was planned – that Trinidi paid for it and organized the taxi for Kasia. Trinidi denies any awareness that Kasia was going to come to Windsor and in that regard, her evidence is corroborated by Shane Murphy.

171No evidence was put forward to substantiate Brian’s belief. On this point, I accept Trinidi and Shane’s evidence that the trip to Windsor was initiated and carried out by Kasia alone.

Kasia’s Awareness of Litigation

[172]

Kasia’s Awareness of Litigation

There is a disturbing pattern that emerges when I look at Kasia’s threats of suicide, self-harm, and communications with her mother’s family. When the issue of custody and access is to be before the court, Kasia acts out or communicates her unhappiness about being with Brian. Those communications find their way to Trinidi and into the court record. How does Kasia know when matters are before the court? Why does she suddenly make diary entries and send them to her aunt or maternal grandmother?

173Kasia was hospitalized twice in January 2016 as described above. The contempt proceedings had started and were not yet finished. Counsel informed the court that she wished to call the children to testify notwithstanding Kasia’s fragile mental state. She was not permitted to do so. Trinidi acknowledged that a summons for the children was issued but denied that she showed it to them.

174Exhibit 9 is Kasia’s diary which contained her suicide note found on June 2, 2016. She made that suicide attempt the morning of the return of Trinidi’s motion seeking sole custody of Kasia.

175Exhibit 11 is a photograph of Kasia with the caption: “I don’t want to live here anymore. Brian and Michelle are so mean to me [emojis for crying] I just want mom! And you guys [two more emojis for crying]” The photograph was received by Kasia’s aunt, Trinidi’s sister, Brynna Toogood Seagrave, within a month before this trial started.

176I note that the trial in this matter was initially scheduled to start in September 2018. In August 2018, Kasia’s maternal grandmother, Karen Toogood Seagrave, arranged a lunch with Kasia through social media without Brian’s knowledge. She and Kasia keep in contact through texts and social media. Like her daughter Brynne, she saw the picture posted by Kasia on Facebook and the family Snapchat. She provided same to Trinidi’s lawyer.

177Karen Toogood Seagrave testified that she thought Kasia was “backsliding”. She took Kasia’s message to be suicidal thoughts; however, she did not testify that she acted on those concerns and brought them to Brian’s attention. In her cross-examination, it was evident that she was not objective and that she had strong negative feelings for Brian. I find her evidence that she had forgiven Brian was disingenuous and I do not believe it.

178Exhibit 36 is a photograph of a page from Kasia’s diary dated April 28, 2019 which was again sent to her aunt. Kasia and Jacob saw their mother the same day at the Supervised Access Centre. The notes from that visit indicate that Kasia asked Trinidi to pierce her ears. Trinidi indicated that she would have to wait until May. Jacob asked what was in May and Trinidi indicated “we go back to court”.

179Trinidi testified in cross-examination that the conversation happened but it was Kasia who stated that Trinidi was going back to court, not her. She suggested that the author of the notes made a mistake. I do not accept Trinidi’s evidence on this point. I find that she told the children that the litigation would be in court in May.

180Exhibit 36 says:

I’m still here…[frown symbol]

Brian and Michelle are so mean to me. They only care about their own needs/wants. They never listen. They don’t give two fucks about me… They’ve shown that time and again. I’ve expressed how I’m not doing well, and what do they do? NOTHING! cuz they don’t care about me. I can’t do this anymore [frown symbol] I’ve been trying so hard to keep the peace. Just one more year and I’ll be able to finally have a say. Finally be able to be with my mom. To be loved and cared for. I only hope I can make it that far…[frown symbol I can]

I just want to end it all… but CAN’T go back to the hospital. CAN’T be treated so poorly by Brian about my feelings. MY feelings. No one else’s. And they’re very much real!

Brian, you are an awful father, an awful human being!

181Thus, at critical steps in the custody and access litigation, Kasia has written negatively about Brian and Michelle, emphasized her apparent unhappiness and/or threatened or acted on threats of self-harm. The timing of these actions is troubling. In my view, it is more than coincidence that these events and diary entries, etc. occur on the eve of court dates. I conclude that Kasia has been told when court dates are scheduled with a view to getting Kasia to provide helpful ammunition to further Trinidi’s claim for custody.

182Each of Shane Murphy, Karen and Brynna Toogood Seagrave testified that they have had regular communication with Kasia. Each denied that they shared the information from those communications with Trinidi. I find that evidence to be incredible. One or more of them has alerted Kasia to court dates and what is happening. One or more of them has passed along information from Kasia to Trinidi.

183I observe that each of Brian and Michelle testified to their relationship with Kasia and Jacob. Both were challenged through cross-examination. One of Kasia’s diary notes was put to Michelle who clearly had not seen it before. The note written by Kasia was very hurtful and negative. Despite that, Michelle gave her evidence in a clear, consistent and cogent manner. Her affection for Kasia was apparent. The same can be said for Brian’s evidence.

184The evidence by Brian, Michelle and the paternal grandmother, Marilyn Soulard, described their dealings and interactions with the children in the ordinary course. I watched and listened to their evidence closely. I was especially alive to the suggestion by Trinidi that Brian was keeping the children from her to hurt her; that he was motivated to punish her and was not acting out of love for the children. I do not agree with that suggestion.

185The evidence given by Brian, Michelle and Marilyn Soulard was compelling. I accept their evidence that once the orders were made by Bondy J. in 2016, Kasia’s mental health issues stabilized. This did not happen overnight. There were challenges to be sure. Kasia herself deserves much credit for the progress made. She was assisted by Brian, Michelle, her family doctor, her counsellor and others.

186I accept their evidence that when with Brian and Michelle, free from the conflict between her parents and not under the spectre of a looming court date, their interactions are normal, affectionate and loving. I have no doubt that Kasia has missed her mother and wanted to be with her mother. Nevertheless, she has flourished while in Brian’s care. Her behaviour when the litigation lamp is off belies her statements that she hates her father or Michelle.

Voice of the Child Report – November 22, 2018

[187]

Voice of the Child Report – November 22, 2018

After Mr. Reid was finished testifying, I expressed concern to counsel that his report was by then almost 18 months old. No further interviews of the children had been conducted in preparation to testify at trial. I discussed with counsel and they agreed that a Voice of the Child report should be obtained from Mr. Reid. The intent was that such a report would give the parties and the court more current information and it could be done in short order. We expected to resume the trial in December 2018.

188As a result, on October 3, 2018, I requested a Voice of the Child Report be prepared by Mr. Reid. The OCL accepted the request and that report was prepared. That report dated November 22, 2018 is Exhibit 13. Again, no objection was taken to the report being marked as an exhibit.

189To complete the report, Mr. Reid interviewed each of the children twice, separately and privately. Mr. Reid indicated that the children appeared to understand the purpose of the interviews and did their best to answer questions and provide an understanding of themselves and their family.

190During the interviews with Kasia, she advised that she was doing well in school. Her grades were in the 80s and 90s. She was involved in the school chaplaincy team where she did volunteer work. Her school life was busy. In the community, she was involved in an annual Christmas musical production. She had a part-time job at Toys “R” Us in Sarnia. The previous summer, she had a summer job in Bright’s Grove looking after paddle boat rentals. She related that she had a few close friends. She was working out regularly and had a boyfriend.

191Kasia consistently indicated a strong desire to live with her mother in Windsor. She advised Mr. Reid that she wanted to experience the type of love that only her mother can provide. She expressed that she needs her mother and had not been able to see or live with her for a long time. That made her sad.

192Kasia indicated to Mr. Reid that if she is not allowed to live with her mother, she does not know if she will be able to handle that result. She indicated that she was still suffering from depression which was high. She was seeing a counsellor regularly and had medication for depression from her family doctor. She blamed not being able to be with her mother for her depression. She reiterated that she has been telling people that she wants to live with her mother but no one seems to listen.

193Kasia advised Mr. Reid that she was ready and willing to change schools. She was willing to develop a new network of friends in Windsor although she would keep up with her friends in Sarnia by social media. She preferred that the change in schools take place at the end of a semester. If she is allowed to live in Windsor, she would want help from a counsellor in Windsor. [Note: The interviews took place before Trinidi and Shane moved to Belle River.]

194By the time these interviews took place, the supervised access previously ordered by Bondy J. was taking place. I ordered same on October 3 when the trial was adjourned to get the Voice of the Child Report. Kasia indicated that while she did not like the supervision of the access visits, she very much enjoyed being able to spend time with her mother. She will accept supervised access if that is the only way she gets to see her.

195Kasia advised Mr. Reid that she loved Jacob and believed that he would want to stay with Brian. Kasia wishes to live with her mother and would like their access visits to be coordinated so that when she is in Sarnia, Jacob is there and when Jacob was in Windsor, she is there.

