Nature of Motion

[1] The applicant (“husband”) has brought a motion seeking an order that the parties’ jointly-owned matrimonial home be listed for sale and sold immediately; an order for equal parenting of the parties’ two children on a “2-2-5-5” schedule; an order appointing Dr. Raymond Morris to conduct a custody and access assessment, pursuant to s.30 of the Children’s Law Reform Act; and an order that he be permitted to continue the financial status quo, such that, in addition to paying the housing-related expenses, he continue to pay the wife voluntary, “without-prejudice” payments of $5,000 a month. Just prior to the hearing of this long motion, as a threshold issue, the husband also sought an order to strike various paragraphs of the affidavits of the respondent (“wife”), sworn on September 16, 2020 and September 22, 2020;

[2] The wife has brought a cross-motion, seeking an order that she be granted interim exclusive possession of the parties’ jointly-owned matrimonial home; an order that the children reside primarily with her and reside with the husband on alternate weekends, from Friday, after school, to Sunday, at 6:00 p.m., and on Wednesdays, from after school, to 7:30 p.m.; and an order that the husband pay “uncharacterized” support to the wife in the amount of $10,000 a month in addition to maintaining the house-related expenses. As a threshold issue, she sought an order striking certain paragraphs of the husband’s affidavit, sworn on September 16, 2020.

[3] The parties’ motions were ordered to be heard as a “long motion” by Diamond, J. on September 14, 2020.

[4] In support of the husband’s motion and in response to the wife’s motion, he relies on the following material:

a. His Notice of Motion, dated September 16, 2020;

b. His amended Notice of Motion, dated September 25, 2020;

c. His Form 35.1 Affidavit in Support of Claim for Access, sworn February 11, 2020;

d. His Financial Statement, sworn February 11, 2020;

e. His affidavit, sworn September 16, 2020;

f. The affidavit of Anna DaSilva, sworn September 16, 2020;

g. The affidavit of Sehvauna Chauhan, sworn September 16, 2020;

h. The affidavit of Clarisa Tatu, sworn September 16, 2020;

i. The affidavit of Carling D’Cunha, sworn September 16, 2020;

j. The affidavit of Mehregan Hahi Mahmoodi, sworn September 16, 2020;

k. The affidavit of Elham Farhadi, sworn September 16, 2020;

l. The affidavit of Ali Borhani, sworn September 16, 2020;

m. The affidavit of Katayoun Mohajeri-Burgess, sworn September 16, 2020;

n. His affidavit sworn September 21, 2020, updating Form 35.1 Affidavit and Financial Statement;

o. His affidavit, sworn September 22, 2020, in reply to the wife’s affidavit;

p. His Reply, dated September 25, 2020; and

q. His Factum, dated September 25, 2020.

[5] In support of the wife’s cross-motion and in response to the husband’s motion, she relies on the following material:

a. Her Notice of Motion, dated September 16, 2020;

b. Her Financial Statement, sworn September 14, 2020

c. Her affidavit, sworn September 16, 2020;

d. Her Answer, dated September 21, 2020;

e. Her affidavit, sworn September 22, 2020;

f. Her affidavit, sworn September 25, 2020; and

g. Her Factum, dated September 25, 2020.

Procedural History

[6] On February 12, 2020, the husband issued an Application and filed a Financial Statement and a Form 35.1 Affidavit for Custody and Access. The husband tried to serve the wife with the Application and Financial Statement but service was not effected until August 20, 2020, when she retained her current solicitor, Richard Niman.

[7] On September 4, 2020, Diamond, J., conducted the first case conference in this matter. Diamond, J.’s Endorsement indicates that he had provided his views on the issues of exclusive possession, the parenting schedule that should be put into place for the children, child support, spousal support and the sale of the matrimonial home, the parties were very close to reaching an interim agreement; and both parties had been granted leave to proceed with motions on the issues, if necessary.

[8] On September 9, 2020, at the parties’ request, a follow-up case conference was heard by Diamond, J. His Endorsement sets out that the parties had arrived at an interim, “without prejudice” agreement on several issues, including exclusive possession of the matrimonial home, the listing of the matrimonial home for sale and parenting time. The parties were granted leave to proceed with questioning if they choose to. A motion on the parenting-time issue had been scheduled to be heard as a regular one-hour motion on September 29, 2020. Diamond, J. set out a schedule for the serving and filing of motion material.

[9] On September 14, 2020, at the parties’ request, a further follow-up case conference was heard by Diamond, J. His Endorsement indicates that the interim settlement referred to in his endorsement, dated September 9, 2020, had fallen apart and the September 29, 2020 motion date had been vacated. In its place, Diamond, J. ordered this “long motion” to proceed on October 1, 2020, to address (a) exclusive possession of the matrimonial home; (b) the wife’s claim for interim child and spousal support; (c) the listing of the matrimonial home for sale; and (d) the interim parenting time to be put into place on a go-forward basis. The wife was ordered to serve and file her Answer within 7 days. Both parties were ordered to use their best efforts to produce financial documentation to support the income earned by each of them. Finally, each party was to submit costs submissions for the three case conferences held on September 4, 9, and 14, 2020.

[10] I heard the long motion on October 1, 2020 and reserved my decision on the substantive issues. These Reasons for Order set out the disposition I made on the threshold/procedural issues at the outset of the hearing; and disposes of the substantive on the “long motion”.

Threshold Issue – Striking of Paragraphs

[11] At the start of the hearing on October 1, 2020, both parties raised the threshold procedural issues of whether:

a. paragraphs 67-72 and Exhibit “C” of the wife’s affidavit sworn on September 16, 2020, and paragraphs 20-25 of the wife’s affidavit, sworn on September 25, 2020, should be struck because they relate to a court proceeding (FS-11-365374) between the husband and his first wife, Nasim Adab, and were inflammatory, a waste of time, a nuisance and/or an abuse of the court process, contravening Rule 1(8.2) of the Family Law Rules (“FLRs”). In addition, the husband submitted that these paragraphs should be struck because they were not based on information that the wife learned from someone else, but were based on unsworn, untrue and hearsay statements that the wife had read in Nasim Adab’s Application, contravening Rule 14(19) of the FLRs;

b. paragraphs 74-76 of the wife’s September 16th affidavit and paragraph 17 of the husband’s affidavit sworn on September 16, 2020, be struck because they referred to confidential statements made by both parties during marriage counselling; and/or

c. paragraphs 99-106 of the wife’s September 16th affidavit and paragraph 44 of the husband’s September 22nd affidavit should be struck because they referred to confidential “without prejudice” discussions that took place during the three case conferences that were held contravening Rules 17(19) and 17(23) of the FLRs.

[12] I made the following orders regarding the parties’ affidavits:

a. I struck paragraphs 67-72 of and Exhibit “C” to the wife’s September 16th affidavit, from the affidavit.

b. I struck paragraphs 20-25 from the wife’s September 25th affidavit.

c. I struck the last of sentence 2 of paragraph 100; the last 3 sentences from paragraph 101, the second-half of the 1st sentence in paragraph 102 (beginning with “on the”) from the wife’s September 16th affidavit; the 3rd sentence in paragraph 4 of the husband’s September 16th affidavit, and the 2nd through to the 12th sentences of paragraph 44 of the husband’s September 22nd affidavit.

[13] I provided oral reasons for the above disposition I made of the above threshold procedural issues. As I understood counsel, counsel did not require written reasons. If either party disagrees with my understanding, then counsel shall advise the court within the next seven days that written reasons are requested and the will, in that event, be provided.

Issues on the Motion

[14] The four issues to be decided on this “long motion” are as follows:

a. Should the court order a custody and access assessment pursuant to s.30 of the Children’s Law Reform Act?

b. Should the court order a temporary parenting schedule that has the children spending equal time with both parents, or should there be an order that provides for the children to have their primary residence with the wife and a secondary parenting schedule with the husband?

c. Should the court order the immediate listing and sale of the matrimonial home for sale or, should the wife be granted an order for temporary exclusive possession of the matrimonial home pending the determination of the issues at trial? and

d. Should the court order the husband to pay an uncharacterized payment to the wife of $5,000 a month as the husband proposes or $10,000 a month as the wife proposes, pending the completion of an expert’s report which will determine the husband’s income for support purposes?

Background Facts

[15] The parties began cohabiting in January 2012. They were married on May 12, 2012. They separated on January 24, 2020 according to the wife and on February 10, 2020, according to the husband.

[16] They have two children of the marriage, namely, S. Mohajeri, born October 23, 2012 (“S.”), age 8, and L. Mohajeri, born May 25, 2014 (“L.”), age 6.

[17] The husband is 51 years of age and the wife is 41 years of age.

[18] The husband was born in Iran, the second of two children. The husband attended dental school in Iran and earned a DDS Degree in 1993. He earned his Canadian Dental Board requirements in 1999. He then pursued a 3-year specialist program in Orthodontics. Thereafter, in December 2000, he moved to Toronto and received his certification at the University of Toronto, Department of Orthodontics. He is a Fellow at the Royal College of Dentists of Canada. In 2005, the husband sponsored his parents to become new immigrants to Canada. By 2006, the husband, his sister and parents all moved to live in downtown Toronto. The husband deposes that he is very close with his family. He employs his sister as his office manager. She has worked for him for the past 15 years.

[19] As stated above, the husband is both a dentist and an orthodontist. He has a successful hybrid dental/orthodontic practice in downtown Toronto. In 2002, he opened his first dental office, located at 46 John Street, and in 2010, he opened a second dental office located at 451 King Street West. The husband’s two dental practices offer preventative dentistry; orthodontics, endodontics; restorative dentistry, oral surgery and cosmetic dentistry. The husband worked full-time throughout the marriage building his dental practice. The husband now has an associate dentist who works with him which, he deposes will allow him flexibility in his work schedule so that he no longer has to work on Wednesdays, and he will end work early on Fridays so he can spend more time with the children.

[20] The wife is a family law lawyer. She was called to the Bar in 2007. The wife worked full- time at a boutique family law firm, Fine & Associates, when she finished law school until the parties’ first child was born in 2012. The wife was the primary caregiver for the children; stayed at home and was out of the work force for about 6 years, from October 2012 until the Fall of 2018. In the fall of 2018, the wife returned to the practice of family law and started her own part-time practice out of the home. The wife deposes that for the past two years, she has billed about 7-9 hours a week.

[21] The children are currently in Grades 1 and 3, at Givins-Shaw Public School in the catchment area of the parties’ matrimonial home. The children are attending class in-person. Both girls are healthy and do well in school.

Parenting Time and Parenting Roles

[22] A brief summary of the circumstances surrounding the parties’ separation are set out below:

a. In December 2019, the family was on a holiday at Deerhurst Resort, in Huntsville, Ontario. The husband saw on the wife’s cellphone that she had received a text from a man with whom she works, asking for a coffee date. According to the husband, he did not confront the wife about the text during the holiday.

b. The husband’s position is that a month later he asked the wife about the text he had seen on her phone from a man named “Walter”. The wife told him that “Walter” was a “code name” for someone in her past named Carl.

c. After looking through the wife’s computer surreptitiously, the husband discovered that the wife had also had contact with another man at or around the same time that he and the wife started dating in 2000. According to the husband, he was devastated to learn this.

d. The wife takes the position that the parties’ separation on January 24, 2020. Between September 2019 and January 2020, the parties were engaged in marriage counselling. The husband refused to continue to participate in the counselling because, according to him, the wife was raising false allegations about him such as claiming that he was controlling, abusive and denigrating toward her;

e. The husband deposes that the wife, as a family law lawyer, knows how to “play the game” and that she has attempted to create a narrative where the husband is seen as an “angry” and “aggressive” man and where she is seen as a “victim”;

f. Since the separation, whether the date is January 24th, 2020 (as per the wife) or February 10th, 2020 (as per the husband), the parties have been residing separate and apart in the matrimonial home. The stress and tension in the house has made the parties’ living situation untenable. The wife alleges that the husband has been controlling and abusive toward her and the children. She asserts that the husband was behaving in an “out of control” manner, was depressed, had to seek help and was placed on medication. The husband alleges that the wife is emotionally abusive or unfair to the children in the comments she makes to them. He asserts that the wife has a history of mental health issues and will lock herself in the bathroom at times and not talk to the children. On either party’s account, their living arrangements need to change because the two children are demonstrating that they are experiencing distress as a result of the conflict between the parents.

[23] The parties provide divergent narratives about each other’s parenting abilities and the roles they each played in terms of parenting both during the marriage and after the separation.

(a) The Husband’s evidence and position on parenting

[24] The husband is seeking an equal parenting schedule where the children will live with the parents on a 2-2-5-5 schedule, such that the children will reside with the wife on Mondays and Tuesdays; with the husband on Wednesdays and Thursdays, and with each parent on alternating weekends. He deposes that his parents have offered to have him, and the children reside with them in their home, which is 5 minutes from the parties’ matrimonial home.

[25] The husband deposes that during the marriage, he did the lion’s share of parenting during evenings, on weekends and on all holidays. Since both S. and L. attend school full-time, given their ages and stages of development, the husband submits that there is no impediment to the children having equal parenting time with both parents.

[26] The husband deposes that the parties equally parented the children throughout the marriage. [He does not mention the six-year period when he was working full time and the wife was a stay-at-home mother].

[27] In particular, the husband highlights the four months of time he spent parenting the children from the onset of the Covid-19 health crisis in mid-March 2020 until mid-June (when his dental practice reopened) and deposes that when the children were home from school and neither party was working, both he and the wife were home with the children full-time and equally participating in their care, including assisting with their school work. This is the “status quo” in terms of parenting that the husband seeks to continue.

[28] The husband submits that since his dental practice reopened in early June, due to Royal College of Dental Surgeon restrictions placed on dentists/orthodontists arising from Covid-19, his practice can only operate at 60-65% capacity. As a result, he no longer works on Wednesdays and is available to look after the children. He also deposes that he leaves work early on Thursdays. The husband explains that he has an associate dentist in his practice who will look after his patients in his absence. The husband did not have this flexibility during the parties’ marriage.

[29] The husband submits, that as was the pattern during the marriage, he takes the children to school on Monday mornings, as he does not arrive at his dental office until 10:00 a.m. Further, the husband deposes that he only works until 3 p.m. on Fridays.

[30] The husband vigorously denies the claims made by the wife that he is abusive, controlling or threatening to her or the children. Instead, he maintains that he is a loving and caring father who is attuned to the children’s needs. Further, the husband alleges that the wife behaves in a manner that is emotionally unfair to the children.

[31] The husband submits that S., who is 8 years of age, has difficulty regulating her emotions and, as a result, can exhibit behaviours that are aggressive and angry toward her younger sister, L. According to the husband, when S. acted out during the marriage, the pattern with the parties was for the husband to deal with S. during her tantrums and that included, if necessary, restraining S. physically to ensure that she did not act out. By contrast, the husband deposes that the wife’s manner of coping with S.’s tantrums was to lock S. in her room while she was in the midst of acting out and until S. calmed down. According to the husband, S.’s tantrums are now minimal.

[32] The husband maintains that both parents have positive things to offer the children and neither one of them is better suited than the other to look after and care for the children. The husband submits that he ought not to be relegated to an access father.

[33] In summary, the husband believes it is in the children’s best interests that the parties share joint custody of the children and an equal parenting schedule be ordered, for the following reasons:

a. The parents have always jointly shared the parenting duties, with the wife taking the lead and spending more parenting time with the children during the day and the husband spending more parenting time with the children on weekends, holidays and in the evenings;

b. The husband was always responsible for the children’s bedtime routine including reading them stories;

c. The husband spends all of his free time with the children doing various hands-on activities with them, such as horseback riding, biking, cooking;

d. The husband purchases the items the children need, everything from socks to toys [the evidence shows he made purchases from Amazon for the children from March 2020 onward, once the Covid-19 health crisis began];

e. The husband is the children’s dentist and the parent to take the children to their medical appointments, as the wife is squeamish about medical procedures. The husband is the parent who trims the children’s nails and hair;

f. The parents jointly attended weekly parenting classes at the Child Development Institute (“CDI”) in 2016-2017, to gain skills to manage their daughter, S.’s, difficult behaviours, demonstrating that he was actively involved in parenting;

g. The parents made all decisions regarding the children jointly together, including the recent decision that the girls will attend school in-person this Fall;

h. Since the separation, the husband has generally assisted S. with bedtime while the wife assisted L. with bedtime;

i. During the Covid-19 lockdown in mid-March and following, the husband was entirely responsible for teaching the children their math and science curriculum and the wife taught the children their language arts and English curriculum. The parties parented the children equally while they lived separate and apart in the matrimonial home and they spent time together as a family, enjoying movie nights, enjoying outdoor activities at the park, the beach, hiking, etc.;

j. When the husband is at work, the children are at school, otherwise, the parents share all parenting responsibilities equally; and

k. The wife has a significant history of mental health issues (depression, anxiety, mood swings, and behaviours such as screaming and crying) and says inappropriate things to the children, which confuses and distresses them. In particular, the husband deposes that she is hyper-sensitive and perceives any negative feedback as “angry” or “aggressive”.

[34] The husband deposes that the wife has tried to create a false narrative - that he is verbally abusive and controlling to her and the children - and he denies these allegations. Instead, he maintains that he is a very calm and rational person who is slow to anger. He describes himself as level-headed and “unflappable in situations that would get a rise out of most people”. In support of his position, the husband filed 8 affidavits from third parties, all of whom he says support his claim that he is a loving father and has a calm and rational demeanor. [It is noteworthy that all 8 third-party affidavits are filed by friends, relatives and employees of the husband. None of these third parties spend or have spent significant time with the family or have any direct knowledge about the husband’s parenting abilities or day-to-day interactions with the children and/or the wife].

[35] Further, the husband deposes that since separation, the wife has tried to limit the time he spends with the children and criticizes him for trying to change the status quo.

[36] Finally, the husband alleges that the wife has a history of anxiety, mood swings and depression that affects her ability to parent. He deposes that the wife has a history with Homewood Health Centre, that she refuses to disclose. He submits that the wife’s mental health history is relevant to the parenting issues, especially because S.’s behaviour can be volatile and explosive. The husband further deposes that the wife engages in conduct that he believes causes the children to feel insecure, such as trying to create jealousy between the girls; making comments to make the children feel “unsafe” when they are with the husband and often locking herself in her room or the bathroom, crying. [It is noteworthy that the husband did not have concerns regarding the mother’s mental health such that he opposed her being a stay-at-home mother for six years, when the children were infants and toddlers].

Third-Party Affidavits

[37] The husband filed 8 third-party affidavits in support of his position on parenting. Brief details from the various third-party affidavits are listed below:

a. Dr. Elham Farhadi, a paediatrician, swore an affidavit on September 16, 2020, deposing in it that she had a relationship with the husband and his family in Iran which continued when Dr. Farhadi moved to Canada. She deposes that she has never seen the husband angry and that the husband is kind and considerate to her own children, so much so that at one point, she had made the husband a guardian of her own children. Finally, Dr. Farhadi deposes that she has seen the husband with his family, and he is a loving and devoted father. The wife submits that Dr. Farhadi lives in Ottawa and has no knowledge whatsoever of the husband and his behaviour toward her or the children.

b. Dr. Mehregan Hahi Mahmoodi, an anesthesiologist, swore an affidavit on September 16, 2020, deposing that she has known the husband for 25 years. She is a mother of 2 children. She deposes that the families went on a joint vacation together and that she saw the husband interacting with the children and observed him being caring and considerate with his children; teaching them life skills such as swimming, biking and cooking. Dr Mahmoodi deposes that she has a 21-year old son who looks up to the husband as a role model. Between 2009 and 2017, Dr. Mahmoodie made the husband the emergency contact for her children.

c. Anna DaSilva, a 15-year employee of the husband, swore an affidavit on September 16, 2020. She deposes that the husband is always calm and courteous toward her, and never angry. She also deposes she has met the children and the husband always puts his children first.

d. Sehvauna Chauhan, a dental hygienist who has worked with the husband for the past 9 years, swore an affidavit on September 16, 2020. She deposes that the husband is dedicated to his staff and office, has demonstrated exemplary professional conduct and has never been “mad”.

e. Clarisa Tatu, a dental assistant who has worked for the husband for the past 5 years, swore an affidavit on September 16, 2020. She deposes that the husband keeps his calm in stressful situations and that “patience” is his hallmark. She has met the children at a staff Christmas party.

f. Carling D’Cunha, a dental assistant who works alongside the husband, swore an affidavit on September 16, 2020. She deposes that she and the husband often work under pressure and the husband does not lose his temper or speak rudely. In fact, she deposed that she admires the husband’s ability to keep calm.

g. Ali Borhani, swore an affidavit on September 16th, 2020. He deposes that he has known the husband for the past 32 years and that in all of that time. he has never witnessed or been exposed to the husband engaging in any “irrational temperament” or “anger”. He deposes that the meaning of the husband’s name in the Persian language is “calm”. Mr. Borhani deposes that he stayed at the parties’ home for one week between November 18 and 24, 2019, and during that time, the husband was devoted to the children.

h. Katayoun Mohajeri-Burgess, the husband’s sister, swore an affidavit on September 16, 2020. By contrast to the other third-party affidavits, this deponent has spent significant time with the parties and the children. She speaks highly of her brother and his “level-headed, calm” nature and close relationship with the children. However, she also deposes that between January and March 2020, just at the time the parties separated, she witnessed the children being upset and crying because “mommy left” or because “mommy is not coming home”. In her affidavit, sworn on September 22, 2020, the wife deposes that she had confided in Ms. Mohajeri-Burgess about her concerns about the husband’s treatment of S. and their marital difficulties. Once the parties separated, the wife was not comfortable when the husband’s family members came to the house, so she often left to give them space.

(b) The wife’s evidence and position on parenting

[38] The wife deposes that she was the primary parent who gave up her full-time law practice to look after the children and household as per a joint decision the parties made. The wife submits that the husband owns two very busy dental practices in downtown Toronto and that he always worked long hours during the marriage. The husband was the higher income earner in the family, and it made sense that the wife would stay at home to look after children and household once their first daughter was born. In paragraph 25 of the wife’s September 16th affidavit, the wife sets out the husband’s typical work week during the marriage; he generally left the home early in the mornings and worked until 6:00 p.m. or 7:00 p.m. between Mondays and Fridays and spent time with the children on the weekends. This schedule is not disputed by the husband. The difference is that the husband deposes that now, that the parties have separated, he has changed his work schedule to be free on Wednesdays and leave work early on Thursdays, something he did not do during the marriage.

[39] The wife alleges that the husband has been verbally abusive and controlling toward her throughout the marriage. She deposes that he regularly lost his temper without warning and screamed aggressively at her and the children. Further, the wife submits that the husband has been abusive to their daughter S. who can be difficult behaviourally and has physically assaulted S. on more than one occasion as a result of having lost his temper with her.

[40] The parties have been living separate and apart in the matrimonial home since February 2020. The wife deposes that the husband’s behaviour has escalated to the point where she and the children are walking on “eggshells” around the husband, hoping not to “set him off”.

[41] The wife has serious concerns about the husband’s ability to parent the children on his own. She submits that the husband cannot control his anger and often lashes out at the children. Further, the wife maintains that during the marriage, when the husband spent time with the children, he always did so in the presence of his parents or sister. Accordingly, the wife asks that any parenting order made by the court require the husband to spend his parenting time with the children in the presence of his parents.

[42] In particular, the parties’ daughter, S., is challenging and the wife deposes that she is very concerned about the complicated parent-child dynamic between the husband and S., as the husband regularly loses his temper with S. Very specific examples were provided in the wife’s September 16th affidavit, detailing the conflict between the husband and S.

[43] Shortly after the parties separated, the Covid-19 pandemic occurred and the city was in lock-down. As a result, there was a period of time when the husband’s dental practice was forced to close and the four family members were together in the house, which the wife deposes caused significant tension and conflict.

[44] In August 2020, the husband took the children to Deerhurst for a week, without the wife’s consent. The wife did not want the husband to be alone with the children for a week, so she agreed to go with him to Deerhurst. However, despite being told by the wife and her lawyer that she did not consent to the husband taking the children on this trip without her, the husband left for the trip while she was in a bedroom, knowing she did not consent, and sent her a text message once they had left for the trip.[^1]

[45] In terms of specific examples of the husband’s volatile and abusive treatment of the children, the following statements are found in the wife’s September 16th affidavit:

a. “In or around 2017 when S. was 4 years old and had a tantrum, the husband became incensed and demanded that she stop crying. When S. was unable to regulate her emotions, the husband put his hand over S.’s mouth, held it and repeatedly screamed at her to “be quiet”. S. was hysterical and terrified”;[^2]

b. On January 14, 2019, S. went to see a child psychologist, Dr. Naomi Slonim. The husband did not attend the appointment. On January 14, 2019, after S.’s appointment, Dr. Slonim contacted the Children’s Aid Society (“CAS”). Dr. Slonim’s notes from the session indicate that S. told her that the husband “makes her angry”, had choked her until she could not breathe and hit her in the eye”;[^3]

c. After the CAS attended at the parties’ home and closed the file, the husband refused to allow S. to continue to see Dr. Slonim and has refused to consent to S. gaining access to any therapeutic intervention.[^4]

d. “In November 2019, during another tantrum, the husband bent down S. jumped on his back and wrapped her arms around his neck. The husband grabbed S.’s hand and, flung her off his back and onto the floor. S. was shocked and scared”.[^5] In response to this allegation, the husband explains that S. was out of control and jumped on his back. According to the husband, S. bit him and he then calmed her down. The husband describes a one-inch scar he has on his arm as proof of the bite;[^6]

e. In December 2019, when the wife and L. came home from the park, the husband was in the kitchen and S. was in her room crying. When the wife asked S. what was wrong, she told the wife, “Daddy was being mean and yelled at me, it’s scary when I am alone with Daddy”.[^7] In his September 22nd affidavit, the husband responds to this allegation by deposing that this incident stemmed from S. rudely demanding ice cream;[^8]

f. In January 2020, S. and the husband had an argument and she began hitting him. The husband tried to walk away from her but S. continued to hit him. The husband screamed at her, “Get away from me! Don’t touch me!” S. grabbed the husband’s shirt and the husband shoved her hand aside, which knocked her on the floor. S. was shocked and distressed.;[^9]

g. In January 2020, the husband returned home from work around 7 p.m.. The wife took a shower, leaving the husband to watch the children. When the wife came out of the shower, she heard S. screaming. She ran to the bathroom and found L. and S. in the bathtub and the husband. S. was screaming and kicking. The wife removed L. from the bathtub and when she came back to the tub to remove S., S. refused to get out of the tub. The wife asked the husband to get out of the tub so she could try and remove S. and the husband refused, screaming, “ I will not let my daughter bully me! I will not get out of the bathtub;”[^10]

h. On that same day, the heard L. crying in her room and went to attend to her, leaving S. and the husband alone in the bathtub. While she was in L.’s bedroom, she heard S., again, screaming in the bathroom. The wife went into the bathroom where S. was in the tub crying. The husband had left the bathtub. Once the wife calmed S. down, she told the wife, “I kicked Daddy in the private part so he kicked me in my private part”.[^11] In his September 22nd affidavit, the husband denies that he kicked S. He asserts that he restrained S. because S. and L. were kicking and punching each other in the tub;[^12]

i. In February 2020, when the wife was getting L. ready for bed, S. came into the room, screaming that the husband had thrown her water bottle out the window. When the wife later tried to get the water bottle from outside, the husband screamed at her that if she retrieved the water bottle, she was undermining his parental authority and yelled, “Don’t you dare undermine my parenting authority! Who do you think you are? It’s not your place to undermine me.”;[^13]

j. After the separation, the parties agreed to tell the children together that they were separating. However, in February 2020, when the husband arrived home one day and the children were not home to greet him, as they were out for dinner with the wife, the husband went to the restaurant, and announced to the children, “Your mom and I are getting a divorced because you Mom refuses to talk to me.”;[^14]

k. In April 2020, S. and the husband were yelling at each other in the living room and he yelled at S., “You can’t speak to people this way. Everyone will leave you and you will be all alone. Nobody wants to be with someone like you.”;[^15]

l. On August 21, 2020, after the husband received a letter from the wife’s lawyer, in which the wife confirmed that she did not consent to the husband taking the girls away for a week without her, the husband became irate and screamed at the wife in front of the children and then yelled at S., “I can’t take you unless your Mom agrees because she can call the Police on me. I don’t want Mommy to come because Mommy’s friend, her lawyer, wrote a letter to me saying that Mommy is not comfortable being with me and she wants me to leave. I can show you the letter.”;[^16] and

m. While the children were on the one-week trip with the husband at Deerhurst in August (to which, again, the wife did not consent), it was the longest time either S. or L. had been away from the wife. Without any prompting, both girls told the wife after the trip that L. went into the closet at Deerhurst when she was upset; both L. and S. fought a lot while they were away; when S. had a tantrum, the husband picked S. up and told her that they would have to return home because of “S.’s bad behaviour”, and that L. wanted to go home but “couldn’t tell Daddy” because she did not want to get him upset and even if she had told Daddy, “he wouldn’t listen to me.”[^17]

[46] Based on the examples above, it is clear that the children have been exposed to their parents’ conflict since the separation. There are examples of the husband screaming at the wife in front of the children and the husband trying to involve the children in the separation. This kind of exposure to conflict is not in the children’s best interests.

[47] The husband categorically denies losing his temper with S. or both children. He deposes that the wife is unable to control S. on her own and looks to him for assistance. The husband deposes that it is ironic that the wife criticizes him for the help she sought from him during the marriage.

[48] Both parties depose that S. is a challenge for them. The wife’s concern is how the husband deals with S. when she presents with challenging and volatile behaviours. The wife submits that the husband has serious anger, rage and temper issues which have affected the manner in which he deals with the children. The wife deposes, that she rarely left the children alone with the husband, except when his parents were over.[^18]

[49] The wife acknowledges that during the pandemic, while the family was home together, she did lock herself in the bathroom on occasion, to compose herself when she was upset so that she did not expose the children to their mother being upset and to avoid the husband’s rage and temper.

[50] The wife seeks a parenting schedule that is in line with the status quo that was in place prior to the Covid-19 health crisis when the children were attending school. She believes that, given the ages of the children and S.’s particular need for structure and predictability, the children require one stable primary residence during the school week. Accordingly, the wife seeks an order for a temporary parenting schedule where the children reside primarily with her from Monday to Friday: with the husband on alternate weekends, from Friday, after school to Sunday evening, and that the children spend time with the husband on Wednesdays, after school until after dinner, but not overnight.

[51] Finally, the wife submits that the 8 third-party affidavits, filed in support of the husband’s motion, ought to be given little weight, if any, by this Court, as they are self-serving since they were filed by friends of the husband who have spent very little, if any, time with the family or paid employees of the husband and therefore not reliable.

Order for a s.30 CRLA custody and Access Assessment

Husband’s position

[52] The husband seeks an order for a custody and access assessment. He deposes that the court requires such an assessment, to assist it in making a decision that it is in the children’s best interests, given the difference in evidence both parents have submitted. Further, the husband submits that there are clinical issues relating to the wife’s mental health issues and the difficult behaviours S. exhibits. The husband has also submitted that he will pay for assessment upfront, he cost to be reapportioned by the Court at a later date.

[53] The husband’s counsel has proposed that Dr. Raymond Morris conduct the assessment: he is available to do so immediately.

Wife’s position

[54] The wife does not consent to a s.30 CLRA custody and access assessment. She deposes that she is concerned about the impact of an assessment on the children, since the last time S. was seen by a therapist and disclosed what happened to her, the husband was very angry with S. for telling the therapist what happened, and he berated S. for it. As a result, she is “concerned that the husband could coach and/or punish the children for speaking openly about their experiences in [their] home, subjecting them to further distressing behaviour and compromising the accuracy of any such assessment.”[^19]

[55] Further, the wife submits that there is nothing unique about the case and there are no clinical issues present that would justify a s.30 assessment. If the Court is inclined to order a s.30 assessment, then the wife submits that she wishes to have some input into who the assessor ought to be and proposes that, if the parties cannot agree on an assessor, that the parties be ordered to make written submissions to me as to which professional ought to conduct the assessment and for me to make a summary decision on that particular issue.

Exclusive Possession of the Matrimonial Home/Sale of the Matrimonial Home

Wife’s evidence and position

[56] The wife seeks an order for exclusive possession of the matrimonial home on the grounds that the husband’s behaviour toward her and the children is abusive, threatening and controlling. The wife deposes that she does not feel safe in the matrimonial home when the husband is present, and the children are very distressed by the tension and conflict they are forced to experience and to which they have been exposed in the home. The children attend school in the neighborhood and have many friends and connections there. Given the uncertainty with the Covid-19 crisis and the parties’ separation, the wife submits that it is in the children’s best interests to remain in the matrimonial home and attend their neighbourhood school, at least for the remainder of this school year, to create stability and predictability for them. The wife also maintains that the children are used to spending weekend time with the husband and his family and that that can continue via a parenting schedule that can be put in place. Finally, the father has alternate accommodation available to him, at no cost, since he has deposed that his parents have offered to have him, and the children live with them. His parents’ home is around the corner from the matrimonial home. Even if the husband did not wish to live with his parents in their home, the husband has the financial resources to rent or purchase alternate accommodation, which she does not.

[57] The wife has deposed that the husband has been threatening, controlling and abusive toward her, examples of which follow:

a. The morning of the parties’ wedding, the husband lost his temper, flew into a rage, and aggressively screamed at her, despite the fact that it was their wedding day and she was three months’ pregnant.[^20] The husband was psychologically abusive toward her in the hospital, while she was in labour with L.[^21];

b. In May 2012, the wife arrived home while the husband was cooking dinner. He was angry that he had to cook dinner for himself and began to yell at the wife that she contributed nothing to their relationship. The wife was scared and left their home. She stayed with her mother;[^22]

c. The husband was regularly critical of her – criticizing her appearance, her clothing, her personality and her domestic skills, such as cooking;[^23]

d. In January 2019, the husband saw a message on the wife’s phone from a former male colleague. The husband then became obsessive about the message and about a man the wife had dated years ago. The husband admitted to the wife that he had surreptitiously accessed ten years of her emails. The husband also forwarded emails that she had sent to the man she had dated years ago, to the wife;[^24]

e. In the winter of 2020:

i. The husband became obsessive, jealous and scary. For about 2 weeks, the husband would wake the wife up in the middle of the night and force her to go to the basement of the home to speak with him. He would scream insults at her, telling her that she was “a whore” and “a cheater”, “a slut”, and that she would “spread her legs for anyone who gave her attention”. He also accused her of being a “gold digger who planned to have children with him and then divorce him for his money.”;[^25]

ii. The husband contacted the wife’s male colleague who confirmed to the wife that the husband had called him and threatened him;[^26]

iii. The husband became fixated on the wife’s prior relationship with the man that she was dating around the time that she met the husband, named Paul. The husband was not sleeping and lost between 10-15 pounds in a short period of time. His stress was palpable, and he had a short fuse. No matter what the wife did to reassure the husband, he told her he was “having dark thoughts” and she had no idea “how dark his thoughts were.”;[^27]

iv. The husband was demanding sexually. If the wife turned him down, he verbally abused her, saying “You’re my wife, it’s my right to have sex with you.”;[^28]

v. The husband admitted to the wife that he felt out of control and went to the emergency department at CAMH. However, when he arrived there, he looked at the other people in the waiting room and felt they were “homeless people and drug addicts”, so he left and went to his family doctor, who prescribed medication to him.;[^29] and

vi. The wife purchased a new laptop computer so that she could communicate with her family law counsel, as she knew the husband had accessed her old computer without her consent. In July 2020, the husband told the wife he knew she had been discussing their family law proceedings with friends and revealed that he knew about private emails between her and friend. This meant that the husband had had access to the wife’s emails and read her solicitor-and-client-privileged communications about this proceeding.[^30] The wife fears the husband’s insistence on breaching her privacy. There is no space in the matrimonial home in which the wife feels safe.

[58] Based on the continual psychological threats, screaming and denigration, the wife submits that the situation in the matrimonial home is no longer tenable. In particular, she seeks an order for temporary exclusive possession of the matrimonial home, based on the following grounds:

a. The parties can no longer live together. The children are suffering. The husband cannot control himself. He continues to lose his temper, yells at the wife and the children are forced to witness his rages.

b. The husband continuously denigrates the wife in front of the children.

c. The parties separated just before the Covid-19 health crisis began. The children desperately require stability and a calm environment free from tension, conflict and stress. It is in their best interests that they remain in the matrimonial home with the wife as their primary caregiver, as was the norm before the pandemic, and spend significant time with the father on the weekends;

d. The wife cannot move out of the matrimonial home. She does not have sufficient income to pay for alternative rental accommodation. Further, she does not have family who live close by;

e. The matrimonial home cannot yet be listed for sale, as the parties have not yet determined the husband’s support obligation or the property-division issues. If the matrimonial home were sold at this time, the wife would not know what she could afford in terms of renting new accommodation, let alone buying a new home - nor would she be able to even determine whether she would be eligible for financing, without knowing what her child and/or spousal support entitlement is;

f. By contrast, the husband earns significant income and has suitable alternate accommodation available to him, either with his parents or via his ability to rent accommodation.

Husband’s evidence and position

[59] In contrast, the husband seeks an order that the matrimonial home be listed for sale immediately and sold. The husband deposes that, before the wife brought her motion, the parties had interviewed realtors and decided to sell the home, with an agent named Jamie Sarner. The wife resiled from this agreement. He claims that he needs to access his equity from the jointly-owned home, to be able to purchase alternative accommodation. The husband is agreeable to the wife having exclusive possession of the matrimonial home pending its sale, provided it is listed for sale immediately. The husband concedes that he initially agreed to move out of the matrimonial home, but his agreement was conditional on the wife agreeing to an equal parenting schedule.

[60] The husband admits in paragraph 46 of his September 22nd, affidavit that he is in a better situation to remove himself from the home, as compared with the wife. He states as follows:

“I agree that I am better situated to remove myself from the home, than Tanya is. I would have moved out earlier if Tanya would have agreed to reasonable terms, including a parenting schedule that reflects my role as an equal parent to our children, and sale of the home that we agreed upon a couple of months ago.”

[61] In addition to his dental practice, the husband owns a rental property, located at 955 Queen Street W., which he deposes was worth $1,100,000, as at the date of separation. The wife also owns a rental property, located at 183 Heward Avenue, in Toronto which she owned before the marriage. She deposes that it was worth $1,300,000 as at the date of separation.

Temporary Spousal Support/Uncharacterized Monthly Payments

Wife’s position

[62] The wife seeks an order for temporary spousal support. Because the husband has failed to provide sufficient information to her, to enable the Court to determine what his income is for support purposes, she seeks an order, on a temporary, “without prejudice” basis, that the husband pay her child and spousal support in the sum of $10,000 a month (to which she refers as “uncharacterized” and which would not be taxable to her), until further court order or agreement of the parties.

[63] The wife claims that her financial circumstances are dire. Despite the fact that the husband is a successful dentist and orthodontist, the wife has been relying on CERB income to pay for her needs and those of the children. The husband has not paid any child or spousal support to the wife between the separation and September 1, 2020, at which time he made one uncharacterized payment of $5,000 to her.

[64] The husband does not acknowledge an obligation to pay spousal support to the wife. Instead, he submits that the wife ought to be working full-time and ought to be imputed with more income than that which she is currently earning. [Before S. was born, the evidence demonstrates that the most income earned by the wife during her career was $80,000 (earned in 2012) In 2011, she earned $46,000.

[65] The wife submits that the husband is not being honest with this Court about his income and submits that, where the parties evidence differs, the court ought to accept her evidence over the husband’s, for the following reasons:

a. From the time of separation until September 1, 2020, namely 7 months, the husband failed to make any payments of child or spousal support to the wife.

b. The husband filed one sworn financial statement in these proceedings, namely, the initial financial statement he swore on February 11, 2020, which was filed with his Application;

c. The husband swore an affidavit, dated September 21, 2020, which updated his financial statement deposing that his income has been reduced by approximately 50% due to Covid-19 and disclosing the rental income he had failed to report in his February 11th financial statement. He provided no corroborating documentation to evidence his alleged reduced income nor did he produce any documentation regarding his rental income.

d. In his February 11th financial statement, the husband lists that he has one corporation, namely, Dr. A. Mohajeri Dentistry Corporation, on which he placed a value of $1 million. The husband provides no explanation as to how he arrived at this value. Further, the husband failed to disclose his interest in Metro Hygiene Services Corporation. When the husband filed his affidavit, sworn on September 21, 2020, updating his financial statement, he again, failed to disclose this second corporation;

e. The husband has not prepared an income report or provided any updated financial information regarding his income. Instead, the husband attached to his September 16th affidavit as Exhibit “J”, a letter from Steve Ranot, a chartered business valuator he had retained to value his interest in both his Dentistry Professional Corporation and Metro Hygiene Services Corporation, as well as his income from 2017 to projected 2020. Mr. Ranot’s letter is dated September 16, 2020. The husband provided no explanation as to why he had not hired a CBV long before the wife brought her motion. Further, the husband made much of the fact that Mr. Ranot’s letter stated that he has prepared income reports for other dentists during the Covid pandemic and has seen their projected 2020 incomes decrease by about one half of their average incomes for 2018 and 2019.

f. The husband’s February 11th sworn financial statement lists his income at $400,000 a year. In his September 21st affidavit, he deposes that his income is $297,000 a year. The evidence is inconsistent. There is no way for the Court, at this particular time, to make a reasoned determination of what the husband’s income is for support purposes; and

g. The wife, not the husband, produced copies of the corporate financial statements for the husband’s dental practice, which show that in 2019, the revenue for the husband’s practice was $1,342,707 and there were retained earnings in the practice of $1,120,903.

[66] The wife submits that she is entitled to temporary spousal support based on the length of the parties’ marriage, the roles she played during the marriage and based on need. The wife started a part-time family law practice on October 2018. She continued to be the primary parent of the children and worked while they are in school. She deposes that in 2019, she billed an average of 40 hours per month. In 2020, the wife deposed that her practice reduced significantly. Once the children were home from school in mid-March, she could no longer work during the school day. Between January 1, 2020 and September 24, 2020, the wife deposes that she billed a total of 81.2 hours of work, for a total of $11,592 of billable work. The wife was also in receipt of CERB, the total of which came to $14,000, which is taxable income. [In effect, she claims that she has had about $25,000 of “gross income” in 2020].

[67] The wife maintains that after the separation, the husband stopped depositing money into the parties’ joint account. As her income was minimal, she relied on her savings and credit cards to pay for things for herself and the children.

Husband’s position

[68] The husband seeks an order that he continue to maintain the current financial status quo which he submits is him making voluntary payments to the wife in the sum of $5,000 a month and continuing to pay the house-related expenses. The “status quo” to which the husband refers is only the one payment that he made to the wife in September.

[69] The husband claims that as a result of the COVID-19 pandemic, his income in 2020 will be approximately $300,000.

[70] Although the husband has only made one payment to the wife of $5,000 on an uncharacterized basis, he has been paying the house-related expenses, which he deposes total more than $6,000 a month. He proposes to continue to do so until the sale of the matrimonial home has been completed as well as pay $5,000 a month, assuming that the house is listed for sale immediately.

Analysis

Issue 1: Should the Court order a custody and access assessment pursuant to s.30 of the Children’s Law Reform Act?

[71] Pursuant to s.30(1) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12 (“CLRA”), the court before which an application is brought in respect of custody of or access to a child, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the child’s needs. Where, on a motion, a party seeks a s.30 custody and access assessment, the court may give such directions in respect of the assessment as the court considers appropriate: Section 30(11), CLRA.

[72] In Linton v. Clarke[^31], the Divisional Court determined that assessments should be limited to cases in which there are clinical issues to be determined, thereby providing expert evidence on the appropriate manner in which to address the emotional and psychological stresses within the family unit on a final determination of custody.[^32]

[73] Subsequent to the decision of Linton v. Clarke, courts considered the issue of the meaning of the “clinical issue” phrase, In Tamm v. Oddy, the court held that, in the ordinary sense, “clinical issues” would appear to refer to those behavioural or psychological issues about which the average reasonable person would need an expert’s assistance in understanding. The professional knowledge and skill of an assessor, usually a psychologist or a social worker, could assist the court in understanding the unusual behaviour of the children or the parents involved. The Court states that "clinical issues" are not limited to psychiatric illness or serious psychological impairment of any of the parties or children involved.[^33]

[74] In J.J.B. v. G.G.B., the Court indicated that where there is evidence of a high level of conflict and acrimony between the parents, this might well constitute a "clinical issue".[^34] The husband relies on this statement in support of his request for an assessment.

[75] In a number of decisions, Courts interpreted the term, “clinical issues” more broadly. In Kramer v. Kramer, the court commented that section 30 is a legislative tool that, in the proper case, may assist the court in making a decision. As such, s. 30 should be given a broad interpretation. An assessment under s. 30 should be available to the court in any case in which there is a custody or access issue before the court. However, the Court also stated that this did not mean that assessments should be routinely ordered. An assessment should only be ordered where an assessment is reasonably necessary to assist the court in determining the issues that are before the court.[^35]

[76] The wife maintains that it is not necessary for the court to order a s.30 custody and access assessment. There must be evidence sufficient to satisfy the court that the reasons for requiring the assessment more than offset any harm that might be incurred by ordering the assessment. The paramount concern must be the best interests of the child. She submits that a party seeking a custody assessment is required to justify the request and to establish that it is likely to provide evidence that pertains to the welfare of the child that would not be discoverable otherwise: see Tacit v. Drost.[^36]

[77] An often-raised concern over whether an assessment should be ordered is whether it would be too intrusive a process for the children. This is the wife’s expressed concern in this case. The father maintains, however, that an experienced assessor would not conduct the assessment in a manner that would be too intrusive for children of this age: see Osmak-Bonk v. Bonk.[^37]

[78] The current leading case on the issue of whether a court should order a “s.30 assessment” is Glick v. Cale.[^38] In Glick v. Cale, Kiteley J. provided the following non-exhaustive list of criteria that can provide assistance to a court in deciding whether to order an assessment:

a. What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

b. