COURT FILE NO.: 1645/16
DATE: 2020-02-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Rebecca Mae (Swirsky) Foster
Ms. Lindsey D. Mazza, for the Applicant assisted by Mr. Richard G. Startek
Applicant
- and -
James John West
Ms. Kirsten Hughes, for the Respondent assisted by Mr. Darryl Willer
Respondent
HEARD: September 3, 5, 6, 9, 10, 11, 12, 13, 16, 17, 18, 19, 23, 24, 25, 26, 2019
JUDGMENT
THE HONOURABLE MADAM JUSTICE M. MCLAREN
[1] The dominant and most contentious issues during this trial, were custody and access of the parties two children who were ages 9 and 13 at the time.
[2] The issue of child support was also in dispute because a determination of the parties’ income was needed.
[3] A partial final order was granted on January 25th, 2017, based on Minutes of Settlement. Pursuant to this Order, the issue of equalization of property was resolved, and it was also agreed that neither party would pay spousal support to the other.
Undisputed Facts
[4] Some basic facts, which are not in dispute are as follows:
a) The Applicant was born on December 5th, 1974.
b) The Respondent was born on September 17th, 1966.
c) The parties were married on July 14th, 2000.
d) They had two children together, namely, Avery, born February 1st, 2006; and, Danica born January 19th, 2010.
e) The parties separated on October 25th, 2014.
f) At the time of separation, they entered into an equal time-sharing arrangement. As of this point, there had been no involvement with any child protection agency and there had been no involvement with any police service with regard to any complaints made by either of them against the other.
g) The parties entered into a parenting plan dated March 30th, 2016. This plan was arrived at with the help of Paul Ricketts, a social worker and therapist who was hired in the capacity of a Parenting Coordinator.
h) The Applicant issued an Application on November 8th, 2016.
i) One of the provisions in the partial final order of Justice Lafrenière dated January 25th, 2017 was that the parties would obtain an assessment as to custody and access. This order was on consent. They subsequently retained Mr. John Butt to complete the assessment.
j) A temporary order was made, on consent, by Justice Mazza on August 17th, 2017. A new parenting plan was put in place. The children would be in the care of their father from Thursday after school until the start of school on Friday every week and from alternate Fridays to Monday at the beginning of school, or Tuesday if Monday was a holiday. This order also included provisions for holiday times.
The timesharing provisions in this consent order were based on the recommendations by Mr. Butt. When Mr. Butt was retained, the parties and counsel agreed that he would complete the assessment and verbally present his findings at a disclosure meeting. He provided only a working copy of his written Parenting Plan Report. If either party then requested a full Custody and Access Assessment Report, it would be provided.
The terms of the Parenting Plan Report became the basis of the temporary order of August 17th, 2017. No formal written Custody and Access Assessment Report was ever provided.
k) Paragraph 85 of the August 17th, 2017 order reads as follows:
“At the request of either party, Mr. John Butt shall be re-engaged to prepare an updated assessment report, with parameters to be discussed between counsel and the assessor.”
A motion was brought regarding this provision and it was argued before me on April 30th, 2018. I released my decision on May 23rd, 2018 and ordered that an update to the assessment was to be done with a formal assessment report to be provided pursuant to section 30 of the Children’s Law Reform Act (R.S.O. 1990, c. C.12,95 am.). The update was commenced but no written report was provided as the assessor developed health issues and could not continue the process. However, the parties agreed that Mr. Butt’s clinical notes and records could be obtained and used at trial. He was no longer able to assist the parties as of July 31st, 2018 and he confirmed with counsel, on August 1st, 2018 that he would be unable to provide a full report.
l) The parties were divorced on March 17th, 2017.
m) The Applicant married Kyle Foster on May 4th, 2019. She then assumed the surname Foster.
n) The Respondent married Danielle Derrington on June 10th, 2017. Ms. Derrington then assumed the surname West.
o) The Respondent has a son from a prior marriage. His name is Christopher West and he was 24 years of age as of the trial.
p) The Applicant does not have any other children.
q) The Applicant’s husband Kyle Foster has two children from a prior marriage. They were ages 14 (Coen) and 11 (Lexie) as of the trial and they share time with each of their parents.
r) The Respondent’s wife, Danielle West, has three children from a prior marriage to Ian Fraser. As of trial, they were ages 12 (Evan), 9 (Mikaela) and 7 (Noah). They share time with both parents in accordance with an agreement.
s) Several professional people were involved with the children and testified at the trial. Their evidence will be reviewed.
t) The main ongoing extracurricular activities that the children are involved with are recreational dance, competitive dance, and guitar lessons.
u) The children attend St. Ann Catholic Elementary School in Ancaster. Both parties reside in Ancaster and the children are able to travel to and from either home by school bus.
v) On October 1st, 2017, the Respondent began paying child support on a voluntary basis in the amount of $1,416.00 per month based on a gross estimated annual income of $100,000.00.
Witnesses
[5] The following people testified:
Called on behalf of the Applicant:
• The Applicant Mother – Rebecca Foster
• Lindsey George – a psychiatrist who met with the children
• Kyle Foster – the Applicant’s husband
• Rebecca Walker – a social worker and therapist who provided some blended family therapy for the Applicant and children
• Cathy Wellwood – a friend of the Applicant who also knows the Respondent
• Ilango Thirumoorthi – family doctor for the parties’ children
• Paul Ricketts – certified mediator and registered marriage and family therapist who assisted as a parent coordinator
Called on behalf of the Respondent:
• The Respondent Father – James West. He is also known as Jamie.
• Ian Fraser – former husband of Danielle West
• Marcia Reid – former wife of the Respondent
• Ali Vandendool – former babysitter for the parties’ children
• R. Andrew MacRae – chartered accountant and business valuator who completed an Income Analyses Report for purposes of child support on the Respondent’s income
• Danielle West – Respondent’s wife
• Karen Bridgman-Acker – a social worker who provided blended family therapy for the Respondent, his wife Danielle, and their children
• Ashlyn Richard – former babysitter for the parties’ children
• Lourdes Geraldo – social worker, mediator and therapist who wrote a report on high conflict custody disputes and alienation
[6] I will provide a brief summary of the evidence given by the parties and witnesses.
[7] For ease of reference, I will refer to the parties and their new spouses by their first names; being Rebecca and her husband Kyle, and Jamie and his wife Danielle.
Applicant Mother
[8] Rebecca began her evidence by identifying some pleadings and providing her education background. She is a graduate of Trent University and has a college diploma in Corporate Communications.
[9] She worked in Media Relations for a local television station for about five years and then worked in the Mayor’s office for about nine months. She then returned to the television station and met Jamie who also worked there. She later worked as Director of Marketing, Communications and Sales at a local airport before returning to the television station. In 2008 she got a job at a television station in Toronto, but she said it was hard commuting with a young child.
[10] Rebecca said that when she got the job in Toronto, the parties were going to move closer to Toronto, but Jamie then refused to leave the Hamilton area. They then moved from Caledonia to Ancaster. They had a second child after she began her job in Toronto. She could see that she might lose that job because she was expected to be part of the Toronto community and she was not. She said she was “packaged out” in 2011.
[11] Rebecca then decided to go into real estate, and she got a job with a real estate firm in September 2011. She could not go back into media because of a non-competition clause. We heard from Rebecca that during the marriage she was the more involved parent.
[12] Evidence was given about the parties’ alternative lifestyle. According to Rebecca, Jamie told her that in order to save their marriage, she needed to engage in an adult lifestyle also known as “swinging.” She said she was not comfortable with the idea, but he organized it, and took her to a nightclub in Mississauga called the X Club with bedrooms in it. She said he put naked photos of her on a website for the club that she thought were private between them. She said she felt she had no choice but to participate in these trips to the club because he threatened to take the kids away from her if she did not and he also said she would be safe.
[13] We heard that she was pushed on a bed by Jamie at this club and then another man had sex with her. They went a few more times after that and were sexually involved with another couple she said. She believed Jamie liked to see her with other men.
[14] Rebecca testified that Jamie set her up with a man called Shane Fowler (who was supposedly a swinger along with his wife). She said Jamie photographed her and Shane, and once he sent her in a cab to Mr. Fowler’s home and told her to take photos of themselves having sex. She said she did take photos and sent them to the Jamie. According to Rebecca, Jamie threatened to call the police if she did not get the photos, but she did not know what he would have called the police about.
[15] A letter was introduced that Jamie sent in December 2014 wherein he offered to return all the photos and added that he would never use them against her. However, she said he later would threaten to show them to people, including her boss. She said he tried to show pictures of her with other men and other women to her friend, Cathy Wellwood. She believes he showed them to other people in the community and she was always anxious about who may have seen them.
[16] She said that communication between the two of them was sometimes good in the past. In December 2014 he thanked her in a text message for the things she does for the girls.
[17] She produced a text message exchange between the parties in November 2014 and Jamie started saying things like “You are a liar” and “Don’t ever forget that I know everything about you.” Another time in November 2014 he sent a text that simply read “Bitch.” Then he retracted it. He sent a text message in September 2015 wherein he referred to Kyle Foster as “the nappy headed Hebrew” and he described them both as “asslicking lowlifes.” He closed that text message by saying some extremely vulgar words aimed at Rebecca. On a later date on September 20th, 2015 he sent her a text, after she sent him a text asking to speak to the girls that also contained extremely vulgar words aimed at Rebecca.
[18] She provided another copy of a text exchange where she asked to speak to Danica and he responded with “Fuck off you asshole.”
[19] Rebecca expressed disappointment with the loss of Paul Ricketts as a parenting coordinator. She felt confident working with him and said that the parties had agreed to work with him. He stopped working with the parties after Jamie, in effect, fired him. Rebecca said she had no advance notice of this devastating loss in the process.
[20] The parenting agreement was signed with Mr. Ricketts’ help in March 2016. A “week about” timesharing was in place. Rebecca said that the children were returning distraught after being at Jamie’s home, and by November 2016, with Mr. Ricketts no longer involved, a court action was commenced by Rebecca. She had an application issued on November 8th, 2016.
[21] In March 2017 the parties agreed to retain Mr. John Butt to complete a custody and access assessment. His recommendations were similar to the agreement reached with Mr. Ricketts but it was not an equal timesharing. The parties began working with Mr. Butt in April 2017 and they had his recommendations by August 11th, 2017 and they were incorporated into a temporary court order on August 17th, 2017.
[22] She was asked about some of the interviews with Mr. Butt. Avery apparently told him in June 2017 that she is not comfortable or happy at her dad’s and she does not feel safe there although “nothing bad has happened.” She also was quoted as telling him “I hope this is over soon because I can’t stand it there at dad’s.” She told him that sometimes she cries when it is time to go to her dad’s.
[23] Danica was quoted as telling Mr. Butt in June 2017 that she wants to live with her mother because she hates it at her father’s. She apparently told him that she wished her dad and Danielle never met and she wishes Kyle was her real dad.
[24] Overall both girls were shown in Mr. Butt notes to have spoken much more positively about their mother and Kyle, than their father and Danielle.
[25] They were both very critical of Danielle. Avery said she lies, is rude, and is a “total mess up.” She said Danielle told her that her mother was “filling her head with bullshit.” Avery was quoted as saying that she hates the schedule and that she wants the Judge to know that she is not happy at her dad’s.
[26] A letter written by Danica was included in Mr. Butt’s notes. It was addressed to “the Judge.” At age 7, Danica was saying to the Judge that she wants to live with her mom full-time. She said if the schedule stayed as it was, “I will cry my eyes out until I DIE.”
[27] Rebecca was aware of that allegation that Kyle went to Evan’s classroom and told him to stay away from Avery but she said it was unsubstantiated.
[28] She identified a message sent by her to Jamie that showed she was inviting him to attend a medical appointment for Danica. She said she does not object to him attending.
[29] We heard that the parties did not initially agree to who the sponsor should be for Avery’s confirmation. Jamie did not approve of Rebecca’s first choice so she asked someone else. Her first choice was someone who used to be a friend of Danielle. Her second choice was agreed to.
[30] Rebecca testified that after Jamie and Danielle took their children to Jamaica, the girls told Rebecca upon their return, that one girl hit the other with a hair brush and the other screamed. Danielle was reported to have run in and grabbed Danica by the hair and made her stand on the balcony half dressed, with the balcony door locked. Rebecca called the family doctor upon hearing this story and the CCAS were called. The Society investigated, and but no further action was taken. This incident was discussed frequently during the trial and was referred to as the “Jamaica incident.”
[31] For awhile there was an order that Danielle would not be alone with the West children. This was eliminated in a further court order. The provision that she would not be alone with the children was in a temporary order, on consent, on a without prejudice basis, for purposes of an adjournment that had been opposed.
[32] She expressed concerns that Jamie took the children to a doctor filling in for Dr. Thirumoorthi and requested a mental health assessment, which she did not think was necessary. They went to see a psychiatrist, Dr. George in January 2018. Therapy for the girls was recommended.
[33] Rebecca said that her children do not like Karen Bridgeman-Acker who was providing blended family therapy for Jamie and the children. She said that the girls do not feel they are being heard.
[34] She was tearful when she said she was trying to help the girls through this process because it is difficult for them. She took them to see Rebecca Walker, a therapist, who, according to Rebecca, has helped them tremendously.
[35] She reviewed the expenses for dance and said that Jamie still owes her money for his share. She provided details of all extraordinary expenses and Jamie’s contribution from September 16th, 2017 to July 20th, 2019. She has calculated that he owes her a total of $6,670.84. The print out for these expenses was done through Our Family Wizard which is how the parties communicate.
[36] Jamie pays child support by e-transfer. The amount was arrived at on consent, on a temporary basis, in the amount of $1,416.00 per month based on an estimated income of $100,000.00.
[37] She spoke about the time that the children arrived at the exchange location of St. Ann’s Church, with their guitars. Jamie arranged for guitar lessons for the girls and the lessons are at his house. She said that her lawyer told Jamie’s lawyer that she had arranged to have guitars at her house and did not want the children to bring the ones they have at Jamie’s house. Since there was a no contact order in place that year, she did not approach Jamie in the church parking lot (which is where the exchanges took place) but she later took the guitars to the Spa where Danielle is a part owner and asked the receptionist to give them to Danielle. The police were called by someone at the Spa.
[38] She was asked about meeting Kyle Foster, and she said they were colleagues at a real estate company. At that time Jamie knew Kyle also, and Rebecca believes Jamie approached Kyle for a “three way.” Rebecca said that she did not enter into a romantic relationship with Kyle until after she and Jamie separated. She said her children have a beautiful relationship with Kyle and they love his children.
[39] Rebecca denied causing any alienation of the children from Jamie and said that he has harmed his own relationship with them himself.
[40] She described her home as being very child friendly. It is a four-bedroom bungalow. The girls have their own rooms. There is a trampoline, play structure, pool, hot tub and there are soccer nets.
[41] She described the time that the children have to leave to visit their father. She said that they are often angry when she says they have to. On one occasion, Danica refused to get out of the car and she did not leave the car to go to her father’s car for close to an hour. There have been other times we heard that Danica refused to leave the car. Rebecca said that she tries to calm her and encourage her to go as Danica is sometimes crying.
[42] When asked if she supports them having a relationship with their Father, she said she absolutely does, and she always has.
[43] When asked why her proposed draft order is in the best interests of the children, she said it is because it is similar to what the parties have now but it specifies that she will have sole custody which the existing temporary order does not. She feels this is necessary because the parties cannot communicate.
[44] She pointed out that the girls have a bigger comfort level with her being behind the stage at dance events because she helps with their hair. We heard that the fathers are not allowed back stage.
[45] She said that she wholly supports the guitar lessons that Jamie set up and that is why she obtained guitars to leave at her house, so the girls can practice.
[46] She said she felt that blended family therapy could be terminated and one on one therapy for the girls could be kept in place.
[47] Questions were asked about her income and she explained how she is paid. Her 2018 income without considering the Registered Retirement Savings Plan (RRSP) funds she withdrew, was $148,652.66. It was $184,399.00 on her line 150 of her tax return. Her commissions that year were $226,813.45. Her line 150 income in 2017 was $106,708.16. Her commissions that year however were $185,695.19.
[48] We heard an explanation of how she and Kyle arrange their business affairs. They have been branded as the Foster Group since 2015. They are independent contractors however and they are not incorporated as the Foster Group. They have to show the brokerage they work for in all their advertising. We heard that Rebecca is a realtor and Kyle is a broker.
[49] An update to the disclosure showed that Rebecca had $150,715.00 in closed or pending commissions as of July 16th, 2019.
[50] She explained the difference between representing a client in the listing end of the business as opposed to the selling end.
[51] We heard of a system where loans can be given to the agents from the company that operates like a line of credit. For example, she used this funding for an outdoor billboard.
[52] Rebecca teaches a part-time course at Mohawk College and earned $4,151.46 for one semester in 2019.
[53] An amended financial statement sworn on August 2nd, 2019 was filed. It shows her 2018 net taxable income as $152,314.00.
[54] In closing, she was asked about any positives about Jamie she would like to point out. She said it has been difficult for both parties, and that the children love him and he has shown them kindness. She believes Jamie is trying to protect Danica by sleeping outside her bedroom. He has taken them to nice places and shares his love of music with them.
[55] In cross-examination she was asked if Jamie was an excellent father to his son Chris while they were together. She said he was a good father and that he paid monthly child support, took him to nice places, gave him guidance and showed that he cared. She was then asked if Jamie provided those same roles to Avery and Danica when they were together and she said yes.
[56] She was also asked about greeting cards she sent to him; photocopies of which were provided. In these cards she added handwritten comments. In one sent in 2002 she referred to him as an incredible father. In a Father’s Day card sent in 2004 she called him a wonderful Father and said “she was proud to be his wife.” She referred to him as a wonderful father in her 2006 Father’s Day card. She said these were things she would have said in those days.
[57] In a message sent in 2014 she mentioned her fabulous husband. In June 2014 she also said in a Father’s Day card, “I know I have not been easy to love. Thank you for not giving up on me before my own self journey began. Jamie I do truly love you.”
[58] In a birthday card given to him in September 2014, she wrote: “I want you to know that I love who you are – even during the dark days. I love how you love our children even through the challenging moments. And I love “us” – as crazy, loud and passionate as we are. You get better and better with every year.” On this card she wrote comments like this on three sides of the card.
[59] Rebecca said the comments in the last few years before separation did not reflect her true feelings. It was a reflection of what she wanted to be true as the marriage was in great demise.
[60] She said that they told the three children (Avery, Danica and Christopher) about the separation together in their home, because this is how Jamie said it would be. She remembered Jamie telling them that Jamie and Rebecca would always be friends.
[61] She was asked about visits to the X-Club in cross-examination and repeated again that the first time she had sex with the husband of the couple who owned or managed the club, was after Jamie pushed her on the bed, and she blacked out.
[62] Rebecca said she did not have a choice in going to the club on other occasions. She denied being disappointed when, on a second visit, the husband and wife did not want to have sex with them. She said she was happy to just have a drink and dance.
[63] She was asked to explain on what basis Jamie could have called the police if she refused to go to Shane Fowler’s house for sex and photos and she did not know.
[64] She was asked to review copies of text messages that looked as though they were exchanged between her and Shane Fowler. They were sexually explicit. Rebecca said it was not her participating in the exchange, and that it was Jamie pretending to be her. At one point, the person shown as Rebecca said she has to “grab my old phone out of my purse.” Rebecca was asked about this statement and she still felt it was Jamie. She also said that at times she was forced to write things like this by Jamie. She said she had no recollection of writing other messages to Shane which were shown to her and which were also sexually explicit.
[65] The witness confirmed that the parties began attending the X Club in 2011.
[66] Rebecca was asked about a weekend in Niagara Falls with two of her women friends in 2014. They took photos of themselves naked, which she said was at Jamie’s request.
[67] In July 2013 there was a similar weekend with two women friends in Montreal. They took photos of themselves naked and sent them to their husbands at Jamie’s request. She said Jamie was harassing them. The two women friends in Montreal were different than the two in Niagara Falls.
[68] She said that photos taken of her and Shane engaged in sexual activity in her home were taken by Jamie on his camera. She denied that she used Jamie’s camera to take them and that he discovered them later.
[69] Rebecca was asked about Avery’s family project for school. She was shown the one completed by Evan Fraser, and it includes pictures of his step-siblings and stepfather; namely Jamie, Avery and Danica as well as photos of his mother and siblings. Avery’s project included photos of her and Kyle, and the people at her mother’s home. She mentioned a Hanukkah celebration which was held due to Kyle’s Jewish faith. She said it was a fun time and she mentioned things they did at the party. There was no mention of her father Jamie, or anyone in Jamie’s home.