196Unlike her previous views that she not see her father ever again, Kasia indicated that she would like access with her father on weekends, perhaps every other weekend, but did not want a set schedule. She hoped Brian would understand that she is building a new life in Windsor and weekends will be time to make new friends. She wants both parents to understand that she wants a say in what weekends she visits in Sarnia.

197Kasia expressed a desire that there be harmony in the family. She acknowledged that the difficulties in their family relations had affected her but that she felt stronger for having gone through them. She felt better able to cope.

198For his part, Jacob again expressed that his ideal scenario would be to spend a week at his mother’s place and a week at his father’s. If that is not possible, then Jacob would like to spend possibly every weekend with his mother. He is even prepared to give up baseball which he enjoys. He is even umpiring.

199Like Kasia, Jacob very much enjoyed reconnecting with his mother through the supervised access visits. He has missed her. He loves her and wants to spend more time with her.

200Jacob is also very active. He has good grades in school and a large number of friends. He played on the school volleyball team. In addition to baseball, he has been involved in archery and kickboxing. He enjoys music and takes guitar lessons. He has a paper route.

201Jacob indicated that he has a good relationship with his sister whom he believed would want to live in Windsor with his mother. Interestingly, Jacob stated that Kasia had a “good relationship” with their father but has missed their mother and wants to live with her. He is willing to accept a different plan for himself and Kasia but would want to see her on weekends if possible. Jacob described himself as being very happy with his life which would be even better if his parents could find a way to get along.

Kasia- Goals

[202]

Kasia's Goals

Kasia is entering grade 12. She has expressed to both Brian and Trinidi that she would like to go to college to study hairdressing and aesthetics. Brian indicated that she is already taking a course through the high school that will give her a leg up for college. He understands that she wishes to go to Lambton College.

203Trinidi and her mother each testified that Kasia has expressed a desire to go to St. Clair College in Windsor when she finishes high school. Trinidi is trained as a hairstylist. She owns two salons. She is primarily responsible for managing and operating the salons.

Care Plans

[204]

Care Plans

Brian proposes that the children continued to reside with him and Michelle. They have their own bedrooms. They have their own circle of friends. They are engaged in activities in the community. Kasia’s doctor is familiar with her history and has been helping her. Her counsellor, Ms. McLean, is in Sarnia. He expects that Kasia would continue to see Ms. McLean. Kasia has had part-time jobs. At the time the trial was being heard, she had auditioned for a leading role in a local theatre production. Jacob was actively involved in sports and school.

205Brian proposes that access to the children continue on a supervised basis until Trinidi demonstrates insight into how her conduct has affected the children. His proposal mirrors the recommendations of Mr. Reid in his March 13, 2017 report.

206Trinidi and Shane live in a five bedroom house in Belle River. Shane has three children by a prior relationship. One lives with them full-time. The second lives with them half time. The third visits as and when she wants. Both testified that Kasia has met Shane’s children and has bonded with them through the time that she spent at their home in August 2017 and through social media.

207Shane works as a computer programmer. He and a daughter also own and operate a gift store in Belle River. He testified that he has lots of flexibility in his schedule. Much of the computer programming work can be done from home or the store.

208Trinidi has had some serious health issues and is hopefully on the road to good health. She faces the prospect of some surgery. She manages the two salons in the Windsor area. Most of that work is done from home. Like Shane, she has a great deal of flexibility in her schedule.

209Trinidi proposes that the children live with her with alternate weekend access with Brian. Alternatively, she proposes that Kasia reside with her and she have regular weekend visits with Jacob. If the children come to live with her, they will have their own bedrooms. Kasia will have a choice of high schools including schools in Windsor. She is willing to bring Kasia to Sarnia for counselling with Ms. McLean. Like Sarnia, Windsor has an active amateur theatre scene that Kasia can participate in.

Analysis

[210]

Analysis of CLRA Factors

I turn now to a consideration of the factors enumerated in s. 24 of the CLRA.

1. Emotional Ties

211The children have strong emotional bonds with each parent and with each other. Whatever their history, Brian and Kasia have a loving and caring relationship. When not enmeshed in custody litigation and left to just be father and daughter, they get along well.

212I find that notwithstanding some of Kasia’s notes and diary entries, she and Michelle have a good relationship. Michelle has not displaced Trinidi nor has she tried to. Rather, Michelle has done her best to help the children and to care for them. Jacob likes Michelle and they have a strong bond.

213Kasia appears to have developed a close relationship with Shane through social media. That is not the case with Jacob.

214Trinidi and Shane each testified that Kasia had formed close ties to Shane’s children. That is difficult to assess given the minimal direct in person interaction. It is one thing to Facebook with someone, quite another to live with them. There are, however, no warning lights suggesting that Kasia will not fit well into their family unit.

2. Views and Preferences

215On this factor, the children are not ad idem.

216Kasia has continuously indicated to Mr. Reid and others that she wishes to reside with her mother. At times, she has coupled that preference with a desire to never see her father again. Her most recent expressions through Mr. Reid indicate that she wishes to see her father on weekends but when and as convenient to her. Her views show greater maturity and, hopefully, an understanding that she is not required to choose between parents. She can love both. She can have a relationship with each.

217Mr. McFadyen submits that Kasia’s views should be accorded less weight or bear special scrutiny because of the over alignment with Trinidi. He submits that her views and preferences remain influenced by her over-exposure to the litigation by Trinidi. That influence has persisted as noted above. I observe that no expert evidence was called to prove that Kasia remains under the influence of the over alignment.

218Trinidi disputes any responsibility for an over alignment if one exists. She maintains that she and Kasia have a deep emotional bond. Kasia’s feelings about Brian are merely the fruits of his abuse, denials and aggressive conduct of the litigation come home to roost. She submits that Kasia’s views and preferences are consistent and are entitled to substantial weight. They should be accepted at face value.

219As I write this decision, Kasia’s 17th birthday looms. She is one year removed from college or university. She has demonstrated maturity and good judgment through her volunteer work, her community engagement, her part-time employment and her schooling. All of that suggests a mature young woman whose view should be given substantial weight.

220I confess that I am troubled by the ongoing disclosure of court proceedings to her and her reaction to same. It seems to me that Kasia has been exposed to too much in the litigation between her parents. That exposure lies primarily on Trinidi’s shoulders. How much does that exposure factor into the independence of her views and preferences? Should I discount her stated views as a result?

221Kasia has spent three years in Brian’s care with minimal contact with her mother. They have had three years to build a better relationship which they have done. She is old enough to look at her father and their relationship and evaluate her feelings toward him. She is clearly aware that a move to live with her mother means significant change and accepts that.

222I am not satisfied that Kasia’s views and preferences should be discounted or overridden. I accept that she wants to reside with Trinidi and to see her father for access.

223Jacob is content to continue to live with Brian and Michelle with visits with Trinidi on weekends. In a perfect world, his parents would live close enough to make alternate weeks work. Unfortunately, that is not possible.

224Both Jacob and Kasia expressed a desire that access be coordinated so that they could spend time together.

3. Length of Stable Environment

225The children have resided with Brian and Michelle since June 2, 2016. Both children are integrated into their church, school and broader communities.

4. Guidance and Education/Necessaries of Life

226Both Brian and Trinidi are able and willing to provide guidance, education and the necessaries of life. This factor is neutral.

5. Plan of Care

227Both parents have put forward workable plans of care for the children. Both parents have residential accommodation suitable for the children. Both propose to continue the children’s education although the plan by Trinidi would necessitate a change in schools for Kasia and/or Jacob.

6. Permanence and Stability of Family Unit

228Both Brian and Trinidi have re-partnered. Both appear to be in loving, devoted relationships of some permanence. This is not a case where one or both parents are constantly transitioning to new temporary partners. The evidence indicates that Shane has children by an earlier relationship but the care arrangements for his children are in place and have been for some time.

7. Ability to Act as Parents

229I find that Brian is a devoted, loving parent who, with Michelle, has provided the children with a stable and safe environment in which to live. The best evidence of his ability to parent is reflected in how well the children have done since June 2016. They have thrived in his care. They are doing well at school and in extracurricular activities. They are removed from the conflict that dominated the first three years post-separation. By all accounts, they are intelligent, polite, respectful, caring children.

230Prior to the orders made by Justice Bondy in June 2016, the situation was markedly worse for the children. Jacob was suffering from stomach pains due to stress. Kasia was frequently experiencing mental health crises from exposure to adult conflict. Since June 2016, Kasia has received ongoing care and counselling. There have been no further suicide attempts or trips to the emergency department at the hospital. No doubt much credit is due to Kasia and her caregivers but some credit must also be given to Brian and Michelle, who have attempted to shield the children from the litigation.

231I have no doubt that Trinidi loves her children. I also have no doubt that she can care for them in the sense that she can tend to their needs. I am troubled, however, by Trinidi’s exercise of poor parenting judgment and her lack of insight into how her actions could and did affect the children.

232I find that Trinidi discussed and involved the children in adult conflict.

