COURT FILE NO.: FS-16-88073-00 DATE: 2020 07 28
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
M.P. G. Gill, for the Applicant Applicant
- and -
M.P. A. Bahra, for the Respondent Respondent
HEARD: January 29, 30, 31 and February 3, 4 and 6, 2020. Additional written submissions delivered May 25, 2020 and July 3, 2020.
Reason for Judgment
Doi J.
Overview
[1] The central issue in this case is what parenting arrangements are in the best interests of the parties’ 10-year old son. The court must also decide the issue of spousal support, and other corollary matters.
[2] This is a high-conflict case. The mother claims that the father sexually assaulted the child, and she wants them to have no contact. The father denies the allegations and claims that the mother falsely accused him to gain an advantage in this litigation. The accusations have polarized the parties. Their previously strained relationship is now dysfunctional.
[3] For the reasons that follow, I find that the sexual assault allegations against the father are unproven. Given their acrimony, I also find that the parties are unable to co-parent. In my view, it would be in the child’s best interests for sole custody to continue with the father and for parenting time with his mother to expand on a graduated basis. I further conclude that spousal support should be paid by the father to the mother over a fixed period.
Background
[4] On April 22, 2008, the parties married in Nepal. While the father was in school, the mother worked in a factory for several months. The child was born on September 20, 2009.
[5] In 2010, the family immigrated to Canada. Initially, the father worked in a factory and the mother cared for the child at home. After the father began to study for an accounting designation, the mother found some factory work. To help and relieve the parents as they adjusted to their new life in Canada, the child returned to Nepal in 2011 to live temporarily with his maternal grandparents.
[6] Around this time, the mother suffered post-partum depression with complications linked to a thyroid issue and stress or dissatisfaction from the marriage. She received medical care but declined to take prescription medication. During this period, she disclosed to the father that a distant relative in Nepal had sexually abused her when she was 14 years old. The trauma from this childhood incident left the mother fearful of how it might affect her feelings and ability to parent her son. Other problems emerged from the marriage. Their relationship grew strained.
[7] In May 2013, the mother flew to Nepal to join the child and the maternal grandparents. During this time, she came to suspect that the child had been sexually abused by a neighbourhood girl who had been his caregiver, although this was never corroborated. While in Nepal, the mother received medical care for her mental health but declined to take medication.
[8] In December 2013, the child and his mother returned to Canada. The mother stayed at home to care for the child.
[9] Over time, the parties became increasingly unhappy in the marriage. The father attributes this in part to the mother’s anger and mental health issues which he feels led her to escalate their arguments by being verbally abusive, by pushing him, and by throwing objects at him. The mother claims that the father was emotionally and physically abusive to her. The father admits that he lost his temper and slapped her on one or two occasions after the mother threw dishes and utensils at him, although she denies provoking him. He claims that he tried to de-escalate their arguments by walking away, but that she would follow him to continue arguing. On several occasions, he left home after heated arguments and returned after tempers had cooled.
[10] Although the parties disagree on how their arguments started or escalated, they clearly maintained a high-conflict relationship that caused lasting anger, resentment and upset. Regrettably, the child frequently witnessed the adult conflict as it often unfolded before him.
[11] On or about August 1, 2015, the parties separated after the father left home to live in a hotel. The mother and the child continued to reside at the family home.
[12] From August 2015 to January 2017, the father informally paid the mother support to cover living expenses. He bought the mother and the child groceries, and spent unsupervised parenting time with the child on weekends. The child spoke with his father daily by phone.
[13] In September 2015, the father relocated to a different city after finding new employment. Within a few months, he arranged for the mother and the child to move into their own residence in that city. The father and the child continued to have daily calls and unsupervised access on weekends.
[14] Despite efforts, the parties did not reconcile.
[15] On December 16, 2016, the father served the mother with his application for divorce.
[16] On December 23, 2016, the mother informed police that the father has sexually assaulted the child based on disclosures the child purportedly made to her between 2013 and 2015. The mother then refused to allow the child to spend any time with his father, ostensibly to protect the child.
[17] In January 2017, police investigated the sexual assault allegations against the father but did not determine whether a criminal offence had occurred.
[18] On July 14, 2017, Barnes J. ordered the child to have weekly supervised access with his father. However, the mother refused to let the child attend supervised access. As well, the proposed supervised access centre did not allow the father to attend its premises due to the pending allegations against him. The child ended up not having supervised parenting time with his father.
[19] In August 2017, police and child protection workers interviewed the child and the mother after the child disclosed an incident involving his father to a child protection worker during a case visit. Police found the allegations to be inconclusive and closed the investigation.
[20] On May 18, 2018, Tzimas J. made a consent order for the child to have weekly access with his father on Sundays at a McDonald’s restaurant, which was implemented for about 3 or 4 weeks. But shortly after Price J. made a divorce order for the parties on June 5, 2018, the mother stopped allowing the child to attend his access visits with the father.
[21] On June 21, 2018, Ricchetti J. ordered interim sole custody of the child to his father until the mother obtained a mental health assessment and moved to vary his order. Ricchetti J. expressed concerns about the mother’s mental health and the risk of harm to the child.
[22] The mother obtained a mental health assessment from Dr. Dhaliwal, a psychiatrist. In his assessment dated July 16, 2018, Dr. Dhaliwal reported that the mother had no incompetence or major psychopathology. He diagnosed her with an adjustment disorder featuring anxiety and mild to moderate depression, and reported that she seemed stable. Importantly, Dr. Dhaliwal cautioned that a mental health assessment for court use should appropriately be prepared by a forensic psychiatrist. Although his report invited the mother’s family physician to give her a forensic psychiatry referral, this was not done. In January 2019, Keith Adamson, a clinician investigator with the Office of the Children’s Lawyer (“OCL”), asked the family physician to refer the mother to a forensic psychiatrist as Dr. Dhaliwal had suggested. But the mother did not see a forensic psychiatrist for reasons that are unclear, and her mental health assessment remains incomplete.
[23] The mother’s motion to vary Ricchetti J.’s order came before McSweeney J. on September 27, 2018. On consent, McSweeney J. made an interim without prejudice order for the child and his mother to have supervised parenting for up to 3 hours at a time, so long as the parties agreed on the arrangements. McSweeney J. also ordered evening phone or video calls for the child and his mother, and dismissed the father’s cross-motion to travel with the child to Nepal.
[24] For a few months, the parties agreed that the child could spend parenting time with his mother at her home under the supervision of a mutual friend. But issues arose during a supervised visit which led the father to ask the mother for a new supervisor or a different access location in a public place. When the parties could not agree on access terms, the supervised access visits ended. The child and his mother continue to have periodic parenting calls by phone.
Parenting
[25] Both parents clearly love their son. Prior to their separation, each helped to raise him. The father helped the child with daily needs, homework and community activities. They spent quality time together and were close. The mother was the child’s primary caregiver for most of the marriage, and helped with most of his needs and activities of daily living in a traditional household setting. They shared an affectionate relationship.
[26] Since assuming interim custody in 2018, the father has formed a strong relationship and attachment with his son. He has worked hard to care for the child by organizing a busy but stable routine for the child with after-school tutoring, school entrance test preparations, homework, and sports programs. He facilitates the child’s evening calls with his mother. His work hours are flexible and allow him to better manage the child’s needs with help from friends and neighbours.
[27] The father is sensitive to the child’s emotional needs. He recognizes that the mother is a loving and caring parent who should have parenting time. He has expressed a willingness to facilitate her parenting relationship with the child as best he can, and states that it is important for him to do so for the child’s sake. He has reflected on the adult conflict and his own conduct, and has acknowledged the strain that it placed on the child. I find that his expression of remorse for his conduct is genuine.
[28] The father has reservations about the mother’s ability to give the child optimal care as he believes that she will not provide the child with suitable or developmentally-appropriate activities. He feels that she needs to address her mental health which was an underlying issue throughout the marriage. He also has concerns with her repeated efforts to use the child to prove the sexual abuse allegations, which forces the child to revisit the parental conflict at significant cost to his emotional well-being.
[29] After separation, the mother initially had interim custody until 2018 when custody was reversed and awarded to the father. Afterwards, the mother and the child had parenting time and shared a warm and affectionate relationship. The mother cares deeply for the child and takes delight in preparing his favourite foods, sharing cultural customs and religious traditions, watching cultural films together, and engaging in a host of other activities that the child enjoyed. Both referred to each other in endearing terms and valued their time together.
[30] The mother feels misunderstood by authorities and others for vigorously pursuing the allegations against the father to ostensibly protect the child. She is resentful towards the father and frustrated by the legal system which she believes is unfair and disrespectful of herself and her son. She is frustrated by the interim parenting arrangement which has left her without supervised access due to the parties’ inability to agree on access terms as required by their interim consent order. She has acknowledged the father’s close relationship with the child, but views it with suspicion. She maintains that he sexually abused the child and refuses to consider any other possibilities. She does not appear to see any harm by involving the child in the parental conflict, and is adamant that any adjustment or behavioural issues that the child has experienced are due solely to the father’s alleged abuse.
The Law of Custody and Access
[31] A determination of custody and access is governed by s.16 of the Divorce Act, RSC 1985, c.3 (2nd Supp), the relevant provisions of which are as follows:
Order for custody
16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage. …
Joint custody or access
(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.
Access
(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.
Terms and conditions
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. …
Factors
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. …
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.
[32] In deciding custody and access, the court shall consider only the best interests of the child based on the conditions, means, needs and other circumstances of the child; ss. 16(8) of the Divorce Act; Young v. Young, [1993] 4 S.C.R. 3 at para 210. Guidance in determining a child’s best interests is found in ss. 24(2) to (5) of the Children’s Law Reform Act, RSO 1990, c. C.12:
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
Same
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.
[33] Although no single factor in the statutory definition of a child’s “best interests” is given pre-eminence in deciding custody and access, particular attention is given to:
a. the level of hostility between the parties, the extent to which could undermine the child’s stability, and measures that could remove the hostility;
b. the extent to which a party has used contact with the child for a purpose collateral to the child’s best interests (e.g., to denigrate the other parent);
c. the extent to which the party displaying objectionable conduct is capable of altering the behaviour and is motivated to do so; and
d. whether a party is acting responsibly, reasonably and in a child-focussed fashion in determining what is in the child’s best interests.
Wilson v. Wilson, 2015 ONSC 479 at para 62; Levesque v. Windsor, 2020 ONSC 273 at para 99; E.D. v. J.S., 2020 ONSC 1474 at para 27.
[34] The best interests of a child are ascertained from the child’s perspective, whose well-being takes precedence over competing parental preferences or rights: Young at para 151; L. v K., 2015 ONSC 4926 at para 32; D.F. v. D.C., 2018 ONSC 4481 at para 57.
[35] A child of the marriage should have as much contact with both parents as is consistent with the child’s best interests: Gordon v. Goertz, [1996] 2 S.C.R. 27 at para 24. To give effect to this “maximum contact” principle, the court considers the willingness of the person seeking custody to facilitate this contact: ss. 16(10) of the Divorce Act; Kagan v. Brown, 2019 ONCA 495 at para 6; Rigillo v. Rigillo, 2019 ONCA 548 at paras 3-4. The principle of maximum contact is not absolute, and is overtaken to the extent that contact with a parent conflicts with the child’s best interests: Gordon at para 24; Rigillo at para 4. Although regular access by a non-custodial parent is generally presumed to be in the child’s best interests, a non-custodial parent does not have an absolute to access: D.F. at para 61; V.S.J. v. L.J.G. at para 128. Access is only ordered when it would benefit the child: D.F. at para 61; Worthington v. Worthington at para 56.
[36] A parent’s past conduct may be considered only as it relates to their ability to act as a parent: ss. 16(9) of the Divorce Act. Although some actions may reflect poorly on a party as a spouse, they may not affect the party’s ability to parent: Somerville v. Somerville, 2007 ONCA 210 at para 16.
[37] An allegation of sexual abuse by a party is a significant factor with respect to the party’s ability to act as a parent and the child’s best interests: D.F. at para 66; C.B. v. W.B., 2011 ONSC 3027 at para 122. When sexual abuse is alleged in a custody and access case, the court must first decide on the balance of probabilities whether the alleged abuse occurred. Where the allegations are unsupported, the court must decide the nature and extent of any risk of harm to the child if custody or access were granted, based on all of the evidence: L. at para 35, citing C.B. at para 139:
[T]he court must determine, based on a consideration of the evidence as a whole, the existence and the extent of any “risk of harm” to the child. It requires the Court, regardless of whether the evidence meets the civil standard of proof, [to consider] all the evidence and circumstances to assess the existence and the degree of risk to the child of harm (whether because of alleged sexual abuse or some other alleged reason). The Court's determination of the existence and degree of risk of harm to the child will fall along a continuum from no risk to a certainty the risk will materialize. The Court, where there is any possibility the risk may materialize, will also have to consider the degree of harm to the child if the risk materializes. Where this risk of harm falls along this continuum will determine the weight to be given to this factor. This is then only one factor in determining what is in the best interests of the child. The Court must also go on to consider any other risks of harm (and the degree of those risks) to the child and any benefits (and the degree of those benefits) to the child of the proposed order with the ultimate goal being the determination of what order will be in the child's best interests going forward.
[Emphasis added]
See also Daya v. Daya, 2015 ONSC 6240 at para 16; L. at para 35; D.F. at para 68.
[38] The central issue in a custody and access case with sexual abuse allegations is not whether the alleged abuse is proven, but whether there is a real risk of harm to the child that leads to a particular outcome when weighed against all of the factors bearing on the child’s best interests: D.F. at para 69. The risk of harm is a factor in deciding the best interests of the child: C.B. at paras 137-139, Young at para 206; D.F. at para 69. The risk must be more than speculative or simple conjecture: C.B. at para 136; L. at para 35.
[39] Joint custody may be appropriate where the parties agree to it, have a positive history of cooperation, and an objection to joint custody lacks proper cause: Patterson v. Patterson at para 11. In contrast, joint custody is not appropriate if the parties cannot cooperate and communicate effectively to make parenting decisions: Berman v. Berman, 2017 ONCA 905 at para 5. Hoping for improved communication is insufficient to justify a joint custody order: Kaplanis v. Kaplanis at para 11. There is no presumption in favour of joint custody and each case is decided on its own facts: A.P. v. J.P., 2017 ONSC 259 at para 41.
[40] In high-conflict cases, an order for joint custody generally is inappropriate where parties show an inability or refusal to effectively cooperate and communicate: A.P. at para 41. But in cases where parties, despite their strife, can communicate effectively and put the child’s interests ahead of their own, joint custody may be appropriate: Ladisa v. Ladisa at para 16. Communications between separated parties are not easy, comfortable, or conflict-free, and a standard of perfection is not required or expected: E.D. at para 31. Whether parties can maintain a sufficient degree of communication and cooperation for joint custody will depend on the nature and extent of the conflict, the impact of the conflict on the child, and the parties’ ability to shield the child from the conflict, among other factors: Levesque at para 103.
[41] Although a child’s best interests are not necessarily synonymous with the child’s wishes, a custody order for an older child calls for greater consideration of the child’s preferences: Kaplanis at para 13.
Custody and Access Analysis
[42] In deciding custody and access, the primary objective is to determine what is in the child’s best interests.
[43] The mother submits that the father is unfit to parent the child because he sexually assaulted him, and she wants the child to have no contact with his father to protect the child. The father claims that the mother falsely accused him to remove him from the child’s life and to gain an advantage in this litigation. He seeks to continue his ongoing sole custody of the child, and to introduce expanded parenting time for the mother over time.
[44] The father testified in a clear and straightforward fashion. He gave thoughtful answers, and presented as a forthcoming witness. He candidly testified about matters that were favourable and unfavourable to his case, and appropriately conceded the shortcomings in his evidence. He was not impeached in cross-examination.
[45] The mother passionately testified about her concerns for the child’s safety. Although she offered detailed accounts of events that unfolded, her evidence tended to describe events by overstating them in her favour. As detailed below, she forcefully maintained the allegations of sexual assault against the father even after conceding obvious frailties in this evidence.
[46] The court heard from Caytlin MacKinnon, a child protection worker with Peel Children’s Aid Society (“CAS”). Ms. MacKinnon started working with the child on January 11, 2017 when police involved the CAS after the mother reported the sexual assault allegations in December 2016. From January to September 2017, she met with family members on a monthly basis and developed good insights. Her evidence described the family in a balanced and objective way.
[47] On March 7, 2018, Andre J. requested the involvement of the Children’s Lawyer. To assist the court, the Office of the Children’s Lawyer (“OCL”) engaged Mr. Adamson to undertake an investigation and deliver a report under ss. 112(1) (Investigation and report of children’s lawyer) of the Courts of Justice Act, RSO 1990, c. C.43. [1] Mr. Adamson testified about the family situation and the child’s custody and access preferences. His evidence was thoughtful and careful, and gave a thorough account of the complicated family dynamics in this matter.
a. Allegations of Sexual Assault
[48] As explained below, I find on a balance of probability that the mother has not proven her allegations against the father or shown that he poses a credible risk of harm to the child. Some of her evidence was dated and weak, while other parts were confusing, inconsistent or improbable. I am also troubled by the timing of her decision to report the sexual assault allegations to police just days after the father filed for divorce.
i. The “French Kiss”
[49] Sometime in the first half of 2014 when the child was about 4 ½ years old, the mother claims that he gave her a “French” kiss (i.e., an open-mouth kiss using his tongue). Startled, she asked the child how he had learned to do this. The child replied that his father had shown him. She promptly confronted the father who denied doing any such thing. At the time, his response satisfied her that nothing improper had occurred, as she now concedes.
[50] On this limited evidence, I am not prepared to find that the father “French kissed” the child. Despite admitting that she was satisfied by the father’s denial when she confronted him shortly after the child’s purported disclosure to her, the mother since has reconsidered her earlier view and now emphatically asks the court to place significant weight on this alleged abuse. Given the frailty of the evidence, I am unprepared to do so.
ii. The Mother’s Complaint to Police
[51] On or about December 23, 2016, the mother told police of the child’s disclosure of sexual abuse by the father. Although police records show that the child had disclosed the sexual assault to his mother in 2013 and in 2015, she claims that the child disclosed it to her in 2014 (i.e., over 2 years before she reported it to police). Notably, her police complaint was made several days after the father served her with his divorce application on December 19, 2016.
[52] Despite knowing of the sexual assault allegations since at least 2014, the mother permitted the child to have unsupervised access with his father for over 2 years. But after reporting the allegations to police, she refused to allow the child to spend any time with his father, ostensibly to protect the child.
[53] The father flatly denies that he sexually assaulted the child and claims that the allegations are entirely false. He believes that the mother falsely accused him to retaliate for his decision to seek a divorce and to justify removing his access in order to gain a litigation advantage.
[54] Police investigated the mother’s complaint. In January 2017, officers from the Peel Police Special Victim Unit (“SVU”) interviewed the child but could not determine whether a crime actually had occurred. As a result, police suspended the investigation for lack of evidence.
[55] The mother’s decision to wait for 2 years before reporting the sexual assault allegations to police speaks volumes about her motives. In my view, it is unlikely that she would have waited that long to inform police of the child’s disclosure had she really believed that the father had assaulted him. As well, her willingness to allow the child to spend unsupervised parenting time with his father for a couple of years after the child purportedly disclosed the sexual assault allegations leads me to conclude that the mother did not have serious concerns with the child’s safety while in his father’s care. I also find that her decision to report the allegations to police shortly after being served with divorce papers was not a mere coincidence. Having regard to the history of this case and its high-conflict nature, I find that the mother reported the allegations to police to retaliate for the father’s decision to seek a divorce and to gain a litigation advantage.
iii. Incidents at the Friend’s Home
[56] On August 4, 2017 (i.e., about 8 months after CAS had been working with the family), the child disclosed a sexual assault to Ms. MacKinnon during a case visit. His disclosure alleged that the father had removed their pants and used his “privates” to “attack” the child’s “privates” during a visit to a family friend’s home. The child did not elaborate on what happened, and gave no other details.
[57] After his disclosure to Ms. MacKinnon, the child attended an interview with SVU police officers, staff from the Suspected Child Abuse and Neglect (“SCAN”) team at Sick Children’s Hospital, Ms. MacKinnon and the Respondent. During his interview, the child claimed that his dad had used his “privates” to punch, attack or touch the child in his front and back “privates” during an overnight visit to the friend’s house. The incident purportedly ended when the child ran away. During the same visit, the child also claimed that the father peed a yellow orange substance into his mouth, which the child spit out in the bathroom. The child further alleged that the father warned him during a July 2017 visit at McDonalds to keep the sexual assaults secret or else people would come to beat him up.
[58] The child’s disclosure gave only a limited account of the alleged incidents at the friend’s home. He did not give particulars of the father’s alleged “attacks” or provide a detailed narrative. Although the mother gave a more detailed account of the alleged incidents based on what the child purportedly shared with her, the child himself did not disclose any such details during his interview with police and child protection staff. The father denies the allegations and submits that the mother coached the child into making the disclosure. Ms. MacKinnon testified that police found inaccuracies or inconsistencies with the child’s account as to exactly where and how the incidents allegedly unfolded at the friend’s home, and who was present at the time.
[59] After learning about the alleged incidents, the mother privately questioned the child about how they happened. The child responded by describing a different sequence of events at the family friend’s home. According to the mother’s testimony, the child’s answers led her to suspect that the child had mixed up or conflated events from a social gathering that the family friend had hosted the evening prior to the morning when the sexual abuse incident purportedly occurred.
[60] In the circumstances, I find that the child’s account of the alleged sexual assaults is unreliable. The account that the child gave to authorities was limited, vague and inconsistent. I appreciate that the child made his disclosure to authorities from his perspective as a child. In principle, a child’s account is not inherently unreliable, but is assessed with an eye to common sense and with regard to the child’s cognitive development, understanding and ability to communicate: R. v. B.B. at paras 60-21; R. v. M.(A.), 2014 ONCA 769 at para 9. But even with reasonable allowances for these factors, I have serious reservations as to the reliability of the child’s account. His disclosure to authorities was made without meaningful particulars and offered a narrative that even his mother acknowledges is confusing and likely mixed up. In the circumstances, and without better or corroborating evidence, I find that the allegations are unproven and that it would be dangerous to rely on the child’s disclosure given its limits and deficiencies.
iv. The Table Incident
[61] The child disclosed another incident to SVU police, SCAN staff and Ms. MacKinnon in which the father allegedly tied the child’s feet to the legs of a table and removed the child’s pants before using his “privates” to hurt the child’s “privates.” This incident is said to have occurred when the child was about 6 or 7 years old and living in St. Catharines. In his disclosure, the child claimed that his mom was out shopping that day so his dad left him tied to the table after the assault and went to work. While tied to the table, the child claimed that he somehow saw his father drive to work in his car. The child also claimed that he remained tied to the table overnight until his mother came home from shopping the next morning and freed him.