[70] She explained the lack of reference to Jamie or his family with Danielle, as the result of her not having any photos of those people at her home and the project had to be done on a weekend that Avery was with her.
[71] She was asked about messages sent to Jamie by her. In November 2014, she said that he was a good man and that they needed to stop torturing each other and move forward for the girls. On December 29th, 2014, she ended a message with “I am no longer weak. I am going to destroy you once and for all.”
[72] Rebecca said she regretted the December 29th, 2014 message, but that he was threatening to show sensitive photos of her, and it was before they began meeting with Mr. Ricketts. She said they both said horrible things to each other.
[73] She said she was not aware at the time of the text messages Kyle sent Jamie on her phone, that called Jamie a “piece of shit” and informed him that “Rebecca used to fuck Shane Fowler on the side behind ur back. Live with that!”
[74] She agreed that it was not appropriate for Kyle to text Avery at her father’s home to encourage her to come over to her mother’s home during Jamie’s time. She said that they all made mistakes in the early days and it was written at a time when there was more flexibility.
[75] She was asked about involvement by the Catholic Children’s Aid Society (CCAS) and she said that ultimately, they remained involved due to the conflict. She acknowledged concerns about Danica exaggerating things. A case note dated October 12th, 2018 said that teachers at Danica’s school say she is “known to make up stories – she is very dramatic – has heard this from other teachers and seen this in class since she has had the class. She over exaggerates.” Nevertheless, Rebecca said she was concerned when Danica said her father hit her and drags her into her room. If Danica makes something up, she said, “there is an underlying reason why and that is a concern.”
[76] An early example of CCAS involvement was discussed. Jamie called the CCAS about something he heard from a neighbour regarding Danica being shown pornography by Lexie. There was also a report of Danica claiming to have sexual activity with a boy with a name that sounded like Coen in a conversation to a child in the neighbourhhood. The CCAS investigated the situation and found it to be unverified. The neighbor who told Jamie about Danica telling her daughter about sex with Coen got it wrong, and in fact, there was a reference to a child with a name that sounded like Coen. Rebecca felt that the experience was difficult for the children and they were interviewed needlessly.
[77] She talked about an incident where Danica was jumping while walking to her house and she got a bruise on her buttocks. She told her father what the bruise was from when another child in the home saw it and told him. Jamie called the police and an investigation followed by the Child Abuse Branch. Both girls gave the same story but ultimately there were no concerns by the CCAS except for the conflict between the parties.
[78] She was asked many questions in cross-examination about her tax returns. She repeated again that she is an independent contractor and not the face of a corporation.
[79] She was asked how she used a 50% deduction for her car in one year and 75% the next and she said it was because Kyle had a stroke and she had to do a lot more of the work for the Foster Group.
[80] She acknowledged that she has not contributed any money for the guitar lessons, and she did not pay for the Theatre group Jamie enrolled the girls in.
[81] She acknowledged that she contacted Ian Fraser (Danielle’s former husband) to meet for coffee, but she was not thinking of them working together for some inappropriate reason.
[82] She was asked if she severed her relationship with a former babysitter, Ali, because she said she could not have a relationship with her if she was siding with Jamie. She recalled addressing that in an email that she gave to Mr. Butt.
[83] She was asked about a CCAS case note dated June 22, 2016 wherein Rebecca told the worker that she was not sure if it was right to keep the file open for “he said – she said purposes.” She was quoted as saying she did not know if “keeping the file open would serve her purpose or not.”
[84] She denied being told by a different worker in June that the CCAS was concerned about emotional harm. On July 7th, 2016 a worker, Sue Nepal, wrote: “She (Rebecca) wanted to know the details of my conversation with her (the supervisor) and I advised that the children are at risk of emotional abuse but they present as being happy and healthy and that there is ongoing conflict to which the children are exposed to and both parents play a part in it.” After hearing this, Rebecca apparently told Ms. Nepal, that she wanted to speak to Paul Ricketts right away, and that she no longer wanted to speak to Ms. Nepal but she did want to speak to her supervisor.
[85] She acknowledged being concerned about Jamie bringing the children to the police over a bruise that had already been explained. This was set out in a case note dated July 8th, 2016. Rebecca was noted on that day as telling a worker, Erin Poole, that she wanted to “bow out” of Society involvement as she felt her views were being misinterpreted and the Society was becoming one sided.
[86] As of a March 2017 case note, the CCAS were still involved. Avery was quoted as saying she feels nausea when it was time to go to her dad’s but no specific concerns were mentioned. Danica said she does not want to go to her dad’s and said she hates Danielle who is mean to her. The author of this report, Sue Nepal, did not testify, but the note was referred to. Ms. Nepal said there were no child protection concerns as such and they were thinking of closing the file.
[87] Rebecca acknowledged a note from a worker dated September 19, 2017. During a home visit, Avery said things were better because Dad’s time was reduced, and Danica said the same thing. She agreed that Kyle asked to have the CCAS remain involved so they can document what the girls say.
[88] She was also asked in cross-examination to outline the girls’ dance schedule. Danica has two jazz classes on Monday night (4:30 p.m. to 5:30 p.m. and 5:30 p.m. to 6:00 p.m.). There is a grade two exam ballet class on Wednesday (7:00 p.m. to 8:00 p.m.). On Saturday there are back to back classes from 11:00 a.m. to 2:15 p.m. which cover, stretch, exam ballet, ballet team, tap, and tap team for a total of five classes. In addition, there are classes that are 15 minutes each on alternate weeks which get scheduled separately. These are for tap solo, jazz solo, and jazz duet.
[89] Avery has more classes. She has four back to back classes on Mondays commencing at 4:00 p.m. and ending at 9:00 p.m. These are for ballet team, grade 4 exam ballet, jazz team, and jazz elite.
[90] On Wednesdays Avery has three classes. The first starts at 5:30 p.m. There is a break between the second and third and the evening ends at 9:30 p.m. These three classes are for intermediate musical theatre team, youth musical theatre, and grade 4 exam ballet. On Saturday she has classes from 2:15 p.m. to 3:45 p.m. These are elite tap and tap team.
[91] Avery also has 15 minute classes to be scheduled in alternate weeks. These are for tap solo, musical theatre solo, musical theatre duet, and tap trio.
[92] Rebecca also said that:
• The girls are focused, prepared, and ready to go to dance.
• Sometimes she makes a dinner to bring with them for the evening sessions.
• She tries to not schedule any classes on Jamie’s nights but there are classes on Saturday which he takes them to.
• There are four competitions per year that the girls attend. Three are in Hamilton and one in Niagara Falls. She said she has to attend these competitions because fathers are not allowed back stage to help the girls get ready. There is also a recital at the end of the year.
[93] When asked why Danielle could not assist back stage if a competition was held on Jamie’s weekend, (since her daughter is in competitive dance) Rebecca said the girls would not want it to be Danielle.
[94] We heard that dance runs from September to mid-June and that the recital is usually the Saturday of the Father’s Day weekend. The girls were at the same studio as Danielle’s daughter at one time, but they began going to a different studio in 2017.
[95] Some messages sent through Our Family Wizard in 2017 were reviewed. They were all polite. It was clear that Jamie thought the dance schedule was too much.
[96] She was asked if she got Tina Rath, manager from the dance studio, involved in the conflict in 2015. Text messages were provided that showed Rebecca saying the girls might not be back the next season due to “drama with the Ex,” and she later referred to him as “pure evil.”
[97] There were several exchanges between the two women wherein Jamie and Danielle were referred to in a bad light. At one point Tina Rath said she heard that Danielle thinks he’s “God’s gift.” Later on Rebecca referred to Jamie as “his royal asshole” in a text to Tina. When asked about this exchange, Rebecca said she was separately contacting Jamie to resolve these issues. Her concern was that Danielle’s daughter was signed up for competitive dance at the same studio and that daughter shares a bedroom at the West home with Danica and they would talk. Rebecca always felt that Jamie made it hard for his girls to register for all the dance they wanted but Danielle’s daughter was signed up without any difficulty.
[98] She said she regretted saying what she did about Jamie to Tina Rath but she thought of Tina as a friend. She gave these messages to Mr. Butt because he asked the parties to bring in any email or messages sent. She believes Tina wrote a letter of apology in September 2018 because she must have felt pressured since two of Danelle’s children attend that studio. Ironically, in her letter, Tina said she felt pressured by Rebecca to get involved in her efforts to malign Jamie and Danielle. We did not hear from Tina however.
[99] Rebecca was asked about her belief that the guitars she returned to the spa might have been bugged. She said she thought they might be, and she also did not want to be blamed for any possible damage to the guitars. She thought the girls came with duplicate guitars provided by Jamie because he wanted to irritate her. She said he knew she had guitars at her home and that the girls were upset and crying over it all as Jamie forced them to take them.
[100] She was asked about her claim that Jamie shared information about her lifestyle to people in the community. Specifically, she was asked if she threatened to do the same thing to him. She answered by saying “No, I have been in damage control.” Then an email dated February 5th, 2015 was provided wherein she threatened to tell a particular client of his about his part of the lifestyle. She said that she regrets making that threat now, but she never acted on it. She said she only made that threat because he told her friend Cathy Wellwood about that lifestyle and the photos.
[101] In that same email she told Jamie he was the worst father and that she would be seeking full custody. She explained that when she wrote this she was disgusted because he told the girls she cheated on him.
[102] Rebecca was asked about her decision to not send the girls for a visit on June 27th, 2019, when his mother was diagnosed with leukemia on June 25th, 2019. She said that it was Avery’s decision to not go. She told him they would not be going. She added that she did not know that Jamie’s mother was ill.
[103] A question was asked about a note Rebecca put in Danica’s backpack prior to going to her father’s home in March 2017. In the note she says:
“You are brave and strong,” and “Have a wonderful time at Daddy’s house – 3 more sleeps” and “You can do this. I believe in you.”
[104] Rebecca explained that she wrote this note because Danica told her strongly that day that she did not want to go, and she was doing everything she could to get her to go. She thought it would help to leave her a note in her backpack.
[105] Rebecca was asked about reporting Danielle (who is a doctor) to the College of Physicians and Surgeons for giving Danica a flu shot (flu mist). She said she did this at the recommendation of Paul Ricketts. Later in the trial, Mr. Ricketts had a different recollection about the conversation.
[106] She acknowledged that her draft proposal gives Jamie a decrease in his time from what he has now.
[107] Rebecca was reminded about the motion she brought in 2019 to reduce Jamie’s time. The claim was to suspend access and, in the alternative, to make it supervised. That motion was abandoned by Rebecca. Jamie brought a motion as well for police enforcement and to have make up time for access that had been denied.
[108] In redirect examination she was asked more questions about text exchanges purportedly between her to Shane and she explained why she thought Jamie sent them. She also said he had access to her mobile phone and he knew the passcode.
[109] Rebecca said that the complimentary loving comments she made in the greeting cards given to Jamie were what he would have expected, and it was her way of protecting herself given that she was planning to leave.
[110] She was also asked to clarify the timing of Avery’s family project. She said the children returned on Friday night. She learned of the project Sunday night and it was due Monday.
[111] She was asked to clarify the thoughts on the suggestion from the school that Danica makes things up. She said she did not hear anything like this from Mr. Butt or Mr. Ricketts and she was very concerned to hear this from the school.
[112] In answer to another question she said that the CCAS involvement seemed to be less after the parties received the recommendations of Mr. Butt in August 2017 and she believed that police involvement subsided then too.
[113] She was asked if her children visited Jamie prior to his mother’s death on July 17, 2019, but subsequent to her diagnoses and she said they were there several days. As such she did not feel that by cancelling the June 29th weekend, the girls did not see their grandmother before she died.
Lindsey George
[114] Dr. George is a psychiatrist and has had referrals from Dr. Thirumoorthi. She was asked to meet with Avery and Danica. She wrote a report on each child. It was her determination that neither child had any mental disorder, and that this determination was the purpose of her involvement.
[115] During her testimony we heard that Avery told her that her father thinks she needs antidepressants, but Avery did not think she did. Dr. George did not think she needed antidepressants either. Avery told her she very much likes her mother’s partner Kyle and his children. She was quoted as saying she did not like her father’s partner or her children, and she quoted her father as having said negative things about her mother.
[116] We heard that Danica told her she is happy except when she goes to her father’s home and that his partner and her children are mean.
[117] No further therapy was recommended by Dr. George.
[118] Dr. George was asked in cross-examination if she ever sees children factually represent a situation falsely. She answered that children have their own perception of an event but that collaterals are often important.
[119] She acknowledged that it was Rebecca who brought the children to the appointments.
Kyle Foster
[120] Kyle is a real estate broker and he has worked with a local real estate company for over five years. He and Rebecca formed a group known as the Foster Group at this company. They met when she joined the company in 2011. In January 2017 he had a stroke. As a result of the stroke he does more administrative work and Rebecca does more of the work of a realtor. He estimated that he does about 25% of the overall work and Rebecca does 75%. They divide the commissions on a 25/75% basis.
[121] Kyle had two children with his first wife. They were born in 2005 and 2007. He said that he and his first wife were very amicable following separation and worked out an equal timesharing. Things began to become difficult he said after Jamie reached out to her and “filled her head with garbage” and “showed her pictures of Rebecca having sex with Shane.” Eventually they agreed to joint custody and an equal timesharing. We heard that Jamie also reached out to a former fiancé of his and showed her photos as well.
[122] He said he met Jamie in 2014 when Jamie approached him about advertising. Kyle was engaged to someone else at that time. He said he was quite taken aback when Jamie asked him if he would be interested in a sexual “three way.”
[123] He and Rebecca began dating in December 2014.
[124] We heard that Kyle and Jamie exchanged some “stupid texts.” He described the two of them as “two immature men.”
[125] The witness said that he heard from many people that Jamie accused him of using drugs. He denied that he has used drugs, except for a time in high school, or that he had a criminal record.
[126] He described his relationship with the four children of he and Rebecca as amazing. He thinks of himself as having four children. He said he supports Avery and Danica’s relationship with their father 100%.
[127] He was asked about a text he sent to Avery when she was at her father’s home, and he was trying to get her to come for a night during the father’s time. He said:
“Hi gorgeous girl how are you? I just heard your dad won’t let you come for a night. I hope he changes his mind as I know it will make you and Dani happy!”
Another one read as follows:
“Have a great day Avery. Ask for dad again about tomorrow and hopefully he will say yes. We can all go to chucky cheese.”
He sent a text to Avery at 4:09 a.m. which read:
“Hey sweetie I know ur sleeping yet I am thinking about u and Dani and miss you both a lot: Love you both and hope you are both amazing XOXO”
[128] He acknowledged that he should not have sent the text to Avery trying to get her to leave her father’s home during his time.
[129] He was asked questions about people he knew with criminal records. He was a surety for one.
[130] He was asked about the time the police were called by Ian Fraser over Kyle’s attendance at his son Evan Fraser’s school. Kyle denied having any conversation with Evan and he denied telling Evan to stay away from Avery. He said he gave Evan no reason to feel uncomfortable.
[131] He also denied attending at the home of Jamie in September 2015 or vandalizing the property. The police we called after a neighbour told Jamie that Kyle was seen on the property.
[132] He was asked in cross-examination about a September 2017 CCAS case note that said, about Kyle: “He wanted us to remain involved so that we could continue documenting what the girls are saying.” He acknowledged that he and Rebecca were not happy about the CCAS file being closed because he felt that Jamie was still making false allegations. He also wanted the CCAS to ask the girls about dance because “dance is huge to the girls.”
[133] He acknowledged referring to Jamie once as a “piece of shit” in the home but learned from that and will never do that again.
[134] He was asked why he did not tell Mr. Butt about proposing a sexual “three way” and he said he wanted the focus of the assessment to be on the kids. He also did not tell Mr. Ricketts. He said he told his lawyer but he did not contradict counsel who pointed out that the first time the Respondent’s counsel heard of the “three way” proposal was during Kyle’s evidence.
[135] He was asked in cross-examination if he could see why his tattoo with the girls’ names on it on his upper left leg would be upsetting to Jamie and he said “No, I love them more than life itself. I don’t know why Jamie hates me so much.”
[136] When asked why Mr. Butt said in his notes that Rebecca was responsive to making sure that Kyle does “not get too hyped up” he said he does not get hyped up and that is what Rebecca was saying. He mentioned again that Jamie hates him.
[137] He was asked about telling Mr. Butt that his former wife Roberta was a “terrible wife in all respects but a decent mother.” Since he described himself earlier as a great father, counsel wanted to know if he thought that the children of his first marriage had a great father, and a mother who was decent, and he agreed.
[138] He was asked about telling a counsellor that he used alcohol to numb the pain and deal with the darkness and he said it would have been in high school that he used alcohol to numb the pain. He had no recollection of references to the darkness.
[139] He was asked in cross-examination about an email he sent wherein he said that Jamie was showing sexually explicit photos of Rebecca to people and that Jamie was abusive. He acknowledged that he believed Jamie sexually abused Rebecca and that he has repeated this belief to other people. He was not sure if it was more than five people. It was his belief that Jamie was still in love with Rebecca.
[140] He acknowledged sending the vulgar text message to Jamie on Rebecca’s phone, which Rebecca was asked about. In this message he told Jamie about Rebecca having sex with Shane Fowler.
[141] He acknowledged that it was a mistake to send these.
[142] He did not agree however that it was inappropriate to address Avery as “Hi Gorgeous,” who was then nine years old. He had been living with Rebecca for less a month at the time. He also did not agree that it was inappropriate to see if Avery could come over during her father’s time because he and his former wife were able to do this.
[143] However, he could see, looking back that it undermines Jamie’s time with the children. He also did not think that the follow up message to Avery that began “Hey Sweetie” was inappropriate.
[144] When asked if he could see why Jamie would be upset by these messages to his young daughters, he said “I don’t know why he hates me and portrays me as a monster.” He said Jamie should be thrilled to have him in the girls’ lives because he would do anything for them, and he would like his former wife to meet someone who would love his children one tenth as much as he loves Danica and Avery.
[145] He was shown a text message from his former wife Roberta to Jamie and then agreed that maybe it was Roberta who contacted Jamie and not the other way around as he previously thought.
Rebecca Walker
[146] Ms. Walker is a social worker and therapist in private practice who works with children, adults and families. She is a certified traumatologist.
[147] The witness got involved with this family when Rebecca called her for blended family therapy. Rebecca also asked for help for the children in regard to their relationship with Jamie. She last met with both girls in August 2019. This was for individual meetings. There was also a joint session earlier in August 2019.
[148] The girls were given the option of having Rebecca stay for the sessions or leave and Ms. Walker said they always wanted her to stay.
[149] She observed Rebecca giving an explanation for Jamie’s actions when an issue came up, and Danica became angry and said, “stop defending dad.” She learned that Danica got angry at both homes. Ms. Walker also said that Danica sometimes became very angry during the sessions and the tone and focus was changed as a result.
[150] Avery was described as saying that her father grills her. She worried that Kyle would be upset with her over her handling of the incident in Jamaica. Avery said she saw the incident but did not tell the CCAS. She felt Kyle would be mad because she did not tell the whole story.
[151] Ms. Walker felt that both girls were genuine when they told her about the incident in Jamaica.
[152] She said that the girls say their favourite part of the day is going to dance and they worry that their dad will not let them go. Avery said that that Jamie has told them that he does not want to spend every weekend going to dance and they better get used to the word no.
[153] Ms. Walker said she talked to Rebecca and Kyle about Danica’s feeling that she is not being listened to and how to handle this.
[154] Danica allegedly told Ms. Walker that her father calls her mother names, like “whore” and “slut” and that he said, “the truth will come out about your mom.” The child also was quoted as saying that her mother defends Jamie and this makes her angry.
[155] We heard that Danica told her she did not like her father sleeping outside her bedroom at his house but she realized he was keeping her safe.
[156] Avery was quoted as saying that her father is funny and good with music.
[157] Ms. Walker felt that the girls presented as honest. She said they did the majority of the talking in sessions and Rebecca just entered into the conversation when asked for some context. Rebecca was in every session.
[158] Ms. Walker has never met Jamie. She did not contact Ms. Bridgman-Acker and Ms. Bridgman-Acker did not contact her.
[159] She was asked about the children’s thoughts about Danielle and she said that Danica brought up a lot of issues regarding Danielle. This included Danielle calling her names, yelling at her, coming into her room at night, and throwing a gumball machine at her. Danica worried that Danielle might try to poison her. Ms. Walker said she pointed out to Danica that she has eaten food with Jamie and Danielle many times and never been poisoned so it is not likely. It was a type of Dialectical Behaviour Therapy where she taught Danica to look at the facts.
[160] Ms. Walker provided an affidavit for a motion in July 2019. She mentions the topics discussed during the sessions. She expressed some concern about the number of professional people the children have had to speak to and the number of changes in their lives.
[161] The affidavit was written in support of Rebecca’s motion to have a lawyer appointed for the children from the Office of the Children’s Lawyer. Ms. Walker felt they should have a voice. She asked the girls if she could write a letter to the court and if so, what would they like her to say. Ms. Walker reported that Danica said “I do not like being at my dad’s, it is horrible. I do not like it and because Danielle hurts me.”
[162] She reported that Avery said she could say “I am tired of him waiting to get me alone to ask me questions, and then tells me how much of a disappointment I am, tired of that happening.”
[163] She gave an opinion in her affidavit that it would be emotionally beneficial for the girls to have a say in what happens to them.
[164] On one occasion Ms. Walker facilitated a call to the CCAS from Danica because she had a duty to report. Avery did not want to because, Ms. Walker said, she did not know how her dad would react. Danica wanted to report however, and a case note shows that on May 21st, 2019 Danica left two voice mail messages for Karen Gibbons, wherein she disclosed that Danielle threw a gumball machine at her on the Saturday before (Saturday, May 18th, 2019) which landed on her leg and caused a bruise. The full reference in the case note reads as follows:
Karen Gibbons On 21/05/2019 08:38
Voicemail messages from Danica
I received the following voicemail messages
Hi Karen, it’s Danica West. I’ve seen you before at the CCAS. I just wanted to tell you that this past Saturday my stepmom Danielle threw a gumball machine at me and it hit my right leg. Now I have a bruise below my knee. I’ve written down a list of things that she’s called me before, in the past and recently. She’s called me psycho and mental. She’s called me fat. She’s called me a stupid b word and f-ing brat, the devil. She’s called me idiotic, autistic, special needs, loser and then she’s like, “daddy’s little princess” all the time. In my room she calls me mean names she throws things at me. And she goes right in my face and screams. I just really don’t want to go to my dad’s on Thursday. Can I please see you soon? Bye.
A second voicemail message was left at 6:57p.m.:
Hi Karen it’s Danica West again. I forgot to tell you about this part that Danielle told me before I went on vacation to Mexico. I’ve just had so much on my mind I forgot to about to say this, but before we went to Mexico she told me that there’s lots of gun shooting and murders and the what you call it, cleaning ladies have the keys to your room so they can kidnap you and all this and that. And she says that there’s lots of like all that stuff I can’t even say it cause it’s so bad. But maybe I can talk to you about that sometime.. please so see you soon maybe. Bye.
[165] By the end of her eight sessions with the girls, Ms. Walker thought that Danica seemed less upset and was even able to apologize for her behaviour and regulate herself more. She felt that Avery could understand things better and would be more likely to “talk it out.”
Cathy Wellwood
[166] Ms. Wellwood is employed in Hamilton and has been married for almost 50 years. She has three children and six grandchildren. She has known Rebecca for over 17 years as they worked on some projects together. They also socialized together with their husbands. Ms. Wellwood and her husband are godparents to Avery and Danica. It was her observation that both parties did a good job of raising the children.
[167] The witness said she learned of the separation when Jamie called her to inform her about it and then added that Rebecca left for another man. She said he later came to her office to offer more details and he also offered to show her photos taken of Rebecca and her friends taken in Niagara Falls but she did not want to see the photos or hear the details. This visit was right after separation and Ms. Wellwood had not heard from Rebecca yet. She found this visit to be inappropriate and she cut off ties to Jamie.
[168] Ms. Wellwood identified an affidavit she swore on June 10th, 2019. In this affidavit she relayed a conversation she had in her home with Danica on May 17th, 2019. Danica allegedly told her she did not want to go to her father’s home because the people there did not like her and she mostly stays in her room there. Ms. Wellwood also said that Danica told her that Danielle throws things at her, and that she had trouble breathing the last time she had to leave to go to Jamie’s home.
[169] In court Ms. Wellwood said that Danica showed her a bruise on her leg that Danielle was alleged to have caused.
[170] The witness said this disclosure was unsolicited and that neither she or Rebecca ever speak negatively about Jamie to the children.
[171] It is her impression that Kyle has a “beautiful interaction” with the two girls and that he treats them the same as his two children. Ms. Wellwood described Rebecca as being like her third daughter.
Ilango Thirumoorthi
[172] Dr. Thirumoorthi is a medical doctor and he has been the doctor for Avery and Danica since 2017 after he took over another doctor’s practice and Rebecca brought them in for a “meet and greet.” He said he has seen them many times since. Usually Rebecca brings them in but he has met Jamie too.
[173] Included in his response to the questions asked were the following points:
• It was sometimes a challenge communicating with Jamie because he wanted to speak to the doctor after Rebecca brought them in and he disagreed with Dr. Thirumoorthi’s policies.
• He never felt there was an underlying psychiatric illness in either of the children. It was more of a challenge, in his view, of the children dealing with the situation of the blended families.
• He never felt that the children were being coached and he found them both to be genuine and consistent in their stories.
• In June 2017 a doctor who was filling in for him saw the girls. She stated that when Jamie and Danielle brought them in, they wanted a mental health assessment for the girls. That doctor called Rebecca who worried about Jamie’s motivation in asking for such an assessment.
• He noted that when Jamie and Danielle came to see him in August 2018, Danielle was adamant that a mental health diagnoses should be made but he did not agree.
• One reason this witness did not think that a mental health assessment was necessary was because he thought the girls were doing better and that they were happy when they began to spend more time at Rebecca’s and less at Jamie’s.
• Ultimately a referral was made to Dr. George who saw the children in the fall of 2018.
• He heard from both girls that they did not like Danielle and they were happier at their mother’s home. They liked their time they spent with their father at a lake however.
• He received a letter from Jamie dated September 14th, 2017 which was very respectful and expressed appreciation for his comments that the girls were enjoying their time at both homes and were doing better since the temporary order was put in place.
• He was asked about a lengthy meeting he had with Jamie in June 2019. Jamie had a list of questions. The witness said he spent a lot of time explaining the difference between mental health and situational stress.
• He felt that the children did not trust Ms. Karen Bridgman-Acker and they had a more positive relationship with Ms. Walker.
• He heard the same story from each child individually, regarding the episode in Jamaica where Danica had to go to the balcony.
• There was a common theme about Danica feeling anxious and unsafe around Danielle. He called the CCAS in March 2019 due to Danica’s allegations of Danielle hurting her, in general, and locking her on a balcony in Jamaica.
• Rebecca brought Danica in on December 4th, 2018 due to a possible infection and he ended up talking by telephone to Jamie who was agitated and wanted details of the visit relayed to him. Dr. Thirumoorthi explained that he cannot call the other parent every time a parent brings a child in. Jamie then threatened to report him to the College of Physicians and Surgeons of Ontario. Some of the calls with Jamie, he said were quite long.
• He called the CCAS to report the incident wherein Danielle allegedly threw a gumball machine at Danica but they already knew about it. He said Danica had been consistent with it.
• The girls speak highly of Kyle, and they express no concerns about their Mother’s family. The concerns are about their father’s family but they also say they love their dad.
• He never felt that either parent was telling them what to say.
• He never felt that either parent was not encouraging a relationship with the other.
• He was asked to identify a June 2017 file note wherein Rebecca identified triggers for Avery, and one was “going to the father’s to stay.”
• He agreed that both parents care greatly for these children.
• When asked if he can tell if a child is telling the truth he said he cannot but that he needs to have their trust and if they think he does not believe them he will not have their trust. When asked if he thought Danielle would actually poison Danica which was a concern of hers, he said “No, the children’s impressions are what they are.”
• He was asked about the timing of Rebecca bringing the children in on May 21st, 2019, just before Jamie’s weekend, to report something that happened two weeks before, being the gumball incident. He said he had no reason at the time to be suspicious of the timing.
• He was asked about a note made on March 25th, 2019 wherein Danica said her mother asked her if she wanted to see Dr. Thirumoorthi to talk to him. It was not a routine visit. He called the CCAS because he heard about the incident on the balcony in Jamaica. The information from Danica was that the children were play fighting and Danielle came in and pulled Danica’s hair, grabbed her, took her to the balcony and locked her out there. Danica was only in her underwear.
• He wrote a letter at Avery’s request in support of her desire to change schools.
• He was asked about a letter he received in July 2017 from Rebecca’s lawyer at that time. The lawyer expressed dismay that referrals for a mental health assessment were being considered because Jamie brought the children in and requested it (with the locum). The lawyer threatened to take the matter up with the College of Physicians and Surgeons.
• There was a great deal of discussion over the referral for a mental health assessment and in fact it took 16 months until they saw a psychiatrist. Due to the conflicts and the threats to report Dr. Thirumoorthi to his governing body, he was advised to get counsel which he did. He was advised to do so by the Canada Medical Protection Association. Ultimately though, it was resolved amicably.
• Dr. Thirmoorthi never felt that a mental health assessment for the girls was necessary and ultimately no mental health disorders were found.
Paul Ricketts
[174] Mr. Ricketts has a Master’s Degree in Marriage and Family Therapy and is a Registered Marriage and Family Therapist, among other designations, with 34 years’ experience. He provided his curriculum vitae.
[175] He was contacted by a lawyer who at one time represented Rebecca to help the parties create a parenting plan. He was involved with the parties from August 2015 to April 2016.
[176] When asked what his initial impression was he said he thought it was a high conflict situation. Exchanges were taking place at the police station which he said is often a red flag.
[177] A parenting plan was completed and signed in early 2016. The main provisions of the plan were as follows:
• The parties would have joint custody and equal decision-making;
• The parties would prefer the children’s interest over their own;
• The children would reside in both homes and not have a designated primary residence; and.
• The schedule was a weekly timesharing with exchanges to take place on Friday after school.
[178] The parenting plan was a typed document of eleven pages, and quite detailed. Jamie signed it on February 29th, 2016 and Rebecca signed it on March 30th, 2016.
[179] He wrote a report on October 24th, 2016 at the request of Rebecca. He stopped working with the parties after a meeting with Jamie on April 27th, 2016 wherein Jamie expressed dissatisfaction with Mr. Rickett’s services.
[180] At the time of this termination the parties were working with the CCAS and Mr. Ricketts thought that Jamie felt that the CCAS would act as a parenting coordinator. Jamie also was said to have felt that the conflict was increasing with Mr. Ricketts.
[181] When asked if the parties “swinging” lifestyle would impact their ability to parent, he said it should not have a negative impact as long as the children were not exposed to it. He wrote that both parents told him that they were involved in the alternate lifestyle of swinging the last four years of the marriage.
[182] During his testimony we heard answers to questions that included the following:
• Jamie said he wanted to destroy Rebecca because she had an affair during the marriage with Kyle Foster, and there were other men. He was perceived by Mr. Ricketts as being very angry.
• The children told him that Jamie said he loves them more than their mother does and that “Kyle will be her next break up.” They also told him that their Father told them that their Mother had an affair with Kyle.
• He perceived Jamie as having an extreme amount of hatred towards Kyle.
• Mr. Ricketts spoke to Jamie about the amount of anger he had towards Rebecca and her partner as it could impact his relationship with the children.
• He heard Kyle refer to Jamie as a “piece of shit.”
• Jamie was upset about the tattoos Kyle obtained with the names of both girls.
• Danica’s perception was that her father does not want to be friends with Kyle, but Kyle wants to be friends with her father. Avery indicated that her mother tries to get along with her father more than the reverse.
• Jamie believed Rebecca was alienating the children from him. Mr. Ricketts thought that Jamie may have said things to put a wedge between the children and their Mother and Kyle. He said he saw no signs of Rebecca doing this.
• He said that when Jamie expressed concerns about Mr. Ricketts’ services, he came in with Danielle and he was very angry.
• He was asked if he ever felt that either of these parents tried to influence the children and he said that he did not.
• He found the children to be truthful.
• His notes were provided to the parties in advance and questions were asked about them. Jamie’s concerns about alienation were noted. He was asked in cross-examination about a notation wherein Avery said her mother told her that Jamie bit Rebecca, and he acknowledged that this could taint a child’s view of her father.
• Avery noted that Danielle is nice and does not say anything about her mother, and Danica noted that Danielle does not say bad things about her mother.
• Avery commented that her father had a bad temper.
• He commented on the hatred the parties feel for one another, in his report. He found Rebecca to be more cooperative however, and Jamie to be more confrontational.
Respondent Father
[183] Jamie West was born on September 17th, 1966. He graduated from the Radio, Television and Arts Program at Ryerson University. He took a different program prior to that at Niagara College. He has worked in television and radio but now has his own media and advertising business. He helps clients with consulting and advertising.
[184] He currently resides in Ancaster with his wife Danielle. The house is registered in Danielle’s name. He described it as having six bedrooms and being 5000 square feet with a backyard patio and pool. All five children of Jamie and Danielle have their own rooms.
[185] He described Danica’s room as being a very desirable room with a large closet, dresser, a desk, a double sized bed and a 42-inch television. Danica chose her room. When the house was renovated, she was very vocal about her choice of rooms according to Jamie. He said she loves her room and has said so many times.
[186] He was asked about his practice of sleeping outside Danica’s room when she is there. He said he began doing this because of the false allegations. That is one way he can prevent further stories of Danielle having done something to Danica. He sleeps on an inflatable mattress.
[187] We heard how Jamie met Danielle. She was a neighbour and he got to know her better through the dance studio where their daughters went. They began dating in February 2015. Danielle has three children from her first marriage. The five children of their combined families knew each other as they attended the same school and the three girls attended the same dance studio.
[188] He was asked to describe Danielle’s parenting style and he said she was soft spoken, a good listener, flexible, very patient and very loving. He said his style is almost identical but he is less patient.
[189] Rebecca earlier described Jamie’s parenting style as being disengaged but he said she exaggerated. When she was on maternity leave she was more involved but when they were both working he had flexibility as he was self-employed and he did all the usual parenting things. He remembers taking Avery to daycare more often than Rebecca because she had to leave for work in Toronto by 7:00 a.m. or 7:30 a.m. He took Avery to daycare at 8:00 a.m. or 8:15 a.m. He said that when Rebecca was leaving for work in Toronto at 7:00 a.m. or 7:30 a.m., she arrived home at 7:30 p.m. or 8:00 p.m. At some point they tried having a nanny, Ally Vandendool, who worked for them for about two years. He reverted to using a daycare centre when Rebecca was no longer working in Toronto and began a real estate career.
[190] The long weekend in May 2019 was discussed. On this weekend, Danica did not come and Jamie brought a motion to enforce it. He received a message from Rebecca on the Thursday prior to the weekend at the end of the school day. He saw Avery come off the bus and Danica was not with her. He said everything was fine with Avery on the Thursday night. He brought an urgent motion the next day and got an Order that pending an adjournment, Danica was to be with Jamie. He thought that, as a result of that Order, Danica would be on the bus with Avery the next day but she was not. Jamie said that he contacted Rebecca through Our Family Wizard (OFW) several times but the responses were things like, “Danica does not want to come to your home” and “I can’t make her.” Rebecca did facilitate a call between him and Danica on the Friday evening. He said Danica sounded distraught, angry and upset and was saying she did not want to go to his home, and that Danielle was mean to her. He described it as a “9-year-old girl yelling and shouting into the phone.” Ultimately, Danica did not come that weekend.
[191] Jamie said he had plans for that weekend. He planned to take them to see their former nanny and babysitter, Ali Vandendool as the girls had been asking to see her. He sent an email to Rebecca on the Saturday through OFW letting her know that he still expected to see Danica, that he would pick her up at the church exchange location, and that they were going to visit Ali. Rebecca responded as follows:
Jamie,
Once again, I asked Danica about returning to your home. She refuses to go. I insisted that it’s mportant for her to see you and spend time with you and your family. I also let her know that you had plans to see Ali Vandendool today, at Danica’s request. To whch she responded, “I don’t even like Ali, mom, did not ask to see her.”
I will not be at St. Ann’s today at 10:30 a.m.
I reiterate, once again, that I will let you know if Danica changes her mind ASAP.
I respectfully request that you stop emailing me.
Sincerely,
Rebecca
[192] Jamie was asked if this reflected Danica’s feelings about Ali, and he said, “absolutely not.”
[193] On the Friday night of that weekend, Jamie had to take Avery to dance, and he knew Rebecca would be bringing Danica. He said he stayed in his car and let her walk to the studio herself as there is a no contact Order between he and Rebecca. He said his car was parked several cars away from Rebecca’s and that they had no contact. At 10:00 p.m. that evening the police came to his home because Rebecca had lodged a complaint about him threatening her through OFW and intimidating her at the dance studio, in part by parking his car next her hers. The police interviewed her and they interviewed Avery (without Jamie present). No charges were brought.
[194] It was Jamie’s impression that Danica and Rebecca were in Collingwood for the balance of that weekend based on things Danica later said.
[195] Jamie said that he has never called the police to enforce access. He recalled another time when they were still sharing time on a week about basis, that Rebecca said Danica was not coming. He was asked if there were any concerns about anything during his last visit with the girls prior to the long weekend in May and he said no.
[196] Other email letters were reviewed where concerns were expressed about Danica not wanting to go.
[197] The note written from Rebecca to Danica and left in Danica’s backpack on March 21st, 2017 as she went to her father’s home was discussed. Jamie said he found it in Danica’s backpack. He said it made him feel like his daughter was having to survive her time with him. He said it was hurtful the way Rebecca was saying to Danica, in effect, “be brave” and “it is only 3 more sleeps.” He said it was like she needed to count the days until she returned to her mother. He said he never found that either child had to count the days until they returned.
[198] Jamie was asked about the visit of June 27th, 2019. He was going to take them to see their grandmother (his mother) who was just diagnosed with an aggressive form of leukemia. He was very involved with her health care he said, and in touch with her physicians. June 27th, 2019 was a Thursday and the children were supposed to be with him but Rebecca did not send them. Jamie said his mother quickly became unresponsive and began moaning in pain. It was his evidence that the girls could have had a meaningful visit with her on the 27th but she deteriorated quickly after that and died on July 17th, 2019.
[199] When he was clearing up his mother’s belongings, he found a handwritten note from Danica to her grandmother at her grandmother’s beside table. He assumed she left it there when he was there with the girls after his mother died. In the letter Danica said “I love you so much. I miss you too. I am sorry I didn’t get to say goodbye. I hope your having fun in heaven.” She concluded by saying, “I think Dad would be happy if you could say hi to John Lennon and George Harrison for him. I love you so much. Xoxo Danica.”
[200] Jamie said that he has felt like he is walking on eggshells in his home with the allegations made about him and Danielle and it has been hard to deal with. Trust gets damaged he added. He said Danielle’s children have asked why they were interviewed by the police again, why they were interviewed by the CCAS again, and why Avery or Danica are not coming.
[201] He repeated again that he does take the girls to dance on his weekends. He is not opposed to dance but he thought it was too much. They were taking competitive dance after qualifying for it, but also taking recreational dance. He said he did not realize they were in both when he consented to an Order that dance would continue.
[202] He was asked if he would commit to dance if he had a weekly exchange and he said they are already signed up and he would.
[203] The guitar lessons take place in his home and he said that Rebecca could continue the lessons in her home if she chose. He commented on the incident with the guitars on January 25th, 2019. He took the girls to get new guitars in January 2019. So, they had a new set and an old set, and all were good. He said he did not know that Rebecca got a set for her house. A few hours before he left with the girls for the exchange, one of them said “Mom doesn’t want us to bring our guitars.”
[204] He denied that he sent them so he could allege that Rebecca damaged them. He also said that there was no recording device in them. He said he felt they were entitled to bring them. The girls did not say they have guitars at their Mother’s home so the request to not send them did not make sense. He said the exchange was fine. Then he received a text message from a receptionist at the spa saying that some woman came in and threw the guitars on the floor and said they were for Danielle.
[205] He said he and his former wife Marcia shared in the parenting of his son, Christopher and they have a good relationship now. Chris was nearly 25 years old as of the trial. He lives on his own, is fully employed, and takes medication for anxiety. Jamie described an incident in 2018, with his son where Chris was angry at him for not adopting his dog. Chris took a swing at him and then another, Jamie said, and Jamie then called the police. He said this incident was not at his home or witnessed by Avery or Danica. He said he has had a good relationship with Chris ever since, and Chris has apologized and indicated he was not taking his medication at that time. He said Chris has always been close to Avery and Danica, and he had a good relationship with Rebecca when the parties were together.