233She started a Go Fund Me page to raise money to fund her litigation with Brian. In doing so, she used Kasia’s photo and told of Kasia’s alleged abuse.

234She took Kasia to court to see her father brought in by police. I do not accept her explanation that she was asked to do so by police or the Crown. She wanted Kasia to see her father in a bad light.

235She informed Kasia of court dates where custody and access were to be addressed.

236When informed that Kasia was self harming while at Brian’s, she did not contact Brian to alert him so that he could attend to Kasia immediately. Instead, she waited and called police.

237When Kasia attempted suicide on June 2, 2016, she searched her room for the diary while waiting for the ambulance to arrive. She did not suggest that she did so looking for clues as to what Kasia might have taken; instead, she concocted a story about Kasia pointing in the direction of her diary as she was being placed on the stretcher.

238She had her counsel issue a summons for the children to testify in court in her contempt hearing. The summons and the plan to have the children testify all took place at a time when Kasia was in and out of crisis and hospital.

239She failed to recognize that Kasia was over aligned with her and why. Even now, I take from her evidence that she does not accept that an over alignment existed.

240The suggestion by Trinidi that Brian planted the seeds of alienation in the minds of doctors, nurses and counsellors rings hollow. Kasia’s over alignment with her mother put Kasia in an entirely untenable position. She could not allow herself to enjoy her time with her father and to love her father because doing so would be disloyal to her mother whom she adored. Kasia’s over alignment did not happen by chance. Kasia is not to be blamed for the over alignment nor is Brian.

241Trinidi agreed to final orders to share care of the children yet, within a very short time, she resiled from agreements and her obligation to comply with the orders. She blames Brian for insisting on his access visits with the children as agreed and as ordered – he pushed too hard. I find that he only did so because she frustrated his access.

242Trinidi seems oblivious to how her actions caused emotional harm to the children. Instead, she places the blame on Brian. She has taken no meaningful steps to gain insight.

243If there is a common theme to Trinidi’s evidence it is that she did nothing and everything is Brian’s fault. That the children have done so well since June 2016 is because they have overcome having to live with their father. No credit is due Brian

244I am deeply concerned that ongoing limited supervised access by the children with their mother is not what they need. It has been three years plus since the order of Justice Bondy. The children miss their mother.

245On the other hand, can Trinidi avoid the conduct and behaviours that led to the orders of Justice Desotti in September 2015 and Justice Bondy in June 2016? Can she be a caring, loving mother who does not disparage Brian and who leaves the children out of any adult conflict? Can she follow court orders with respect to access? It is these concerns that weigh most heavily in the assessment of her ability to parent and what care arrangements should follow.

8. Familial Relationship

246Both parties are related to the children by blood. This factor is neutral.

Balancing of Factors

247With respect to Jacob, I am satisfied that it is in his best interest that Brian have sole custody and primary residence. He is doing well in Brian and Michelle’s care. He is integrated into his community. He has an extensive social network of friends. He has expressed that if his optimal solution – week about – is not possible, then he wishes to continue to live with his father and to see his mother on weekends even if it interferes with his passion for baseball. Where Jacob is concerned, he has strong bonds with his father and Michelle. He is in a stable, loving environment where he is flourishing.

248Trinidi’s proposal that Jacob move to live with her in Belle River is a far less attractive option. It would require Jacob to move, to change schools, to make new friends. That is not what he wants.

249With respect to Kasia, the determination of her best interests is more difficult only because of her preferences. I am mindful that the Court of Appeal has indicated that the views and preferences of an adolescent child are to be given significant weight, especially older teenagers.

250A move to Belle River will require Kasia to change schools when she has only one year of high school left. She will have to make new friends. Although Trinity offered to drive Kasia to Sarnia for appointments with Ms. McLean or for doctor appointments, it is likely that new care providers would be required. Kasia is willing to make those changes.

251I have carefully considered Kasia’s views and preferences as expressed to Mr. Reid in his March 13, 2017 report and the more recent Voice of the Child Report. I understand what she wants – to live with her mother. However, my task is to not simply ask what she wants and give it to her but ask what is in her best interests and in determining those best interests to give serious consideration to her views and preferences. I have done so.

252I find that it is in Kasia’s best interest that she remain in Brian’s care until she finishes grade 12 in June, 2020. At that point, she is free to move to live with her mother if she still wants to do so.

253The evidence before me amply demonstrates that Kasia is a very strong person. She has already been through so much in her young life. She has battled depression and with the help of a strong network of care providers, she has done exceptionally well. Those care providers are in Sarnia. They know her history and they have built relationships of trust with her.

254Kasia has done very well in school, no doubt because she is a hard-working, intelligent person. She has established friendships. She knows the school and the teachers. They know her and her history. Again, there are relationships of trust that have been built. She is involved in school activities.

255Kasia is actively involved in her church and in local theatre. By all accounts, she is very talented musically. During the trial, she was auditioning for a lead role in a musical production in Sarnia for the Fall of 2019. The move to Belle River could jeopardize her ability to carry through on that commitment.

256Kasia has a good relationship with her father and Michelle notwithstanding the notes posted on Facebook and passed through family members to help her mother in the litigation. The various records and the reports of Mr. Reid show that when interacting with Brian in the ordinary course of daily life, they get along fine. It is only when the litigation comes to the forefront that Kasia feels compelled to take a side. If I could tell her one message it would be: “don’t take sides, love them both”.

257She and Jacob have a close relationship. Staying in Sarnia where Jacob will be living will benefit both children.

258I also have misgivings or doubts about Trinidi’s ability to avoid drawing Kasia into her conflict with Brian. Ultimately, that is unhealthy for Kasia and may well undo the gains that she has worked so hard to achieve.

259Like Jacob, Kasia loves and misses her mother. That is entirely understandable. I am satisfied that if Trinidi can avoid the conduct and behaviour that gave rise to the earlier orders giving Brian sole custody, it would truly benefit Kasia to spend time with her mother. They have a close bond.

260Thus, I find that it is in Kasia’s best interest that she remain in Brian’s care but be able to see her mother on an unsupervised basis as set out below. I am mindful of the maximum contact principle and have taken it into account in assessing what is in the best interests of the children.

261Therefore, I order as follows:

1. Brian shall have sole custody and primary residence of the children.

2. Trinidi shall be entitled to access to all medical, dental, and education records of the children.

3. Trinidi shall be entitled to attend the children’s performances, extracurricular activities and school activities including graduations.

4. Trinidi will have the children in her care on the following schedule:

i. from Saturday, August 24, 2019 at 4 PM to Friday, August 30, 2019 at 5 PM;

ii. during the 2019 – 2020 school year, on alternating weekends from Friday after school until Sunday at 6 PM, commencing September 13, 2019;

iii. if there is no school on the Friday of an access weekend, then the access will commence on Thursday after school;

iv. if there is no school on the Monday of an access weekend, then the access will end on Monday at 6 PM;

v. if the access weekend falls on dates when Kasia is scheduled to perform, the parties will switch that weekend so that she is able to do so;

vi. for March break, the regular alternating weekend schedule will be suspended and the parties will divide the time equally;

vii. for the Christmas school holiday, the regular alternating weekend schedule will be suspended and parties will divide the time equally. In odd numbered years, the children shall be with Brian on Christmas day and in even numbered years, the children shall be with the Trinidi;

viii. during school summer holidays, the children shall spend two non-consecutive weeks with Trinidi commencing on the Friday of the weeks selected. Trinidi shall advise Brian by text or in writing on or before May 1 of each year of the weeks that she has selected;

ix. the alternating weekend schedule will continue otherwise through the rest of the summer holiday.

5. Neither party will discuss adult issues or show papers related to this litigation to the children.

6. Neither party will disparage the other or permit any other adult to do so in the presence of the children.

7. Both parties will encourage the children to have a positive, loving relationship with the other parent.

8. Upon successful completion of grade 12 by Kasia in June 2020, she may choose with which parent she wishes to reside and to have access to the other parent in accordance with her wishes. Neither parent shall attempt to influence her choice or decisions regarding residency or access.

9. In the event that either child fails to return to Brian upon completion of an access visit, Trinidi’s access shall be immediately suspended pending further order of this Court.

10. Unless otherwise agreed, all communications between the parties shall be limited to access unless necessary to alert to the other party to a medical emergency. Those communications will be respectful and amicable. The communications shall be by text or in writing unless the parties agree otherwise.

11. Brian shall provide to Trinidi a copy of the children’s health cards and passports if issued.

12. Trinidi shall not travel outside of Ontario with the children unless prior notice is given to Brian and his consent obtained, such consent not to be unreasonably withheld.

13. The above school and vacation access schedule shall apply to Jacob on an ongoing basis after the summer of 2020.

14. The parties are free to alter the access schedule by mutual agreement; however, subparas. 5, 6, 7 and 9 above shall apply in any event.

