COURT FILE NO.: FC-15-1398

DATE: 20190207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHANDA VODDEN

Applicant

– and –

JORDAN FURGOCH

Respondent

Jennifer Johnston, for the Applicant

Deanna Paolucci, for the Respondent

HEARD: January 21, 22, 23, 24, 25 and 28, 2019

REASONS FOR decision

Audet J.

[1] During this trial which lasted six days, I was asked to decide which parenting arrangements would be best for the parties’ two young children, Greyson (6) and Willow (4).

[2] Ms. Vodden seeks an order granting her sole custody of the children, with access to Mr. Furgoch every second weekend from Saturday at 9 a.m. to Sunday at 5 p.m., supervised at all times by the paternal grandparents or Mr. Furgoch’s new partner, Cathy Allison. The request for supervision of Mr. Furgoch’s access is supported by the clinician appointed by the Office of the Children’s Lawyer (“OCL”), although she recommended that Mr. Furgoch have access every Saturday from 9 a.m. to 5 p.m., instead of every second weekend with an overnight. Mr. Furgoch seeks a joint custodial arrangement with equal time sharing in accordance with a 2-2-3 schedule, which was the status quo in place by agreement of the parties for some 17 months following the parties’ separation.

[3] Both parties are also making a claim for child support in accordance with the Guidelines, based on the parenting arrangement that I will decide is best for the children. Ms. Vodden is seeking to impute income to Mr. Furgoch for child support purposes. No retroactive adjustments are sought by either party.

[4] For the reasons that follow, I concluded that sole custody of the children should be awarded to Ms. Vodden, with access to Mr. Furgoch every second weekend, from Friday after school to Sunday at 5:00 p.m., to be exercised at his parents’ or Ms. Allison’s residence and/or in their general presence. I have imputed an income of $55,000 on Mr. Furgoch for the purpose of child support, and made a child support order accordingly.

Background Facts

[5] The parties’ relationship began in 2005 while both were studying in Kingston, Ontario. They married on August 1, 2009 and separated on February 1, 2015. They have two children together, Greyson who was born on May 1, 2012 (currently 6 years old) and Willow who was born on April 17, 2014 (currently 4 years old).

[6] Ms. Vodden is employed as a Veterinary Technologist with the Greenbank Animal Hospital, where she worked throughout the marriage and to this day. She currently earns annual income in the range of $42,900, working 37.5 hours per week.

[7] Mr. Furgoch graduated from the Community and Justice Services program at Algonquin College. During the parties’ marriage, he worked with adults with disabilities through an organization called Total Communications Environment, and as a teaching assistant/early childhood educator for the Ottawa Public School Board, earning as much as $67,896 in 2012 and $63,072 in 2013. In November 2013, Mr. Furgoch was involved in a car accident which resulted in a back injury. Mr. Furgoch’s employment history following this accident, and the exact cause for his lack of meaningful employment thereafter, are issues in dispute in this trial.

[8] Many factors contributed to the parties’ separation, including the significant financial pressures resulting from the family’s reduced income and increased housing expenses. The parties formally separated on February 1, 2015, although they continued to live together in the matrimonial home until Ms. Vodden moved in with her parents in April of 2015. While still living under the same roof, the parties reached an informal nesting agreement pursuant to which they shared their time relatively equally with the children, on a 2-2-3 schedule. This informal arrangement continued after Ms. Vodden moved out of the matrimonial home and was formalized in a Temporary Without Prejudice Agreement signed by the parties on October 30, 2015 (“the October 2015 Agreement”). The matrimonial home was sold in April 2016, and the parties were able to resolve all issues related to the division of their Net Family Property as well as spousal support, amicably.

[9] On or about July 12, 2016, Mr. Furgoch’s father (Mr. Bruce Furgoch, the children’s paternal grandfather, also referred to herein as “Mr. Furgoch Sr.”) accidentally “pocket dialed” Ms. Vodden’s home telephone number while he and his wife were in the midst of an argument with Mr. Furgoch in their home and while the children were in their father’s care. The altercation, which will be discussed in greater details below, became physical and was recorded on Mr. Vodden’s voicemail.

[10] The content of this voicemail resulted in the Children’s Aid Society getting involved with this family after the incident was reported by Ms. Vodden. The file was assigned to Child Protection Worker, Justin Petitpas, who investigated the concerns. After having interviewed all parties, including both sets of grandparents and the children, the allegations of “risk of physical harm to the children, adult conflict and risk to child of mental/emotional harm” were verified. As a result, Ms. Vodden refused to allow access between the children and their father unless such access was supervised by the paternal grandparents or another trusted adult, and until a fuller investigation was completed. This plan was supported by the Society.

[11] From that point on, Mr. Furgoch’s access to the children occurred every Saturday, from 10 a.m. to 5 p.m., supervised by the paternal grandparents. The Society completed its investigation and the family’s file was transferred to the Society’s ongoing services in order to monitor the family’s progress and to ensure the safety of the children. It is important to note that according to the Society’s records, as of September 3, 2016, the Society intended to file a protection application to seek a supervision order to Ms. Vodden. As will be explained in more detail below, the Society’s concerns were not limited to the July 12 incident. The Society was also concerned about Mr. Furgoch’s abusive behaviour towards Ms. Vodden and other third parties, his unstable mental health, and his lack of accountability for the July 12 altercation. However, since Ms. Vodden refused to allow Mr. Furgoch access to the children unless supervised by his parents, the Society decided that a protection application was not necessary.

[12] In a letter dated October 14, 2016, the Society confirmed that the parties had worked cooperatively with the Society in relation to the noted concerns, that Mr. Furgoch had moved out of his parents’ home and was addressing the Society’s concerns, and since the situation had stabilized, it was of the view that the parenting arrangements could be resolved through the family court proceeding. As a result, the Society closed its file.

[13] Over the 2016 Christmas Holidays, Ms. Vodden had agreed to give Mr. Furgoch extra time with the children to allow him and his parents to enjoy Christmas and New Years’ Eve with them. However, Mr. Furgoch failed to return the children on Christmas Eve as agreed to between the parties (he withheld them for two days). Although Ms. Vodden agreed to allow him to have the children for New Year’s Eve, despite his earlier breach of their verbal agreement, Mr. Furgoch withheld them again on New Year’s Eve. As a result, from that point, Ms. Vodden refused to allow any access until Mr. Furgoch consented to a temporary order including a strong police enforcement clause.

[14] There was no access between the children and their father from early January to March 2, 2017, when Master Champagne (as she then was) made a temporary without prejudice order (on consent of the parties) pursuant to which Mr. Furgoch was to have access to the children every second weekend, from Saturday at 10 a.m. until Sunday at 5 p.m., unsupervised. The order contained a strong police enforcement clause and provided for the appointment of the OCL to conduct a clinical assessment.

[15] On April 6, 2017, a motion was to be heard before Justice Minnema. However, the parties were able to come to an agreement on the terms of a detailed temporary parenting order pursuant to which the parties would have a parallel parenting regime with Mr. Furgoch having temporary final decision making on religious matters and Ms. Vodden having temporary final decision making on educational matters. With regards to health decisions, the parties were to follow the recommendations of the children’s doctors. Activities and relocation decisions were to be made jointly. On an interim and without prejudice basis, Mr. Furgoch’s access was expanded to every second weekend from Friday after school to Sunday at 5 p.m. The paternal grandparents were also granted access to the children one day per week. Justice Minnema also made a detailed order with regards to parenting arrangements during PD days and holidays, and ordered Mr. Furgoch to pay interim child support in the amount of $451 per month, based on an annual income of $30,903. Finally, the temporary order included the same strong police enforcement clause, as well as a detailed “Parental Code of Conduct.”

[16] At the time of the trial, this is the parenting regime that remained in place between the parties.

Parenting

The Office of the Children’s Lawyer

[17] Shortly after Master Champagne’s March 2, 2017 Order, the OCL became involved and Ms. Joey Michelle Doherty, a clinician, completed an assessment pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. A disclosure meeting took place on September 7, 2017 but did not lead to a final settlement. The OCL’s written report was completed October 25, 2017.

[18] The OCL concluded that Ms. Vodden should have sole custody of the children, and that they should reside primarily with their mother. The clinician recommended that Mr. Furgoch’s access to the children be supervised by an agreed upon third party, every Sunday from 9 a.m. to 5 p.m., as well as telephone access every day for 10 minutes, to be monitored by whomever is caring for the children, with a right to end the conversation if it becomes inappropriate. Ongoing meaningful access between the children and their paternal grandparents was to continue, and it was recommended that Mr. Furgoch be allowed to attend to visit the children so long as he remained with his parents throughout the visit.

[19] In addition to the above, the clinician recommended that Mr. Furgoch participate in the Partner Assault Response (PAR) Program, and that he address his mental health issues through getting a full psychological evaluation, going to therapeutic counselling as well as a Mindfulness Based Stress Reduction Course (MBSR).

[20] The clinician’s recommendations were based on several conclusions, which can be summarized as follows:

• While both parents obviously love these children, and while after their separation they had a hope of sharing parenting, major changes would need to occur for these parents to enter into this kind of arrangement;

• While the children both seemed to love and enjoy their time with each parent, she was very concerned about Greyson’s expressed feeling that his Daddy was mean to his Mommy, and that his Daddy told him every time that Mommy does not share;

• She was very concerned about Mr. Furgoch’s inability to grasp how his behaviour could be very damaging to the children’s emotional development. As examples, he was unable to understand:

o how continuously asking Greyson if he misses him might be unhealthy for Greyson;

o that Greyson’s role was not to make him feel good about himself or to keep his mental health stable;

o that the children crying and not wanting to leave their father at the end of their visits was the result of Mr. Furgoch’s own behaviour (he was reported to cry every time he dropped the children off at their mother’s);

o how unhealthy his using the children and sharing his wants and needs with them was;

• Despite allowing the clinician to access communications exchanged between the parties on My Family Wizard, Mr. Furgoch was unable to remain positively focussed on the children in his communication with Ms. Vodden. If he continued to do this in the future, the clinician was concerned about a possible alienation of the children from their mother. Mr. Furgoch seemed unaware of how unhealthy his behaviours and communications were at times.

• Mr. Furgoch presented as emotionally unstable, and the clinician noted that he oscillated between angry and aggressive, to sad and crying, to asking for favours. His thoughts appeared disorganized.

• Despite having completed an anger management course, Mr. Furgoch’s behaviour and communications with Ms. Vodden, as well as with third parties (the children’s dentist and staff, his own doctor and staff, Society workers as well as the clinician herself) indicated that he had not been able to put in practice the teachings of the course. Despite overwhelming evidence that he presented as aggressively in his communications (both with Ms. Vodden as well as with several third parties), Mr. Furgoch did not seem to recognize how his behaviour could negatively impact his relationship with his children. He demonstrated a lack of insight and judgment in that regard.

• Mr. Furgoch’s emotional and verbal abuse appeared to heighten when his anxiety was triggered.

• Mr. Furgoch had demonstrated an inability to take responsibility for the situation he was in, and seemed to blame only those around him for this. Mr. Furgoch failed to get the help he needed to deal with his mental health challenges.

• Mr. Furgoch’s current girlfriend, Ms. Allison, denied any inappropriateness in Mr. Furgoch’s behaviour above. The paternal grandparents appeared to minimize his behaviour.

[21] The clinician concluded:

If Mr. Furgoch does not get the help he needs to understand and acknowledge his role in this, his access will need to be supervised at a supervised access center. It would be unfortunate if Greyson and Willow were not able to participate in the activities in the community with their father, and to spend longer periods of time with him. Mr. Furgoch has a desire to be a very involved parent. Ideally, he will take the opportunity to have third party supervision and maintain access with his children in the community while following the recommendations set forth for getting help. Otherwise, access at a supervised access centre will be the only solution if Mr. Furgoch is not able to really take responsibility for his abusive behaviour.

[22] In June 2018, Mr. Furgoch filed a Dispute of the OCL’s Report. After reviewing the Dispute, the OCL maintained its recommendations.

The Father’s Position

[23] Mr. Furgoch is seeking a joint custody order as well as a time-sharing regime that would provide the children with maximum contact with each of their parents. With respect to decision-making, Mr. Furgoch argues that the current status quo with respect to decision-making, being parallel parenting, has worked well and can continue to work if both parents commit themselves for the sake of their children. He says that the equal time-sharing regime in place for some 17 months post-separation worked well for the parties and for the children. While the parents’ relationship took a wrong turn in July 2016, and did not get back on track until 2018, he is of the view that for the past year things have improved significantly. While there continued to be some minor arguments between the parents over the past year, they in themselves should not bar the children from being exposed to the different opportunities and experiences each parent can provide.

[24] Mr. Furgoch further argues that the OCL recommendations were contingent on whether or not he completed and followed through with the proposed plan. The report was completed one year and a half ago and the recommendation for supervised access was made prior to Mr. Furgoch following-up on most of the recommendations. Mr. Furgoch is of the view that things have changed significantly since the OCL completed its report. Among other things, he has completed an anger management course, as well as a course for parenting through high conflict. In addition, he is of the view that communication between the parties over the past year have improved significantly, and that there is no indication that the children have not fared well having unsupervised access to him for the past two years.

Legislative Framework

[25] In making a custody or access order with regard to a child, I am required by virtue of s. 16 of the Divorce Act, 1985, c. 3 (2nd Supp.) to consider the following legal principles:

Order for custody

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

Joint custody or access

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

Access

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past conduct

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

Maximum contact

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

[26] Ontario courts determining custody and access matters under the Divorce Act also refer to the criteria set out in s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 to define the concept of a child’s best interests:

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

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

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

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

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

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

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

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

Analysis

The children

[27] All of the witnesses who appeared before me were consistent with the way they described these two children. Greyson is by everyone’s account a bright and very sensitive child who looks like his father, but has his mother’s demeanour. He loves people and animals, he is friendly and he likes to please others. He is somewhat reserved, and tends to bottle his emotions. When something bothers him, it really bothers him. Regardless, he was described by all as a happy child who is developing well. Greyson has a slight speech impediment for which he is currently seeing a speech therapist through school.

[28] Willow was described as the life of the party, a little bundle of joy who is opinionated and sassy. She is very outspoken and will not hesitate to tell you what is on her mind. She is naturally good at sports, draws well, and likes to cook and play with Legos. She also has a slight speech impediment and it is expected that she will also need some speech therapy in the near future to help her overcome this small difficulty.

Love, affection, emotional ties and other factors

[29] The evidence before me makes it clear that both parents love these two young children dearly, and that they both want to play an important role in their day-to-day lives. I find that Ms. Vodden is a nurturing and highly competent parent who is attentive to all of the children’s needs. Since July 2016, she has been the children’s primary caregiver and she has met all of their physical, emotional, educational and health related needs. She has provided the children with routine, stability and consistency, and she has maintained respectful and constructive relationships with all of the professionals involved in the children’s care. Despite Mr. Furgoch’s challenging behaviours, she has maintained her cool, obtained professional help for herself when needed, and continued to promote the children’s relationship with both their father and their paternal grandparents.

[30] Ms. Vodden comes across as a very calm, patient and tolerant individual who is not prone to anger or blame. All of the professionals involved in these children’s lives (including teachers, health professionals and Society workers) have reported having very positive interactions with Ms. Vodden, and having no concerns whatsoever about the care and attention she provides the children.

[31] Ms. Vodden currently lives with her parents in their family home in Carslbad Srpings, a small rural community located east of Ottawa. I have no concerns about this home being wholly appropriate and safe for the children, despite Mr. Furgoch’s uncorroborated allegation that a criminalized biker club is located down the road. This has been Ms. Vodden’s and the children’s primary residence since the parties’ physical separation three years ago, and the only one home which has remained consistent throughout most of their young lives. Ms. Vodden has not re-partnered, and at this time, has no intention to move out of her parents’ home. The children share a very strong bond with their mother as well as with their maternal grandparents, who have been and continues to be very involved in their day-to-day care while Ms. Vodden is at work.

[32] I also have no concerns about Mr. Furgoch’s ability to meet the children’s day-to-day basic needs. He has provided the children with everything they needed while in his care, including a safe and appropriate home, proper routine and healthy food. He engages the children in age appropriate activities and showers them with love and attention. The evidence shows that the children love their dad very much, that they share a strong bond with him and that they enjoy and look forward to spending time with him.

[33] The children also share a very strong bond with their paternal grandparents, as well as with Mr. Furgoch’s current partner, Ms. Cathy Allison, and her two children Aidan (12) and Suriah (10). Whether they stay at their paternal grandparents’ home or at Ms. Allison’s home, the children are appropriately housed and they have all they need to thrive in either home. Unfortunately, Mr. Furgoch’s living arrangements have consistently changed since the parties’ separation. He first moved in with his parents in their condominium in Barrhaven; then he moved into his own townhome in that community, which he shared with a roommate. Subsequently, he began dating Ms. Allison, a childhood friend that he has known since kindergarten and with whom he reconnected in 2017; and in July 2017, he moved in with her and her two children.

[34] In December 2018, Mr. Furgoch moved back into his parents’s home, who now reside in Orleans. Mr. Furgoch and Ms. Allison have both confirmed that Mr. Furgoch’s decision to return to live with his parents in their home was a decision motivated by his hope that in doing so, he would increase his chances of obtaining equal parenting time and shared custody of the children. Both confirmed that it is their intention to live together again at some point in the near future, and to start a family together.

[35] Although Mr. Furgoch’s relationship with Ms. Allison was relatively new when they moved in together, I find that they have introduced the children to their new blended family in a very child-focused way. It is clear that the children are already very attached to Ms. Allison and her children, and that they enjoy spending time with them very much.

[36] Ms. Allison testified at trial on behalf of Mr. Furgoch, and I found her to be a very credible witness. While I have concerns about her ability to show insight about Mr. Furgoch’s very negative behaviour towards Ms. Vodden, she appears to be a very calm, patient and understanding individual and her presence in Mr. Furgoch’s life has obviously had a beneficial impact on his overall health and behaviour over the past year. She has a very amicable relationship with her ex-husband, with whom she shares custody of her two children, and her stated desire to share an equally respectful and cooperative relationship with Ms. Vodden appeared genuine.

[37] While I have no concern about Mr. Furgoch’s ability to care for the children and to meet their basic needs on a day-to-day basis, I have significant concerns about his mental health, his abusive behaviour, and his complete lack of insight into how damaging his actions have been and continue to be on the children’s emotional well-being. Most importantly, I am concerned about Mr. Furgoch’s failure to take responsibility for his actions, his behaviour, and the situation in which he currently finds himself with regards to his children.

Aggressive and abusive behaviour

[38] The evidence before me makes it absolutely clear that Mr. Furgoch has been, and continues to be, verbally and emotionally abusive towards Ms. Vodden. While this abuse does not appear to have been present (at least not in such a significant way) during the parties’ relationship, Mr. Furgoch’s communications with Ms. Vodden since the separation have been abusive, threatening, hostile, mocking and accusatory. He has disparaged her in countless emails and text messages, accusing her and her parents of “using their money” to try to destroy him and to hurt him and the children. He has been obsessed with returning to an equal time sharing arrangement and has been relentless in his efforts to threaten and coerce Ms. Vodden into agreeing with his request, including by continuously involving the children in his quest.

[39] In order to protect herself against this abuse and to learn how to respond to it, Ms. Vodden started seeing a therapist in March 2017, every second week or so. Through that counselling, Ms. Vodden has worked around stressors and learned ways for her to deal with Mr. Furgoch’s hostile behaviour. She has learned to increase her assertiveness, to create appropriate boundaries and improve her self-esteem. She has also learned to use “BIFF responses” (Brief, Informative, Friendly, Firm) as a way to disengage from Mr. Furgoch’s conflictual communications.

[40] Mr. Furgoch argues that his abusive communications have ceased or, at the very least, they have significantly decreased over the past year, showing a definite change in his behaviour. However, several emails and text messages exchanged between the parties between October 2017 and December 2018 show that they continue to occur on a regular basis. While I agree that Mr. Furgoch’s hostile and accusatory communications occur on a less frequent basis than during the previous years, I am of the view that this is due, in large part, to Ms. Vodden’s increased ability to fend them off, and to Ms. Allison’s calming influence on Mr. Furgoch. One thing that has not stopped at all is Mr. Furgoch’s emotional blackmail, which will be discussed in more detail below.

[41] What is even more concerning is that Mr. Furgoch has not stopped sending these hostile communications even after the parties began communicating through My Family Wizard. This is an online platform used by separating parents to exchange information and record their communications about their children in an unalterable way. Since the messages cannot be altered or deleted once sent, this platform promotes respectful and child-focussed communications through the parents knowing that offensive communications will be recorded forever, and for everyone to see (including the court).

[42] Despite being fully aware of this, Mr. Furgoch has continued to send Ms. Vodden abusive, hostile and accusatory messages through My Family Wizard. When confronted with these inappropriate messages by the OCL, as well as during his cross-examination at trial, Mr. Furgoch was of the view that he showed “agitation”, “frustration” and “passion” in his communications, but denied that he was aggressive, threatening or abusive. This shows a significant lack of insight on the part of Mr. Furgoch, as well as a continued inability to take responsibility for his own actions.

[43] Unfortunately, Mr. Furgoch’s abusive behaviour has not been uniquely directed at Ms. Vodden, which is even more alarming. The various Society workers who have been involved with this family, the OCL clinician, Mr. Furgoch’s family doctor, Mr. Furgoch’s parents and even the children’s health professionals, have all been subjected to his aggressive and abusive behaviour from time to time.

[44] Many of the Society workers who met with Mr. Furgoch individually (Lea Brochu, Angela Dean and Justin Petitpas) reported that Mr. Furgoch presented as very sarcastic and angry in his interactions with them as well as with Society staff. They reported that he spoke over the other person, did not let them finish sentences and would phrase his questions in an accusatory manner. Mr. Furgoch was often described as using a raised voice when speaking with them and with staff.

[45] Dr. Pragnell is the children’s dentist. He and two of his staff reported to the OCL an incident which occurred in July 2017 when Mr. Furgoch attended a children’s dental appointment with Ms. Vodden. Mr. Furgoch was observed to be upset and agitated throughout the visit. He seemed irrational and insisted on being in the room with the children, only to then get out. One minute he would be crying and the next he would be playing very loudly on the floor with one or both children. He had to be told on several occasions to be quiet and to stop rolling on the floor with the children. He was reported having raised his voice at Ms. Vodden on a few occasions, criticizing her for taking the children to a dentist who did not have free parking. He also yelled at the receptionist for not giving him copies of the children’s entire files (which he had demanded upon arriving at the appointment) quickly enough. When told by the dentist that Greyson had four cavities, he expressed wanting to get a second opinion from another dentist. Overall, Mr. Furgoch was observed to behave irrationally, aggressively and immaturely throughout the appointment, while in front of the children.

[46] When questioned about his behaviour in Dr. Pragnell’s office during his testimony at trial, Mr. Furgoch explained that he has always been stressed with dentists, and that this is why he was agitated on that day. He also indicated that being at his children’s dentist appointment, a first for Willow, moved him to tears which explained why he was seen crying at times during the dental appointment. He took objection to the fact that he would not be allowed to play with the children as he wished in the reception area, accusing the dental office’s staff of being unreasonably intolerant, and that his level of excitement was justified by the fact that he had not seen the children in a very long time.

[47] I find as a fact that Mr. Furgoch behaved exactly as was described by Dr. Pragnell and his staff to the OCL, a version of events which is corroborated by Ms. Vodden herself. I find that Mr. Furgoch’s attempts to justify his behaviour as he did at trial shows a continued lack of insight into his own behaviour, and how it adversely affects others as well as his own children who were present throughout the whole scene.

[48] Dr. Smith has been Mr. Furgoch’s family doctor since May 2012, and until about the fall of 2017. In her notes, Dr. Smith reported a few incidents which gave rise to some concerns about Mr. Furgoch’s behaviour. Once, in October 2015, Mr. Furgoch was involved in a conflict with another patient in the waiting room in which he was observed to have sworn at another patient. This resulted in Dr. Smith having to review the expectations of language and behaviour in the waiting room with him. During a December 2016 consultation, Mr. Furgoch was found to be agitated, looking at the floor and getting louder. Dr. Smith observed him to be very reactive and of getting angry with her.

[49] Even Ms. Doherty, the OCL clinician, experienced Mr. Furgoch’s abusive behaviour first hand. In her testimony, she stated that, while Mr. Furgoch was quite pleasant and soft-spoken in his initial interview, thereafter, he was generally angry and aggressive in his interactions with her. She indicated that it is not uncommon that parents get angry or upset in the course of a custody and access assessment. However, as can be expected, they are usually on their best behaviour as they try to show themselves under the best possible light. In this case, Ms. Doherty stated that Mr. Furgoch continued to behave aggressively and in an abusive manner towards her throughout the assessment process. At one point, a first in her lengthy career, he even swore at her.

The July 12, 2016 altercation

[50] A significant amount of evidence was led during the trial with regards to the incident that occurred on July 12, 2016, and during which Mr. Furgoch Sr. accidentally dialed Ms. Vodden’s phone number and left her a voicemail message revealing a physical altercation between Mr. Furgoch and his parents. This particular event is important because it led to the Society’s involvement with this family, and to a drastic reduction of Mr. Furgoch’s parenting time with the children.

[51] While the actual voicemail was not introduced in evidence during the trial, many witnesses confirmed that they had personally listened to the voicemail and testified to what they had heard. Mr. Petitpas, the Society worker who conducted the initial investigation within the family, listened to the voicemail message and described what he had heard in his notes which were introduced in evidence in this trial. The OCL clinician also listened to the voicemail message, as did Ms. Vodden and the maternal grandfather, all of whom testified at trial as to what they had heard. I find, as a fact, that the altercation between Mr. Furgoch and his parents unfolded as described by these witnesses and as will be described below.

[52] When the children were dropped off at the paternal grandparents’ home that morning to spend the day with their father, Greyson was upset about the fact that the family dog, Boscoe, had to be put down at some point during the preceding days. As soon as he saw his father that morning, he asked him “why did you kill Bobo?” Mr. Furgoch immediately assumed that Ms. Vodden had blamed the dog’s death on Mr. Furgoch, and he became exceedingly upset (the evidence makes it clear that this decision had been made jointly by the parents). He immediately accused Ms. Vodden of having made that suggestion to Greyson in an attempt to undermine the father-son relationship. Greyson’s day was reported by his father to have been ruined by the death of his dog, and that he asked questions about it all day. Mr. Furgoch reported that his son’s mood affected his own significantly, and that he felt emotionally drained all day. As a result, Mr. Furgoch decided to put the children to bed early.

[53] Once the children were in bed, Mr. Furgoch got into an argument with his parents about them not being sufficiently sensitive to his pain and emotional distress regarding the death of his dog. In anger, Mr. Furgoch decided to wake up the children to take them to the cottage, but his parents objected to this plan in light of the emotional state in which their son had been in all day. The paternal grandparents’ refusal to let Mr. Furgoch leave with the children escalated into a forceful verbal altercation during which the paternal grandmother confronted her son about his having misappropriated her prescribed medication (Tylenol 3) without permission.

[54] While both Mr. Furgoch and his parents tried to minimize the seriousness and the level of aggression with which Mr. Furgoch physically assaulted them during that altercation, I find, as a fact, that the altercation intensified to the point where Mr. Furgoch violently pushed his father back down in his chair and aggressively pushed his mother out of his way, before he left for the rest of the night. This occurred while the children were present in the home. The altercation was loud and scary enough for at least one of the children (if not both) to wake up and get out of bed. At least one of them (perhaps both) was heard on the recording to be crying and asking for their mother.

[55] It was clear during the paternal grandparents’ testimony with regards to these events, that they were very concerned about the impact that their testimony might have on the outcome of this trial, and I can understand their attempts to minimize the seriousness of this altercation so as not to cause prejudice to their son’s case. However, Mr. Petitpas’ notes about his meetings with the paternal grandparents make it clear that they were very upset by these events and highly concerned about the state of their son’s mental health. They were sufficiently concerned by the incident to make sure that one of them was always present with Mr. Furgoch when the children were in his care over the course of several months following this incident.

[56] While this incident was the turning event which led to significantly reduced, supervised access between Mr. Furgoch and his children, it is important to note that there is absolutely no evidence of Mr. Furgoch having ever been physically violent to anyone in the past. There are no allegations and no evidence whatsoever that would suggest that Mr. Furgoch has been physical abusive towards Ms. Vodden or anyone else in the past, or since this incident. There is absolutely no evidence, nor any concerns expressed by any of the witnesses who appeared before me, that Mr. Furgoch could ever be physically abusive towards the children. This was an isolated event caused by Mr. Furgoch’s heightened emotional state on that day, and in my view, at a time when his mental health was rapidly declining.

Mental health and emotional regulation

[57] As is clearly demonstrated by all of the above, Mr. Furgoch has significant difficulties in regulating his emotions. Dr. Smith reported having treated him for anxiety and depression for several years, and has recommended the use of various prescription drugs over those years. She reported that Mr. Furgoch stopped taking his medication several times, alleging money issues. Dr. Smith had to speak to him about prioritizing his money from cigarettes, alcohol and marijuana to his prescription drugs.

[58] She further reported having suggested counselling, many times, specifically Cognitive Behavioural Therapy (“CBT”), to deal with his anxiety but that Mr. Furgoch has not followed through on an ongoing basis. When contacted by the Society after the events of July 12, 2016, Dr. Smith met with Mr. Furgoch to discuss the Society’s concerns shared with her, but did not observe psychotic symptoms, mania or hypomania, or safety concerns from their conversation. However, during a subsequent consultation in December 2016, she became concerned about his behaviour. She encouraged him, once again, to begin counselling and to work on his emotional regulation.

[59] There is ample evidence before me to support a finding that Mr. Furgoch has and continues to struggle with mental health issues. While he acknowledges that he has suffered from depression and anxiety in the past, Mr. Furgoch states that he has been able to keep these issues in check over the past two years by exercising regularly, eating healthy and practicing yoga and meditation.

[60] While I am quite certain that adopting healthier lifestyle habits will go a long way to help Mr. Furgoch enjoy better overall health, including improved mental health and reduced anxiety, the evidence presented to me during this trial makes it clear that Mr. Furgoch continues to struggle with mental health issues and with an ongoing inability to regulate his emotional reactions. Furthermore, since the OCL completed its investigation, Mr. Furgoch has stopped seeing Dr. Smith. While he states that Dr. Smith’s medical center has closed due to alleged mismanagement, which I accept, there is no evidence before me to suggest that Mr. Furgoch has taken any steps to find out whether she had resumed her practice elsewhere, and whether he has attempted to have his mental health issues monitored by her or by any other family practitioner since then. I find that he has not.

Involvement of the children in the parental conflict and lack of insight

[61] Last, but not least are my grave concerns about Mr. Furgoch’s ongoing and direct involvement of the children in discussions around custody and access, as well as the children’s repeated exposure to conflict between their parents on these points while in his care. Mr. Furgoch has shown, time and again, that he completely lacks insight with regards to how detrimental this behaviour is on the children’s emotional well-being.

[62] The record before me is replete with evidence of Mr. Furgoch’s ongoing efforts to generate and increase conflict between him, Ms. Vodden and her family, by involving the children and manipulating them into expressing sadness and their desire to spend more time with their father. Greyson has reported to the OCL clinician that his father tells him that “Mommy steals and is taking all of his turns”, that his daddy wants him back, and that he told him every time that “Mommy doesn’t share.” Mr. Furgoch regularly asks the children to call their mother to tell her that they do not want to come back home, or to ask to stay longer. While the order in place requires that Mr. Furgoch’s daily calls to the children be made before 6:30 p.m., he regularly tries to get the children to convince their mother to allow him to call them at bed time, while they are in their beds.

[63] During his interview with the OCL clinician, Mr. Furgoch was made aware of Ms. Vodden’s concerns about this behaviour. Mr. Furgoch’s response was that it was Greyson who had asked why his parents did not share, to which Mr. Furgoch had responded “Mommy doesn’t think that Daddy is fit to look after you, but Daddy is perfectly capable of looking after you.”

[64] This inappropriate behaviour on Mr. Furgoch’s part was also made abundantly clear by reading many of the communications he sent to Ms. Vodden over the past two years. By way of examples:

• “Chanda, the children requested themselves to stay here! Bc they wanted to stay! I obv encouraged them to ask you as I wanted them to stay as well. You chose to not allow them to stay Thursday night when they were coming here following day for weekend! … Why do you chose not to allow they’re requests? They’re not being looked after by you half the time it’s your parents who are looking after them…” (email sent to Ms. Vodden on December 29, 2018)

• “Chanda you are very aware Greyson is now speaking up and is letting you know how he feels and what it is that he wants that’s both his parents not to just be w you and your parents, he is constantly voicing his desire to be here w his sister and his Dad/Cathy here at our house with us!” (email sent to Ms. Vodden on June 4, 2018)

• “We are way behind w dinner and kids are still having toys put together and they continue to tell me they don’t want to leave their Dads house so I’m going to be keeping them here with me tonight for Christmas!” (text message sent to Ms. Vodden on Christmas Eve 2017 as Mr. Furgoch withheld the children for two extra days)

• “Greyson called you a cheater tonight all on his own… It was so whole heartedly sincere! I’m half pressed to take them up to the Cottage tmw am Chanda! Lucky for you I’m not the Monster you have become” (text message sent to Ms. Vodden on Christmas Day 2017).

[65] I was also alarmed to see that some of the emails sent by Mr. Furgoch to Ms. Vodden in 2017 and in 2018 were not only sent to Ms. Vodden, but also to email addresses identified as “Greyson Furgoch” and “Willow Furgoch” (as recently as December 2018). This leads me to believe that Mr. Furgoch may have created email accounts for the children where these messages are sent and stored for later use when the children are old enough to access them, and for the purpose of influencing them against their mother.

[66] Ms. Vodden and the maternal grandfather both testified as to how difficult and inappropriate telephone access between the children and their father could be at times. During these telephone calls, Mr. Furgoch is often heard to be asking the children repeatedly whether they miss him. They are being asked by their father to tell their mother that they miss him and want to spend more time with him. Mr. Furgoch would talk about new toys he obtained for the children to elicit a request on their part to want go to their father’s home on extra visits to play with these new toys. Mr. Furgoch is often very emotional when he speaks with the children, and at times, will cry while telling the children how much he misses them. On one or two occasions, Mr. Furgoch became upset because he believed that the children were locked in their grandparents’ basement, and asked the children if that was the case.

[67] In her testimony, the OCL clinician explained that her efforts to make Mr. Furgoch understand how detrimental this behaviour has been and continues to be for the children’s emotional well-being fell on deaf ears. She testified that Mr. Furgoch’s response to these concerns was that he would not stop his harmful behaviour, and that since nobody stood up for his son, he would.

[68] In his testimony, Mr. Furgoch denied having made inappropriate statements to the children or having tried to involve them in the parental conflict. Despite the fact that many of the things he allegedly said to the children were recorded in Society workers’ notes, emails and text messages he sent to Ms. Vodden, and to the OCL clinician herself, Mr. Furgoch continued to deny having made such statements or claimed that they had either not been recorded properly or had been taken out of context.

Mr. Furgoch’s progress since the OCL Report

[69] In her closing submissions, counsel for Mr. Furgoch acknowledged that he had struggled with his mental health, depression and anxiety and that he had experienced difficulties regulating his emotions in the past, which led to inappropriate communications and behaviours. However, she argued, these problems occurred at a time when Mr. Furgoch faced many stressors, not the least of which was a completely inadequate amount of access with his children, which in turn resulted in increased anxiety. She argued, on his behalf, that many things had changed since the OCL report was completed and that Mr. Furgoch had made a lot of progress in addressing these issues.

[70] First, Mr. Furgoch testified that he had completed an eight week anger management course, as well as a twelve week Parenting Through High Conflict Separation and Divorce course (through Ottawa Family Services). In addition, Mr. Furgoch indicated that he had attended ten 30 minute counselling sessions and five one hour counselling sessions with a counsellor provided through his Employee Assistance Program (“EAP”). Mr. Furgoch says that he has signed up for ten more 30 minute sessions for February 2019, still through his EAP. Finally, he confirmed having had six or seven sessions with Dr. Worenklein, a psychologist from Montreal, although he had been unable to continue seeing him because of the distance and his unstable work hours.

[71] There are a number of significant problems with Mr. Furgoch’s assertion that he has successfully addressed his mental health and emotional regulation issues. First of all, the evidence unequivocally demonstrates that the anger management course undertaken by Mr. Furgoch was completed on April 2, 2017, well before the OCL clinician even began her assessment. Similarly, and while Mr. Furgoch stated that he had completed his Parenting Through High Conflict course after the OCL made her recommendations, in an affidavit sworn by him on April 3, 2017, he states that he had already completed both the anger management and the Parenting Through High Conflict courses. I find, as a fact, that both courses were completed by him prior to the commencement of the OCL’s investigation.

[72] In her testimony, the OCL clinician explained that she had not been provided with any information about the content of the anger management course completed by Mr. Furgoch (through an organization called A1) and the nature of the teachings provided. To the best of her knowledge, no interactive notes are ever taken during this particular course, and therefore, it is not possible to assess whether Mr. Furgoch gained any awareness of his abusive behaviour and its impact on others. Similarly, the Parenting Through High Conflict course completed by Mr. Furgoch is not participatory. It is a “do’s and don’ts” type of program where successful completion is determined by one’s attendance only, without any assessment as to whether or not one has successfully assimilated the information provided or gained any insight into their own behaviour.

[73] It is important to note that, despite his having completed both courses, Mr. Furgoch has not gained any insight, since he has continued to behave in an abusive and inappropriate manner throughout the OCL’s investigation and beyond. Of particular significance is the aggressiveness of his communications in 2017, as well as the nature of the incident which occurred at the children’s dentist office in July 2017, only a few months after Mr. Furgoch completed both courses. At the completion of the OCL’s assessment, it was Ms. Doherty’s evidence that there was no indication of a change in behaviour in Mr. Furgoch, nor any indication that it would change in the near future.

[74] While I am encouraged by the fact that Mr. Furgoch has finally taken steps to initiate some counselling through his EAP, if in fact he did, the difficulty I have with his testimony in that regard is that it is not supported by any corroborating evidence whatsoever. Mr. Furgoch has not called his counsellor as a witness nor has he adduced any report or business record that would confirm his attendance in counselling sessions, the nature of the counselling received, and whether or not he has made any progress in addressing those issues.

[75] Similarly, there is no evidence before me confirming whether or not Mr. Furgoch actually met with Dr. Worenklein, his diagnosis (if any), whether any recommendations were made, the nature of any treatment provided to Mr. Furgoch, and whether or not progress was achieved in addressing the highlighted concerns. It is further important to note that Dr. Worenklein was initially on Mr. Furgoch’s list of witnesses that he intended to call at trial, but that in the end, he was not called. Mr. Furgoch did not provide any explanation as to why he was removed as a witness. I draw an adverse inference from the fact that neither Mr. Furgoch’s EAP counsellor, Dr. Smith or Dr. Worenklein, were called as witnesses by Mr. Furgoch, or at the very least, submitted some type of report to assist the court in understanding the work accomplished or to confirm his alleged attendance.

[76] Despite having had approximately 18 months to follow through with the OCL’s clear recommendations, Mr. Furgoch has not. Given the level of aggression demonstrated by Mr. Furgoch, the OCL had recommended that he participate in the Partner Assault Response program, which is a psycho-educational course. It is participatory and is aimed at helping attendees to understand violence in all forms (language, posturing, abusive power and control). While Mr. Furgoch stated that he did not register because he could not afford it, he did not provide any evidence as to the alleged high cost of this program.

[77] The OCL had also recommended that Mr. Furgoch address his mental health issues through obtaining a full psychological evaluation. If Mr. Furgoch’s testimony about having attended 6 or 7 sessions with Dr. Worenklein is to be believed, then surely this would have been sufficient time for Dr. Worenklein to complete some form of psychological assessment (although perhaps not a comprehensive psychological evaluation) of Mr. Furgoch’s mental health, and to provide initial recommendations with regards to treatment. Mr. Furgoch’s evidence to the effect that he does not have the means to pay for such an assessment is undermined by his allegation that he attended (and therefore paid for) a total of 6 or 7 sessions with Dr. Worenklein.

[78] Mr. Furgoch’s participation in therapeutic counselling and a Mindfulness Based Stress Reduction course (“MBSR”), as recommended by the OCL clinician, had a particular purpose as well. Ms. Doherty explained that the MBSR course aims at achieving similar outcomes as the Cognitive Behavioural Therapy recommended on several occasions to Mr. Furgoch by Dr. Smith. It is a course that introduces the participants to mindfulness and meditation and helps them understand their thoughts and emotional regulation. It seeks to achieve decreased anxiety, increased sleep as well as decreased anger and conflict. In her testimony, Ms. Doherty confirmed that this particular course is covered by OHIP at no cost to the participant, which was one of the reasons why she recommended this particular course to Mr. Furgoch. However, Mr. Furgoch did not follow through with that recommendation.

[79] In the end, while I agree that Mr. Furgoch’s abusive communications towards Ms. Vodden over the past six months have been less frequent and that he has adopted a healthier lifestyle to address his anxiety and depression issues, which I credit him for, I find that he has shown very little progress, if any, in addressing the significant concerns highlighted by the CAS and the OCL clinician. Based on the testimony of several witnesses who appeared before me during this trial, including Mr. Furgoch’s own testimony, it is clear to me and I find, as a fact, that Mr. Furgoch continues to speak negatively about Ms. Vodden to the children, to draw them into the parental conflict, and to struggle to keep his emotions at bay while he is with the children and while speaking with them. He is still struggling with mental health issues which are currently untreated and unmonitored. Despite being told in no uncertain terms how damaging his behaviour has been and continues to be for his children, he has shown very little insight in his behaviour and very little motivation to change his ways.

Conclusions with Regards to Custody

[80] Based on all of the above, it is clear that giving these parents joint custody of their children would not be in the children’s best interests. Our Court of Appeal has set out in Kaplanis v. Kaplanis, 2005 1625 (ON CA), 249 D.L.R. (4th) 620 the circumstances which would support the making of a joint custody order. In general, the court will want to see a positive history of cooperative parenting as well as effective and appropriate communication between the parents leading to efficient decision-making.

[81] In Jackson v. Jackson, 2017 ONSC 1566, Justice Chappel stated that the decision as to whether an order for sole custody or joint custody is in a child's best interests was ultimately a matter of judicial discretion. She then summarized the general principles that have emerged from the case law including since the Court of Appeal’s decision in Kaplanis, to assist in the decision-making process (at paras. 65 and 66). While I will not repeat them here, I have considered all of these factors in arriving at my decision on this issue.

[82] An objective review of the historical and more recent evidence in relation to these parents clearly shows that they have never been able to cooperate or communicate effectively about matters pertaining to their children. This has been impossible due to Mr. Furgoch’s abusive and hostile communications replete with accusations, sarcasm and emotional blackmail. Mr. Furgoch has shown times and again an inability to put the needs of the children ahead of his own, and has used them extensively to achieve his ultimate goal of regaining an equal time sharing arrangement, without regard for their emotional well-being.

[83] Mr. Furgoch has not engaged respectfully or constructively with the children’s health professionals, and even the children’s school (with whom Mr. Furgoch has had limited contact) has reported experiencing Mr. Furgoch’s anxiousness and agitation when interacting with him. A contested motion was required to determine where Greyson would go to school in the fall of 2016 (Mr. Furgoch lost that motion); Greyson was denied a trip as Mr. Furgoch would not give consent (this was reported by Ms. Doherty); the father could not even accept Dr. Pragnell’s diagnosis of simple cavities without demanding a second opinion.

[84] Mr. Furgoch has also been very disparaging of Ms. Vodden’s ability to care for the children, and has blamed her for trivial things such as wanting to sign Greyson up for a bicycling class (“he’d be riding a bike by now bc his father was able to teach him but unfortunately I don’t get much time with him… Question why do you have to pay ppl to do simple things? You can ride a bike can you not?”) or for Greyson not being able to read in senior kindergarten (“He has been in (St-Mary’s) care two yrs now and can’t read so do him and yourself a favour and take the time to work on this with him please! I’m not going to pay for tutors or Sylvain learning centers like your parents did w you bc the proper time wasn’t spent parenting…”). Mr. Furgoch could not even acknowledge Ms. Vodden’s successful efforts to enroll Greyson in speech therapy, being of the view that Greyson would simply and eventually just “grow out of it.”

[85] It is clear that granting the parties joint decision-making authority in this case will only perpetuate hostilities, indecision and power struggles in every area of these children’s lives, and will lead to the children being caught in their parents’ disputes. This case is one where the children have a significant interest in having decisions about their well-being made quickly, in a timely fashion, and without their being drawn into the conflict by their father.

[86] I have struggled with the issue as to whether decision-making authority with regards to the children’s religious upbringing should remain with Mr. Furgoch, as ordered on a temporary basis by Justice Minnema in April 2017. The uncontested evidence before me is that the children’s religious upbringing has always rested on Mr. Furgoch’s side of the family. Mr. Furgoch and his parents are Catholic, and raising the children in accordance with the rites of that faith is very important to them. While Ms. Vodden and her family are not religious people, Ms. Vodden has always been respectful and supportive of Mr. Furgoch and his family’s wish to have the children baptised and raised in the Catholic faith. For that reason, Greyson was baptised when he was younger and the children have, on occasion, attended Sunday service with their parents and grandparents, more frequently so, since the parties’ separation.

[87] While it would make sense to give Mr. Furgoch decision-making authority with regards to the children’s religious upbringing, I find that Mr. Furgoch has not used his custodial responsibilities in that regard in furtherance of the children’s best interests. Ms. Vodden testified that she found out for the first time on September 21, 2018 that Mr. Furgoch was planning on having Willow baptised during the Thanksgiving weekend of October 6, 2018. Ms. Vodden wrote to Mr. Furgoch asking him if she could have the children for dinner on Thanksgiving Sunday to celebrate her brother’s birthday, to which Mr. Furgoch responded that he was planning on introducing her to the priest who would be doing her baptismal that weekend. Ms. Vodden had never been consulted about this, nor had she or her family been invited.

[88] While the baptismal did not ultimately occur on that weekend (the paternal grandmother explained that they wished to give Ms. Vodden’s family sufficient notice), to the date of this trial, Ms. Vodden did not know whether or not Willow had been baptised as Mr. Furgoch never responded to her queries in that regard. In addition, despite Ms. Vodden’s expressed wish for Willow’s baptismal to take place in a church closer to Ottawa to make it easier for her and her extended family to attend, the paternal grandmother, in her testimony, confirmed that they intended to hold it at a church close to their cottage in Chapeau, Quebec, where most of the paternal family members reside. I am unaware as to whether or not the paternal grandparents have even been made aware of Ms. Vodden’s expressed wish in that regard, but Mr. Furgoch certainly knew about it and does not appear to have changed his plans.

[89] Unlike Mr. Furgoch, I find that Ms. Vodden has consistently maintained the children out of the parental conflict. I find that she has continued to promote the children’s relationship with their father, no matter how difficult this may have been at times, given the circumstances. The overwhelming and uncontested evidence before me establish unequivocally that Ms. Vodden has maintained Mr. Furgoch apprised of events related to the children’s schooling, their health and their overall well-being on an ongoing basis, in an informative and respectful manner. She has consulted with him on matters related to the children and sought his input before making decisions in their regard. Her communications with Mr. Furgoch are calm and devoid of accusations or blame, and she has successfully used the skills learned through counselling to fend off Mr. Furgoch’s abusive messages, deflate the conflict and generally disengage. I have no reason to believe that she will not continue to do so in the future.

[90] As a result, the following order will issue with regards to decision-making:

1. Except as specifically set out below, Ms. Vodden shall have sole decision-making authority over all matters pertaining to the children, including but not limited to their education, health, extracurricular activities and overall well-being.

2. Prior to making final decisions with regards to the children, Ms. Vodden shall consult Mr. Furgoch and seek his input as to the decision to be made. Mr. Furgoch shall promptly provide his input, and Ms. Vodden shall only make a final decision once she has duly considered Mr. Furgoch’s views in regard to the decision to be made, unless Mr. Furgoch fails to respond within a reasonable amount of time.