[206] He spoke of meeting Ian Fraser for the first time and said it was very cordial. He attended an event with Mr. Fraser and their daughters. He acknowledged that he did not always have this good a relationship with him. He said this was because the Derrington’s (Danielle’s parents) gave him a lot of false information and they were very involved when he and Danielle first got together. He said that they said very negative things about Ian, and that the three children of Danielle and Ian were almost always present to hear them. Jamie said that Mr. and Mrs. Derrington said mean things about their own daughter to him. Once, he said, Mr. Derrington referred to his daughter Danielle as a “stubborn bitch.” Jamie then told them to leave his house. He said he wrote a long letter to them, soon after this in March 2016, with Danielle’s support, and asked them to no longer be part of their lives. A copy of the letter was produced. He wrote a further letter in January 2017, asking them to stop approaching the children directly, and this letter was signed by both Jamie and Danielle. They were concerned about reports that the grandparents approached the children at school and spoke negatively to them about Jamie and Danielle. Jamie said that he and Danielle tried over the years to get the parents to change their ways prior to the termination of the relationship.
[207] He was asked about the Family Project that both Evan and Avery had to do. The weekend before she had to hand it in, Avery was in her mother’s care. He helped her prepare by taking her to the dollar store to get poster board and markers. He said he also asked her if she needed any help. During his week with her, prior to the Friday exchange, he said she began drawing pictures of family members and pets. He noticed her drawing pictures of his family and saw them attached to the poster board.
[208] Jamie identified photos and copies of Mother’s Day and Father’s Day cards from the girls. The photos show times on special occasions with Avery and Danica, along with himself and/or Danielle and her children. This included a trip to see Beauty and the Beast in 2016 and a trip to Niagara on the Lake in 2019. There was a Tiger Cat game in 2017, and other occasions. There was a trip to the Royal Alexandria Theatre in Toronto at Christmas 2017 when Avery and Michaela posed for a photo in identical sweaters.
[209] Questions were asked about the cards Rebecca sent him during the last few years of marriage. Rebecca said that she said the things she did in order to survive and that she was expected to. He said that it was a loving relationship when she sent most of these. The one given in 2006 was when Avery was a baby and they were happy. He said he does not expect to get a card with such sentiments expressed in them, nor does he demand it.
[210] He acknowledged the inappropriate e-mail letters he sent and he said he is extremely remorseful and would not send such e-mails again. He said he has learned that this only inflames a situation.
[211] He described an evening in September 2014 where they were at a wedding and Rebecca drank too much and was vomiting. He said he stayed up with her all night. He also said that he believed she had real estate appointments the next day so we went into her telephone to check for any appointments, thinking that he could drive her there. It is then he said, that he found text messages between Rebecca and Shane, which he said were shocking. He sent them to his mobile phones by taking a screen shot. He did not tell her about finding them. He said it was insane and preposterous of Rebecca to suggest that he was texting Shane as though he was her. He had no reason to. Jamie said he was upset but not surprised. He denied insisting that Rebecca get into a cab to go to Shane’s house. He said she did this on her own. He denied telling her that he would call the police if she did not go because he would having nothing to call the police about. He denied saying that if she did not go he would take the children from her as that has never been his goal.
[212] Jamie described Shane as a big hulk of a guy with military background who had guns. That is why, he said, he texted Rebecca to contact him or he would call the police because he was concerned about her going there. He said he did not demand that Rebecca have sex with Shane, and he did not demand that she takes photos of themselves engaged in sex.
[213] When asked how he learned about the photos, he said he discovered digital photos in their home, stored on a camera he used for his business, by accident. He said there were dozens and dozens of photos and that he did not take them, and he was not present when they were taken. They appeared to be taken in the parties’ home. He said he was literally sick to his stomach when he saw them and rushed to a bathroom and vomited and then broke down.
[214] He said he did not force Rebecca into an alternate lifestyle known as swinging. He said she was the one who brought up the notion of exploring their sexualities. He said she was bored in their marriage. He said he suggested they try therapy, and work on their marriage but he found her to be manipulative. He also said, “but I am a big boy, I agreed to the experimentation.” They first went to the X Club in Mississauga in March 2011. He said it was Rebecca who told him about it. They looked at the website together. They agreed to go for one evening with no expectations he said. He found the place to be full of people with expensive cars, and who were very well dressed. There was a lot of security he said. He said it became awkward when Rebecca saw a man from her then place of employment with a woman who was not his wife. He claims that Rebecca said, “I’ve got him”, meaning she could use this encounter at work for leverage. On their second visit, he said the owners of the club took an interest in them and invited them to a private room. He said Rebecca seemed to be enjoying herself. He said that as the evening progressed people began to pair off and go to the private area. They were taken to the owners’ private room, where there was a bed. He described Rebecca as beginning the sexual activity with the man. He said it is absolutely not true that he forced Rebecca to do anything there, nor did he push her down as she said. He said Rebecca never said that she did not want to do this.
[215] They went to the X Club again, which he said was at Rebecca’s initiation. He said he saw the place as full of people using fake names, telling fake stories about themselves in a setting where spouses gave themselves licence to cheat on each other.
[216] He was asked about the incident wherein Danielle was accused of throwing a gumball machine at Danica. It was in mid-May 2019, on the weekend of Mother’s Day. Danica was with them from Friday after school until Sunday at 10:00 a.m. He said that Danielle was at a dance competition with her daughter until after 10:00 p.m. on Saturday and Danica was at a movie with a friend, with neither Danielle or Danica seeing each other that Saturday night. Danielle was up at 5:30 a.m. on Sunday and out by 6:30 a.m. for the rest of the competition. He said that the gumball machine story was “total hogwash.” Danielle and Danica were not even together that weekend.
[217] The incident in Jamaica in June 2019 was discussed. The five children were in one large room. He heard screaming as he was leaving the shower. Danielle told him Danica was going after Avery with a corkscrew. He said he saw her do this before on the trip and he took it away and hid it, but hotel staff found it and put it back. He said he could see Danica on the balcony through the glass doors, taking pictures with her iPad. He said he did not observe Danielle exercising discipline and he did not have concerns about how Danielle handled the situation. His memory was a little different than Danielle’s in regard to who directed Danica to go to the balcony, but they both remembered the corkscrew incident, and that Danica appeared content on the balcony.
[218] He said the allegations were of great concern and they have led to a number of CCAS interviews.
[219] He was asked why he is seeking sole custody and he said it is because he does not think that Rebecca can make decisions that are in the best interests of the children without considering her own best interests. He also believes she has tried to alienate the children from him.
[220] He seeks an equal time-sharing in the alternative to his first choice of him having the majority of the time. He reviewed the balance of the terms of his proposed drafter Order.
[221] He was asked several questions about his business income and the records he keeps that would have been given to the accountant who did the income analyses. He estimated that 20% of his automobile use is for personal use. He said he suffered the loss of some client base in 2019 and he gave the names of some big clients who left in 2019. He acquired some new clients but said that they did not bring in as much income. He reviewed his income tax returns, which showed income on line 150 of his return as $151,000.00 in 2013; $119,266.00 in 2014; $108,000.00 in 2015; $139,649.00 in 2016; and $84,000.00 in 2018. He said he typically pays himself $9,000.00 per month as a draw. He said he has no interest in the spa his that wife is a co-owner of. Danielle did some work for which she was paid about $29,000.00 in compensation when she was on a weekly radio show he produced but it stopped in 2017.
[222] He denied showing photos to Cathy Wellwood or to Kyle, or to several other names read to him. He also said that he absolutely did not suggest a “three-way” to Kyle.
[223] In cross-examination he was asked if it was true that Rebecca had primary responsibility for the children. He said no, and that they relied on daycare and babysitters for part of the time but the rest of the time was equally provided by both of them.
[224] He agreed that most of the CCAS involvement predated 2018 and 2019, except for the problem over the guitars and the Jamaica trip. He also agreed that Mr. Butt helped to reduce the conflict, and the strict terms about the exchanges and activities helped. He agreed that his emotions got the better of him and that he regrets sending the inappropriate texts he sent earlier.
[225] He was asked if Avery’s views could be even more solid now that she is older, and he said no, as he thinks she is more confused than ever.
[226] He was asked if he agreed that he pushed Dr. Hopkins (Dr. Thirumoorthi’s locum) for a mental health assessment. He said he took the girls there because they were ruminating about death, especially Avery. He wanted a doctor to say if a mental health assessment was necessary. It was Dr. Hopkins who made the referral he pointed out. He added that Ms. Karen Bridgeman-Acker also suggested that a mental health assessment might be helpful.
[227] He was asked about his choice to reduce his time with his son Chris after his separation from Marcia because Chris was missing his mother and crying a lot. Jamie pointed out that the child was only five years old and he and the mother discussed it. He felt it was a different situation than with Danica and Avery.
[228] He was reminded that the professional witnesses all said the children appeared genuine, uncoached, and consistent and he agreed that this has been expressed by the professional witnesses at that point. He was of the view however that the children were genuine and consistent, but, not uncoached. He pointed out that Mr. Butt wrote in his notes that he wondered if the children were being influenced.
[229] He was asked why he once made reference to his having a “vengeful energy” and if it was related to vengeance against Kyle. He said he felt that way towards Kyle who made death threats against him.
[230] He confirmed that he started sleeping outside Danica’s room after the Jamaica trip in March 2019. He agreed that CCAS could not verify the allegations about that trip, but they also did not say the allegations were false.
[231] When asked about the policy that Danielle should not be alone with children, Jamie said that it was Danielle who suggested this, as she did not want to be alone with Danica and she did not want her children alone with her.
[232] Jamie agreed that Mr. Butt’s notes show that he was concerned about the girls’ anxiety in going to their father’s home much before the Jamaica trip.
[233] He was asked a few questions about his willingness to have his time with the girls reduced in 2017 as a result of Mr. Butt’s recommendations that considered the girls’ views and preferences. He said he accepted the assessor’s recommendations and was not just relying on views and preferences. He said he did not read Mr. Butt’s notes, which he believed were 2000 pages. Jamie also said that the views and preferences were impacted by false allegations.
[234] Counsel pointed out that if he read the 2000 pages, he would know that the children did not want to be around Danielle and they had anxiety around this. Jamie answered that he did not need to read it, as he was living it.
[235] He was asked if he did anything about the girls’ issues with Danielle and he said he did. That was part of the blended family therapy he set up.
[236] He was asked if he blamed Dr. Thirumoorthi for reporting the Jamaica incident to the CCAS and he said “absolutely not – he was obliged to.”
[237] He was asked why he did not have a picture of the poster board family project done at his house. He said that it was not his habit to take photos of his children’s “one quarter or one-half finished projects.” He was then asked what the chances were that Rebecca would have pictures of Danielle’s children at her house and he said “None – but the perimeters from the educators was that the students could use other forms, such as drawings or words.”
[238] Jamie was asked several questions in cross examination about his income and expenses.
Ian Fraser
[239] Mr. Fraser was previously married to Danielle and they had three children together. He said they were able to resolve all their issues without court intervention. He said he has no concerns about Danielle’s parenting and that he never heard her yelling or screaming at any of the children. Discipline was time outs or removal of privileges. She was described as a good and loving mom.
[240] He has no concerns about Jamie having a role in his children’s lives, and he gets along well with him.
[241] Mr. Fraser said that the Derrington’s (Danielle’s parents) had a toxic involvement in their lives and would say negative, inappropriate things in front of the children.
[242] Mr. Fraser recalled a time when Rebecca contacted him to ask if they could discuss what was happening in Jamie and Danielle’s home. Mr. Fraser said she was pleasant but he was not interested in having such a conversation.
[243] He commented on a time that he called the police. His son Evan was upset because Kyle Foster was making him feel uncomfortable at school and it had happened more than once he said. Mr. Fraser did not witness it but Evan told his mother about it. He said that Evan was very distraught about the incident.
[244] He was also asked about the lengthy letter Jamie wrote in March 2016 to Donna Derrington wherein he referred to Ian Fraser as “an asshole of the highest order” and a “compulsive sociopath.” He said that he understood why he wrote the letter and that while it was hard to read, it did not reflect the situation and the relationship that exists today.
Marcia Reid
[245] Ms. Reid is a University Research Coordinator and she was married to Jamie from 1989 to separation in 1997 or 1998. She had a son with Jamie. She said that she and Jamie handled the issues related to their separation without going to court and that they could always discuss things. She sees him as having a very close relationship with their son.
[246] She stated that her son Chris has anxiety but does not abuse drugs or alcohol. She confirmed the notes recorded by Mr. Butt following her interview with him. She had no concerns about Jamie’s relationship with any of the children. She also told Mr. Butt that she did not hear Jamie say much about Rebecca.
Ali Vandendool
[247] Ms. Vandendool is a daycare teacher. She is married and has two children. She babysat Avery and Danica when the parties were together, and this involved about one overnight per month.
[248] We heard that her main contact was Jamie when arrangements were made because Rebecca left for work very early. She thought they were a wonderful family. She observed both parties to be very good parents while together.
[249] Ms. Vandendool was interviewed by Mr. Butt and she confirmed the comments attributed to her by hm.
[250] Since separation she has had a lot of contact with Jamie and the children. She testified in September 2019 that she last saw them all together that summer and that she sees the girls as having a positive relationship with Jamie, his wife, and the Fraser children.
[251] She has had less contact with Rebecca since separation.
Andrew MacRae
[252] Mr. MacRae is a chartered accountant and business valuator. He prepared valuations for income analysis for child support purposes, and says he does about 50 to 75 valuations per year for matrimonial cases and about half of those are for the issue of child support. He said he has been accepted as an expert for purposes of giving expert evidence about six times in different courts.
[253] He signed the acknowledgement of Experts Duty, and he was accepted as an expert in the issue he was retained to address.
[254] He was asked if he received a request from Rebecca’s counsel to speak to him, see more documents or submit written questions and he said no.
[255] He provided a detailed report and calculated Jamie’s income for 2017, for child support purposes, to be $90,000.00. His income on line 150 of his income tax return for 2017 was $84,000.00. The only source of income was his business, WestPro.
[256] Mr. MacRae increased Jamie’s income from $84,000.00 to $90,000.00, in part due to some personal expenses. He added 34% back in for meals and entertainment, telephone and travel. He added back in some expenses that were deducted in error.
[257] He did not think a deduction for a home office was inappropriate because Jamie works there, meets clients there, and stores records there. However, he did add a small amount back in.
[258] He said that Jamie was cooperative.
[259] He felt that money paid to Jamie’s son Chris, and to his wife, Danielle, for services provided by them was appropriate and no adjustment for this was necessary.
[260] He reviewed a report from a different firm that did a similar analysis in 2014. He said the only difference in their approach was that Mr. Carnegie added back in the amount for the home office deduction and Mr. MacRae did not.
[261] Mr. MacRae was not asked to complete an income analysis for 2018. In cross-examination he acknowledged that:
i. He did not do an analysis of how much retained income could have been added back in. This was because WestPro had a loss in 2017. If WestPro had income in 2017 instead of a loss, he may have been able to determine that some retained earnings could have been added back in.
ii. He felt that money provided to Aloha Spa (Danielle’s spa) was better shown as a loan than income. It was a loan between corporations. Nothing was added back as income however because the money advanced to set up the spa was to be invoiced in 2018 and paid back.
iii. He was relying on the honesty of Jamie, and his bookkeeper.
iv. He only became aware that day that Jamie is not on title to the home he has his office in. Nevertheless he still thought it was appropriate to allow the home office deduction. Jamie did not contribute to the utilities at the home in 2019 but he did in 2017.
v. In redirect examination he explained that retained earnings are the historical accumulation of profits and not necessarily cash. He said he did not have an audited statement to base his report on and he often does not.
[262] In all, he made the following adjustments:
$84,000.00 line 150 income
Adjustments
$1,944.00 personal expenses
$1,001.00 gross up on personal expenses
$2,301.00 excess home office expense
$1,185.00 gross upon home office
$6,431.00 total of adjusted income
$84,000 + $6,431.00 = $90,431.00 rounded figure = $90,000.00
Danielle West
[263] This witness is the wife of Jamie herein and she has three children from her marriage to Ian Fraser. They were ages 12, 9 and 7 as of the trial. She owns the home that she and Jamie reside in. She is a medical doctor with a family practice and she co-owns a spa.
[264] We heard evidence of her work schedule. Her time at the spa only involves one evening per week and alternate weekends when her children are at their father’s home.
[265] She explained why she cut off ties with her parents, Mr. and Mrs. Derrington. She said they frequently made critical comments about their children’s father in front of the children. Once, she said, they said “he should die on the 403” at the dinner table with the children present. She said it was relentless and she could never get them to stop despite several attempts. As such, she and Mr. Fraser sent them a letter. A letter was sent on January 10th, 2017 asking both Mr. and Mrs. Derrington to cease contact with them and the children. It was signed by Danielle Derrington and Ian Fraser.
[266] Her parents had some involvement when she married Jamie in June 2017 but that proved difficult.
[267] Danielle expressed concern that Rebecca reached out to the Derrington’s and invited them to see Avery and Danica. This was prohibited in a court Order in August 2017. She explained that it seemed odd that a friend she cut ties with ended up being friends with Rebecca, who had no prior ties with her.
[268] She identified a social media posting from October 2015 that was clearly meant for her. Kyle Foster sent it. He mentioned pictures that Jamie allegedly took of “Rebecca having sex with Shane --- picks he forced her to be in.” He added “as a mother do you know the damage he is causing these girls with his desire for revenge?” He concluded by saying “Does it not bother you that he spends more of his energy focusing on Rebecca (who he obviously still loves and can’t let go of) than he spends building a great relationship with you?” Danielle said she was shocked when she saw this because she had no prior contact with Kyle.
[269] She described an event where the two couples were present to see a performance one of the girls was in.
[270] She said Rebecca told her she was going to lose her medical licence and children, and Kyle said, “you are hooked up with a sexual abuser – Jamie West.” She said these words were spoken loudly.
[271] She said she once felt that she and Mr. Fraser were being blocked from leaving the theatre by Kyle where one of their children were performing, by the way he was positioning his body.
[272] She recalled Rebecca once saying to her “it’s a good thing you’re a doctor because Jamie needs a psychiatrist.”
[273] The reason for some of these moments when the parties saw each other was because the West children and Fraser children attend the same school. Kyle however does not have children in that school.
[274] She said that her son told her that Mr. Fraser stood outside her son’s class once and said, “stay away from Avery.” Her son told Mr. Fraser who called the police.
[275] Danielle gave evidence about her positive relationship with both girls, but she said there was a big change in the last year due to allegations made. We saw photos of times when she and Jamie were together with all five of their children or some combination. Various activities were depicted, such as apple picking, hiking, and attending community events. She had art work from the girls including a Mother’s Day card to her from Avery, and a card from Danica that said, “You are a great stepmom.”
[276] Danielle gave her recollection of the family project that her son Evan and Avery had to do. Both were in the same class, and she said that she and Jamie bought the Bristol board and glue for Evan and Avery. She said Evan completed his and Danica started her in their home, with some drawing and lettering, but she was going to complete it at her mother’s home. She said the children had to present their projects in class and Evan was confused because Danica made no reference to her father or the Fraser children but Evan made reference to both families.
[277] We heard about two trips to Jamaica with both Jamie and Danielle and their respective children. In 2016 they had two big connecting rooms with the children in one big room with trundle beds and a connecting door to the adult’s room. She said they had a great time. In March 2019 they set up the rooms differently, whereby Danielle and her three children were in one room. One of her children had a birthday and they were getting ready to go out for dinner. She heard screams and she ran to the other room and saw Danica trying to stab Avery with a corkscrew. She yelled for Danica to stop and pulled the corkscrew out of Danica’s hand and sent her to the balcony for a time out. She said Danica was difficult and told her to “go fuck off now.” Danielle denied pulling Danica’s hair, or grabbing her neck, or locking the balcony door. She said Danica had a sundress on and she could see her through the window playing with her iPad, which was out on the balcony. Jamie was not readily available to handle the incident she said, as he was in the shower.
[278] She was asked about the allegation that she threw a gumball machine at Danica. She said it was completely false and she learned about it from Jamie. She said it could not have happened as Danica said, because it was alleged to have happened on Mother’s Day weekend of 2019 and she was out all day on the Saturday and Sunday for her daughter’s dance competition. She did not see Danica on the Saturday night because Danica was at a movie. She said she had no idea how this story developed.
[279] Danielle also denied having ever thrown a shoe at either girl, or ever threatening to poison them, causing a nose bleed or hitting them, all things she was accused of.
[280] The witness was asked about a list that Danica made which was attached to an affidavit Rebecca filed in 2019. The list contains names Danica says Danielle calls her and things she does that hurt her. The names include “fat, stupid bitch, the devil, special needs, loser, and Daddy’s little princess.” Danielle said the only name on the list she has called Danica is “Daddy’s little princess,” and it was not meant in a derogatory fashion.