262To be clear, I have ordered ongoing access between the children and Trinidi on terms. Trinidi should take care to strictly adhere to those terms. The failure to return the children to Brian means the loss of that access. A child’s refusal to go back at the end of an access visit will not be an acceptable justification.

Child Support

[263]

Child Support

The following interim child support orders have been made in the course of this litigation:

1. April 18, 2013 by Desotti J. – Brian to pay monthly child support to Trinidi for the children on an interim, without prejudice basis, in the amount of $1212 commencing May 1, 2013 based on his 2012 income of $83,321.

2. May 16, 2013 by Gates J. - On consent, Brian to pay monthly child support to Trinidi in the amount of $1228 commencing May 1, 2013 based on his annual income of $84,643.

3. June 23, 2016 by Verbeem J. – Brian’s obligation to pay child support was terminated effective June 2, 2016. The payment of $1,228 made June 1, 2016 was credited against his ongoing obligation to pay spousal support.

4. August 4, 2016 by Thomas J. – on consent, Trinidi to pay Brian monthly child support of $225 commencing August 1, 2016 with that amount to be credited against any retroactive claim for support, equalization or order for costs at trial.

5. March 8, 2018 by Verbeem J.- Trinidi to pay Brian monthly child support of $459 commencing March 1, 2018 based on imputed income of $30,000.

264The orders preserved retroactive child and spousal support to the trial judge for both parties.

265The parties separated February 12, 2013. It is undisputed that:

a. From February to mid-November 2013, both children were with Trinidi;

b. From mid-November through December 2013, Kasia was with Trinidi and Jacob was shared between the two parents;

c. In 2014, Kasia resided with Trinidi and Jacob split his time between the two parents;

d. From January to May 2015, Kasia was with Trinidi and Jacob was shared between the parents;

e. In May 2015, the divorce order was made based on the Minutes of Settlement filed. The children were to be shared between the parties although that is not what happened. The divorce order called for equal shared care of the children from June to December;

f. The divorce order remained in place until superseded by the April 14, 2016 order that similarly required equal shared care of the children.

g. Justice Bondy’s interim order of June 2, 2016 placed the children solely in Brian’s care.

266As noted, the final orders dated May 25, 2015 and April 14, 2016 ordered a week on/week off schedule. That is not what happened on the ground. Some weeks were missed, motions had to be brought and events unfolded as described above.

267It is undisputed that Brian has underpaid child support to Trinidi during the period 2013 to June 2, 2016.

268According to Exhibit 5 which is Brian’s Income Brief, Brian earned the following income between 2012 and 2018:

2012- $83,321

2013- $93,286

2014- $110,055

2015- $126,827

2016- $128,736

2017- $129,572

2018- $147,233 plus $149,229 for severance pay.

269Brian paid the child support ordered. Trinidi has made no payments of child support pursuant to the orders.

270Brian’s counsel attached a schedule to his written submissions calculating the underpayment by Brian for that period as $9,840. That calculation shows the amount ordered and paid, together with the Guideline child support payable by Brian based on his actual income for each year.

271For purposes of calculating child support between February 2013 and June 2016, the calculation provided by Brian accords with the Federal Child Support Guidelines for his income.

272During the marriage, Trinidi was unable to work when pregnant with Kasia. She became a stay-at-home mom although she ran a daycare from their home for seven years. She closed the daycare when they moved to Petrolia. While married, she also worked part-time at restaurants, at Sears at Christmas, and at the Catholic Church as a youth minister.

273In 2012, she opened a Christian bookstore in Petrolia with Brian’s financial assistance. Initially, the store did well and was nominated for local business awards. The business was operating at a loss but was starting to turn the corner until the parties separated and her time was occupied dealing with CAS, Brian’s arrest and charges, and Kasia. She was the only employee and, as result, the store was too often closed. She closed the store permanently on March 31, 2014.

274With respect to her position at the church, she testified that the priests changed, the youth group reduced in numbers and her position was terminated. In 2013, she worked only at the store. In 2014, her only income was very modest business income from the store and spousal support.

275In 2015, the store was closed so she was working only at the church. By then she was in a relationship with Shane. They were not yet living together. Shane purchased a rental property in Windsor and she started a course to become a real estate agent. She became the property manager/landlord for the rental property that he purchased in order to give her an income. She earned approximately $10,725 through that rental income.

276Trinidi did not finish the real estate course. At that time, issues concerning Kasia were escalating. There was simply too much going on in her personal life. She undertook retraining through the Women’s Interval Home that had a Women on the Move program. It involved seven or eight different courses for which she received certificates. The goal of the courses was to provide undated skills to gain entry into the workplace. That program took place over eight months during 2015-16.

277In 2016, Trinidi successfully applied for a position as Executive Assistant to the head of the Inn of the Good Shepherd. She testified that it was the best paying job she had ever had. Unfortunately, she was let go after four months because she was unable to fulfil her duties. At the time, Kasia was in and out of hospital and in crisis. Trinidi was missing time at work to be with Kasia. She needed time off for court to deal with the contempt issues. Her income in 2016 was $14,076 plus spousal support of approximately $12,000.

278After she was terminated from her job, she was then unemployed for some time. She described herself as emotionally devastated by the order made by Justice Bondy. She was unable to pay her rent. She was going to the Food Bank for food. She was dealing with depression. Shane asked her to move to Tecumseh to live with him and she moved there in December 2016. She testified that for the first couple of months, she was broken and the shell of her former self. She started seeing a counsellor and got medication for situational depression.

279She started applying for jobs in Tecumseh and Windsor. She was hired at Pat and Hanks, a local fish restaurant. She worked part-time 3 to 4 times a week in three hour shifts. She also worked Sundays from 11 AM to 8 PM. Gradually, she became emotionally stronger and felt able to get control of her life.

280Trinidi has a high school education. After high school, she was certified as a hairdresser. She still had that certification in 2016. Shane pressed her to go back to doing that kind of work. He purchased some used salon equipment on Kijiji and set up the equipment in the house they were sharing. She started doing some haircutting.

281In 2017, Shane purchased a hair salon for her. He paid for it but she was to operate it as her business. There are nine employees who rent the chairs in the salon from her. They write a cheque each month to her for the chair and for expenses. She pays EI but not CPP nor does she remit taxes for them. She testified that she runs the salon and does a little bit of haircutting and nails. Much of the work that she can be done from home. Her hours are flexible although there is always something to do.

282In December 2018, Trinidi was hospitalized. She had a blood disorder. They discovered a hole in her heart and that she had some tumors that required removal. She had a full hysterectomy. There is one tumor remaining that is non-cancerous but produces liquid. She is likely going to have a second surgery to remove that tumour because it causes hypertension and can cause mini-strokes. The surgery will likely take place in London.

283In December 2018, Shane purchased a second hair salon as a gift for her. That salon had five employees. The owner was supposed to stay on and help until she got back on her feet but he quit. He terminated the employees, gutted the place and took the equipment. The place was left as a shell. She advises that it was not operational and they were losing money. Two of her most valued employees at the first salon came to the second salon. They have been working seven days a week to dig the salon out of a financial hole. The doors to the second salon opened March 2019. That salon is still operating at a loss.

284Trinidi indicated that the cost to purchase the salons was a debt owing to Shane. When he testified, however, he indicated that he had decided to forgo payment. He was going to treat them as a gift to her. This was a surprise to her.

285Trinidi was questioned in cross-examination about the gift store in Belle River. She authored a Facebook posting in which she described herself as the owner of two salons and the gift store. She explained that because it is owned by Shane, she considers it part of their joint enterprise even though she does not do any work at the store and he is the owner. Shane testified that she owns the salons but he owns the gift store.

286I accept Shane’s evidence that the gift store is owned by Shane. Trinidi is not an owner. Trinidi misstated her interest in the store to make herself appear more successful to an old high school friend.

287According to her tax returns and notices of assessment (Exhibits 21 and 22), Trinidi’s income from 2012 through 2018 was:

2012- $6,923 *

2013- ($5,884)

2014- ($13,934)

2015- $15,408

2016-$28,827

2017- ($20,895)

2018- $7,481

• All income figures are from line 150 of her income tax return or notice of assessment.

288Absent an imputation of income, Trinidi’s income in 2013-2014 is insufficient to give rise to an obligation to contribute to child support. The same is true for 2017 and 2018.

289Brian asks that I impute at least a minimum wage income to her since the date of separation. He argues that at all times, Trinidi was licenced as a hairdresser but did not pursue work in that area until well after she moved to Windsor with Shane. She could have and should have been working.

290Trinidi argues that she did her best to be employed and to generate an income while dealing with the litigation, the issues surrounding Kasia’s mental health, and her own health. While the salon businesses are not generating regular income, she expects that they will. She is building toward economic self-sufficiency.