[62] Importantly, the mother told investigators that she was not involved in this alleged incident at all, and only learned of it when the child later disclosed it to her after the fact. At the time of the incident, the mother was not in St. Catharines, had not been away shopping overnight, and did not untie the child from the table. The father flatly denies the allegations.
[63] I am unable to believe the child’s account of this alleged incident, which clearly is inconsistent with his mother’s own account of her whereabouts and actions. These are not simply minor or peripheral matters, but are significant inconsistencies that are central to his narrative of the alleged incident of sexual assault. In light of all this, I do not believe the child’s account and find that this alleged incident did not occur.
v. Other Disclosure
[64] I am also unable to accept the child’s other purported disclosure of abuse by his father. During another case visit, the child briefly told Ms. MacKinnon about an alleged incident of physical abuse when the father purportedly used a fist to punch the child in his front “privates.” The child did not give a date or timeframe for the incident, which he mentioned while describing a disciplinary exchange with his father that purportedly took place on that occasion. Notably, Ms. MacKinnon testified that the child was laughing and joking when he made this disclosure, which he was not taking seriously. Ms. MacKinnon asked for details but did not learn more from the child who was unfocussed and more interested in playing games than discussing the incident, which the father has denied. From the evidence, I find that the child’s disclosure of this incident is quite unreliable.
vi. Risk of Harm
[65] Based on the foregoing, I find that the mother has not proven the sexual assault allegations, such as they are. There is a lack of compelling evidence to show that the alleged abuse occurred. Accordingly, on all of the evidence, I find a very low risk of harm to the child in having a full parenting relationship with his father: Daya at para 16; D.F. at para 69; C.B. at para 139.
[66] My findings are supported by the actions taken by authorities. On November 9, 2017, Peel CAS advised that a joint investigation with Peel Police SVU and the SCAN team at Sick Children’s Hospital had found that the sexual assault allegations against the father were inconclusive. Police and child protection officials did not call for further action or investigation. On February 28, 2018, Ms. MacKinnon stopped her involvement with the case after the mother advised that she was unwilling to work with CAS any further. CAS then closed its case file after concluding that it had no concerns with the child’s safety.
b. Custody
i. The Parents
[67] Both parties love the child dearly. Mr. Adamson confirmed this, and described the child as having a warm and affectionate relationship with both parents.
[68] Quite regrettably, this is a high-conflict case with a fractious history. Unsurprisingly, the sexual assault allegations polarized the parties, who now have a dysfunctional relationship. In my view, the requisite level of cooperation and communication needed for joint custody is not found in this case: Kaplanis at para 11. Even with the court’s direction and guidance in several parenting orders made by Barnes J., Tzimas J., and McSweeney J., respectively, the parties could not arrive at appropriate access arrangements for the child due to their inability to cooperate on parenting matters with any lasting success. As such, I conclude that an order for joint custody would be unworkable, inherently problematic, and not in the child’s best interests.
[69] The parties maintained an informal shared parenting arrangement for just over a year after they separated in August 2015. However, this arrangement broke down when efforts to reconcile failed. Shortly after the father served his divorce papers, the mother reported the sexual assault allegations to police and stopped the child’s parenting time with his dad. The parties’ relationship grew strained and hostile, and remains dysfunctional to this day. I have no basis to optimistically expect that any measures could meaningfully remove this hostility or lower tensions to permit the parties to cooperate effectively in making parenting decisions: Berman at para 5.
[70] Each party claims that the other was emotionally and physical abusive during the marriage. Given their conflicting evidence, I cannot determine which party instigated violence and abuse. However, I am persuaded that both parties share a large measure of responsibility for provoking and escalating arguments, and engaging in physical altercations in front of the child. I add that the child’s frequent exposure to the adult conflict compromised his stability and emotional well-being, which cannot be repeated. The child must be protected from the conflict.
[71] Before completing his OCL report in March 2019, Mr. Adamson had a final meeting with the mother in February 2019 to discuss the impact to the child from the ongoing parental conflict. During this meeting, the mother grew upset when Mr. Adamson advised that the child had suffered significant adjustment issues because she had exposed the child to the adult conflict. She responded by showing Mr. Adamson a video which she claimed proved that the child was still being abused. The video showed her questioning the child during a supervised parenting visit about the sexual assault allegations in an effort to have the child confirm the allegations against his father. Mr. Adamson testified that the child appeared visibly uncomfortable and reluctantly answered his mother’s questions about how his father had treated him. The video also recorded the mother’s access supervisor telling the child, “if you do not tell the truth, everyone will say you are a liar.” According to Mr. Adamson, the child was stressed by the ordeal which raised sensitive topics in a way that revealed the mother’s limited insight into her behaviour and its impact on the child by involving him in the conflict.
[72] Mr. Adamson advised the mother that her questions would heighten the child’s anxiety about his family situation, cause him to revisit his arduous experiences from his earlier interviews with authorities about the allegations, and further stress the child by conveying that he cannot trust his father. She responded that it was her right as a mother to do everything possible to protect her son. At trial, she maintained this view without appearing to recognize the high emotional cost that her efforts had placed on the child.
[73] During their last meeting, the mother became unsettled when Mr. Adamson told her that the child had suffered from his exposure to the parental conflict. She told Mr. Adamson that he was sticking up for the father and minimizing the impact of the alleged sexual abuse. Frustrated and enraged, she shouted and flung papers in the air. She then pulled out a butcher knife from a kitchen drawer and placed the knife on the table where both were seated. After she sat down and looked at the knife, Mr. Adamson asked if she wanted to hurt herself. She replied “no” and took a minute before returning the knife to the drawer. The mother testified at trial that she had used the butcher knife to cut an apple or a pear that she had eaten during the meeting. Mr. Adamson testified that she did not eat any fruit during this incident. That evening, the mother sent about 130 text messages to Mr. Adamson to accuse him of harming children in highly derogatory terms. Her messages stopped after his supervisor spoke with her.
[74] From the evidence, I find that the mother involved the child in the parental conflict without regard to the significant cost that doing so would have to the child’s stability and well-being. I accept that her conduct likely was fuelled by her preoccupation with this high-conflict litigation which prompted her to involve the child to prove the allegations against his father. Although Mr. Adamson tried to turn her attention to the negative effect of her actions on the child, she refused to consider his concern. At trial, she maintained that her efforts to collect incriminating evidence against the father by questioning the child was entirely justified. Given her apparent reluctance or inability to weigh the consequences of her behaviour on the child, her ability to change her conduct to safeguard the child’s best interests seems to be limited at best at this time.
[75] The mother involved others in an effort to validate her suspicions against the father. School officials told Mr. Adamson that she had accused the father of sexually abusing the child and regularly asked whether the child had exhibited signs of sexual abuse in Grades 1, 2, and 3. When teachers did not confirm any signs of abuse, school officials refused to report any abuse to authorities. This displeased the mother, who accused school officials of not supporting the child.
[76] Similarly, the family doctor told Mr. Adamson that the mother had raised the sexual assault allegations and asked him to confirm that the child had been abused. The doctor refused to do so.
[77] Despite a lack of evidence uncovered by authorities, teachers or the family physician, the mother maintains that the child was sexually abused. Moreover, she flatly denies that she had asked others to provide her with evidence that the child had been sexually abused. The mother is unwilling or incapable of recognizing that her conduct has perpetuated the allegations, fuelled hostilities around the parental conflict, and compromised the child’s best interests and well-being by keeping him in the middle of the adult conflict which jeopardized his stability and well-being. As a result, I am unable to find that she has acted in a reasonable and child-focussed fashion.
ii. The Child
[78] My findings on custody are supported by the child’s stated views and preferences.
[79] The child is a bright, thoughtful and sensitive 10-year old. He is doing well in school and has several good friends. He is very aware of the adult conflict, avoids taking sides to spare his parent’s feelings, and acts to preserve his relationship with each of them.
[80] I find that Mr. Adamson’s testimony and report accurately reflect the child’s preferences on custody and access. Mr. Adamson described the child as a quiet or private child who can be somewhat guarded with his feelings in conversation. But he also reported that the child had shared honest and thoughtful views about his parenting preferences knowing that they would be considered by the court. From the record, I accept that the child’s comments and preferences reflect a truthful, sincere and relatively mature awareness of his situation within the adult conflict. As a result, and despite his relatively young age, I am persuaded that the child’s views deserve serious consideration.
[81] The child clearly loves both parents and is sad that they do not get along. At different times, the parents quarreled or made comments that drew the child into the adult conflict. This left the child in an untenable position given his reluctance to take sides.
[82] Quite regrettably, the child has been impacted by the adult conflict. When his father assumed custody in 2018, the child went through a stressful period. He soiled himself occasionally, which may have reflected regressive behaviour from prolonged exposure to the parental conflict. According to the mother, the child’s soiling issues began shortly after he returned to Canada from Nepal in 2013 when the adult conflict started.
[83] Since the custody transfer in 2018, the child has lived with his father who has shown a sensitivity to supporting the child’s needs and development. The child received counselling, has adjusted and is progressing well at school, in co-curricular sports and in other after-school activities. The child is better organized, composed and engaged since the custody transfer. The child is more outgoing, spends time with friends, and stopped his earlier disruptive conduct. He is still stressed by his inability to always please both of his parents, but his soiling largely has stopped and he seems better aware of his limits within the context of the ongoing adult conflict. In my view, the child has improved and is thriving overall.
[84] The child has responded well to his father’s increased involvement in his life. The child enjoys spending time with his dad, who support the child’s personal and social development. He also guides the child to pursue academic and co-curricular activities that are enriching. He provides the child with an organized and stable home life, and has expressed a commitment to support and foster a positive and meaningful relationship for the child and his mother.
[85] The child wants to see both of his parents, and appreciates the importance of having them involved in his life. However, he has reservations about being with his mother at this time.
[86] The child confirmed that his mother involves him in the parental conflict. He reports that she has disparaged his father, has asked the child if his father is hurting him, and has encouraged the child to tell others that he wants to live with her. She told the child that she has called police to check on him at his father’s home, which the child feels is unnecessary. He tries to distance himself from these conversations with his mother, has asked her to stop calling police, and feels that he is doing well in his father’s custody despite his mother’s apparent concern.
[87] The child believes that his mother is a caring parent, but he is apprehensive about spending time with her now. In my view, this is likely due to her efforts to denigrate his father, to pressure the child to live with her, to validate her lingering suspicions of abuse against the father, and her persistent efforts to involve the child in the adult conflict, largely at the child’s expense.
[88] As stated earlier, the child is a bright child who sees both sides of the adult conflict. He shared a thoughtful and balanced view of his family situation with Mr. Adamson, who prepared a detailed and careful analysis in his OCL report. Having regard to the child’s insight and maturity, I find that the child’s preferences warrant serious consideration: Kaplanis at para 13.
[89] The child wants to spend a lot of time with his dad and some time with his mom. Most recently, he expressed a preference to see his mother once a week on Saturdays.
[90] When Mr. Adamson suggested several potential parenting schedules involving multiple parenting visits with his mother, the child reacted strongly by expressing a firm and unambiguous desire to continue spending parenting time with his mother only once a week on Saturdays.
[91] The OCL report prepared by Mr. Adamson recommends granting sole custody to the father and supervised parenting time to the mother.
iii. Conclusion on Custody
[92] Based on the foregoing, I find that it would be in the child’s best interests for the father to continue exercising sole custody, and for the mother to have expanded parenting time.
[93] For the reasons set out earlier, I find that this high-conflict relationship leaves the parties unable to cooperate and communicate effectively. As such, I accept the central position taken by both parties in their submissions, respectively, that they are unable to co-parent: Kaplanis at paras 1 and 11. An order for joint custody would not serve the child’s best interest. As further explained below, I find that the child’s relationship with his mother will be best preserved through other measures to support her involvement in the child’s life.
[94] I accept that both parents can give the child a warm and nurturing home to meet his needs. Although the father expressed some concern with the mother’s ability to provide appropriate stimulation for the child, I find that she has introduced the child to cultural practices, religious customs and artistic genres (i.e., music, films and stories) that are interesting and enriching.
[95] In my view, the child’s relationship with both parents would be best facilitated by the father. I recognize that both parents have involved the child in the adult conflict at times. However, I am persuaded that the father has reflected and gained insight into his conduct and its impact on the child and the mother. I accept that he now sees the real value for the child to have a meaningful relationship with his mother, and that he is prepared to support and foster that relationship as best he can.
[96] In contrast, the mother continues to maintain that the child should have no involvement with his father. Due to the allegations, she is unwilling to foster any kind of relationship between the child and his father. Instead, her efforts have been focussed on distancing the child from his father. She does not see the impact of her efforts on the child, and attributes all of his problems to his father’s alleged abuse.
[97] Having regard to all of the foregoing, I find that it is in the child’s best interests for the father to have sole custody. The child should maintain his primary residence with his father, who shall decide the child’s daily living needs. Given the parties’ clear inability to cooperate or communicate, I find that it would be in the child’s best interests for the father to exercise all final decision making for the child in respect of all major medical and educational matters, subject to receiving prior written input on those decisions from the mother. The father shall give her reasonable notice of all such major decisions for the child and provide her with a reasonable opportunity to provide meaningful written input. The mother may obtain the child’s medical and educational information directly from his medical practitioners and education providers, and the father shall keep her apprised of who they are.
c. Parenting Time
[98] Under the parties’ current arrangement, the child has evening phone or video contact with his mother during the week and supervised access with her on Saturdays for up to 3 hours. The background to this arrangement is briefly set out below.
[99] As mentioned earlier, Ricchetti J. transferred custody to the father and temporarily suspended the mother’s parenting time until she had a mental health assessment, to ensure the child’s safety. Dr. Dhaliwal’s psychiatric assessment reported that the mother had an adjustment disorder featuring mild to moderate anxiety and depression. The report also advised that she seemed to be stable and dealing appropriately with her situation without incompetency but cautioned that an assessment should be made by a forensic psychiatrist. Although Dr. Dhaliwal recommended a forensic referral, the mother did not see a forensic psychiatrist.
[100] On September 27, 2018, McSweeney J. granted the child and his mother evening phone or video parenting time, and on consent further granted supervised access for up to 3 hours at a time. McSweeney J. ordered this as a positive and gradual first step in the child’s best interests.
[101] Supervised access is not the norm in custody and access dispute. A party seeking to limit access with an order for supervision must show unusual or exceptional circumstances and prove that supervision is in the best interests of the child: G.J. v. B.L.S., 2020 ONSC 3115 at para 43. Supervised access typically is ordered as a temporary and time-limited measure: McEown v. Parks, 2016 ONSC 6761 at para 24, M.(B.P.) v. M.(B.L.D.E.) (1992), 42 R.F.L. (3d) 349 (Ont. C.A.) at para 33. Supervised access may occasionally be an appropriate medium or long-term measure, but must be weighed against a child’s right to maintain personal contact with the parent: D.F. at para 62. The presumption is that regular access by a non-custodial parent is in the best interests of children: Reeves v. Brand, 2018 ONCA 263 at para 21.
[102] The child’s evening calls and supervised weekend visits with his mother were largely successful in progressing a warm and positive relationship. However, I am troubled by mother’s efforts that placed the child in the middle of the parental conflict when she disparaged the father, asked the child if his father had harmed him, called police to check on the child at his father’s home, and encouraged the child to tell others that he wants to live with her. Her conduct reflects limited insight into her behaviour and its impact on the child. I am also mindful of the child’s most recent preference to spend only limited access with his mother. Given the impact of this high-conflict case on the child, I find that gradually expanding his access with his mother would best help the child build a more lasting and meaningful relationship with his mother.
[103] I am reassured by Dr. Dhaliwal’s psychiatry assessment report that the mother is stable and able to continue spend supervised parenting time with the child. That said, his cautionary note about the appropriateness of having her attend a forensic psychiatry assessment leads me to conclude that the child’s best interests would be served by arranging for the mother to attend a forensic psychiatry assessment to confirm her capacity to parent without supervision: A.M. v. C.H., 2019 ONCA 764 at paras 48-54. To protect the child from the adult conflict, I shall also require the access supervisor to protect the child from becoming involved the adult conflict during any access visits, and further require the parties to not disparage each other in the child’s presence.
[104] Accordingly, the child shall have his primary residence with his father, and shall have liberal evening telephone or video access with his mother for up to 20 minutes, which may be expanded in the father’s discretion. The child shall also have a graduated return to unsupervised and overnight access, as follows:
(a) Up to 3 hours of supervised access every Saturday for a period of 3 months;
(b) Once the initial 3-month period is ended, supervised access shall change to every Saturday from 9:00 am to 7:00 pm, for a further 3-month period;
(c) After the prior 6-month period is ended, and provided that the mother obtains a forensic psychiatry assessment confirming her capacity to parent without supervision, access shall change to unsupervised access every Saturday from 9:00 am to 7:00 pm, for a further 3-month period;
(d) After the prior 9-month period is ended, access shall change to unsupervised access every second weekend from 9:00 am on Saturday to noon on Sunday for a 3-month period;
(e) After the prior 12-month period is ended, access shall change to unsupervised access every second weekend from Friday evening to Sunday evening. This access is to be indefinite, unless otherwise ordered by this court;
(f) Parenting calls and access visits are to be arranged by text or e-mail messages; and
(g) I shall retain jurisdiction over the access issues in this case for a period of 18-months from the date of the release of these reasons. I shall maintain jurisdiction to facilitate a proper implementation of access and to ensure that, if there are any disputes, the parties may return before a judge who is familiar with the case. If a party seeks to change the access arrangements within this 18-month period, they may ask the trial coordinator for an appointment to speak with me.
[105] The terms of the above-mentioned parenting time arrangement may be modified by agreement of the parties to give the child additional or greater parenting calls or access with his mother. The parties shall agree to an appropriate supervisor for the child’s supervised access time, or may reattend before me to address this point if they are unable to do so. The access supervisor shall ensure that the child is not involved in or drawn into the adult conflict during his supervised parenting time. The parties shall refrain from making disparaging comments about the other to the child, or in his presence. By structuring this parenting arrangement, I hope that the adult conflict will subside as the parents and child adopt the graduated schedule that allows the parties to be appropriately involved in the child’s life to best nurture and support him.
Spousal Support
[106] There are three (3) different conceptual bases for spousal support obligations: contractual, compensatory and non-compensatory: Bracklow v. Bracklow, [1999] 1 S.C.R. 420 at para 37. There is no contractual basis in this case because the parties had no agreement as to the payment of spousal support. An entitlement to spousal support may arise on both compensatory and non-compensatory grounds, as may be appropriate.
[107] In making an order for spousal support, the court shall consider the conditions, means, needs and other circumstances of each spouse including how long the spouses cohabited; the functions performed by each spouse during cohabitation; and any order, agreement or arrangement related to the support of either spouse: ss. 15.2(4) of the Divorce Act; Thompson v. Thompson, 2013 ONSC 5500 at paras 46-47. Under ss.15.2(6) of the Divorce Act, the objective of an order for spousal support should:
(a) Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) Apportion between the spouses any financial consequences arising from the case of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) Relieve any economic hardship of the spouses arising from the breakdown of the marriage, and
(d) In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable time period.
[108] Spousal support is intended to relieve the economic hardship that results from marriage or its breakdown. In deciding spousal support, all of the ss. 15.2(6) objectives are examined to achieve an equitable sharing of the consequences of the marriage or its breakdown by recognizing and incorporating any significant factors that adversely impact the economic prospects of the disadvantaged spouse: Moge v. Moge, [1992] 3 S.C.R. 813 at 864-866. These objectives are holistically applied to the facts of each case, with no single objective being paramount: Moge at 852; Bracklow at para 41. An entitlement to spousal support is met if any of the ss. 15.2(6) objectives are established: Bracklow at para 49.
[109] As marriage is a socio-economic partnership, a spousal support order should compensate for losses that the marriage or its breakdown caused that would not have been suffered otherwise: Bracklow at paras 41 and 49. Common markers of such compensatory claims include being home with children full-time, having primary care of children after separation, and moving forward the payor’s career: Rogerson and Thompson, Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice Canada, 2016) at p. 5. Even if compensatory loss cannot be established, a marital breakup may cause economic hardship in a larger non-compensatory sense, for which needs based non-compensatory support is called for: Bracklow at para 41, citing Carol J. Rogerson, “Spousal Support After Moge” (1996-97), 14 C.F.L.Q. 281 at pp. 371-72. This “mutual obligation” view of marriage implicates certain social policy values:
First, it recognizes the reality that when people cohabit over a period of time in a family relationship, their affairs may become intermingled and impossible to disentangle neatly. When this happens, it is not unfair to ask the partners to continue to support each other (although perhaps not indefinitely). Second, it recognizes the artificiality of assuming that all separating couples can move cleanly from the mutual support status of marriage to the absolute independence status of single life, indicating the potential necessity to continue support, even after the marital “break”. Finally, it places the primary burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to the relationship, rather than on the state, recognizing the potential injustice of foisting a helpless former partner onto the public assistance rolls. [Emphasis added]
[110] The objective of promoting self-sufficiency does not impose a duty on the recipient spouse to achieve self-sufficiency, but is a factor in determining entitlement and quantum of support: Leskun v. Leskun, 2006 SCC 25 at paras 26-27; Moge at 853; Bracklow at paras 31-32. Self-sufficiency is a relative concept that is to be assessed by the standard of living enjoyed by the parties before the marriage breakdown in light of what they reasonably can anticipate after separation: Fisher v. Fisher, 2008 ONCA 11 at para 53.
[111] The court may exercise its discretion to impose time limits on support payments: s. 15.2(3) of the Divorce Act. Following Fisher, courts have ordered time limited spousal support for medium length marriages: Psavka v. Kroll, 2019 ONSC 2009 at para 384. Although there is no absolute obligation for a spouse to become self-sufficient, there is a time after which a spouse should no longer have to support another: Moge at 880. In general, courts tend to make time-limited orders in limited cases where, due to a young age, short marriage or other factors, a dependent spouse is more likely to become self-sufficient: Fisher v. Fisher at paras 34-38, affirmed 2008 ONCA 11 at paras 36 and 85; Krauss v. Krauss at para 2.
[112] I find that the mother has made out a compensatory claim for spousal support. She has a university degree and briefly worked in Nepal when the father was in school. However, the parties had more a traditional marriage and jointly decided that she would stay home to care for the child while he was an infant. After they immigrated to Canada, she entered the workforce intermittently in or around 2011 before continuing as a homemaker for the rest of the marriage. Although the father contributed to household chores, I find that the mother assumed a greater proportion of the non-economic household work. This included caring for the child which negatively affected her career goals while advancing those of the father. After separating in August 2015, the mother initially took primary care of the child and relocated with the child to a city that was convenient for the father’s career. From August 2015 to January 2017, the father informally paid some financial support to the mother. He later stopped paying her informal support when she refused to allow the child to spend time with him, and assumed primary care of the child when custody was reversed in June 2018.
[113] I find that the mother has established a needs-based claim due to her financial interdependence with the father during the marriage. This is particularly apparent from the increase to his income potential towards the end of the marriage as he progressed with his accounting career. In contrast, the mother went on social assistance and had a significant decrease in her standard of living since separation. This forms the main basis of her spousal support claim.
[114] I accept that the mother has anxiety and depression that has impacted her mental health. Although Dr. Dhaliwal’s psychiatric assessment found her to be stable and without incompetency, I recognize that her ongoing mental health struggles likely impacted her ability to obtain and secure employment in the past, and likely will continue to do so for some time. Her mental health cannot be ignored or overlooked in addressing spousal support.
[115] The father opposes the mother’s claim for spousal support largely on self-sufficiency or economic independence grounds. Self-sufficiency is a relative concept that is tied to an ability to support a reasonable standard of living, and not simply because a former spouse can meet basic expenses on a certain level of income: Fisher at para 53. It is based on the economic partnership that the parties had during cohabitation, which they reasonably anticipated after separation based on their present and potential incomes, their standard of living during marriage, the efficacy of suggested steps to increase a party's means, their likely post-separation circumstances, the duration of their cohabitation, and other factors: Ibid; Linton v. Linton (1990), 1 O.R. (3d) 1 (C.A.) at 27-28.
[116] Self-sufficiency is said to be more attainable in short-term marriages, particularly those without children, where the lower-income spouse was not entrenched in a particular lifestyle, or had not compromised career goals. In those types of cases, the lower-income spouse is expected to have the tools to become financially independent or to adjust his or her standard of living: Fisher at para 54. In contrast, long-term marriages, particularly traditional ones, are seen to typically have a merger of economic lifestyles that creates a joint standard of living upon which the lower-income spouse becomes dependent without the financial ability to replicate it after separation: Ibid at paras 55-56.
[117] The father submits that he satisfied the mother’s spousal support entitlement in 2015 by paying for her tuition and expenses to attend a Sheridan College program to upgrade her credentials and skills. The program was well suited to her educational background in social work, which was her former field of study in Nepal, and likely would have improved her ability to find employment in that field. He also paid for her accommodations near the college where she could reside while attending the program. But after attending for only a week, and over the father’s objections, the mother abandoned the program. She purportedly did so to parent the child as she felt that the child was not doing well in his father’s care. But her concerns with the child’s care were vague and unclear, and her withdrawal from the program (i.e., without seeking a deferral) left her without any career plans. The father also submits that her withdrawal needlessly caused him to incur tuition and other costs.
[118] Since separation, the mother seems to have done little to improve her ability to support herself financially. She did not adduce any evidence of her efforts to seek employment, retrain or otherwise become self-sufficient. There is no evidence that she is medically unable to work, although I recognize that her ongoing mental health struggles likely impacted her ability to find work. Although she was consumed by this litigation and the allegations against the father, it was open for her to take some steps towards self-sufficiency, which she did not do.
[119] From the evidence before the court, I find this to be a case in which it is fair and just to limit the duration of the payor father’s spousal support obligation. The recipient mother was 29 years of age at the time of separation and is now 34 years of age. She has a foreign Bachelor of Arts degree, does not support other dependents, has no significant debts, and was married for less than 7½ years. Although she struggles with her mental health, she is not medically precluded from working. She is resourceful and determined, and she has some limited prior work experience.
[120] The parties had been economically interdependent in a traditional marriage. The mother developed a dependency on the marital standard of living, which was modest and simple throughout most of the marriage as the parties established themselves as first-generation Canadians. During the marriage, the mother made important contributions by assuming household duties and by intermittently working outside the home after the family initially immigrated to Canada. Her work supported the father’s career goals which he ultimately achieved. Only towards the very end of the marriage, as he progressed in qualifying for his accounting designation, did their financial prospects gain the potential for a modestly higher standard of living.
[121] I disagree with the father’s submission that the mother’s decision to abandon her retraining program completely removes his responsibility for spousal support. In my view, spousal support would have been required even had she completed the entire program, as it would have been unrealistic to expect her to pivot immediately into self-sufficiency. The father benefitted from her contributions to the family during the marriage, which helped him to achieve his career goals that now give him the ability to contribute spousal support.
[122] Over the past 5 years, I accept that the mother did not make reasonable efforts to meaningfully consider or actively pursue employment or retraining to gain self-sufficiency, which is a factor in determining the appropriateness of a fixed period of support: Moscoe v. DiFelice at paras 84-86; C.A.K. v. D.E.D.L., 2013 ONSC 277 at paras 217-218. Without excusing her inaction on this front, I accept that her conduct is explained to some extent by her mental health situation and apparent preoccupation with the family dispute. As such, I find that it would be fair and just to award her spousal support for a fixed period to provide her with a final opportunity to re-train, to find appropriate employment and to become self-sufficient while also factoring her need to address her mental health.
[123] The Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) ("SSAG") generate ranges for the amount and duration of spousal support at law. The ranges are based on different formulas and the circumstances of each case. In this case, the Custodial Payor Formula in s. 8.9 of the SSAG applies because the child lives with the payor father. This formula accounts for the father’s reduced ability to meet the expense of spousal support given the costs of the dependent child, and also factors the mother’s obligation to pay child support.
[124] The father has an annual employment income of $85,478.00 while the mother has a current annual income of $8,796.00 through social assistance. The father submits that the mother is intentionally unemployed and seeks to impute a minimum wage income to her.
[125] In appropriate cases, the court may impute income to an intentionally under-employed or unemployed spouse: ss. 19(1)(a) of the Federal Child Support Guidelines. In deciding whether to do so, the court must factor: 1) is the spouse intentionally under-employed or unemployed; 2) if so, is the intentional under-employment or unemployment required by virtue of his/her reasonable educational needs; and 3) if the answer to question #2 is negative, what income is appropriately imputed in the circumstances: Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.) at para 23. A finding of intentional under-employment or unemployment to impute income does not require bad faith or an intent to evade support obligations: Drygala at paras 24-36; Lavie v. Lavie, 2018 ONCA 10 at paras. 24 and 26. But a spouse who is able has a duty to seek employment: Drygala at para 38.
[126] A party seeking to impute income must establish an evidentiary basis that the other party is intentionally under-employed or unemployed: Homsi v. Zaya, 2009 ONCA 322 at para 28. Once this is shown, the onus shifts to the other party to show what is required by virtue of his or her reasonable educational needs: Drygala at para 38. Where a party is intentionally under-employed, the court may exercise its discretion to determine what amount should be imputed by factoring the spouse’s age, education, experience, skills and health: Drygala at para 45; Lavie, at para 32.
[127] I find that the mother is intentionally unemployed. Since separating in August 2015, she remained unemployed and did not try to find any employment. During this litigation, she did not produce a resume or disclose any job search information. The reason she gave for not seeking employment is her self-described “trauma” from the allegations that the child was abused. But there is no evidence that she is medically unable to work. Rather, Dr. Dhaliwal reports that she is stable and competent, albeit with a mild to moderate adjustment disorder. I accept that the mother was highly preoccupied with the sexual assault allegations and vigorously pursued them with the authorities and in litigation. I also accept that her mental health may have hampered her ability to find and maintain employment to some extent. From the evidence, I find no basis to entirely excuse her from her obligation to seek employment: Drygala at para 38. But given her limited work history, the type of work that is available to her is realistically limited.
[128] Having regard to all of the circumstances, I am persuaded that it is fair and reasonable to impute some minimum wage income to the mother. In determining an appropriate period for her to transition to a minimum wage role, I find that it is necessary to factor the current COVID-19 pandemic which has disrupted businesses and left many people unemployed or with reduced employment. Although the parties separated well-before the onset of the pandemic, I find that support should not be ordered retroactively in this case to avoid any hardship to the custodial payor father given his relatively modest means. In the absence of evidence or empirical data, I also recognize that it is impossible to predict exactly how long it will take for employment opportunities in the marketplace to regularize. However, I accept that a staged-approach would afford a fair and balanced means of exercising the discretion under ss. 19(1)(a) of the Guidelines to allow for a reasonable transition period: Simons v. Comrie, 2020 ONCJ 232 at paras 55-60.
[129] In my view, the mother reasonably will need 12 months to find a 20-hour per week job at minimum wage, followed by a further 12 months to acquire minimum wage employment at 40 hours per week. Having regard to all of her personal circumstances, I find that this is a fair and reasonable approach to impute income that she realistically could achieve in her current situation.
[130] Applying the payor father’s annual income of $85,478.00 and the recipient mother’s social assistance income of $8,796.00 (i.e., for spousal claw-back purposes only), the Custodial Payor Formula under the Spousal Support Advisory Guidelines shows a monthly support figure for the first 12 months that is payable by the father to the mother of between $664.00 and $886.00 per month, with a duration of between 3¾ to 7½ years. For the next 12 months, the Custodial Payor Formula shows a monthly support figure of between $535.00 and $713.00 per month by imputing the mother’s annual income at $14,560.00 based on the $14.00 Ontario minimum hourly wage to a 20-hour work week. Thereafter, the monthly support figure under the Custodial Payor Formula is between $430.00 and $573.00 per month by imputing the mother’s income at $29,120.00 based on a 40-hour work week at the provincial minimum wage.
[131] On the facts of this case, I find that it would be fair and just for the father to pay the mother mid-range spousal support for a duration of 5 ½ years (i.e., to approximate the mid-range duration) beginning with monthly payments of $775.00 for the initial 1-year period, followed by monthly payments of $624.00 for the next 1-year period, and then followed by monthly payments of $502.00 for the balance of the duration, subject to an offset for his earlier support payments to the mother, as set out below.
[132] During the marriage, the parties were financially interdependent. As such, the father benefitted from the mother’s contributions to the household, including some limited work outside of the home, while he pursued accounting accreditations to advance his professional career. In contrast, the marital breakdown economically disadvantaged the mother, who was left with a lower standard of living. She now resides in a basement apartment while the father owns a townhouse where he lives with the child and generates rental income from tenants. In my view, spousal support for a 5 ½ year period would fairly address the mother’s disadvantage and recognize the reality that she will be embarking on a process to re-join the workforce and transition to a new career. It also will equitably assist her transition to self-sufficiency, likely through a combination of securing higher income while adapting her lifestyle to match her means. In my view, this period also accounts for the impact of her mental health issues and the COVID-19 pandemic on her ability to reasonably re-enter the workforce and realistically earn employment income.
[133] Notably, over a period of 17 months from August 2015 (i.e., when the parties separated) until December 2016 (i.e., the last month before his access with the child stopped), the father informally paid $1,500.00 per month to the mother (i.e., who had custody of the child at the time) as blended child and spousal support, which approximated the low-range for blended support at that time. [2] To fairly account for this, I find that the 5 ½ year period of custodial payor spousal support should be offset by 1 year so that the father pays support for 4 ½ years.
[134] Taking the foregoing into account, I find that prospective spousal support should be paid by the father to the mother as follows. Starting August 1, 2020, the first spousal support payment of $775.00 per month shall be due on the first day of each month, which shall change to $624.00 per month starting on August 1, 2021, and which shall further change to $502.00 per month starting on August 1, 2022 with his last payment due on February 1, 2025 (i.e., for a total payment period of 4 ½ years, including the above-mentioned 1 year offset for the father’s earlier blended support payments).
Orders
[135] Accordingly, I order the following:
the child, M. (born September 20, 2009), shall be placed in the sole custody with the father, with whom the child shall have his primary residence;
the father shall decide the child’s daily living needs. He shall also decide all major medical and educational matters, and in his discretion shall give the mother reasonable advance notice of all such major decisions so that she may provide meaningful written input before the decisions are made. The mother may obtain the child’s medical and educational information directly from his medical practitioners and education providers, and the father shall keep her apprised of who they are;
The child shall have a graduated return to unsupervised and overnight access with his mother as follows: (a) Up to 3 hours of supervised access with his mother every Saturday, for a period of 3 months; (b) Once the initial 3-month period is ended, supervised access shall change to every Saturday from 9:00 am to 7:00 pm, for another 3-month period; (c) Once the prior 6-month period is ended, and provided that the mother has provided the father in advance with a forensic psychiatry assessment that confirms her capacity to parent without supervision, access shall change to unsupervised access every Saturday from 9:00 am to 7:00 pm for 3-months; (d) After the prior 9-month period is ended, access shall change to unsupervised access every second weekend from 9:00 am on Saturday to noon on Sunday for 3-months; (e) After the prior 12-month period is ended, access shall change to unsupervised access every second weekend from Friday evening to Sunday evening, which shall be indefinite unless otherwise ordered by this court;
The above-mentioned supervised parenting access shall be held in the presence of a third-party access supervisor who shall be selected by the father. The supervisor shall ensure that the child is not involved in or drawn into the parental conflict during any of his supervised parenting time;
The child shall have liberal evening telephone or video calls with his mother for up to 20 minutes on each occasion, which may be expanded in the father’s discretion;
The parties shall arrange for parenting calls and access visits by exchanging text or e-mail messages;
The above-mentioned parenting terms may be modified by agreement of the parties to give the child additional or greater parenting access or parenting calls with his mother;
Each party shall facilitate and encourage the child’s relationship and parenting time with the other party;
Neither parent shall disparage the other, discuss adult issues, or revisit any allegations raised in this litigation in the presence of the child or, in any way, allow any third-parties, including any parenting supervisor, to do so;
For the purpose of implementing the access order in this case, I shall retain jurisdiction over the access issues for a period of 18-months from the date of the release of these reasons and may be spoken to by counsel to address any access implementation issues that arise during that period
Spousal support shall be paid by the father to the mother as follows: (a) Starting on the first day of each month from August 1, 2020 until July 1, 2021, the father shall pay monthly spousal support of $775.00; (b) Thereafter, on the first day of each month from August 1, 2021 until July 1, 2022, the father shall pay monthly spousal support of $624.00; and (c) Thereafter, on the first day of each month from August 1, 2022 until February 1, 2025, the father shall pay monthly spousal support of $502.00. [3]
Costs
[136] If the parties are unable to settle the matter of costs, the father may deliver his written costs submissions of up to 5 pages (excluding bills of costs, any offer(s) to settle and caselaw) within 20 days from the release of these reasons, after which the mother may deliver her written costs submissions on the same terms within a further 20 days. Reply submissions shall not be delivered without leave.
Doi J.
Released: July 28, 2020
COURT FILE NO.: FS-16-88073-00 DATE: 2020 07 28 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: M.P. Applicant - and - M.P. Respondent REASONS FOR JUDGMENT Doi J. Released: July 28, 2020
[1] An OCL report provides the court with information about the custody and parenting issues, and forms part of the evidence: Taylor v. Clarke, 2017 ONSC 1270 at para 53. Although not binding, an OCL report that offers extensive investigation based on first-hand information may merit serious consideration by the court: Maharaj v. Wilfred-Jacob, 2016 ONSC 7925 at para 67. It is for the court to decide what is in the child’s best interests, based on the whole of the evidence: D.F. at para 75.
[2] The father also paid the mother 11 months of child support effective January 1, 2018 pursuant to the consent order of Tzimas J. dated May 18, 2018. He later discontinued paying this support as of November 1, 2018 (i.e., after custody of the child reverted to him on June 21, 2018). The mother has not paid child support while the child has been in the father’s custody.
[3] If there are any mathematical errors in the calculations in this decision, either counsel may bring such errors to my attention by serving notice to the other party and writing to the court within 30 days.