3. Mr. Furgoch shall have the authority and responsibility to raise the children in the Catholic faith, and to make all arrangements related to any rituals observed by the Catholic faith in which he wants the children to participate. However, he shall keep Ms. Vodden apprised of any special events or major milestones taking place or being planned with regards to the children’s religious upbringing (such as their baptismal or confirmation, or any special celebrations), and in particular, must obtain her prior written consent as to the location and timing of any celebration or major milestones that he himself organizes, so as to insure her and her family’s participation and attendance.

4. Neither parent shall involve the children in discussions of an adult nature, including court proceedings.

5. Neither parent shall make any disparaging remarks to the children about the other parent or their families.

6. Mr. Furgoch shall have independent access to health, education and general welfare information pertaining to the children, and he must obtain such information in a respectful and polite manner.

7. The parties shall continue to use My Family Wizard to communicate and manage any issues relating to the children, except in the case of an emergency. This tool shall be used to communicate, discuss parenting matters, plan activities for the children, notify the other parent of non-emergency matters relating to the children, exchange receipts for section 7 expenses, perform an accounting of monies paid or owed on account of section 7 expenses, and for all other non-emergency matters relating to the children. These communications shall not contain personal commentary, judgment, patronizing, lecturing or criticisms of the other parent, and shall be brief, informative and respectful.

8. Neither party shall maintain active email accounts in the children’s names or for the benefit of the children until they are twelve years of age without giving the other parent full access to such accounts (including the ability to delete messages). If any such email accounts currently exist, they shall be immediately deleted along with all of their contents.

9. The parties shall keep each other informed of their address and contact information, and the telephone number(s) at which they can be reached during work hours and after work hours.

Conclusions with Regards to Parenting Time

[91] I find that it is in the children’s best interests to continue to have their primary residence with their mother. She has provided them with a stable home, proper routine and has met all of their educational, health and emotional needs. The uncontested evidence is that the children are thriving in her care. I see no reason to change that at this time.

[92] With regards to Mr. Furgoch’s access, Ms. Vodden wishes to maintain the existing schedule, whereby Mr. Furgoch has access to the children every second weekend, and the paternal grandparents’ independent weekly access every Wednesday is maintained. She seeks an order that Mr. Furgoch’s access be supervised by the paternal grandparents or by Ms. Allison, at all times. This, in her view, is the only way to mitigate the risks of emotional harm to the children arising from Mr. Furgoch’s behaviour.

[93] As stated before, there is no doubt that these children share a very strong bond with their father, that they love him dearly, and that they enjoy spending time with him. The children also share a very close bond with their paternal grandparents, who have been extensively involved in their care since their birth, and it is clearly in the children’s best interests to continue to have independent weekly access to them.

[94] Mr. Furgoch has a very large extended family and many family members reside in Chapeau, a small community located approximately two hours north of Ottawa, on the Quebec side. The paternal grandparents own a cottage there where the parties and the children have spent most of their summer weekends while the parties were still together. Mr. Furgoch has continued to go to his parents’ cottage on many of the weekends that he had the children in his care, and the uncontested evidence is that the children love to go there to spend time with their paternal family including the many great-aunts, great-uncles and cousins who live in that vicinity. Mr. Furgoch also shares an aboriginal descent with his mother, and it is important to both Mr. Furgoch and the paternal grandmother to expose the children to this culture and their aboriginal heritage.

[95] The issue that I must decide, therefore, is, to what extent can access occur in light of the risks identified above, and in what form?

[96] The risks associated with the children’s exposure to Mr. Furgoch’s aggressive and inappropriate behaviour are real, and they are significant. Mr. Furgoch’s lack of insight into how harmful his behaviour is on the children’s emotional well-being, which results in an inability on his part to change that behaviour, is greatly concerning. In order for me to increase Mr. Furgoch’s access to the children at this time, I would need to see an established and long-standing pattern of positive communications from Mr. Furgoch, as well as an understanding and awareness on his part that his past behaviour was not acceptable and was detrimental to his children. I would need to be confident that Mr. Furgoch has been able to keep his emotional regulation in check for a lasting amount of time, not only in terms of his behaviour towards Ms. Vodden and other adults, but also in terms of his interactions with the children.

[97] As I do not have that evidence before me, I cannot increase his current access to the children. Therefore, Mr. Furgoch shall continue to have access with the children every second weekend, from Friday after school to Sunday at 5:00 p.m. Independent access to the paternal grandparents every Wednesday shall also continue, including during day time if the children do not have school. They have indicated that on many of these Wednesdays, Mr. Furgoch is either present or they all go to Ms. Allison’s home to allow the children to spend time with her and her children as well. As a result, Mr. Furgoch will also be provided with access to the children most Wednesdays. It is in the children’s best interests to not be two full weeks without seeing their father, given their age, and should the paternal grandparents become unable to exercise their Wednesday access in the future, that weekly access should be granted to Mr. Furgoch instead, subject to the additional conditions set out in this order.

[98] With regards to supervision of Mr. Furgoch’s access, I am of the view that a less stringent requirement, that of requiring him to exercise access at his parents’ or Ms. Allison’s residence or in their general presence, would be sufficient to alleviate (although not necessarily eliminate) the risks associated with the children’s exposure to their father’s inappropriate behaviour. In coming to this conclusion, I am guided by the principles set out in V.S.J. v. L.J.G., 2004 17126 (ON SC), 2004 CarswellOnt 2159, [2004] O.J. No. 2238, by Justice Blishen.

[99] In that decision, Blishen J. explored the factors most commonly considered by the courts in terminating access between a child and a parent. She confirmed that most of those factors would also be relevant to a consideration of supervised access. She listed them as follows (at para. 135):

1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear.

2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well-being.

3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent.

4. Ongoing severe denigration of the other parent.

5. Lack of relationship or attachment between noncustodial parent and child.

6. Neglect or abuse to a child on the access visits.

7. Older children's wishes and preferences to terminate access.

[100] She further added:

136. None of the above cited cases deal with one factor alone. In every case, there are a multitude of factors which must be carefully considered and weighed in determining whether to terminate access is in the best interests of the child.

[101] In para. 137, she indicates that it is possible through a supervision order to do the following:

• protect children from risk of harm;

• continue or promote the parent/child relationship;

• direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting;

• create a bridge between no relationship and a normal parenting relationship; and,

• avoid or reduce the conflict between parents and thus, the impact upon children.

[102] While I found abusive behaviour on the part of Mr. Furgoch which was harmful to Ms. Vodden and the children (who were exposed to it), ongoing denigration of Ms. Vodden and other harmful behaviour impacting on the children’s emotional well-being, I find that the risk of harm to the children is considerably diminished by access being exercised in the home or under the flexible supervision/general presence of the paternal grandparents or of Ms. Allison.

[103] While the paternal grandparents appeared to lack insight into their son’s behaviour during their testimony at trial, something that I expect is due to an understandable reluctance to adversely affect their son’s case for joint parenting, the evidence before me confirms that they have always put the children’s well-being ahead of their son’s in the past. This is clearly illustrated by the protective measures they took to ensure the children’s safety while in their father’s care after the physical altercation of July 2016, their cooperation with the Society and the investigation that followed, and the obvious love they have for their grandchildren.

[104] Similarly, I have found that Ms. Allison appeared to have had a calming presence on Mr. Furgoch and that she had been a positive influence on him in relation to his mental health and emotional regulation. She took steps to arrange a meeting with Ms. Vodden to introduce herself and get to know each other when Mr. Furgoch moved in with her. Although this meeting ultimately did not occur for reasons that need not be repeated here, I do not share the OCL clinician’s view that she might have engaged in conduct aimed at deceiving the mother. Ms. Allison explained during her testimony that she had taught Mr. Furgoch to wait 24 hours before responding to Ms. Vodden’s messages, as a way to control his anger and reactivity to her communications. She herself shares a very amicable and cooperative relationship with her children’s father, and I trust in her ability to monitor and keep Mr. Furgoch positively focussed during his parenting time with his children.

[105] At this point, I do not find it practical or reasonable to impose a formal supervision order on Mr. Furgoch, one which would require that he be supervised at all times by a third party. His anger and reactivity is triggered mostly during his communications with Ms. Vodden, and his difficulties in regulating his emotions mostly occur during his telephone access to the children, and at the beginning and end of his visits with them, although there continues to be too many occasions when he will try involve the children into adult and parenting matters. However, to require that Mr. Furgoch be supervised 100% of the time while exercising access to the children, including when he enjoys an outing at the park or a boat ride with them at the cottage would be excessive and too onerous, in my view.

[106] I also come to the conclusion that Mr. Furgoch’s parents and his partner can be trusted to intervene as may be necessary to preclude the children from leaving with their father if he is in a state of heightened emotions, anger or stress. I also trust them to intervene in the event that the father is behaving in a way that is harmful to the children (being overly emotional in their presence or repeatedly asking if they miss him), trying to involve them in adult matters or enticing them to relay messages and requests to their mother.

[107] Finally, it is important to note that the children have had unsupervised access with their father for almost two years now. In reality, most of that access has been exercised at the paternal grandparents’ home or at Ms. Allison’s home, and in their general presence. The overwhelming evidence before me is that the children are doing well at this time, and that they continue to thrive. Therefore, although their continues to be a risk of emotional harm to them as a result of their father’s behaviour, such risk is reasonably monitored and alleviated by requiring Mr. Furgoch to exercise his visits in his parents or his partner’s home, under their flexible supervision and in their general presence.

[108] For those reasons, I make the following parenting (time-sharing) order:

1. The children’s primary residence shall remain with their mother.

2. Mr. Furgoch shall have access to the children every second weekend, from Friday after school (or 5 p.m. if there is no school) to Sunday at 5:00 p.m.

3. The regular access schedule shall be replaced by the following holiday schedule:

a. Children’s birthdays: the respondent may have access to the children from 4:00pm to 6:00pm if he is not already caring for the children on their birthdays;

b. Easter:

i. Commencing in 2019 and all odd-numbered years thereafter, the respondent shall have access from 9:00am on Good Friday until the Saturday of Easter weekend at 7:00pm, and the Applicant mother shall have access the balance of the weekend; and

ii. Commencing in 2020 and all even-numbered years thereafter, the respondent shall have access from the Saturday of Eater weekend at 7:00pm until Easter Monday at 5:00pm and the applicant mother shall have access the balance of the weekend.

c. Mother’s Day: if the applicant is not already scheduled to have the children in her care she shall have Mother’s Day access on the Sunday from 9:00am until 5:00pm;

d. Father’s Day: if the respondent is not already scheduled to have the children in his care he shall have Father’s Day access on the Sunday from 9:00am until 5:00pm;

e. Thanksgiving:

i. Commencing in 2019 and all odd-numbered years thereafter, the respondent shall have access from 5:00pm on Friday until the Saturday of Thanksgiving weekend at 7:00pm, and the applicant mother shall have access the balance of the weekend; and

ii. Commencing in 2020 and all even-numbered years thereafter, the respondent shall have access from the Saturday of Thanksgiving weekend at 7:00pm until Thanksgiving Monday at 5:00pm and the applicant mother shall have access the balance of the weekend.

f. Christmas:

i. Commencing in 2019 and all odd-numbered years thereafter, the respondent shall have access from 12:00 noon on December 25 until 12:00 noon on December 26;

ii. Commencing in 2020 and all even-numbered years thereafter, the respondent shall have access from 12:00 noon on December 24 until 12:00 noon on December 25;

iii. The paternal grandparents may have additional Christmas access (regardless of whether the respondent is present) for a two-day and one-overnight period during the children’s Christmas school break, to be agreed upon between the paternal grandparents and the applicant each year by no later than December 1, and not to fall on December 24, 25, or 26.

4. Telephone access: the respondent may have telephone /FaceTime/Skype access with the children on evenings when they are not in his care. Such calls are to be for maximum of 10 minutes, and shall occur between 6:00pm and 6:15pm. The person caring for the children shall monitor the call, and if there is any conversation regarding custody, access, or adult conflict including the respondent asking the children if they miss their father, the call may be discretely ended. The respondent shall initiate these calls. The applicant will ensure that the children are reasonably available, and if the children are registered in an activity or out in the community during the time schedule for the call, if may be rescheduled on written consent of the parties, or a very brief phone call will suffice.

5. The children’s paternal grandparents shall have access to them every Wednesday from after school (or from 10 a.m. if there is no school) until 7:00 p.m. Mr. Furgoch is permitted to attend these visits, subject to the paternal grandparents’ discretion.

6. Mr. Furgoch’s access to the children shall be exercised at the paternal grandparents’ residence or at Ms. Cathy Allison’s residence (or any residence in which they are present), under their flexible supervision and in their general presence. This means that while the Mr. Furgoch’s access does not need to be supervised at all times by these individuals, and that Mr. Furgoch should be able to take the children out for short outings on his own, access shall be monitored by them and shall occur within their close proximity.

7. Mr. Furgoch’s access to the children may be reviewed once Mr. Furgoch is in a position to provide Ms. Vodden and/or the court with the following:

a. Confirmation that he has successfully completed the Partner Assault Response (PAR) program;

b. A psychological evaluation or a report from a psychologist confirming whether or not Mr. Furgoch continues to suffer from any mental health issues, including but not limited from depression and anxiety, and describing how Mr. Furgoch is successfully addressing any ongoing mental health issues;

c. Confirmation that he has successfully completed a Mindfulness Based Stress Reduction Course (MBSR).

Child Support

[109] Mr. Furgoch has been paying interim basic child support in the amount of $451 per month, based on an annual income of $30,903, since the temporary order of Justice Minnema made on April 6, 2017. Neither party is seeking a retroactive adjustment of child support or a contribution to past special and extraordinary expenses. Therefore, my order will be prospective only, beginning on February 1, 2019.

[110] Ms. Vodden takes the position that Mr. Furgoch is intentionally under-employed, and seeks to impute an annual income of $60,000 upon him, which is commensurate with what he was able to earn during the two ears preceding the year of the parties’ separation, being in 2012 and 2013.

[111] Throughout the parties’ marriage, Mr. Furgoch was never employed on a full-time, permanent basis. Rather, he worked for two or more employers at a time, on a part-time or casual basis. One of his main employers, for whom he worked from 2008 to 2017, was the Ottawa Public School Board (“OPSB”). In that part-time position, he worked as a teacher’s assistant helping children in the classroom as well as students with special needs and various disabilities. He also worked for several years for Total Communications Environment (TCE) on a part-time, permanent basis as a residential counsellor for adults with disabilities. In that capacity, he would look after the needs of various clients, take them to doctors’ and other appointments, run errands or take them to visit their families. He also worked part-time for Innovative Community Support Services (“ICSS”) as a youth counsellor, caring for youth living in residential facilities, as well as for Ottawa Respite Services (“ORS”), through which he would accompany children and young adults with disabilities to various activities to give parents respite time.

[112] Mr. Furgoch’s history of earnings can be summarized as follows:

• In 2012, he earned a total income of $67,896, comprising strictly of employment income (working mainly for OPSB and TCE)

• In 2013, he earned a total income of $63,072 comprising strictly of employment income (working mainly for OPSB and TCE, and minimal hours with ORS);

• In 2014, he earned a total income of $47,451, comprising of employment income in the amount of $46,786 (working for OPSB and TCE) and workers’ compensation benefits in the amount of $665;

• In 2015, he earned a total income of $30,903, comprising of employment income in the amount of $18,412 (working for TCE and OPSB) and employment insurance benefits and other benefits in the amount of $12,491;

• In 2016, he earned a total income of $17,454, comprising of employment income in the amount of $5,926 (working mainly for OPSB, no longer employed by TCE) and employment insurance benefits and other benefits in the amount of $11,528;

• In 2017, he earned a total income of $16,281, comprising strictly of employment income (working for OPSB, and minimal hours at the ROH).

[113] On November 1, 2013, Mr. Furgoch was involved in a car accident. He states that he was off work for seven months, and that he went back to work for the OPSB and TCE on modified duties due to significant back pain resulting from his accident. While working on modified duties at TCE, he was in another car accident (hit from behind) which resulted in him being off work for an additional two months before he returned to work, once again, on modified duties. He explains that the combination of these two accidents has left him suffering with chronic back pain for several years, but that he is now controlling the pain with regular exercise and being cautious of his limits. He says that he was attending regular check-ups with his doctor during the months following his first accident, but that he returned to work on his own volition and without his doctor’s advice at some point in the winter of 2014.

[114] Mr. Furgoch explains that he worked less than he used to in 2014 because the parties were then caring for two children as opposed to only one. He stated that working at two or three different part-time jobs with irregular and inconsistent hours, and often double shifts, became too hard on him in light of his parental responsibilities. He says that beginning in 2014, he prioritized being home with the children as much as possible and accepted work based on the needs of the household. According to Mr. Furgoch, he has always made it clear to Ms. Vodden that he wished to adopt a work schedule that coincided with the children’s school schedule, so as to maximize his time with them.

[115] In November 2014, Mr. Furgoch found work in Edmonton in the oil industry. The compensation was more than what he was earning working in his field of study, and required him to work on a two-week rotation (two weeks on, two weeks off). He states that after having discussed this with Ms. Vodden, he left for Edmonton, successfully completed his two week training, and was awarded a full-time position. On his way to Edmonton for his training, Mr. Furgoch called TCE to let them know that he was quitting his job. Unfortunately, Mr. Furgoch’s new employment in Edmonton was terminated before it even began, as the company laid off over 300 employees as a result of a major downsizing.

[116] Mr. Furgoch testified that upon his return to Ottawa at the end of 2014 or beginning of 2015, he resumed his work with the OPSB and the TCE. However, as he had quit his job with TCE, he became a part-time casual employee (on-call), and as such, had access to less hours. He also stated that, in the aftermath of his separation, he did not have a lot of energy or the capacity to work as much. He indicated that he accepted work around the time he had the children in his care and based on the children’s needs. Mr. Furgoch stated that 2015, 2016 and 2017 were particularly difficult years, and that the combination of several factors, including stress and anxiety resulting from the parties’ separation, the parental conflict, the Society’s intervention, ongoing back pain and his significantly reduced access to the children, seriously limited his ability to work.

[117] Ms. Vodden disagrees. She testified that during the parties’ relationship, Mr. Furgoch was always very excessive in everything he undertook. He was either drinking and smoking or excessively obsessed with his health, eating organically and exercising. According to her, his impulsivity resulted in many ups and downs in their relationship, and created significant financial difficulties for the families (for instance his obsession with purchasing a new and bigger home in Greely against Ms. Vodden’s wishes).

[118] Ms. Vodden testified that this was no different when Willow was born. Mr. Furgoch decided that he would take on less work “to be home with the children” against her expressed objections, and despite the fact that he did not take on more parental responsibilities at home. She explained that after Mr. Furgoch’s car accident in November 2013, he became determined to obtain a financial settlement. According to her, his determination to “get money out of this”, not his alleged back pain, was the driving force behind his decision to stop working for seven months, which led to important financial strains for the family. Ms. Vodden stated that he did everything he could to remain on disability until, on an impulse, he decided to take on a job out west and quit his permanent employment with TCE without even knowing whether or not he would get a permanent employment offer. This, according to Ms. Vodden, was the last straw for her which led to her decision to separate.

[119] Ms. Vodden adds that she was equally burdened by the aftermath of the parties’ separation, which included having to deal with Society workers, the OCL and the ongoing parental conflict, in addition to her having been the children’s primary caregiver since July 2016. Nonetheless, she continued to work full-time hours as a veterinary technologist and maintained her income at a level commensurate to her capacity to earn, to provide for her children. She argues that Mr. Furgoch had and should continue to have the same obligation.

[120] During his evidence in-chief, Mr. Furgoch explained that in December 2017, he started to work for the Ottawa Catholic School Board (“OCSB”), also as a teaching assistant, and stopped working for the OPSB. He explained that he transferred to the OCSB because it offered better pay, more advancement, more hours and more consistency in his schedule. He also began to work for the Royal Ottawa Hospital (“ROH”) in July 2017, with patients who require one-on-one supervision for various reasons (elderly or suicidal patients as well as individuals suffering from mental illnesses such as schizophrenia or who have been found non-criminally responsible). At the ROH, he has access to a lot of work hours, and can chose to take on work as his schedule with the OCSB allows. Although no evidence supporting this was offered at trial, Mr. Furgoch indicates that his income in 2018 has been in the range of $30,000 to $35,000. He said that he wants to continue to have a work schedule similar to the children’s school schedule (not working during the summer months and holidays), and this is why he wished to continue to work for the ROH and OCSB.

[121] Then, during the course of his cross-examination, Mr. Furgoch advised for the first time that he had recently been offered, and had accepted, a full-time permanent position as a Housing Systems Navigator with the Wabano Centre for Aborignal Health, in Ottawa (“Wabano”). His role within that organization will be to help Aboriginal families coming from up North, or aboriginal individuals being released from prison, the hospital or other health facilities, to secure appropriate housing in Ottawa. In that permanent full-time position, he will receive an annual income of $48,000 with benefits. His schedule will be from 9 a.m. to 5 p.m. every week day, with three weeks of holidays during the first year.

[122] Mr. Furgoch also advised that he would be interviewed during the course of the week following the trial for a position as a youth worker for Inuit children. When asked whether he had quit his jobs at the OCSB and the ROH, Mr. Furgoch indicated that he intended to continue to work for the OCSB on a casual, on-call basis and that there was no need to quit his job at ROH since he was just an on-call employee there.

Legal Framework

[123] Section 19 of the Federal Child Support Guidelines, S.O.R./97-175, as amended. [“Guidelines”] provides:

19. Imputing income. — (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse.

[124] The Court of Appeal in Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 23, set out a three-part test for determining whether income should be imputed on the basis of intentional under-employment or unemployment as follows:

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

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

3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[125] At para. 28, the court states that the word “intentionally” makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work. A spouse is intentionally under-employed if he or she chooses to earn less than he or she is capable of earning having regard to all of the circumstances. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income (at para. 28). There is no requirement that the under-employment or unemployment be undertaken in bad faith or with the intention of avoiding support payments (at paras. 29-36).

[126] The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is intentionally under-employed or unemployed (Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28).

Analysis

[127] As stated previously, I was not asked to retroactively adjust the child support paid by Mr. Furgoch in the past, or to order Mr. Furgoch to pay child support for the months during which he did not. Therefore, the issue as to whether Mr. Furgoch was intentionally unemployed or under-employed during the years 2014 to and including 2018 is not before me.

[128] Regardless of his poor record of employment for the years 2015 to and including 2018, I must now decide whether it was reasonable in the circumstances for Mr. Furgoch to accept a full-time permanent position earning only $48,000 per annum in light of his demonstrated ability to earn over $60,000 per year during the two years preceding the parties’ separation, working several part-time positions. Mr. Furgoch argues that when he earned that level of income, he was in a healthy and happy relationship, had only one child to care for, and the parental responsibilities for this child were shared between two parents. He argues that significant changes have occurred since, including his struggles with mental health issues, depression and anxiety, ongoing back pain and high stress.

[129] In Zigiris v. Foustanellas 2016 ONSC 7528, 92 R.F.L. (7th) 197, Justice Shelston explained at para. 34 to 36:

34 When considering the spouse's capacity to earn income, the court should consider, among others, the following principles:

(a) There is a duty on the spouse to “actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children” (Thompson v. Thompson, 2014 ONSC 7503 (Ont. S.C.J.), at para. 99);

(b) A spouse's capacity to earn income can be influenced by his or her age, education, health, work history, and the availability of work that is within the scope of his or her capabilities (Marquez v. Zapiola, 2013 BCCA 433, 344 B.C.A.C. 133 (B.C. C.A.), at para. 37)

35 The second step of the Drygala test is generally treated as an overall test of reasonableness. In Jackson v. Mayerle, 2016 ONSC 72 (Ont. S.C.J.), at para. 702, the court held that:

Once intentional underemployment is established, the onus shifts to one of the exceptions of reasonableness.

36 Justice Pazaratz notes in Jackson v. Mayerle, at para. 715:

Parents are required to act responsibly when making financial decisions that may affect the level of child support available. They must not arrange their financial affairs so as to prefer their own interests over those of their children.

[130] In Charron v Carrière, 2016 ONSC 4719, Justice Doyle stated:

Parents can take jobs which generate less money as long as the decision is reasonable. But a support payor cannot select a job merely because it suits his or her purposes. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way.

[131] As stated before, there was no medical evidence presented to me confirming Mr. Furgoch’s assertion that he continues to struggle with back pain, or that same adversely impacts his capacity to work and maximize his income. While there is ample evidence of Mr. Furgoch struggling with mental health issues in the past, including depression and anxiety, I have no medical evidence before me that would indicate whether Mr. Furgoch’s current mental health challenges are such that he is not capable of working full-time and to maximize his income as he did in the past. Nothing in his testimony suggests that he is not presently capable of working full-time. Quite to the contrary, he stated that he has obtained a full-time position and that he intends to continue to work for the OCSB on a casual basis.

[132] On that issue, it is important to note that Mr. Furgoch has provided no corroborating evidence confirming his statement that he has obtained permanent, full-time employment at Wabano. Given the very late disclosure of this fact (Mr. Furgoch failed to mention this very important piece of information prior to trial or while testifying in chief), I have significant doubts as to the accuracy of his testimony in that regard. It is also curious that Mr. Furgoch did not adduce into evidence a letter of employment from Wabano, or even an exchange of emails or correspondence that would confirm his having obtained this new position.

[133] In addition, I find that Mr. Furgoch’s testimony about this alleged new position quite confusing. While he states that in this new position he will work from 9 a.m. to 5 p.m. Monday to Friday, he also indicates that he intends to continue to work for the OCSB on a casual basis. I do not know how he will be able to do that given that he would be working at Wabano during school hours, every day of the week. I also am puzzled by Mr. Furgoch’s assertion that he was to have an interview during the week following the completion of the trial for a position as a youth worker for Inuit children. If he just accepted a full-time permanent position with Wabano, why would he be interviewing the following week for another position?

[134] Based on all of the above, I am left with the sense that Mr. Furgoch is hopeful that he might obtain employment at Wabano, that this employment may or may not be full-time, that it could involve a combination of more than just one role (Housing Systems Navigator, youth worker for Inuit children and\or more), and that he intends to continue to work for the OCSB and the ROH to supplement his income. I find that Mr. Furgoch’s employment situation, based on the contradictory evidence before me, is still uncertain, and that he is still working on a plan which has not yet been finalized, but which will likely involve working in different capacities for different employers, as he has always done in the past.

[135] Based on all of the above, I find that Mr. Furgoch is capable of working full-time hours, through a combination of various positions in his field, and to earn in the range of $50,000 to $60,000 per annum as he did prior to the parties’ separation. To the extent that he does not, I find that he is intentionally underemployed, that such underemployment is not required by virtue of the children’s or Mr. Furgoch’s reasonable educational or health needs, and that it is reasonable to impute an annual income of $55,000 upon him for child support purposes.

[136] As such, an order shall issue as follows:

1. There are no arrears of child support or section 7 expenses as of January 31, 2019.

2. Beginning on February 1, 2019, and every month thereafter Mr. Furgoch shall to pay child support in the amount of $839 per month for the parties’ two children based on an imputed income of $55,000 per annum.

3. The parties shall share in proportion to their income the net cost of the children’s special and extraordinary expenses. At this time, Ms. Vodden’s proportionate share is 44% (based on her 2018 income of $42,900) and Mr. Furgoch’s proportionate share is 56% (based on an imputed income of $55,000).

4. If either party is eligible to provide health and\or dental coverage through his or her employment for the children, he/she shall do so and the cost of family coverage (deducting the cost for individual coverage) shall be shared between the parties as a section 7 expense.

5. With regards to extracurricular activities, the parties’ consent to incur such expenses shall be obtained in advance of the expense being incurred. The parties shall not unreasonably withhold their consent to reasonable expenses.

6. Mr. Furgoch shall maintain a policy of life insurance with a face value of not less than $100,000 to secure his obligation to support the children, naming Ms. Vodden as the sole and irrevocable beneficiary in trust for the children.

7. The amount of the policy may be varied at any time by court order or agreement between the parties to take into consideration any changes in the parties’ respective child support obligations, the remaining years of financial dependency of the children, or any other material changes.

8. Mr. Furgoch shall provide Ms. Vodden with proof that he has obtained such coverage within 30 days of this order. Thereafter, he shall provide proof each year on the anniversary of this order that the policy remains in good standing and that the premiums have been paid as required.

9. The parties shall exchange their income tax returns, notices of assessment (when available) and three most recent pay stubs for each of their employment no later than June 1st of each year, beginning in June 2020, so that an adjustment of their child support obligations may occur (including for the previous year) as may be necessary.

Costs

[137] If the parties cannot agree on costs, I will accept written submissions from them not exceeding five pages (exclusive of Bills of Costs and Offers to Settle). Ms. Vodden will have 20 days from the date of this Decision to provide her submissions and Mr. Furgoch will have 20 days thereafter to do the same. Ms. Vodden will be allowed a brief reply if deemed necessary, not exceeding two pages, which shall be provided within 10 days from receipt of Mr. Furgoch’s submissions.

Madam Justice Julie Audet

Released: February 7, 2019