Analysis

[291]

Analysis of Child Support

Section 19(1) of the Federal Child Support Guidelines permits the court to impute such income as it considers appropriate in the circumstances. Section 19(1) provides a non-exhaustive list of circumstances that may appropriately give rise to the imputation of income. Based on the arguments advanced in this case, it appears that Brian relies on (a) which states:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable education or health needs of the spouse;

292Dealing with s. 19(1)(a) - intentionally under-employed - the leading case is Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (ON CA). In Drygala, the court set out, inter alia, the following principles:

• There is no need to find a specific intent to evade or reduce child support obligations before income can be imputed (paras. 24-26);

• The word “intentionally” means a voluntary act. A parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning (para. 27);

• Section 19(1)(a) does not apply to situations in which a parent is given fewer hours of work through no fault or act of his or her own (para. 27); and

• A parent is not excused of his or her support obligations to pursue an unrealistic or unproductive career aspiration (para 39).

293The purpose of s. 19 is to ensure the parent’s obligation to support his or her children is met. To that end, a parent must earn what he or she is capable of earning: Drygala, para. 32.

294When imputing income on the basis of intentional under-employment, a court must consider what is reasonable in the circumstances. The age, education, experience, skills and health of the parent are factors to consider in addition to the availability of work and other obligations: L. (N.) v. P. (B.), 2000 CanLII 22516 (ON SC), [2000] O.J. No. 2574 (S.C.J.); Premi v. Khodeir, 2009 CanLII 42307 (ON SC), [2009] O.J. No. 3365 (S.C.J.).

295I find as follows:

• In 2013, the parties separated. Trinidi had both children in her primary care for most of the year. She was working in the store but only as and when not dealing with CAS, police and the children. She started the store before they separated and was the only employee. I am not satisfied that she was underemployed in 2013. I decline to impute income to her for that year.

• In 2014, she closed the store at the end of March. She had no other income but spousal support that year. I am not satisfied that she made reasonable efforts to obtain work or was unable to work. I find that she was intentionally underemployed or unemployed for much of the year. Income should be imputed to her for child support purposes in the amount of $20,000.

• In 2015, the parties entered into minutes of settlement that were incorporated into the divorce order in May 2015. The store was closed. She was unemployed. Again, I am not satisfied that she made reasonable efforts to obtain work or was unable to work. I find that she was intentionally unemployed. Income should be imputed to her for child support purposes in the amount of $24,000.

• In 2016, Kasia was in and out of hospital and in crisis. I cannot ignore my findings above as to Trinidi’s role in those events. I find that her conduct materially contributed to the unfortunate stress placed on Kasia which in turn led to Trinidi having to be at the hospital or in court. By April 2016, the contempt proceedings and issues of custody and access were settled once again. By June 2016, Trinidi had no child care responsibilities. Her line 150 income was $28,827. She was working that year at the Inn of the Good Shepherd but lost that job because she was in court or dealing with Kasia’s mental health issues. I am satisfied that Trinidi was intentionally unemployed or underemployed. Income should be imputed to her for child support purposes in the amount of $35,000.

• In 2017, Trinidi had no child care responsibilities for her children but presumably had some role to play regarding Shane’s children. She had moved to Tecumseh in December 2016. Shane purchased the first hair salon for her in 2017 and she was working for at least part of the year on that business. Given her previous work history and her qualification to work as a hairdresser, I find that she was intentionally unemployed or underemployed in 2017. Income should be imputed to her for child support purposes in the amount of $25,000.

• In 2018, Trinidi’s child care responsibilities were the same as 2017. She was operating the first hair salon. I note that most of the work that she was doing did not involve cutting hair or working with customers directly. I am mindful that she had significant health issues in the latter part of 2018 that resulted in significant surgery. I find that she was underemployed for at least part of 2018. Income should be imputed to her for child support purposes so that her income in 2018 is $30,000.

• With respect to ongoing spousal support commencing January 1, 2019, Trinidi has a second hair salon albeit one that is presently operating at a loss. The first salon business should generate a reasonable income. She has been recovering from surgery and she is expected to undergo additional surgery. She has the same childcare responsibilities for Shane’s children as in 2017 and 2018. Her 2019 income is at best a guess. I fix her minimum income for child support purposes at $30,000 having regard to the above medical concerns. The amount may be adjusted upward, but not lower, if her income for 2019 exceeds $30,000. A retroactive adjustment is to be made in February 2020.

296Based on my findings of incomes for child support purposes above, Trinidi’s monthly child support payable to Brian in accordance with the Guidelines for the children from 2013 to 2018 is:

• For 2013 - $0.

• For 2014, for one child (Jacob) - $160 x 12 months ($1,920).

• For 2015, for one child (Jacob) - $192 x 5 months ($960) and for two children - $359 x 7 months ($2,513) for a total of $3,473.

• For 2016, for two children - $508 x 12 months ($6,096).

• For 2017, for two children -$373 x 12 months ($4,476).

• For 2018, for two children - $438 x 12 months ($5,256).

297The aggregate child support payable by Trinidi to Brian from the date of separation to December 31, 2018 is $21,121. The amount payable by Brian for his underpayment of child support ($9,840) shall be offset against the amount owing by Trinidi with the balance ($11,281) deducted from the amount payable to Trinidi for spousal support (see below).

298As for ongoing monthly child support commencing January 1, 2019, Trinidi shall pay $438 monthly based on estimated minimum income of $30,000. The arrears of child support to August 31, 2019 ($438 x 8 months = $3,504) shall also be deducted from the amount payable to her for spousal support. A retroactive adjustment shall be made for 2019 in February 2020. To be clear, I am imputing a minimum income only for 2019.

299Therefore, I order as follows:

1. Trinidi shall pay ongoing monthly child support to Brian for the children in the amount of $438 commencing September 1, 2019.

2. Trinidi will provide Brian with her confirmation of income for the previous year from all sources by February 7 of each year for so long as she is required to pay child support for any of the children.

3. Trinidi will provide to Brian a copy of her income tax return and notice of assessment for the previous tax year by June 15 of each year.

4. Trinidi’s child support payable for 2019 shall be retroactively adjusted in February 2020 to reflect her 2019 income which will not be less than $30,000 in any event.

5. Trinidi’s subsequent years’ incomes will be adjusted retroactively in February of the following year.

6. The amounts payable by Brian to Trinidi for underpayment of child support from 2013-2016 shall be offset against arrears of child support payable by Trinidi for the years 2014 to August 31, 2019.

7. The balance of the child support arrears payable by Trinidi for that period shall be credited against spousal support payable by Brian to Trinidi.

Section 7 Expenses

[300]

Section 7 Expenses

Trinidi seeks reimbursement of expenses incurred by her for the children as s. 7 expenses. The expenses are:

1. $5,150 paid for orthodontics treatment for Kasia. Payments started in 2015 and ended in 2016;

2. $210 paid for Taekwondo for both children in 2013;

3. $180 paid to Wyoming and District Soccer Club in 2013 for both children;

4. $247.50 paid to Oil Heritage District Community Centre in 2013 for swimming lessons;

5. $231.23 paid in 2014 for horseback riding lessons for both children;

6. $160 paid in 2016 to St. Philip Catholic School for Kasia’s grade 8 year-end school trip;

7. $85 paid in 2016 to St. Patrick’s Catholic High School for Kasia’s registration;

8. $39.73 paid in 2015 to Hogan Pharmacy for Jacob. This figure represents the amount not covered by insurance.

301Although it is arguable that item 7 above is not strictly a s. 7 expense and should be covered by child support paid, I note that Kasia did not start high school until September 2016 by which time she was living with Brian. Trinidi paid the $85 earlier.

302With respect to the remaining items, I am satisfied that they are properly extraordinary expenses for which Brian should pay his share.

303The 2013 expenses total $637.50 and are payable entirely by Brian.

304The 2014 expenses total $231.23. Using their incomes for child support as found above, Brian is responsible for 85% of that amount which is $196.55.

305The 2015 and 2016 expenses total $5,799.73. The largest expense is the orthodontic expense which bridges two years. Brian’s share of s. 7 expenses in 2015 is 84% and in 2016, it is 79%. I have not tried to break out what payments were made for the orthodontic expense between the two years, nor did counsel provide such helpful information. A quick view of the bill submitted shows that most of it was paid in 2015. Accordingly, I am simply applying 83% to the aggregate amount of the 2015-16 expenses which amounts to $4,814 payable by Brian to Trinidi.

306Therefore, I order that Brian pay $5,648.05 for retroactive s. 7 expenses.

Spousal Support

[307]

Spousal Support

The following interim spousal support orders were made:

1. May 16, 2013 by Gates J. – on consent, Brian to pay Trinidi $1,000 per month commencing June 1, 2013.

2. June 23, 2016 by Verbeem J. – on consent, the June 2016 child support payment made by Brian of $1,228 shall be credited to Brian’s ongoing obligation to pay spousal support

3. August 4, 2016 by Thomas J. – on consent, Brian to pay spousal support to Trinidi commencing August 1, 2016 fixed at $1,000 per month. The issue of imputation of income to Trinidi was not considered for the purposes of the order and remained a triable issue.