[281] Since the allegations about her were made, she said it has been difficult keeping a distance from the girls as she no longer feels comfortable being alone in the same room with the girls.
[282] She was asked about going to see Dr. Thirumoorthi with Jamie in 2018. She said she told him about actions she saw in Danica (stomach aches, headaches, kicking, screaming and punching with Avery.) She also saw Danica try to kick and bite Jamie. She said she was not confrontational with Dr. Thirumoorthi but she knew that a mental health assessment was needed.
[283] She did recall a heated discussion with Mr. Ricketts. A complaint made about her to the College of Physicians and Surgeons about getting a nasal flu mist for the girls was investigated and closed. Danielle believed that he advised Rebecca to make the complaint. We heard Mr. Ricketts say at trial that he did not give this advice.
[284] Danielle said that the time since the allegations commenced has been stressful and it has impacted her relationship with Avery and Danica whom she loves. When asked if they love her, she said that she does not believe they are allowed to love her, and she strongly believes they have been influenced.
[285] She believes Jamie’s proposal for primary residence would benefit the children because they would be away from the conflict and hate campaign.
[286] Danielle added that her relationship with Jamie began with her seeing how good he was with his daughters as a parent.
[287] In cross-examination she said that she and Mr. Fraser resolved their time-sharing plan six weeks after separation. She confirmed that she and Mr. Fraser separated in the summer of 2013 and she began seeing Jamie early in 2015. They began cohabitating in June 2015.
[288] The witness acknowledges that she has told her children to avoid Rebecca and Kyle but explained that she has done so because she wants to avoid conflict. She agreed that in a certain setting, this could mean her children have to avoid Avery and Danica if they are not allowed to approach them on their own. She said her children are uncomfortable around Rebecca and Kyle.
[289] She said she believed her son Evan when he said he felt threatened when Kyle was standing at his classroom door looking in, and a supply teacher shut the door.
[290] She acknowledged in cross-examination that according to Mr. Butt’s notes, Avery and Danica told him that they feel they are treated differently than the Fraser children.
[291] She indicated that her daughters are registered in competitive dance but not recreational dance. At one point the girls of both households were at the same dance studio, but the Fraser girls were in competitive dance and the West girls were in recreational dance so the nights were different. She spoke to the dance studio manager about the conflict between the adults.
[292] She said that Evan made the choice to not go on the school trip to Wonderland when Jamie lost the motion he brought to prevent Rebecca from coming. In part this was because neither Jamie or Danielle could attend and he would be uncomfortable with Rebecca on the trip.
[293] She was not present when Rebecca came to drop off the guitars at the spa but she said she heard Rebecca had just left an exchange angry and it was appropriate to call police because Rebecca came to her place of employment and it could have been deemed indirect contact between her and her work which there was not supposed to be.
[294] She said she did not produce her income tax returns because she was not a party. She pays all expenses for the house.
[295] She said she had heard about nude photos of Rebecca but had never seen them, and she had no interest in seeing them.
Karen Bridgman-Acker
[296] Ms. Bridgman-Acker is a social worker with a background in helping families with issues pertaining to separation. She provided Blended Family Therapy for Jamie his two children and his wife. She estimated about 90% of what she does is high conflict and about 99% involves children.
[297] This witness has never met Rebecca or any of her family.
[298] Ms. Bridgman-Acker provided an affidavit on September 20, 2018 and confirmed that the contents remain true.
[299] Mr. Butt recommended the blended family therapy process.
[300] It was her observation that Avery had become more comfortable with Danielle but not Danica. She said she observed Danielle to be calm and patient, and appropriate at all times.
[301] Ms. Bridgman-Acker had the four of them engage in a kind of role reversal so they could see how the other person felt about something that happened.
[302] We also heard from this witness that:
• Danica sometimes lashes out at Avery and kicks her. She does it to Jamie also. It happens when someone challenges the truthfulness of something she said. Avery will comfort Danica if she becomes upset.
• She has seen Danica say mean things to her father but then later this witness sees her holding his hand on the way to the car.
• She wrote a letter to Jamie in August 2018 where she expressed concerns about the children and the impact on them of the high conflict separation. She expressed concerns about Danica’s occasional explosive behaviours and the fact that Danica has admitted more than once of fabricating serious stories. She was concerned that Avery believes she thinks about death and dying more than most people. She recommended to Jamie that he contact the girls’ physician or CONTACT Hamilton for a referral to a children’s mental health professional.
• She heard about a difficult exchange in July 2018 wherein Danica did not want to go and said to Ms. Bridgman-Acker “I didn’t want to go to Dad’s car because I don’t like it at Dad’s house” and “I wouldn’t care if I never saw my Dad again.” Ms. Bridgman-Acker was confused because Danica followed up by using words that sounded like an adult talking. For example, Danica was quoted as saying “I don’t believe a real Dad would have sat in his car and let his daughter get so upset. A real Dad would have left.” She was also quoted as saying to this witness about Jamie “He bribes me with his love.”
• She has no concerns about either Jamie or Danielle caring for the girls.
• She finds Jamie to be good at redirecting the children’s concerns and the children mention many activities they do with Jamie.
• When asked to explain why she felt Danica occasionally fabricated things, she said she believed Danica told a CCAS worker that Danielle hit her with a pillow in the face that made her mouth bleed but a few months later she said she made it up.
• She was concerned that the girls told her that Rebecca told them they did not have to talk to her.
• She sees the girls as believing they have a big say in how decisions are made by the parents. Avery was reported as telling her that Rebecca has told her that Jamie might not take her and Danica to dance. She finds Jamie to be fair and balanced and as someone who should be seen by the girls as having some decision making ability.
When asked to explain this in cross-examination she said that the girls perceive that their mother makes decisions and that their father does not always agree, “but that if they voice their views and wishes (their expression) they can get a result they want.”
• She sees the girls as conflicted and that they should feel they are allowed to love both parents and to at least be able to like Danielle. The girls told her that their mother told them that their father loves Danielle more than them. They also believed that the reason they were not in competitive dance at that time was because Danielle did not want them to be.
• Ms. Bridgman-Acker has talked with the girls about how we can love the people in both homes when we have two homes.
• She has not met with Danielle’s children because they are not as impacted by the blended family and they do not have the conflict.
• She heard both girls say that they like the timesharing in place, where they have more nights at their mother’s home than the original equal timesharing that they had.
• Both girls have told her they love their Dad. Avery transitions better than Danica however. Danica has said she likes it better when she gets off the bus at her father’s home than when she goes from her mother’s car to her father’s car. Ms. Bridgman-Acker said that Danica has acknowledged she has a hard time leaving her mom but once she is in her dad’s car, she’s fine.
• She also said in cross-examination that the girls have said a couple of times that their mom said their dad won’t take them to dance. Ms. Bridgman-Acker said she asked Avery if there was ever a time that their father did not take them to dance, and that Avery said no.
• She discussed the incident of the guitars left at Danielle’s office with the girls and it was part of their role playing. Ms. Bridgman-Acker said the girls understood why Danielle called the police. It was Ms. Bridgman-Acker’s understanding that the girls have new guitars at their father’s house and their mother did not want them at her house. Her mother got some used ones from a relative of Kyle Foster’s.
• She said that Jamie admitted to her that he said some mean things about Rebecca early on and he regrets it.
• She was asked in cross-examination if it was acceptable for Jamie to wait in his car during an exchange until Danica was ready to leave her mother’s car and Ms. Bridgman-Acker said that it was. She also said it was not typical to see this much stress during transitions. She sees Danica as being very much aligned with her mother.
• She was asked towards the end of her testimony about her conversations with Avery by herself. She said that Avery asked to see her alone, and that at one point, Avery told her that she has been led to believe that if she expresses her views, she can change things, such as how much time she spends at her dad’s. Ms. Bridgman-Acker said she discussed this with Avery and said that it is good for her to express her views but that adults make these decisions and she may not always get what she wants.
Ashlyn Richard
[303] This witness met both parties in 2012 while she was in university. She is now an elementary school teacher. She babysat for the family frequently including one time for an entire week. She was usually there two to three evenings per month. She still sees the children which is mostly through Jamie but she has also seen the children once while babysitting for Rebecca shortly after separation.
[304] She has seen both parents at a public event, keeping their distance from one another.
[305] Ms. Richard has seen the children while visiting Jamie and his blended family. She said she had no concerns about his parenting or Danielle’s. Ms. Richard sad that she has seen very positive relationships among all the children at Jamie’s home. We heard that Ms. Richard was interviewed by Mr. Butt and she agreed with comments attributed to her by hm.
[306] An example was given regarding Danica’s challenging behaviours. She said she once had Danica in her car and Danica had a “massive outburst of screaming and crying” because Ms. Richard changed the radio station. She said she has also seen Jamie try to deescalate Danica’s tantrums.
[307] The witness said to Mr. Butt that she felt the parents, when together, were both equally involved and loving, but Jamie was usually the one who coordinated the babysitting. She also said in court that she has the utmost respect for each party.
Lourdes Geraldo
[308] Ms. Geraldo was hired by counsel for Jamie to provide expert opinion on the issue of high conflict custody and access situations, along with treatment approaches and considerations. She identified any risk factors that might be present.
[309] Ms. Geraldo provided her curriculum vitae. She has a Master of Social Work Degree and has extensive experience in the field she was consulted about.
[310] Ms. Geraldo provided a report that set out the references she relies on in her practice. The report was described as being generic as opposed to fact based because she never met the parties or the children.
[311] She said the expression “high conflict” can be overused but if a couple has ongoing unrelenting difficulty and they need a great deal of community support (clinical, judicial, or other) it is high conflict. Such parents need help in forcing accountability she said. It could be a parenting coordinator, or a therapist, or the court. She added that families who experience high conflict require containment.
[312] She said that when a court remains seized of the matter after a trial it can allow for a matter to be looked at again and modified where necessary. It helps to assure containment and accountability. She said she has seen situations improve dramatically when good clinical help is in place and the court remains seized.
[313] Ms. Geraldo was asked about situations where views and preferences of the children are deemed to show a desire to not see their father. She said that we need to hear them, and understand them, but we also need to understand the context for these views and have empathy for the child. She believes that some children are more capable than others of navigating the dispute.
[314] Ms. Geraldo was of the view that when families are involved in therapeutic reconciliation counselling it can be hampered if the children have other counselling where they are learning to speak for themselves. She said independent counselling for the child makes them feel like they have a voice but it won’t help with the conflict. She emphasized that both parents need to be involved in this process.
[315] She was asked several questions about her report. She said that alienation has become a loaded word and she would rather concentrate on new practices rather than focusing on the label.
[316] The witness reviewed some definitions that were relevant to the topic she was asked to address. We heard about alienation where a child expresses anger, rejection, or fear of a parent that is disproportionate to the child’s actual experience with that parent. When the child’s reaction is based on their actual past experience with the rejected parent, it was described as realistic estrangement.
[317] She said we need to be mindful of a child’s affinity and intervene when appropriate, in situations where a child aligns with one parent and then adopts that parents’ views. In cases of alignment and affinity, the quality of a relationship is impacted. A child may have difficulty in accepting all of the usual parental roles. She said a child can end up with mental health issues when a parent relationship is compromised.
[318] Ms. Geraldo said that regardless of whether you determine there has been alienation, realistic estrangement, or affinity alignment, there is a need for therapeutic intervention.
[319] She was asked about situations where a child has decided to stop visits despite a court order or agreement. She said that in a therapeutic setting, each parent would be given guidance on how to resume contact.
[320] She was asked if it would be appropriate to let a teen or preteen decide to attend time with the other parent and she said “not if the goal is to reestablish a healthy relationship.”
[321] She was asked how she would handle a situation where a child fabricates something, and she said the focus of her work is not to help the child understand fabrication; it is to understand different perspectives.
[322] She said it was important to get away from a confirmation basis of thinking, where a child or adult with a specific view may look for evidence that supports that view. Critical thinking helps to look for evidence that is open. If a child is of the belief that the other parent does not care about them, they may look for signs of fault rather than positive facts (i.e. the parent made their lunch that day or drove them to school.) They only look at bad examples.
[323] She pointed out that often the same bad examples are accepted in the parent they favour. This way of thinking can also be applied to a new partner.
[324] She works on balance, problem solving, and critical thinking with the family.
[325] She was asked if she has been involved in cases where a court remains seized of the matter and she said she has on multiple occasions. She was asked to reattend court, after a final order was made once, to say that therapeutic reconciliation had begun.
[326] She commented that children need to know that what they think matters, but the choice is with the adults subject to treating the children’s views as a starting point.
[327] She agreed that children can know that things are different in each house and that it is okay. The therapeutic process can help the family navigate this.
[328] In cross-examination she was asked if she is ever retained to see if either alienation or realistic estrangement has happened and she said she has been if a custody and access assessment is being done. She says she looks at the facts in such cases. For example, if a parent has abdicated a parenting role it may be realistic estrangement. If there was a good relationship with a parent, and then a dramatic shift after separation, it may be alienation. It could be that a parent withdraws after separation though, due to the loss he or she feels.
[329] Ms. Geraldo said that therapeutic reconciliation intervention can also be ordered because there is a disconnect between a child and parent without a label.
[330] She was asked in cross-examination if the parent who is alleging alienation is sometimes the one who caused it. Ms. Geraldo said a good therapist looks for ways to improve all aspects of the relationships, including a parent’s reaction to things.
[331] She agreed that her role is not to catch children in a lie.
The Law
[332] I was referred to the following authorities by the Applicant
Case Law:
Custody and Access
A. Lall-Persaud v. Persaud, 2019 ONSC 3586
B. N.S. v. R.M., 2019 ONSC 4215
Alienation
C. A.G.L. v. K.B.D., 2009 CanLII 943 (ON SC), [2009] O.J. No. 180
D. M.M.B. (V.) and C.M.V., 2017 ONSC 3991
Child Support and Income
E. Mason v. Mason, 2016 ONCA 5825
F. Henderson v. McClean, 2015 ONCJ 244
G. Favero v. Favero, 2013 ONSC 4216
H. Glace v. Francis, 2015 ONCJ 536
I. Prevost v. Prevost, 2017 ONSC 5825
Police Involvement
J. Patterson v. Powell, 2014 ONSC 1419
Bad Faith Behaviour and Costs
K. J.S. v. M.M., 2016 ONSC 3072
Relevant Legislation
A. Divorce Act, RSC 1985, c. 3 (2nd Supp)
B. Children’s Law Reform Act R.S.O. 1990, Chapter C. 12
C. Criminal Code of Canada RSC 1985, c C-46
D. Federal Child Support Guidelines
[333] I was referred to the following authorities by the Respondent
Reid v. Reid, [2018], SCJ, written reasons
Reid v. Reid, Endorsement re: Temporary Order at conclusion at Trial
A.M.F. and J.R.W. [2011], ONSC, 1868, R.F.L. (7th) 282
A.M.F. and J.R.W. [2013], ONSC, 4272, O.J. No. 3153
Ludmer v. Ludmer, 2014 ONCA 827, [2014], O.J. No. 5565
Fraser v. Fraseri 2013 ONCA 715, [2013] O.J. No. 5347
Memorandum of Law, MemoSCSumm 11943, updated March 29, 2018
A.G.L. and K.B.D. [2009] SCJ, 65 R.F.L. (6th)
Jackscha v. Funnell, [2012], ONSC 4234
Reeves v. Reeves [2001] O.J. No. 308
S.G.B. and S.J.L. [2010] ONSC 3717
Submissions
[334] Counsel gave oral submissions at the conclusion of the trial and they also provided a written summary of their submissions.
The Applicant
[335] Included in the points made on behalf of Rebecca were the following:
• Since separation, Jamie has made it his goal to destroy Rebecca’s personal and professional reputation, and this became apparent throughout the trial. He has tried to undermine her relationship with the children.
• Rebecca attempted to resolve the issues in an amicable manner, but Jamie was not prepared to.
• Rebecca has provided a stable home life for the children since separation.
• It is her position that she demonstrated that she has continued to foster a relationship between the children and their father, whereas Jamie has been actively trying to damage her relationship with them. The professional witnesses called to testify on behalf of Kyle all said that she actively supports the children’s relationship with their father. This reference was to Mr. Ricketts, Dr. Thirumoorthi, Dr. George, and Ms. Walker. Their testimony was not refuted by the Respondent.
• John Butt was hired to conduct a Custody and Access Assessment and he recommended in August 2017 that the “week about” timesharing arrangement should be reduced, with Jamie to have much less time and both parties agreed to this.
• Rebecca’s evidence was that she was emotionally and physically abused during the marriage.
• She suggests that Jamie was not surprised to find intimate photos on his camera of Rebecca and Shane. He then took screenshots of the photos and sent them to himself so he can use them against her.
• We were reminded that Rebecca testified in great detail that it was Jamie who initiated the “swinging adult lifestyle” and that she was sexually assaulted at the X Club.
• The children have a healthy and strong relationship with Rebecca’s husband, Kyle Foster. They have never voiced any concerns about him. However, they have frequently voiced concerns about Jamie’s wife, Danielle West and have alleged abuse by her.
• Jamie testified that he has never offered to show anyone the intimate photos of Rebecca but the evidence at trial was that he told people about them, in an effort to humiliate Rebecca.
• Rebecca believes that Jamie detests her and has made his feelings known to the children. It was submitted that the level of hostility has been shared by Danielle and as such it is imperative that time in the West home be limited.
• Communication between the parties was very poor and joint custody was not possible. Reference was made to a 2015 message where Jamie said to Rebecca “Fuck off you asshole.” This was in response to a reasonable request to speak to one of the children.
• It was submitted that Danielle does not like Rebecca, Kyle, Avery or Danica, and that she was insensitive to Danica when she called her a “little princess.” It was also pointed out that she has told her children not to speak to Avery or Danica when Rebecca or Kyle are around. Rebecca had to move the girls to a different dance studio due to conflict caused by Danielle.
• The parties had a workable agreement with help from Mr. Ricketts but Jamie was not satisfied and felt victimized.
• Cathy Wellwood is involved in the children’s lives and she testified that Rebecca continually encourages the children’s’ relationship with their father and never speaks negatively about him.
• Jamie was described as having racist feelings towards Kyle and expressed resistance at the children participating in Jewish holidays.
• Jamie made unreasonable telephone calls to the CCAS, causing unnecessary interviews of the children. This included a call that Kyle’s nine-year-old son had instigated inappropriate sexual activity with Danica. It was not verified and found to be not true.
• Dr. Thirumoorthi thought that Danica’s description of being hit by a gumball machine thrown at her by Danielle was plausible.
• Both Avery and Danica described the incident where Danica was locked on a balcony by Danielle.
• We heard about nine occasions when Jamie involved the police about some issue, all of which were unnecessary. One of these nine occasions involved only his adult son and one was his motion for police enforcement of access.
• It was submitted that income should be imputed to Jamie. He owns his own company and does not need to include all the deductions he does. He did not provide an analysis for income for the year 2018, and his disclosure was weak. It was suggested that I disallow the corporate deductions or at least add back in more of the expenses claimed. Several aspects of Mr. MacRae’s report were questioned. Counsel suggested I take the line 150 income as grossed up by Mr. MacRae and add back in all returned earnings shown in the business statements. This would take his income of $90,000.00 up to either $157,814.00 or $235,716.00 for 2017, and his income of $87,000.00 to $203,950.00 or $157,504,00 for 2018.
• It was pointed out that Rebecca withdrew RRSP income in 2018 but this is not recurring income and should not be imputed to her. Her 2018 income should be accepted as $152,314.81.
• A request was made for Jamie to pay retroactive outstanding extraordinary expenses which are owing.
• A review of litigation characterized as worrisome or inappropriate was given. This included a motion to prevent Rebecca and Kyle from attending a school trip to Wonderland because Evan might be uncomfortable. Rebecca had to bring a motion to keep the girls involved in competitive dance. At one time Jamie did not want to take the children to dance classes on his time. He brought a cross motion because he objected to Rebecca’s choice of confirmation sponsor.
• Jamie made unsubstantiated claims that Rebecca and Kyle used drugs. He also told Mr. Ricketts that he wanted to destroy Rebecca. The children told Mr. Ricketts, in separate interviews that their mother wants to get along with their father but the reverse is not true.
• Mr. Ricketts found Jamie to be confrontational and aggressive.
• Dr. Thirumoorthi found Jamie to be unreasonable in wanting a lengthy report after every appointment with him that the children had.
• The professional witnesses called to testify by Rebecca all found the children to be genuine and consistent.
• It was the Applicant’s position that Ms. Bridgman-Acker exceeded her role in trying to ascertain if the children were being truthful.
• She believes that neither Ashlyn Richard or Ali Vandendool could speak about what is in the children’s best interest and they only see the girls a few times a year.
• Ms. Geraldo confirmed that a therapist does not have the role of ascertaining if the children are telling the truth like Ms. Bridgman-Acker thought. She also felt that step parents need to be part of the therapeutic process but Danielle did not involve her children with the blended family therapy provided by Ms. Bridgman-Acker.
• None of the professionals who were called to testify by Rebecca feel that the children were being coached.
• The Applicant has shown that she is prepared to encourage the children’s relationship with Jamie. She is financially capable of caring for the children, and they have a positive relationship with Kyle, which they do not have with Danielle.
• Despite the evidence of Jamie that the children were beginning to miss visits, Avery only missed one and Danica missed two.
• Written submissions were concluded by pointing out that joint custody could not work due to the length history of conflict between the parties and the “blinding hatred Mr. West has for Ms. Foster.”
• Case law was referred to which supported Rebecca’s claims. This included law that:
i. Supports adding in pre-tax corporate income back into the payor’s income for support purposes.
ii. The burden is on the party claiming a deduction to show why a business deduction is reasonable.
iii. Supports the premise that meaningful documentation must be shown to justify business deductions. Without such documentation, an adverse inference can be claimed.
iv. In one case, J.S. v. M.M., 2016 ONSC 3072 the father was held to be in bad faith where he attached nude photographs of the Applicant mother and about 89 pages of “sexting” to his material. The material was removed from the record and held to be irrelevant to the issues.
v. Lall-Persaud v. Persaud was included because it dealt with the court’s duty to see if there is a sufficient degree of cooperation and communication between the parties and in order to ascertain if joint custody can work.
vi. N.S. v. R.M. was included for its analysis on the best interest of the child pursuant to section 24 of the Children’s Law Reform Act. In that case sole custody was awarded to the mother. The parties had a lack of trust and confidence in each other which would make joint decision making too difficult.
vii. A.C.L. v. K.B.D., involved a case where the father was awarded custody because the mother had alienated the children from their father and was unable to accept that it was in their best interest that they have a relationship with him.
viii. M.M.N.(V.) v. C.M. was a case where a mother was awarded sole custody because the father was engaged in alienating behaviour, and the mother was a more credible witness.
[336] At the commencement of submissions, counsel for the Applicant reviewed Rebecca’s original proposed draft order, along with a revised proposed draft order. One main change was that she is now suggesting that Jamie have each Thursday from after school or 4:00 p.m., until 7:30 p.m. Initially she suggested after school or 4:00 p.m., until Friday morning. The overnight remains an option in the alternative.
The Respondent
[337] Included in the points raised on behalf of Jamie were the following:
• Jamie only made some minor changes to his draft proposed order when the trial was concluded. He described Rebecca’s revised draft order as offensive however because it allows Jamie less time with the children than he has now. It was also pointed out that Rebecca brought a motion in May 2019 to suspend Jamie’s access or to change it to supervised access. This motion was never argued but Jamie believes that both of these proposed reductions in time show that Rebecca seeks to limit Jamie’s time with the children.
• The parties shared time on a week about basis from October 2014 to September 2017. Jamie agreed to reduce his time in August 2017 thinking that this might reduce the conflict.
• Jamie was heavily involved in the care of the children when the parties were together, and this was evident by the testimony of the two babysitters.
• Rebecca accused Jamie of serious offences such as sexual assault, and possibly drugging or rendering her unconscious wherein she may have been raped by another man at the X Club and other forms of sexual abuse. Nevertheless, there was no mention of abuse in Rebecca’s Form 35.1 affidavit, wherein abuse and violence are to be noted.
• There was a lot of talk about how Jamie kept intimate photos of Rebecca but he did so because of the allegations made about him. He was on the defensive. He handled the photos with tact. The evidence shows she was a willing participant in the adult lifestyle. As for Jamie, he testified that he was not able to perform sexually at the X Club when he tried. He also submits that Rebecca’s claims about being forced by Jamie to pose naked for photos with friends, and to have sex with Shane Fowler was ridiculous.
• It is also not believable that Jamie somehow made Rebecca send him very loving emotional greeting cards in the months before separation.
• Rebecca advised the CCAS that Danica had expressed thoughts about suicide but she did not let Jamie know.
• Some email exchanges were referred to that showed more simple polite messages from Jamie and more angry lengthy emails from Rebecca. Hers contained words in capital letters. The samples referred to were sent in 2015 and 2017. In the February 2015 email she said, among other things, “And be prepared to see our children every other weekend, because as per legal advice, I am going after FULL CUSTODY.”
• Jamie and his wife Danielle helped Avery get her family project started at their house, and they thought Avery would draw photos because she likes to draw. Once Avery was back at Rebecca’s home, there was no effort to include her father’s family. He believes this is an example of how Rebecca minimizes Jamie in the children’s lives.
• Danica was known to have temper tantrums before the parties separated and she was known to exaggerate or even fabricate. Danica has contacted the CCAS on her own twice. There was correspondence to show that a former lawyer for Rebecca acknowledged that Danica has been untruthful and Ms. Bridgman-Acker stated that Danica has acknowledged being untruthful.
• There were unsubstantiated allegations that Jamie somehow put Danielle or her children first and that he loves them more than his own children. Jamie believes this is just jealousy on the part of Rebecca and it is harmful to Avery and Danica.
• It was suggested that Danielle gave very credible testimony about the “gumball machine” incident and the “corkscrew” incident. As a result of these and other allegations Danielle has limited her time alone with Danica and Jamie has begun to sleep outside Danica’s room on an inflatable bed to prevent further false allegations. Nevertheless, photos were introduced as part of Jamie’s case that show many social times where Danica and Avery were doing something with Danielle and her children and appeared to be enjoying themselves. There was also a Mother’s Day card that Danica made for Danielle and she was quoted as telling Danielle that she wants to be a doctor when she grows up and she wants to work at the spa. She also received art work from Avery that is on display at the spa.
• Kyle Foster reached out to Danielle through Facebook before he met her, to tell her that Jamie was an abuser and he was using her. His first communication with Jamie was a text message sent to him on Rebecca’s telephone that called him “a piece of shit” and advised him that “Rebecca used to fuck Shane Fowler on the side.” This was in January 2015.
• Kyle engaged in some behaviour of concern. He addressed Avery as “gorgeous girl” in a text message and tried to get her (at age 9) to leave her dad’s house to go to his and Rebecca’s residence. He said in another text to Avery, “Hey sweetie, I know you’re sleeping” followed by kisses.
• Kyle had connections to people who had been charged with drug and gun offences. He has had two bankruptcies and did not inform the trustee that he held property in trust for someone who had criminal convictions.
• While Rebecca submits that Jamie made unnecessary calls to the CCAS, Rebecca had more contact with them.
• Jamie and Danielle had the more credible version of the Jamaica incident and a CCAS report noted that Avery said she thought Danica was playing inappropriately and she feared that her sister might be labelled “psycho” if she spoke up.
• The evidence of both Jamie and Danielle regarding the gumball machine was the most credible. On the weekend it allegedly happened, Danielle and Danica were not together at all during the entire weekend.
• A chart was provided that showed a litigation timeline for 2019. The point of this chart was to show the activities by Rebecca in 2019, which included her taking the girls’ guitars to the spa co-owned by Jamie’s wife, calling the CCAS about the Jamaica incident, calling the police about Jamie in May and August 2019, taking the children to see Rebecca Walker, the therapist on many occasions, and taking them to see the family doctor several times. There was also a motion brought by Rebecca to suspend Jamie’s access in May 2019 and Ms. Walker provided a letter in support of that motion. Also in 2019, there was a withholding of access. Both girls were withheld on the weekend of June 27th, 2019 and Danica was withheld in May 2019. As a result of the withholding on the June 27th, 2019 weekend, both girls lost the opportunity to see their paternal grandmother while she was mentally and physically capable of a meaningful visit before she died.
• A chart was provided to show the history of CCAS involvement, commencing in June 2015. Jamie contacted the Society twice in 2015, but the contact was more from Rebecca in recent time. These later ones included:
i) Rebecca reporting in July 2018 about Danielle stepping on Danica’s heels;
ii) Mr. Butt reporting an incident in July 2018 based on an email from Rebecca without direct knowledge on his part;
iii) Rebecca reporting in September 2018 that Jamie allegedly hit Danica on the arm;
iv) Rebecca reporting in November 2018 that Jamie allegedly roughly grabbed a bag of chips from Danica’s hands;
v) Rebecca reporting in March 2019 about the Jamaica incident; and,
vi) Danica reporting in May 2019 about the gumball incident, during voicemails from Danica herself while in Rebecca Walker’s office with her mother.
• The court was reminded that:
i) Marcia Reid testified that Jamie was a loving father to their son Chris and they always worked things out amicably;
ii) Ali Vandendool testified that she thought both parents were good parents and she was surprised when they separated. She dealt more with Jamie because he was home more. She still sees the children from time to time in the West home but Rebecca cut ties with her. She said she saw Avery and Danica in 2019 and found them to be happy and engaged with her, Jamie and Danielle;
iii) Ashlyn Richard, as a former babysitter, gave similar evidence to Ms. Vandendool;
iv) Mr. Fraser (Danielle’s first husband) spoke highly of Danielle and her parenting abilities;
v) Dr. Thirumoorthi had much more contact with Rebecca and considered himself as an “advocate” for the children which Jamie found troubling. It was submitted that it was unusual for him to write a letter for 13-year-old Avery when she wanted to switch schools, (and she called him to do so) without any contact with Jamie;
vi) Mr. Ricketts said he would not have signed off on the agreement reached in April 2016 for a “50/50 timeshare” if he did not think it was in the best interests of the children. He also said he did not advise Rebecca to report Danielle to her governing body. He also said that at the time of his involvement the children described Danielle as being “nice” and that Kyle spoke negatively about Jamie. It was submitted that this was quite different than the allegations and reports that began once an application for sole custody was commenced by Rebecca;
vii) Dr. George acknowledged that she accepted the children’s allegations at face value and did not undertake any investigations to see if the allegations were accurate or what the basis of the children’s views were. She proposed further individual therapy for the children, which was in contrast to what Ms. Geraldo suggested. Ms. Geraldo said that in high conflict cases individual therapy for the children can be counterproductive;
viii) A summary of Ms. Geraldo’s evidence was given. She was accepted to give expert opinion evidence on high conflict custody and access cases.
• The court was reminded that Ms. Geraldo believes it would be helpful to have the court stay involved during the period of therapeutic intervention.
• It was submitted that Rebecca’s income should include $12,000.00 to include three college courses she is teaching in 2019, as opposed to the one she taught in 2018.
• Counsel suggested that it was unreasonable of Rebecca to request that Jamie’s income include $6,431.00 which Mr. MacRae allowed as deductions for home office meals and travel with a gross up. Jamie hired a qualified accountant to give an opinion on this and Rebecca did not. The court was reminded that Mr. MacRae said that the retained earnings are not income for support, and they do not reflect available cash. They are an accounting entry to reflect the history of accumulated profits. It was also reminded that Jamie said he lost 3 major clients in 2019.
• It was suggested that Jamie be given a credit for what he calls an overpayment of child support. He believes he had the children for over 40% of the time and therefore the $1,416.00 per month he paid was an overpayment, and he overpaid by $33,984.00 from between October 2017 to August 2019.
• Jamie believes he owes no money for arrears or extraordinary expenses. There was a cap of $3,000.00 per year set out in the Order dated August 17th, 2017 and Jamie also paid for activities he arranged. This was for guitar lessons, and theatre camp, which Rebecca did not contribute to. He said that each party paid over $3,000.00 per year, and that when the August 2017 Order was made, the children were registered for recreational dance only, and not competitive dance.
[338] References were made about the law provided. Many references were made to situations where the court does not put weight on the children’s views and preferences where a parent has undermined the other parent’s relationship with the children.
[339] For example, Justice Haper said in A.M.F. v. J.R.W., “I find that the children’s expressed fear and dislike of their father was rooted in the mother’s fear and dislike of J. I find that no event that was brought out in the evidence as an attempt to demonize J. had a basis in reality.”
[340] Other case law was referred to about the value of the court staying involved to monitor the therapeutic process.
[341] There was law about the need to foster a child’s positive relationship with the other parent and to have a plan to re-establish it when it has suffered.
Conclusions
CUSTODY AND ACCESS
[342] This issue was the most contentious between the parties.
[343] There was common belief among the parties and professional witnesses that this is a high conflict custody case. This is evident by the large number of professional people involved with the family, the significant involvement of the Catholic Children’s Aid Society, and the history of the litigation itself.
Allegations regarding sexual and intimate behaviour
[344] There was a lot of evidence from the parties about the parties’ attendance at the “X Club”, and the existence of embarrassing intimate photos of Rebecca. It was Rebecca’s position that Jamie wanted to join the adult lifestyle known as swinging. Rebecca said she was uncomfortable when they went and Jamie pressured her to go even though she was very upset by the whole experience. She said the first time they were in a room with another couple, that Jamie pushed her on a bed and the other man in the room had sex with her while she blacked out. She also said that Jamie made her take intimate photos of herself with Shane Fowler, and that he took some similar photos of her himself. We also heard from Rebecca that she and two women friends on one occasion, and she and two other women friends on another occasion, took nude photos of themselves because Jamie harassed them into doing so.
[345] Jamie’s evidence was that it was Rebecca who instigated the trips to the “X Club” and that he was shocked to find intimate photos of her. He denied telling her to go to Shane’s home for sex or to telling her and her friends to take nude photos of themselves.
[346] I have come to the conclusion that none of this evidence in regard to the visits to the X Club, the relationship with Shane Fowler and the women’s weekend will impact my decision regarding custody and access. My reasons are as follows:
i. I heard from no independent witnesses as to any of the activities mentioned above. Shane Fowler was not called to testify. The two women that Rebecca travelled to Niagara Falls with were not called. The two women who she travelled to Montreal with were not called to testify. It is difficult to understand how four women felt compelled to take nude photos of themselves during a women’s weekend because the husband of the other woman with them said they had to. This claim lacked credibility.
ii. When the parties first separated, they began an equal alternating weekly timesharing with the children, sometimes referred to as a “week about.” This practice was in place for over two years before litigation was commenced.
iii. The parties met with Paul Ricketts from August 2015 to April 2016. He was aware of the “swinging lifestyle.” He said he did not think it would impact their ability to parent as long as the children were not exposed to it. He wrote in his report that both parties told him about the “swinging” lifestyle during the last few years of their marriage although Rebecca also told him that she felt pressured into it. Despite his knowledge of this lifestyle, Mr. Ricketts did not see it as a significant factor and it did not deter him from accepting an agreement for joint custody and equal timesharing. It seems that Rebecca told Mr. Ricketts that she felt pressured to go along with the “swinging,” but she described it as something like a sexual assault in court. I am not able to determine if either party was the instigator of these activities, and I have insufficient evidence to conclude that either party was a victim, especially since the weekly timesharing arrangement was in place immediately after separation. The fact that the parties told Mr. Ricketts about these activities and still developed a parenting plan that included a joint custody regime indicate that at one point, the parties were able to move on from these events.
iv. The messages sent by Kyle were very conflicting. The Facebook one he sent to Danielle, before they even met, talked about Jamie taking pictures of Rebecca having sex with Shane and forcing her to do this. However, a text message he sent to Jamie, seemed to portray the opposite message. Included in this message were the words “wanted to let u know Rebecca used to fuck Shane Fowler on the side behind ur back. Live with that!!!! Hope it hurt u.” I realize that all of Kyle’s information that he is giving to Danielle and Jamie is second hand to him, as he is relying on what Rebecca told him. However, based on his impressions from Rebecca, he is in one message portraying Jamie as being sexually abusive, and in the other message, he is gloating to Jamie about Rebecca’s sexual activities with Shane in a way that clearly makes it sound consensual.
v. Kyle’s assertion that Jamie suggested they have a three way when Jamie and Rebecca were still together lacked credibility because no one heard this statement until he said it at trial. This was in spite of the length of time in which these types of allegations were being made.
vi. There was contradictory evidence about the sexually explicit text messages that appear to have been exchanged between Rebecca and Shane. She says that Jamie was pretending to be her, and he says that this is not true and that it makes no sense. I believe the more likely explanation is that they came from Rebecca herself on her cell phone. The reference made by her to “grab my old phone out of my purse” does not sound like something Jamie would write. Also, I am mindful of the impression Kyle gave to Jamie that Rebecca and Shane had a consensual affair (paragraph 347 (iv) herein), which makes the text exchanges between Rebecca and Shane seem authentic. I am also aware that Rebecca said that the messages may also have been written by her at Jamie’s direction. She was vague in how they came to be. Nevertheless, there is no evidence that the relationship with Shane impacted Rebecca’s parenting.
vii. Rebecca is understandably upset about the intimate photographs of herself that Jamie kept. No one was called to testify who said that he actually showed them the photographs, although Ms. Wellwood said he offered to show them to her. It is not denied that Jamie told people about the photographs, however.
[347] For all the considerations set out on this topic, I cannot find that my decision will be impacted by the adult swinging lifestyle, or Rebecca’s relationship with Shane Fowler. There was no independent evidence. In addition, I am very mindful of the fact that none of these activities prevented the parties from entering into a joint custody arrangement with an equal timesharing that was arranged with the help of a qualified parenting coordinator and which lasted for over two years. Give the ability of the parties’ to initially overlook these activities, and the contradictory evidence, I cannot say that these activities have impacted either parties’ ability to parent. As such, they are not something that helps or hurts the claims made by either party with the exception of credibility, which I will address. I am also mindful that both parties appear to be in stable new relationships now, and have been for a few years. Both have re-married.
Inappropriate e-mails and text messages
[348] There were some very crude and inappropriate text messages sent by Jamie West and Kyle Foster. Jamie’s text also contained some words that look racist and anti-semitic towards Kyle, along with some very hurtful comments about Rebecca. However, these messages were sent quite some time ago and both men say they regret it. There is no evidence of this type of behaviour being repeated in recent years. The one I referred to that was sent by Jamie was sent in 2015. There is reason to be optimistic that these types of messages will not be exchanged again.
Conflict
[349] Having heard all the evidence and having reviewed all the exhibits filed, I am of the view that both parties contributed to the level of conflict that has made this a high conflict case. Both parties contacted the C.C.A.S. more than once. The allegations were never verified. Both made serious accusations about the other. Both took steps that subjected the children to many interviews with many professional people. Jamie told Mr. Ricketts that he wanted to destroy Rebecca because she had affairs with several men. Rebecca’s partner Kyle contacted Danielle to tell her that Jamie was abusive. Both men sent crude, inappropriate messages. Both Rebecca and Jamie made complaints to governing bodies. Rebecca sent some email letters described herein that did not help the level of conflict. I am easily making a finding that both parties contributed to the conflict.
[350] Counsel for Rebecca referred me to section 162.1(1) of the Criminal Code of Canada, R.S.O. 1990, Chapter C.12, which reads as follows:
Section 162.1
“Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty (a) of an indictable offence and liable to imprisonment for a term of not more than five years; or (b) of an offence punishable on summary conviction.”
[351] The issues before me are custody, access and child support. I believe that I was referred to this section of the Criminal Code to point out the seriousness of Jamie’s hanging on to the intimate photos of Rebecca and either showing them to people or telling people about them. There was no suggestion that he made them available to anyone other than private individuals, and there were no witnesses who were called to say they saw them. There was just the one witness who said he offered to show them to her but Jamie denied this.
[352] I am unable to see anything relevant about this section, to the issues before me. However, I can see no reason why this material should not be destroyed. The only purpose it was retained for so long was to use in these proceedings by Jamie.
Views and Preferences
[353] A significant part of Rebecca’s case was in relation to the children’s views, and preferences. She brought a motion for the appointment of a lawyer who would act in the same capacity as a lawyer appointed by the Office of the Children’s Lawyer. That motion was argued on July 2nd 2019, and Justice Lafrenière dismissed the motion. In her written reasons she wrote about the May 16th, 2019 weekend where Danica did not go to her father’s. She pointed out that Rebecca said in her affidavit:
“Danica has been struggling for quite some time and has expressed that she does not wish to visit with her father. I have ensured that she has attended on each occasion. It was only recently that she started outright refusing to go.”
[354] In her reasons to dismiss the motion, Justice Lafrenière wrote in paragraphs 30, 35 and 36:
[30] The mother has demonstrated she is unwilling or unable to ensure the children are not placed directly in the conflict. She has allowed Danica to believe it is up to her whether or not she goes to her father’s home. I am confident she would not allow Danica to decide whether or not she goes to school, seeks medical treatment or dental treatment. By allowing Danica to believe she can decide whether or not she sees her father, the mother is marginalizing the father’s relationship with the children. She is telling them it is okay and that she will support them in not seeing their father, if that is their wish. If she is truly unable to persuade the children that they will spend time with their father because that is what she and he had decided is best for them, I question her ability to adequately parent the children.
[35] I find that these young children have been subjected to countless interviews with professionals: Social Workers, the personnel at their school, the family doctor, the clinical investigator from the OCL, and the therapist, Dr. Rebecca Walker.
[36] The children are too young to be expected to determine the nature of their relationship with either of their parents. They have been led to believe, particularly Danica, they can decide whether or not they spend time with their father. I find it would not be in their best interests to appoint a lawyer for them.
[355] Despite the lack of formal representation for the children, there was a great deal of evidence through the witnesses and the documents introduced regarding the children’s position. They were quoted as telling several professional people that they want to live with their mother and that they do not like Danielle. They have said they like it at their mother’s home better than at their father’s home. It was partly due to these strong views that Mr. Butt recommended that the week about timesharing be changed so that Rebecca had more time. He did wonder however if there was some influence upon the girls but he never completed his report so this was not explored further.
[356] Section 24(2) of the Children’s Law Reform Act R.S.O. 1990, Chapter C.12 covers the criteria for best interests of the child in custody and access cases. Subparagraph 24(2)(b) includes the following as part of the criteria: “the child’s views and preferences if they can reasonably be ascertained.”
Best Interests Test
[357] Since the parties were married and a divorce was claimed, I will refer mainly to the test in the Divorce Act. The criteria in the Children’s Law Reform Act is helpful as well however. Both Acts state that a decision regarding custody and access must be in the best interests of the child.
[358] The provisions under the Divorce Act, R.S.C. 1985, c.3 (2nd supp) that are the most relevant to the custody and access issues are sections 16(8), (9) and (10). They read as follows:
(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.
[359] I have considered the best interests of the children in regard to the condition, means, needs and other circumstances of the children and I have considered the maximum contact principle. In my view, after hearing all the evidence, the appropriate order and the one that meets the best interests of the children is an order for an equal timesharing and custody in favour of the Respondent father.
[360] I will summarize the points that led me to this conclusion including the ones that were more in favour of a custody order for the Applicant mother.
i. I am aware that the children have said to a variety of professional people that they want to stay with their mother and spend less time with their father.
ii. It is clear that the children have indicated that they love Kyle and have a positive relationship with him. Kyle talked about how much he loves them.
iii. The text messages Kyle sent to Avery urging her and Danica to leave their father’s home early and come back were inappropriate. However he acknowledged this and there was no sign of this kind of direct pressure happening again. He did not see why Jamie would be upset about the tattoo on his upper leg with the girls’ names on it, not long after he got together with Rebecca. I am of the view that it was understandable that Jamie was upset about the tattoo.
iv. I am mindful that a great deal of time during this trial was spent on the issue of how the girls say they do not like Danielle, and that she has even been abusive.
v. I am mindful that professional witnesses have said that the girls present themselves as genuine and authentic. I am also mindful however that these witnesses were not conducting an enquiry into the allegations made by them. That was the job of CCAS.
vi. I found it of concern that Jamie would send some crude, hurtful messages to Rebecca. Likewise, I found it of concern that Kyle would send inappropriate messages to Danielle and Jamie. As I said earlier, I believe both men have learned and moved beyond this.
vii. I note Rebecca’s argument, that Jamie reduced his time with the children pursuant to Mr. Butts’ recommendation in 2017, and this was mainly due to the views and wishes of the children. He also reduced his time to his son Chris many years ago because the child needed more time with his mother.
viii. I have no reason to doubt Mr. Ricketts or Dr. Thirumoorthi when they said that Jamie was more difficult to deal with than Rebecca, or that Jamie told Mr. Ricketts in 2015 or 2016 that he wanted to destroy Rebecca. There was also a text message sent by Rebecca at the end of 2014 wherein she said she would destroy Jamie.
ix. I have already indicated that both parties contributed to the conflict, and have made unnecessary calls to the CCAS.
x. I have made no determination as to who was the instigator of the trips to the X Club, or if it was a mutual effort. It is not a factor in my decision. Likewise, the relationship between Rebecca and Shane is not a factor. In addition to a lack of independent evidence on these two events, there is no reason to believe that the children were affected in any way.
xi. Both former babysitters described the parties as being involved in child care and being part of a good family. They dealt more with Jamie in regard to making the arrangements, but this was when Rebecca was working in Toronto.
xii. There was no concern expressed by anyone about either party providing day to day care of the children.
xiii. A significant portion of Rebecca’s case was that the children do not like Danielle and there have been several allegations made about her. Nevertheless:
a. Both Ali Vandendool and Ashlyn Richard (who had positive things to say about both parties), have seen Avery and Danica from time to time in the presence of Jamie, Danielle, and Danielle’s three children. They see the girls as enjoying their time with this entire group of people;
b. The CCAS have never verified any of the incidents wherein the girls, or Danica alone, made allegations against Danielle. They stayed involved due to the level of conflict;
c. Danielle made a very credible explanation as to why she could not have thrown a gumball machine at Danica. They were never together during the weekend it was alleged to have happened;
d. Danica has been seen to exaggerate, throw tantrums and be less than truthful;
e. Mr. Butt expressed concern that there might be some influence placed on Avery and Danica;
f. At one point, the girls described Danielle as being nice. They gave cards to her. Photos of get togethers with Danielle and her children in them appear to show happy times together.
[361] I am concerned about the way the girls have aligned themselves more and more, with Rebecca. If something similar to the status quo continues I fear that their relationship with their father will deteriorate further. If the parties have an equal timesharing, it will give the girls the chance to be an equal part of both homes. Their views and preferences are not helpful in this decision. They were not obtained through a professional whose job it is to consider them properly, and look for influences. They are found in the children’s comments to many people. I am aware that Rebecca’s witnesses have all said that they never hear her speak negatively about Jamie and that she promotes a relationship with him. However, I also am aware that:
a. Although Rebecca abandoned a motion she brought during the summer of 2019, she was prepared to ask that Jamie’s access be suspended or supervised, and I see no reason why it would be. This was just before trial.
b. Attached to her motion material to greatly reduce Jamie’s time with the children was a list of things Danica does not like about Danielle, handwritten by Danica herself. This was not appropriate.
c. The girls have not missed many visits but Rebecca has said that she cannot “make Danica go.” She did not handle the episode well where Danica did not want to go to her father’s home after school. Rebecca intervened, and the visit did not happen. She should have let Jamie sort it out because his time started at the end of school. While they were only two missed weekends, they were relatively recent which is a concern. It was as though the role of the father in the girls’ lives was being reduced as the parties were approaching the trial.
d. Avery’s family project was of concern. I found Jamie and Danielle to be credible when they testified that the project was underway at their home and that they bought the Bristol board. Avery made no mention of her father or anyone in his home. There was mention of Kyle Foster and his children however. The explanation by Rebecca that she did not have photos was not convincing as Avery likes to draw, and her father believed she was going to be drawing pictures of family members. These could also have been reference to Jamie and the people in his home in writing as well. This incident is an example of one of the children becoming more aligned with the people in Rebecca’s home.
e. It was of concern when we heard about the note Rebecca left in Danica’s backpack, telling her to be strong, and in effect, get through her weekend at her father’s.
f. It was of concern when, during submissions at the end of trial, Rebecca changed her proposed draft order to allow Jamie less time. She changed a week night overnight to a few hours. When counsel provided draft proposed orders at the beginning of trial, I told them that if the clients change their minds on anything as a result of the evidence heard during the trial, that they could amend their draft orders. Jamie made one minor change and had a reasonable explanation for it. I could see no reason for Rebecca to offer less time after the trial, especially since the last witness was Lourdes Geraldo who was giving opinion evidence on the effects of alienation and alignment, and was also suggesting a new path forward.
[362] The parties had a “week about” timesharing for over two years and for all the reasons set out herein, I believe it is in the best interests of the children that the parties revert to it. I will not make an order that gives Jamie the majority of the time, which is his first proposal, because it is too contrary to what the girls would like, and to what they are used to. It would be too big of an adjustment for them.
[363] An equal timesharing with an exchange once per week has an advantage of reducing the number of exchanges, which have been difficult.
[364] I am also hopeful that if the parties are perceived more as being equal parents, along with the therapy provided by Ms. Geraldo that the children will be less likely to suffer from “confirmation bias”, wherein they perceive their mother and her husband as the favoured and good ones, while their father and his wife are the bad and unfavoured ones.
[365] I have given consideration to something that keeps the parties equal in terms of decision-making. I thought of joint custody with divided areas of decision-making and of a form of parallel parenting. However, I have decided against this for three main reasons, namely:
a. Neither party suggested this in the alternative;
b. Both parties expressed the opinion that joint custody will not work in this case;
c. This is a high conflict case and I do not believe it would work. If I divide the areas of decision-making they will undoubtedly overlap and there will be conflict as a result, and no decision made. A hypothetical example comes to mind. If one parent registers a child for an activity because they have final decision-making power for extracurricular activities, the other parent with final decision-making power for health or education may find a way to oppose the activity if he or she disagrees. It could be argued that the child’s schooling or health would be affected by that activity. This is not an unlikely scenario in a high conflict case like this.
[366] In making my decision for an equal timesharing and custody to Jamie (subject to consultation) I am very much guided by the maximum contact principle. Overall, I believe Jamie will be more likely to facilitate contact with Rebecca than the reverse. The allegations about Danielle have not been verified and are in contrast to the girls earlier opinions of her and in contrast to the evidence given by both former babysitters. The argument made on behalf of Rebecca that Ali Vandendool and Ashlyn Richard are not in a position to speak to the best interests of the children makes no sense because that is not what they were doing. They gave their observations of life in the home when the parties were together, and their observations of the children with the family of Jamie and Danielle.
[367] There were a few areas of concern about credibility in regard to Rebecca:
i. Her evidence about Jamie harassing four adult friends of hers into taking nude photos of themselves while out of town for a weekend (and he was in Hamilton) lacked credibility and no explanation of how it happened was given.
ii. It was also not credible that she wrote all those complimentary comments that she did in the greeting cards to Jamie because she was “protecting herself” or “it was expected.” The parties were together then and a more plausible explanation is that she wrote about what she felt. No adequate explanation was given as to how Jamie communicated that he expected it. The content was much more than what one would write when sending a card with a brief nice message included.
iii. While I have not found the relationship between Rebecca and Shane to be a factor in determining custody or access, I do find it to be a concern regarding credibility. It is difficult to see how Jamie made her get into a cab, by herself, and go to Shane’s house for sex and photos, with the threat of the police being called if she did not go, especially without further evidence. The explicit text messages sound like they came from Rebecca herself for reasons set out earlier herein.
[368] If I ordered sole custody to Rebecca, I have concerns that in time, the children will be brought to professional people of her choosing and the children will become more entrenched in their positions about not seeing Jamie and Danielle.
[369] There were concerns about both parties as noted by me. Jamie also contributed to the conflict. The Parenting Coordinator found him to be confrontational and aggressive and the children’s doctor found him to be difficult to deal with. However, zI did not find specific areas where he lacked credibility on substantive issues like I did with Rebecca (the two women’s weekends, the greeting cards, and the relationship with Shane Fowler).
[370] Since I find Jamie to be the more credible witness overall I am more inclined to accept his evidence overall. I believe he will be the party who will most likely promote a relationship with the other parent. The evidence at this trial did not support the decline in his relationship with the children.
[371] I realize there are many comments noted by people who heard the children say negative things about their father but some have not been found to be correct. Avery when asked, could not name a Saturday that her father did not take her to dance even though she said this was a concern. There were concerns that Danica occasionally fabricates things, and I am of the view that the incident regarding the gumball machine never happened, for reasons set out above. The “Jamaica incident” seems taken out of all proportion. If Danica was going after Avery with a corkscrew, Danielle was right to intervene given that Jamie was in the shower. Both Jamie and Danielle said Danica was on the balcony entertaining herself with her iPad and I accept their evidence as they have been credible overall and they were there. The CCAS took no steps over this incident.
[372] Due to all of the concerns expressed above, I am not inclined to put any weight on the views and preferences of the children, other than to make the time sharing a “week about” as opposed to giving Jamie more time. The views and preferences are not reliable in my view.
[373] I believe the children have likely been influenced by Rebecca, perhaps in a subtle way, and they clearly have taken on an increasing alignment with her. This alignment extends in a major way to Kyle over Danielle.
[374] I found Danielle to be very straight forward and credible. She was the only one of the four adults who does not have inappropriate or embarrassing email and text messages to regret.
[375] There were two witnesses other than Jamie and Danielle who have seen Danielle with Avery and Danica, and they are the two former babysitters. Both of these witnesses saw a positive relationship between the girls and Danielle. They were very credible witnesses, in that they spoke highly of both Rebecca and Jamie. Danielle’s former husband described her as a “good and loving mom.”
[376] I see no persuasive evidence that Danielle was abusive to either child. Without the custody and access order I am putting in place, and without the therapeutic intervention which I will address, I would have concerns that the relationship between the girls and their father would deteriorate further. I would have concerns that the alignment with their mother and Kyle would grow stronger.
[377] I find the evidence to be that both girls had a positive relationship with their father when the family was intact and they deserve to have this relationship again. With the orders I am making, it is hoped that the children will once again have a positive and balanced relationship with both parents.
[378] I will make an order that the changes in the timesharing and custody must be presented to the children in a child focused manner.
Terms of the Timesharing
[379] The parties commenced their “week about” on Fridays after school in the past so I will keep this practice. It is how they arrange their weekend exchanges now, so I will order that it is to be after school, or at 4:00 p.m. if school is not in session.
[380] The parties had almost identical proposals for the Christmas school break, Easter weekend, Mother’s Day, Father’s Day, Spring school break, and other holiday weekends. I will include these proposed terms in my order.
[381] The parties proposals for the summer were similar. Rebecca proposes that they each have two non-consecutive weeks in the summer. For some reason Jamie has proposed three for Rebecca and two for himself. This may be because he is seeking primary residence, and the majority of the time for himself and this is his way of giving Rebecca a little more time. Since I am ordering an equal timesharing throughout the year, I will order the two week limit for each. I will let the parties alternate the ability to request their choice of weeks as proposed by both parties.
Extracurricular Activities
[382] Each party provided suggestions for how to arrange these. Some of the suggestions are not suitable in my view. For example, I do not agree with Jamie’s proposal that a court order should direct that the children have to maintain a B or B+ average in order to stay in dance. This is something parents might consider, but it is not appropriate for the court to order it. I am also not inclined to make an order that any “in home” music teacher must attend at Rebecca’s home during her time. If Jamie has arranged for music lessons, he may decide that the lessons are only every second week. He may also decide that the lessons will be in a location outside the home. Of course he may decide to have the teacher go to both homes but I will not order it.
[383] There was a great deal of testimony about dance during the trial, and how much they love it. I will make an order that there be no changes in the dance schedule between now and the end of June. Thereafter, I do not think it is unreasonable that a parent, like Jamie, believes that competitive dance and recreational dance at the same time is too much. His proposal that the regular schedule not exceed 6 hours per week is also not unreasonable. However, it may be that dance will take more than six hours per week and we heard a great deal of evidence about how much the girls love dance. Rather than impose an arbitrary number of hours I am going to leave the issue of the number of hours for the parties to discuss through the therapeutic process they are involved in. Once they have my decision, and they know that there will be a “week about” schedule, it will be easier to consider the time. I will impose a time limit if no agreement is reached when the fall season begins.
[384] At the present time, the girls take a great deal of dance classes, which are organized by Rebecca, and they take guitar lessons, which are organized by Jamie.
[385] I will order that each parent chooses one activity. There was evidence that Jamie thought that once the girls were in competitive dance, that they would no longer be in recreational dance. Rebecca kept them registered for both however. Give the number of hours involved I will include that one activity is competitive dance and one is recreational dance. Consent of both parties will be needed to have them registered in both if rehearsals and classes take place on both parent’s time, and consent will be needed for any third activity that encroaches on the other parent’s time. I will order that both parties and spouses can attend competitions and recitals, and that Rebecca can always be back stage for competitions and recitals. Given that the children are currently enrolled in dance classes that last until June, I will order that they can continue as registered until June 30th, 2020.
[386] The parties had different ideas about how to share the cost of extracurricular activities. Jamie thought they should each pay for the activity they choose. Rebecca thought they should share equally. Since dance is more expensive than guitar, and since there is a difference in income I believe that the fairest and most appropriate thing to do is to order a sharing in proportion to the parties’ incomes.
Other Terms
[387] Both parties had provisions in their draft orders called “Incidents of Parenting.” Most of the terms were quite similar and I will include a combination of these terms. They include the duty to foster a positive relationship with the other parent, the location for exchanges, the use of Our Family Wizard, and other provisions. I will not include the paragraphs suggested by Rebecca that include references to the current dentist, doctor, and psychiatrist. If the children need any additional therapy going forward, it would need to be as recommended by Lourdes Geraldo. Since Jamie is going to have custody it is not unreasonable for him to change the family doctor. I do not doubt Dr. Thirumoorthi’s sincerity, or his concern for the children’s well-being, but it may be that Jamie will want to start with someone new, who has not had the history of hearing the girls’ complaints about he and Danielle. I will leave the issue of the professional people involved silent.
Role of Lourdes Geraldo
[388] At the conclusion of the trial the parties consented to an order for a therapeutic process with Ms. Geraldo to ensure a balanced relationship between the children and the parties. The parties were considering this request by Jamie during a recess. I was prepared to make the order as I was returning to the court room, and was pleased to hear that it would be on consent.
[389] The consent order included the following:
Lourdes Geraldo shall be immediately engaged by the parties to facilitate any and all therapeutic interventions, therapies and approaches to ensure a balanced relationship as between the children and the parties;
The parties shall execute any documentation necessary, attend with or without the children, and or extended family members and/or third parties as requested and follow the process and procedure as indicated by Ms. Geraldo;
The cost of said involvement shall be shared equally by the parties;
The parties shall forthwith terminate any other counselling or therapy currently taking place that involves the children of the parties, namely, Avery Kennedy West, born February 1, 2006 and Danica Dorothy West, born January 19, 2010; and
In addition, neither party shall engage the children in any therapy or counselling without it being part of the process undertaken by Ms. Geraldo and specifically recommended by her.
[390] The purpose for the prohibition against other counselling was to allow the parties and children to focus on just one forum instead of the multitude of people who have been involved in the past. Also, Ms. Geraldo explained that sometimes individual therapy is counterproductive, as it could cause the children to become even more entrenched in their views. It may just reinforce the children’s views without exploring why they feel the way they do, and without examining what actually happened. It is better, in my view, if they all meet with the same person, and that the focus being to secure a balanced relationship for the children with both parents.
[391] Ms. Geraldo commented on the research of others in her field in her report and some comments on page 5 were as follows:
• The most common age at which a child may be alienated is from 9 to 15. Children in this age range may demonstrate moral outrage or judgments against their rejected parents; and
• When a child has polarized thinking, and views one parent as “all good” and one as “all bad” it may lead to challenges in dealing with peers or people in authority. Conflict and alienation has also been associated with lower levels of self-esteem and impairments in social and romantic relationships later in life.
[392] I am of the view that the process that has begun with Ms. Geraldo should continue. The children have become more and more aligned with Rebecca and Kyle and not their father. The allegations against Danielle were not verified by the CCAS and they do not appear very credible. I am mindful that the children were quoted as saying they thought Danielle was going to poison them. Rebecca wondered if the guitars she took to Danielle’s spa were “bugged.” These are not reasonable suspicions.
[393] The therapy needs to continue to assist the children in having healthy and positive relationships in both homes.
[394] I am in agreement with Ms. Geraldo when she says there is a value to having the court stay seized of the issue of the therapeutic intervention. She believes it helps to assure commitment and accountability. She said that she has seen dramatic improvement in some situations, where there is good clinical help in place, and the courts remained seized. Given the number of professional people involved in this file, and the fact that it has now been limited to one, and given the great need for this intervention, I will make an order that I am seized of this issue until a further order is made. I believe that such an order is in the best interests of the children who deserve to have a positive relationship with both parents, and a good process to get there. The parties are more likely to commit to the process in my view, if they report back to the court periodically. When counsel and the parties attend at court to receive this written decision and obtain an oral summary, I will canvass a suitable date to update the court on the therapeutic process.
Mobile Phone Use
[395] Both parties included a provision in their draft order about the use of mobile telephone use by the children when they want to contact the non-resident parent. Rebecca proposes something that is basically unlimited. Jamie proposes something that is quite restrictive, and discourages contact with the non-resident parent. Jamie’s proposal seems unrealistic, as I am sure that the girls will want to call the other parent. A proposal with no limits however could be revisited. Now that the parties are working with Ms. Geraldo, and they have my decision, I would like them to have another look at this issue, and report back. Since the parties will be reattending on the issue of the continued therapeutic intervention, they can address the issue at the same time. I am hopeful that they will resolve the issue. If they do not come to an agreement, I will impose something in regard to mobile phone use and the purchase of the phones.
The Applicant’s Income
[396] Jamie believes that Rebecca should have income imputed to her for her work at Mohawk College, and for her R.R.S.P. withdrawals.
[397] I was referred to the 2014 case of Ludmer v. Ludmer, from the Ontario Court of Appeal, and Fraser v. Fraser, a 2013 Ontario Court of Appeal case.
[398] It was Jamie’s submission that the law supports an inclusion of R.R.S.P. income if there is a recurring use of these funds. It was pointed out on behalf of Jamie that Rebecca’s R.R.S.P.’s were never part of an equalization so there is no case of double dipping. It was also pointed out that Jamie only withdrew R.R.S.P. funds once, but Rebecca has done it several times. Speaking for the Court in Fraser v. Fraser, Justice Simmons said at paragraph 103:
“The clear wording of the Guidelines includes R.R.S.P. withdrawals as income and no special exception for R.R.S.P. withdrawals has been provided in Schedule 111.”
[399] Speaking for the court in Ludmer v. Ludmer, Justice Blair wrote at paragraphs 22 to 24:
22 This Court has held that RRSP income is “presumptively part of a spouse’s income for child support purposes.” This is because section s. 16 of the Guidelines provides that a person’s annual income for child support purposes is determined using the sources of income set out under the heading “Total income” on the T1 tax form. RRSP income is included as part of “Total income” on the T1 fax form: see Fraser v. Fraser, 2013 ONCA 715, 40 R.F.L. (7th) 311, at para. 97.
23 The inclusion of RRSP proceeds is not mandatory, however, and the court has the discretion in appropriate circumstances to do otherwise. Section 17(1) of the Guidelines provides this flexibility:
If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. [Emphasis added]
24 Here, the trial judge excluded both parties’ RRSP proceeds from the calculation of their income for support purposes on the basis that they were “non-repeating encroachments on capital.” Ms. Ludmer’s financial statement indicated that she used her proceeds primarily to finance this costly litigation, not to enhance her lifestyle.
[400] In the case before me, I will use my discretion and not include the RRSP income. It was an encroachment on capital by Rebecca to pay legal expenses and according to her most recent financial statement, her RRSP funds are all depleted. Jamie had to withdraw RRSP funds one year also and it seems appropriate to treat both parties the same under all the circumstances. This is the most fair and reasonable approach in my view.
[401] Rebecca has rules in her business about what she pays the agency she works for and how commissions are dealt with, and I will accept her income as set out in her 2018 income tax returns stated by her. It was $152,314.81 in 2018 with some teaching income included but without RRSP income.
[402] I did not add in more income for anticipated teaching income for 2019 as requested by Jamie because I am using 2018 income for both parties given that this trial ended in September 2019. There will be an order for annual disclosure of income and the parties can update the support order as incomes change.
The Respondent’s Income
[403] Jamie believes that his income should be accepted as $93,341.00. This is based on his line 150 income for 2018 of $87,000.00 with $6,431.00 added back in in accordance with the methodology proposed by Mr. MacRae for Jamie’s 2017 income.
[404] Rebecca believes it should be imputed to be $157,504.00 for 2018. This is because she has added back in all deductions for Jamie’s home office, (which he has no ownership in) along with all retained earnings in his business. A credible argument was made on behalf of Rebecca that all deductions should be added back in especially for the home. However, I had the benefit of hearing expert opinion on this issue from Andrew MacRae, and I will accept his recommendations since I have no professional opinions to the contrary. I am also mindful that Mr. MacRae did not agree that the amounts shown for retained earnings can be added back in, or that they even mean that this is available cash. The best evidence I have is from Mr. MacRae and I accept his recommendations for 2017 with an adjustment for 2018.
[405] However, in accepting Mr. MacRae’s opinion and using his methodology for 2018, I am also mindful that Mr. MacRae’s opinion was only based on one year. It would not be fair to continue the approach taken for 2017 indefinitely. I have used it for 2018 as that is the best evidence I have and the loss of income was the year before.
[406] On a go forward basis a further income analysis will be needed. I realize this will be expensive for Jamie but I see no other way of his income being determined. It would be unfair to Rebecca to rely on the methodology applied for 2017 and 2018 indefinitely.
[407] Paragraph 18 of the Child Support Guidelines read as follows:
Shareholder, director or officer
18.1(1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include
(a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or
(b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.
Adjustment to corporation’s pre-tax income
(2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstance.
[408] The case law provided by Rebecca set out the law on utilizing retained earnings as income for child support. There is definitely law to support her claim. I have expert opinion however on how to treat his income for 2017, and I am accepting that, with an adjustment for 2018. After that, a further analysis will be needed. Mr. MacRae said that there was a loss in 2017 which explains why no retained earnings were added back in. This could be very different in the future.
Ongoing Child Support
[409] I will order ongoing child support to commence as of March 1st, 2020. Neither party gave me a child budget, and the only proposal I have as to how to handle the situation where the children reside in both homes on an equal basis is from Jamie. He proposes that if I am ordering an equal timesharing, that child support be paid with each party paying support based on that parties’ income, resulting in a set off. I will follow a set off, in the absence of other proposals.
Retroactive Adjustment of Child Support
[410] Both parties are seeking a retroactive adjustment in child support.
[411] Rebecca seeks the following adjustments:
a. $17,624.00 for 2017 based on Jamie having earned $235,716.00.00 - or $7,339.00 for 2017 based on Jamie having earned $157,504.00 in the alternative;
b. $15,696.00 for 2018 based on Jamie having earned $203,950.00 - or $9,012.00 for 2018 based on Jamie having earned $157,504.00 in 2018;
c. $10,464.00 for the first 8 months in 2019 based on Jamie having earned $203,950.00 – or $6,008.00 for the first 8 months in 2019 based on Jamie having earned $157,504.00.
[412] The above figures are based on Jamie’s declared taxable income (line 150) plus the deductions allowed by Mr. MacRae added back in. Also included in these figures are the retained earnings of Jamie’s company and, in the alternative, the retained earnings minus an amount owing on a business line of credit.
[413] Jamie takes the position that he is owed $33,984.00 for an overpayment for voluntary support payments made between October 2017 and August 2019 being the month before the trial started. He was paying $1,416.00 per month for the two children which is based on an estimated income of $100,000.00.
[414] I am not inclined to grant an order for Rebecca’s request because I have accepted the recommendations of Mr. MacRae. While Rebecca makes a valid point about adding back in retained earnings, I am also mindful of the fact that I have expert opinion as to Jamie’s 2017 income which I am relying on for 2018 with an adjustment.
[415] I am also not inclined to grant Jamie a retroactive adjustment. The parties made an agreement that Jamie would pay $1,416.00 per month based on an estimated income of $100,000.00 commencing October 1st, 2017. They knew what the timesharing was, as it was agreed to in August 2017. Jamie now says he should not have paid any of this money because by his calculations, he had the children 40% of the time when the entire year is looked at. Rebecca does not agree with the calculations. During the regular year the children were in Jamie’s care 5 nights out of 14. I appreciate the argument that we have to look at the entire year. Nevertheless, the court has discretion and child support is the right of the child. Both parties knew the timesharing schedule when child support was agreed to, and they do not agree on the actual percentages of time. For most of the year Jamie had the children in his care 5 out of 14 nights. If he had them over 40% of the time, I am not prepared to say that he had no obligation to pay child support as Jamie is requesting.
[416] Jamie is not asking for an immediate repayment of the $33,984.00 but he is asking for it to be a credit towards his calculation towards post-secondary education expenses. Either way, it is money that would be withdrawn from the needs of the children. The estimated income of $100,000.00 is close to what Jamie actually earned and it was a fair amount under all the circumstances.
[417] I will use my discretion and leave child support on a retroactive basis, in the amount that was agreed to.
Retroactive Extraordinary Expenses
[418] Rebecca believes that Jamie owes her $6,514.40 as his retroactive contribution towards extraordinary expenses. She provided a detailed list with her calculations. Most of this is for dance. The dates provided for are June 4th, 2018 to September 16th, 2019. Jamie believes nothing is owing because paragraph 78 of Justice Mazza’s order of August 17th, 2017 said that there is a maximum contribution owing from either party of $3,000.00 per year. Since he paid for guitar lessons, bought guitars and paid for theatre camp without help from Rebecca, he believes nothing is owing.
[419] A temporary order was granted on October 4th, 2018 by Justice Chappel based on minutes of settlement. Paragraph 7 of that order reads as follows:
“Paragraph 78 of the temporary order of Mazza J. applies to competitive dance.”
[420] It is not clear what the parties intended by this clause. It did not say that paragraph 78 applied only to competitive dance. It may mean that there is a ceiling on all extracurricular activities including competitive dance. I interpret it to mean that all activities combined are subject to the $3,000.00 limit.
[421] It would be more helpful if Mr. West provided a detailed list of all the extraordinary expenses he paid for. Given that he did not, I will order that he pay the sum of $1,500.00 for this one year period. If I ordered the $6,514.40 requested, this is almost double the amount of the annual maximum ordered. The sum of $6,514.40 also does not reflect the activities paid for by Jamie. It is a somewhat arbitrary number, but it is a recognition that dance was likely more expensive than guitar lessons, given the level of dance the girls were in. It is also a recognition of the fact that there was a ceiling of $3,000.00 per person in total for extraordinary expenses.
[422] Rebecca also included a sum of $215.50 owing for Jamie’s share of dental expenses for the same period. Since paragraph 78 of the order of August 17th, 2017 only relates to extracurricular activities, I will order Jamie to pay the sum of $215.50.
Additional Terms of the Order
[423] I will include a provision for costs. Counsel and the parties are attending at court on February 27th, 2020 to receive my written decision along with a brief oral summary. A timeframe to address costs will be ordered then.
[424] I am also making a temporary order that will allow counsel to return to court to address the issue of mobile phones and times for extracurricular activities for reasons set out herein.
Order to Issue
On a Final Basis
The Respondent James John West shall have custody of the two children of the marriage namely, Avery Kennedy West, born February 1, 2006 and Danica Dorothy West, born January 19th, 2010.
The Respondent shall consult with the Applicant before making major decisions. He shall also keep her informed of any decisions made in regard to education, health, and extracurricular activities.
The children shall continue to be registered at St. Ann Catholic Elementary School in Ancaster until they begin high school.
The parties shall follow an alternating weekly timesharing schedule. The exchange shall be after school on Fridays or at 4:00 p.m. on Fridays when school is not in session that day.
Unless the children are able to arrive at the home they are going to on the exchange day by school bus, or by walking, the exchange shall take place at St. Ann’s Church or school parking lot. The parent picking up the children shall remain in their vehicle for the duration of the exchange and the other parent shall ensure that the children are ready to walk to the other parent’s vehicle without interference or delay. The parties shall use their best efforts to limit the exchange period to five minutes.
The parties shall present the changes made to existing custodial regime and the timesharing schedule, to the children, in a child focused manner.
The regular schedule shall be suspended for the times set out below:
Christmas
a. In even numbered years the children shall share time with the Respondent from December 23rd at noon until December 25th at noon and with the Applicant from December 25th at noon until December 27th at noon.
b. In odd numbered years the children shall share time with the Applicant from December 23rd at noon until December 25th at noon and with the Respondent from December 25th at noon until December 27th at noon.
c. The balance of the children’s school Christmas Break shall be shared in accordance with the regular timesharing arrangement.
Easter Weekend
d. In even numbered years, the children shall reside with the Applicant from Friday at noon until Sunday at noon and with the Respondent from Sunday at noon until their return to school on Tuesday.
e. In odd number years, the children shall reside with the Respondent from Friday at noon until Sunday at noon and with the Applicant from Sunday at noon until their return to school on Tuesday.
Mother’s Day and Father’s Day
f. The children shall spend every Mother’s Day weekend with the Applicant from Sunday at 10:00 a.m. until their return to school Monday.
g. The children shall spend every Father’s Day weekend with the Respondent from Sunday at 10:00 a.m. until their return to school Monday.
Spring Break
h. The school spring break commences at the conclusion of school on the Friday and continues until the following Sunday at 7:00 p.m. This break shall be alternated between the parties such that the children shall reside with the Applicant in even numbered years and with the Respondent in off numbers years.
Summer School Break
i. The Applicant and Respondent shall each have the children for a total of two non-consecutive weeks during the children’s summer school break with one week in July and one week in August. The Applicant shall have first choice of her vacation in even numbered years and the Respondent shall have first choice in odd numbered years. The parties shall notify each other of their preferred weeks by May 1st of each year.
Each week shall be a seven-day period commencing on Friday at 4:00 p.m. that falls on the party’s regularly scheduled weekend and ending on the following Friday at 4:00 p.m.
Other Holidays, Long Weekends and Special Occasions
j. Except for the holidays and special occasions specified in this Order, the regular time-sharing arrangement shall remain in place for all other holidays, statutory holidays, long weekend and P.A. Days.
Each party may choose one extracurricular activity for the children. Any further activity that takes place on the other party’s time with the children may only take effect if both parties consent. At the present time, the children are registered in dance and they take guitar lessons. This paragraph takes effect as of July 1st, 2020. For clarification, competitive dance is one activity and recreational dance is another activity.
No changes will be made to the current extracurricular schedule before June 30th, 2020 without written consent.
The parties shall cooperate to take the children to all classes, rehearsals, tournaments, competitions and recitals on their time with the children provided that paragraph 7 is complied with. If they are unable to take either child to such an event due to an emergency, illness, or very special occasion, they shall notify the other party in advance and provide an explanation for the absence.
The parties and their families shall not attend routine rehearsals and classes during the other party’s time with the children. They may attend all competitions, and recitals however. In addition the Applicant shall be permitted to assist the children back stage for all dance competitions and dance recitals regardless of the timesharing schedule.
The children shall be permitted to have duplicate activity-related equipment, including guitars and guitar accessories, in each of the parties’ homes. The Applicant shall be solely responsible for the costs associated with any and all duplicitous dance gear or essentials to be kept at the Respondent’s home and the Respondent shall be responsible for the costs associated with any duplicitous guitar equipment or any other accessories to be kept at the Applicant’s home. This practice shall continue with any future equipment needs that arises with any different activity that each parent chooses.
Neither party shall change the children’s residence outside the City of Hamilton without the written consent of the other party or court order.
Neither party shall take steps to change the children’s surnames.
Except in the case of an emergency, the parties shall communicate through Our Family Wizard. The cost for this service shall be shared between the parties. The parties shall engage in communication that is courteous, respectful and child focused.
Neither party shall attend at the children’s school(s) during the other party’s residence time, save and except in the even of an emergency or if the school administration has requested the attendance of the non-resident parent. Deliveries of gifts, articles of clothing, or food shall not constitute an emergency.
The parties shall only be permitted to remove the children from school during their own parenting time, unless agreed upon, in writing, in advance.
The Applicant and Respondent shall equally be at liberty to make inquiries and be given information by the children’s teachers, school officials, doctors, dentists, healthcare providers, counsellors or other professionals involved with the children, save and except with respect to any Blended Family Therapy that either parent may engage for their own family unit therapeutic interventions and such blended family therapy processes shall remain privileged. Any therapy of this kind however is subject to paragraph 24 below.
If either party plans a vacation with the children, that party shall give the other a detailed itinerary if possible, at least ten (10) days before it begins, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact the children during the trip.
The non-travelling party shall sign a travel consent as provided by the travelling parent at least ten (1) days before the date of the travel or within 48 hours of receiving the consent form. Consent shall not be unreasonably withheld.
The Respondent shall maintain possession of the children’s passports, health cards and other such personal documentation of the children. The Respondent shall provide the children’s passports to the Applicant for purposes of travel and shall provide same no later than five days (5) before her departure date. The passports shall be provided to the Applicant via registered mail or courier. The Applicant shall return the passports to the Respondent within five (5) days of returning from vacation by registered mail or courier. The Respondent shall be responsible for ensuring the children’s passports and health cards are renewed and valid at all times.
With respect to their mutual parenting obligations to one another, the Applicant and Respondent shall:
a. Prefer the children’s interests to their own and at all times keep the best interests of the children in mind;
b. Encourage the children to maintain a healthy relationship with the other parent;
c. Refrain from making disparaging remarks about the other parent, extended family members or either party’s significant other in the presence of the children. The parties shall ensure family members comply with this term as well;
d. Exchange information and documents pertaining to the children on a regular basis;
e. Keep the other parent properly informed with respect to the school agendas, homework, medical appointments, etc.
f. Ensure that the children are not privy to or engaged in adult situations or adult conflict;
g. Not give the children any messages, either verbally or in writing, to delivery to the other parent;
h. Not ask the children to keep secrets from the other parent;
i. Not encourage the children to challenge the authority of the other parent or to request a change of residency or to resist spending scheduled time with the other parent; and
j. Not say anything, by word or gesture, that might reduce the children’s love, respect or affection for the other parent nor allow any other person to do so.
The parties shall continue to engage Lourdes Geraldo to facilitate therapeutic interventions and approaches to ensure a balanced and healthy relationship between the children and both parties.
The parties shall continue to execute any documentation necessary for the above process, and they will attend for sessions as requested by Ms. Geraldo. This shall be with or without children, and with or without other family members or third parties as requested. They shall also follow the process as indicated by Ms. Geraldo.
The parties shall refrain from engaging the children in any therapy or counselling unless it is specifically recommended by Ms. Geraldo.
There is no adjustment to child support as of February 29th, 2020.
The Applicant shall pay support for the two children of the marriage, namely, Avery Kennedy West born February 1st, 2006, and Danica Dorothy West, Born January 19th, 2010, by way of a set off, in the amount of $777.00 per month commencing March 1st, 2020. This amount is based on the fact that the children are in the care of both parties on an equal basis. The Applicant is, in effect, paying support for the two children in the amount of $2,167.00 per month based on her 2018 income of $157,504.00. The Respondent is, in effect, paying support for the two children in the amount of $1,390.00 per month based on his 2018 income of $93,341.00.
As long as there is an obligation for the Respondent to contribute to extraordinary expenses and/or pay child support and he is self-employed, he shall obtain and provide an income analysis for child support purposes from a qualified accountant every two years for the two proceeding years commencing in 2021 for the years 2019 and 2020. These reports shall be provided to the Applicant once received. The Respondent shall provide the accountant all documentation needed for the analysis and he shall keep records as requested by the accountant.
The Respondent shall pay the Applicant the sum of $1,500.00 as a retroactive contribution to extracurricular activities as of September 30th, 2019. This shall be payable within 30 days.
The Respondent shall pay the Applicant the sum of $215.50 as his contribution towards health related extraordinary expenses as of September 30th, 2019. This amount shall be paid within 30 days.
Commencing October 1st, 2019, the parties shall share all extraordinary expenses in proportion to their incomes. This includes expenses for dental needs, orthodontist expenses, optical needs, prescription expenses and other health expenses along with education and extracurricular activities. At the present time, the proportionate sharing is approximately 63% for the Applicant and 37% for the Respondent.
The parties shall exchange complete copies of their income tax returns with all attachments, along with a copy of their Notices of Assessment by June 30th of every year commencing June 30th, 2020.
A Support Deduction Order shall issue.
On a Temporary Basis
A court date for the parties and counsel to receive this decision has been set for February 27th, 2020. At that time, a time and format for addressing the issue of costs will be set.
Justice McLaren will remain seized of the issue of the therapeutic intervention for purposes of checking in with the parties and counsel to see if the process is still being carried out and to make any appropriate adjustments. This provision will last until varied by Justice McLaren.
The issue of mobile telephone use by the children, and the purchase of telephones for them, is adjourned and shall be spoken to before Justice McLaren at such time as counsel and the parties attend to update the court on the progress of the therapeutic intervention. The issue of any time limits for the children’s activities is also adjourned to be addressed at the same time.
McLaren J.
Released: February 26, 2020
COURT FILE NO.: 1645/16
DATE: 2020-02-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Rebecca Mae (Swirsky) Foster
Applicant
- and -
James John West
Respondent
REASONS FOR JUDGMENT
The Honourable Madam Justice M. McLaren
Released: February 26, 2020