4. March 8, 2018 by Verbeem J. – Brian’s obligation to pay spousal support was terminated effective March 1, 2018.

308The issue of retroactivity of spousal support was preserved to the trial judge by the orders.

309The overwhelming majority of evidence at trial focused on custody and access for the children post-separation and going forward. The evidence to underpin the entitlement to spousal support and the basis for same is thin.

310During the marriage, Brian was the main breadwinner. Trinidi worked from home (daycare) and had various part-time jobs and businesses. Brian described her as excellent at customer service and sales. She is very entrepreneurial. I take it from Trinidi’s evidence that she took primary responsibility for the children and home prior to separation. That is not to say that Brian did not help or that Trinidi did not assist in bringing income into the home.

311On breakdown of the marriage, Brian was employed by OLG as a regional facilities manager in Sarnia. He was promoted soon after to operations manager and eventually became senior operations manager. His title was changed to Senior Manager Facilities and Maintenance which was the position he held when he was downsized.

312On termination, Brian was paid 15 months severance which amounted to $149,229. He put $85,333 into his RRSP. The rest was used to pay down debt and for living expenses. Thus, his 2018 income is artificially high because it includes his earnings for that year and the severance payment. He has returned to school to study human resources and wants to get back into the work force.

313I have already described Trinidi’s work history pre and post-separation.

314A court may make a final or interim order for spousal support in an amount it considers reasonable: s. 15.2(1) and (2) of the Divorce Act. In doing so, the court must take into consideration “the condition, means, needs and other circumstances of each spouse,” including

a. the length of time the spouses cohabited;

b. the functions performed by each spouse during cohabitation; and

c. any order, agreement or arrangements relating to support of either spouse: Divorce Act, s. 15.2(4).

315Misconduct of a spouse in relation to the marriage is irrelevant to spousal support: Divorce Act, s. 15.2(5).

316In Thompson v. Thompson, 2013 ONSC 5500, Madam Justice Chappel provides the following very useful summary of the principles that apply to a spousal support claim at paras. 46 – 52, 54 – 59:

[46] The court’s duty pursuant to section 15.2(4) of the Act to consider the parties’ “condition, means, needs or other circumstances” in carrying out the spousal support analysis is very broad and involves the exercise of a considerable amount of discretion. However, not every circumstance of the spouses will be relevant to the support analysis. The factors referred to must be interpreted in the context of the purpose of the spousal support provisions of the Act as articulated by the Supreme Court of Canada in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.J. No. 107, and are circumscribed by that purpose. As L’Heureux-Dube J. emphasized in Moge, although marriage and the family provide an emotional and economic support system for family members, spousal support in the context of divorce “is not about the emotional and social benefits of marriage. Rather, the purpose of spousal support is to relieve economic hardship that results from the marriage or its breakdown,” and the focus of the analysis is therefore “the effect of the marriage in either impairing or improving each party’s economic prospects.” [para. 43] The condition, means, needs and other circumstances relied upon for the purposes of the support analysis must be relevant in some way to this purpose and focus.

[47] The “condition” of a spouse includes such factors as their age, health, needs, obligations, dependents and their station in life (Metz v. Metz, 2004 ABQB 528, [2004] A.J. No. 925 (Alta Q.B.); supplementary reasons, [2004] A.J. No. 1558 (Alta. Q.B.); Bennett v. Bennett, 2005 ABQB 984, [2005] A.J. No. 1824 (Alta. Q.B.); Bockhold v. Bockhold, 2010 BCSC 214, [2010] B.C.J. No. 283 (B.C.S.C.)). A spouse’s “means” encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives gains or benefits (Strang v. Strang, 1992 CanLII 55 (SCC), [1992] S.C.J. No. 55 (S.C.C.); Leskun v. Leskun, 2006 SCC 25, [2006] S.C.J. No. 25 (S.C.C.)). The assessment of the “needs” of a spouse should take into consideration the accustomed lifestyle of the spouse, subject to ability to pay. As the Ontario Court of Appeal stated in Rioux v. Rioux, 2009 ONCA 569, 2009 CarswellOnt 4077, para 42, “self-sufficiency is a relative concept, it relates to achieving a reasonable standard of living having regard to the lifestyle the couple enjoyed during their marriage”. In considering the extent of a spouse’s need from this perspective, the court should take into account the joint income which the parties anticipated they would be able to enjoy as of the time of their separation. …

[48] Section 15.2(6) of the Act sets out the objectives of a spousal support order as follows:

15.2(6) 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 any obligation for the support of any child of the marriage;

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

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

[49] The Supreme Court of Canada has held that all of the statutory objectives set out in section 15.2(6) of the Act must be considered, since no single objective is paramount (Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.J. No. 14; Moge). However, trial judges have a significant amount of discretion to determine the weight that should be placed on each objective, based on the particular circumstances of the parties (Miglin v. Miglin, 2003 SCC 24, [2003] S.C.J. No. 21 (S.C.C.). With respect to the objective of promoting self-sufficiency, set out in section 15.2(6)(d) of the Act, the Supreme Court of Canada commented in general terms on the extent of a former spouse’s obligation to work towards self-sufficiency in Moge v. Moge, Leskun v. Leskun and L.M.P. v. L.S.(2011 SCC 64). It noted that although one of the objectives of the spousal support provisions of the Act is to promote the economic self-sufficiency of the spouse within a reasonable time, the Act stipulates that this goal only applies “in so far as practicable”. The Court held that there is no presumed duty on former spouses to achieve financial independence, and the extent to which they are expected to do so depends on the circumstances of the parties and the dynamics of the marital relationship in each particular case. It concluded that the wording of sections 15.2(6)(d) and 17(7)(d) (relating to variation proceedings) reflects a recognition that self-sufficiency may not be possible or practicable in some circumstances.

[50] In considering the objective of self-sufficiency, the court must recognize that this concept is a relative one which must take into account the parties’ standard of living during the marriage (Rioux, para. 42). The Ontario Court of Appeal emphasized in Fisher v. Fisher (2008 ONCA 11, 2008 CarswellOnt 43) and Allaire v. Allaire (2003 CarswellOnt 1002) that self-sufficiency is not necessarily established when a former spouse is able to meet their basic needs; rather, it refers to a spouse’s ability to maintain a reasonable standard of living taking into account the lifestyle which the parties enjoyed during their relationship. Where one spouse has suffered economic disadvantage as a result of the marriage or its breakdown, the court must consider whether the other party can financially assist them so that the spouse can enjoy a lifestyle closer to that which they enjoyed during the marriage. As the Court stated in Fisher v. Fisher, self-sufficiency must be assessed “in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation.” (para. 53)

[51] The extent to which the court will consider the accustomed standard of living during the marriage in setting the benchmark for self-sufficiency post-separation will depend on the particulars of the marital relationship. L’Heureux-Dube, J. made this point in Moge v. Moge, where she stated that “the longer the relationship and worse, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.(para. 84)

[52] The statutory objectives and factors referred to above inform the issues of entitlement, quantum and duration of spousal support. The issue of entitlement is the preliminary issue to determine in any spousal support claim.

2. General Principles Respecting Entitlement

i. Overview of the Grounds For Entitlement

[54] The Supreme Court of Canada articulated the fundamental principles respecting entitlement to spousal support in the cases of Moge v. Moge and Bracklow v. Bracklow. In Moge v. Moge, the court summarize the overall goal of spousal support as being to ensure an equitable sharing of the economic consequences for both parties of the marriage or its breakdown. However, it also emphasized that the entire burden of these consequences should not necessarily fall on the shoulders of one party. The Supreme Court held in both Moge v. Moge and Bracklow v. Bracklow that entitlement to spousal support must be determined in accordance with the terms of the governing legislation, but that the issue should be considered keeping in mind the following three conceptual models upon which entitlement to spousal support may arise: (1) compensatory support, which primarily relates to the first two objectives of the Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support. As the British Columbia Court of Appeal emphasized in Chutter v. Chutter (2008 CarswellBC 2661), the court is not required to apply one conceptual model of entitlement over the other. In many cases, entitlement may be established on more than one ground.

ii. Compensatory Support

[55] The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of the sacrifices and contributions (Moge, paras. 68-70). A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to interdependency between the spouses and merger of their economic lives (Cassidy v. McNeil, 2010 ONCA 218, [2010] O.J. No. 1158 (C.A.).

[56] Compensatory support claims arise most typically in situations where one spouse has suffered economic disadvantage and contributed to the other spouse’s income earning potential as a result of assuming primary responsibility for childcare and/or home management obligations. However, a compensatory claim can also be found on other forms of contribution to the other party’s career, such as supporting the family while the other party obtained or upgraded their education (Allaire), selling assets or a business for the benefit of the family unit (Jens v. Jens, 2008 BCCA 392, [2008] B.C.J. No. 1886 (C.A.), or assisting a party in establishing and operating a business that is the source of that party’s income (Chutter).

[57] In considering whether a compensatory claim exists, the court must undertake a broad and expansive analysis of advantages and disadvantages which each party experienced throughout the relationship as a result of the marital union. In some situations, a compensatory claim may be defeated or weakened by the fact that disadvantage suffered by the claimant spouse is offset by disadvantage of a different type experienced by the other spouse (Roseneck v. Gowling (2002), 2002 CanLII 45128 (ON CA), 35 R.F.L. (5th) 177 (C.A.); additional reasons at 2003 CarswellOnt 159 (C.A.)).

[58] A compensatory claim for spousal support may be established even where the recipient spouse is employed and reasonably self-supporting at the time of the parties’ separation. This situation can arise where, despite that spouse’s ability to meet their own needs, their financial advancement has been impaired as a result of subordinating their career to that of the other spouse, or from adopting a less lucrative career path in order to accommodate the needs of the family (Cassidy; Allaire).

iii. Non-Compensatory Support

[59] Spousal support entitlement can also arise on a non-compensatory basis, as a result of the needs of a spouse. The Supreme Court of Canada discussed this basis of entitlement in Bracklow v. Bracklow. It emphasized in that case that a spouse may be obliged to pay support based on the other spouse’s economic need alone, even if that need does not arise as a result of the rules adopted or sacrifices made during the marriage. Rowles, J.A. of the British Columbia Court of Appeal summarized the general concepts underlying this basis of entitlement in Chutter v. Chutter as follows:

Non-compensatory support is grounded in the “social obligation model” of marriage, in which marriage is seen as an independent union. It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner rather than the state (Bracklow, at para. 23). Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as of the “means and needs” approach to spousal support.

317The issues before me are:

1. Entitlement to spousal support;

2. Quantum of spousal support including consideration of whether the increases in his income since the date of separation should be taken into account, and imputation of income to Trinidi;

3. Duration of spousal support.

A. Entitlement

[318]

Entitlement

Trinidi’s uncontradicted evidence was that they made a joint decision that she should be a stay-at-home mom. That is the role she fulfilled in the main. She also worked part-time. She ran a daycare from their home. She started her bookstore after the children were older and in school and only a year before they separated.

319I agree with Brian’s assessment the Trinidi has the skills and entrepreneurial nature necessary to succeed in business. The bookstore won awards from the Petrolia Chamber of Commerce. Her daycare in her home had a waiting list. When she worked at Pat and Hanks restaurant, she was a keyholder meaning that she closed up the restaurant – a position of trust and responsibility.

320I am satisfied that but for the role that she took on in the marriage, Trinidi could have and would have pursued a career in business, likely in retail or the service industry. Her career was adversely affected by being a stay-at-home mom. Her income at the date of separation was markedly lower then it would have been had she not focused on care of the children.

321Further, her bookstore business was still in its infancy. Brian was the financial backer for that business. When the marriage broke down, Trinidi lost that financial safety net and backing.

322There is insufficient evidence to conclude that her sacrifice in this regard led to the advancement in his career. This is not a case where there is evidence that he worked much longer hours and/or took courses to advance his career and could do so because she was at home.

323Thus, I am satisfied that there are economic disadvantages to Trinidi from the marriage and its breakdown. Entitlement to spousal support on a compensatory basis is established.

324I am also satisfied that Trinidi is entitled to spousal support on a non-compensatory basis. Brian was the main breadwinner in the family unit. Her business generated little income. When they separated, she returned to the matrimonial home but it was later sold. The proceeds of sale were used to pay joint debts. Her equalization payment, which she has not received, is quite modest.

325On the date of separation, Brian was in a long-standing full-time position of employment that generated an annual income of $93,000 that year. By contrast, Trinidi owned and operated a fledgling bookstore that provided little in the way of income. Her ability to meet even basic needs was severely compromised without spousal support. Her need was obvious.

326In determining need, the guiding principle is that the spouse receiving support is entitled to receive support that would allow her to maintain the standard of living to which she was accustomed at the time the cohabitation ceased. The analysis requires consideration of the recipient’s ability to support herself in light of her income and reasonable expenses: Gray v. Gray, 2014 ONCA 659.

327In Moge v. Moge cited by Chappel J in Taylor above, the Supreme Court of Canada made clear that the longer the relationship endures, the greater will be the presumptive claim to equal standards of living upon its dissolution. This fits with the theory that marriage should be regarded as a joint endeavor.

328In this case, the parties were married for almost 10 years. After separation, Trinidi’s standard of living was substantially less than that which she enjoyed during the marriage. By 2016, she was going to the food bank for food. It was not until she moved to Tecumseh to live with Shane that her standard of living rebounded to approximate that which she had during the marriage. To a large degree, she has been entirely dependent financially on Shane who has been remarkably generous and supportive.

329In my view, entitlement to spousal support is established on both a compensatory and non-compensatory basis.

B. Quantum

[330]

Quantum

I have imputed income to Trinidi for child support purposes above. I see no reason to deviate from same for the purpose of calculating spousal support.

331With respect to Brian’s income, he submits that his income should be $85,000 for each year for spousal support purposes. It is his position that increases earned post-separation should not be taken into account. He earned approximately $83,000 in 2012, the year before they separated. They separated only two months into 2013 so he has increased his 2012 income modestly.

332Trinidi seeks spousal support payable by Brian from May 1, 2013 to the present based on Brian’s actual income since the date of separation. She alleges that she has been financially victimized by Brian in that he has not paid the equalization payment ordered in 2015. She points to the fact that he has underpaid child support. Thus, she has been financially disadvantaged throughout.

333In Thompson v. Thompson, 2013 ONSC 5500, another of Justice Chappel’s thorough and helpful support cases, she summarized the principles that apply to the exercise of the court’s discretion concerning the treatment of post-separation increases in the payor’s earnings at para. 103:

The authors of the SSAG and the cases decided since the guidelines were introduced have established that the treatment of post-separation increases in a payor’s earnings and spousal support cases is ultimately a matter of discretion for the court, to be undertaken having regard for the unique circumstances of each case and the general factors and objectives underlying spousal support. Upon considering these factors and objectives and the relevant case-law, I conclude that the following general principles should guide and inform the court’s exercise of discretion on this issue:

a) A spouse is not automatically entitled to increased spousal support when a spouse’s post-separation income increases.

b) The right to share in post-separation income increases does not typically arise in cases involving non-compensatory claims, since the primary focus of such claims is the standard of living enjoyed during the relationship.

c) Compensatory support claims may provide a foundation for entitlement to share in post-separation income increases in certain circumstances. The strength of the compensatory claim and the nature of the recipient’s contributions appear to be the major factors which may tip the balance either for or against an entitlement to share in the increased income.

d) The recipient spouse may be permitted to share in post-separation increases in earnings if they can demonstrate that they made contributions that can be directly linked to the payor’s post-separation success. The nature of the contributions does not have to be explicit, such as contribution to the payor’s education or training. The question of whether the contributions made by the recipient specifically influenced the payor’s post-separation success will depend on the unique facts of every case.

e) A spousal support award is more likely to take into account post-separation income increases where the relationship was long-term, the parties’ personal and financial affairs became completely integrated during the course of the marriage and the recipient’s sacrifices and contributions for the sake of the family and the resulting benefits to the payor have been long-standing and significant. When this type of long history of contribution and sacrifice by a recipient spouse exists, the court will be more likely to find a connection between the recipient spouse’s role in the relationship and the payor’s ability to achieve higher earnings following separation.

f) In determining whether the contributions of the recipient were sufficient, the court should consider such factors as whether the parties divided their family responsibilities in a manner that indicated they were making a joint investment in one career, and whether there was a temporal link between the marriage and the income increase with no intervening change in the payor’s career.

g) If the skills and credentials that led to the post-separation income increase were obtained and developed during the relationship while the recipient spouse was subordinating their career for the sake of the family, there is a greater likelihood of the recipient deriving the benefit of post-separation income increases.

h) By contrast, the likelihood of sharing such increases lessens if the evidence indicates that the payor spouse acquired and develop the skills and credentials that led to the increase in income during the post-separation., Or if the income increase is related to an event that occurred during the post-separation period.

i) Assuming primary responsibility for childcare and household duties, without any evidence of having sacrificed personal educational or career plans, will likely not be sufficient to ground an entitlement to benefit from post separation income increases.

j) Evidence that the post-separation income increase has evolved as a result of a different type of job acquired post-separation, a reorganization of the payor’s employment arrangement with new responsibilities, or that the increase is a result of significant lifestyle changes which the payor has made since the separation may militate against a finding that the recipient should share in the increase.

k) Where the payor’s post-separation advancement is related primarily to luck or connections which they made on his own, rather than on contributions from the recipient, the claim for a share in post-separation income increases will be more difficult.

l) The court may also consider the amount of time that has elapsed since separation as an indicator of whether the recipient’s contributions during the marriage are causally related to the post-separation income increases.

m) Evidence that the payor also made contributions to the recipient’s career advancement, or that the recipient has not made reasonable steps toward achieving self-sufficiency are also factors that may preclude an award that takes into account postseparation income increases.

334Brian testified that he was promoted to operations manager from regional facilities manager shortly after the parties separated. There is no evidence that that promotion was a matter of luck or coincidence. There is likewise no evidence that Brian took on extra courses or tasks after separation in order to merit the promotion and increase.

335Prior to separation, the parties acted as an economic unit. Brian supported Trinidi to open her store. Trinidi brought income into the family through part-time jobs and her daycare. There is no evidence that they kept their finances separate or were other than a single economic unit.

336In my view, it is appropriate that Brian’s 2013 income should be used for spousal support purposes; that is, his income should be fixed at $94,000 (That is slightly higher than his 2013 income but I have adjusted upward to take into account modest increases in future years.). In coming to that conclusion, it seems to me that the promotion that he obtained was simply the logical evolution in his career – the next step forward. He earned that promotion in large part through the work that he did during the marriage. The promotion and increase in pay came very soon after the parties separated – there is a temporal connection. I have found that there is an entitlement to spousal support on a compensatory basis.

337I decline to exercise my discretion to use subsequent increases in his income for the purpose of calculating spousal support. The evidence does not indicate any causal connection between Trinidi’s contributions during the marriage and those increases. The marriage was less than 10 years. There is simply no evidence that ties his subsequent advances and increases in income to skills and credentials acquired and developed during the marriage. No evidence was adduced as to what duties and responsibilities came with each position, what skills were acquired and when. In those circumstances, it amounts to speculation to tie increases in his income after 2013 to the marriage.

338Attached to this decision are DivorceMate calculations for spousal support for 2013 – 2019. Brian was terminated from his employment at the end of 2018 and received a 15 month severance package. The purpose of that severance package was to pay him the income that he would have earned had reasonable notice been given to him. Thus, it replaces his future income. For that reason, I have included 2019 in the calculations as if he was still employed.

339I fix the spousal support payable by Brian to Trinidi as follows:

2013 -$1400 per month

2014-$550 per month

2015-$700 per month

2016-$600 per month*

2017-$700 per month

2018-$650 per month

2019-$600 per month

• I was unable to do a DivorceMate calculation that reflected the change in custody and care of the children effective June 2016. Instead, I have two calculations – one with shared care for the year and the other with Brian having the children in his care alone. I used the first to calculate the period January to May and the second to calculate the remainder of the year. I selected spousal support amounts payable for each period, aggregated the totals and divided the aggregate by 12 months to get a monthly figure.

340In the early years (2013-2016), I have fixed the spousal support at the higher end because Trinidi’s need was greatest and the impacts of the marriage and its breakdown were most keenly felt. I also note that Brian did not paid the equalization payment that was agreed to.

341By December 2016, Trinidi had moved to Tecumseh and was living with Shane. He bore the expenses. He used his money to enable her to have a source of income, first a rental property and then the hair salon and equipment. For the period 2017-2018, I have used a figure closer to the mid-range because Trinidi’s need was somewhat abated by her new living circumstances. She was also getting her economic feet under her.

342I have fixed the 2019 spousal support at a lower level to recognize that Trinidi now owns and operates two businesses. One is established and is likely to generate a reasonable income. The second is climbing out of a financial hole but her evidence leads me to believe that it has good prospects for success. Two key employees from the first salon have moved to the second salon.

343With respect to spousal support going forward, I will address same in the duration section below. I decline to fix the amount of spousal support payable by Brian beyond 2019 because of his current employment situation. He is retraining with a view to finding a new job. What that job will be and how much it will pay are unknown. Quantum of spousal support should be reviewed in February 2020.

A. Duration

[344]

Duration

The parties’ marriage was less than 10 years in duration. It is not a long-term marriage nor is it a short-term. According to the DivorceMate calculations that are attached, the expected duration of spousal support subject to variation and review is a minimum of 5.5 years and a maximum of 12 years from the date of separation.

345I fix the duration of spousal support at nine years. Trinidi has made significant progress in establishing economic self-sufficiency and in overcoming the economic disadvantage she suffered from the marriage and its breakdown. She is in a stable relationship that provides a firm financial foundation and backstop. The businesses are still maturing but every indication is that they will likely be successful especially given Trinidi’s customer service and entrepreneurial skills.

346I order that Brian notify Trinidi promptly upon obtaining new employment and provide her with the details of his expected income. He should provide her with his income tax return and notice of assessment for each year that he is obligated to pay spousal support by May 15 of the following year. It is unnecessary to order the Trinidi provide the same information as I have already ordered Trinidi provide that information for child support purposes.

Spousal Support Summary

[347]

Spousal Support Summary

By my calculations, Brian has paid interim spousal support as ordered from June 2013 to October 2016 at the rate of $1000 per month for a total of $41,000.

348Using the amounts that I have fixed for spousal support above, Brian ought to have paid aggregate spousal support for the period May 1, 2013 to August 31, 2019 in the amount of $54,400. The shortfall is $13,400 payable by Brian.

349Therefore, I order that:

1. Brian shall pay to Trinidi $13,400 for arrears of spousal support for the period May 1, 2013 to August 31, 2019, (subject to application of the credit for child support owing by Trinidi to Brian above).

2. Brian shall pay spousal support to Trinidi for the remainder of 2019 commencing September 1, 2019 in the amount of $600 per month.

3. Brian shall promptly notify Trinidi if he obtains new employment and provide the details of same including his expected income.

4. Brian shall provide his income tax return and notice of assessment to Trinidi in May for each year for so long as he is obligated to pay spousal support.

5. The quantum of ongoing spousal support shall be reviewed in February 2020.

Life Insurance Designation

[350]

Life Insurance Designation

Trinidi sought an order requiring Brian to designate her as the irrevocable beneficiary of a life insurance policy to secure child support payable to her for the children. That claim is dismissed because the children are with Brian. Brian has not made a similar request of Trinidi.

Set-Off Cost Awards

[351]

Set-Off Cost Awards

Brian seeks an order at trial directing that the equalization payment due to Trinidi be reduced by the amounts owing by her for costs previously awarded that remain unpaid. Trinidi asks for an order that Brian forthwith transfer the full amount of the equalization payment for the May 25, 2015 order. Trinidi describes the costs awards made as excessive and punitive and serve only to further Brian’s “financial victimization” of Trinidi.

352Trinidi argues that equalization was disposed of by way of final order and is not the subject of these proceedings. No motion to change has been brought in respect of equalization. In her written submissions, counsel wrote at paras. 183 and 184:

183. Brian has deprived Trinidi of the use of her equalization payment since May 2015 notwithstanding the “tsunami” of litigation which followed.

184. Perhaps if Trinidi receive the equalization payment in accordance with the Order of Justice Raikes she could have retained counsel to assist her in these proceedings and she may not have suffered these cost consequences.

353No appeal was taken from the motions that awarded costs. The costs are payable and are unpaid. Enforcement of a costs order is governed by r. 26 of the Family Law Rules. Rule 26 is silent as to a right of set-off against monies payable for equalization.

354Brian has a clear obligation to pay to Trinidi the amount agreed upon and ordered to be paid for equalization less any deduction already authorized by the court. I understand that the balance owing payable by Brian for equalization is $33,000. There are at least two costs orders unpaid – $7,500 ordered by Munroe J. for the urgent motion brought by Trinidi when Kasia took a taxi to Windsor, and $5,000 ordered by Desotti J. on September 10, 2015.

355The obligation to pay equalization constitutes a debt owing. The obligation to pay costs awarded likewise constitutes a debt owing. Section 111 (2) of the Courts of Justice Act allows mutual debts to be set off against one another even if they are of a different nature.

356The primary objective of the Family Law Rules is to enable the court to deal with cases justly. Dealing with the case justly includes saving time and expense. The court is required to apply the Rules to promote the primary objective, and the parties and their lawyers are required to help the court do so: r. 2(2)(3) and (4).

357It makes no sense to compel a further motion to change or a motion brought under r. 26 to enforce the costs orders in the circumstances. That is throwing good money away for no good purpose.

358I direct that whatever amount is owing by Trinidi for unpaid costs awarded to date, those costs shall be paid first from any net monies payable to her for spousal support and s. 7 expenses, and then from the equalization payment due. The balance payable in respect of equalization, spousal support and s. 7 expenses shall be remitted immediately. For greater certainty, Brian is not entitled to further delay payment until costs of this proceeding are determined.

Costs

[359]

Costs

Failing agreement with respect to costs, the parties shall make written submissions not exceeding five pages within 30 days hereof with respect to all outstanding costs issues before me.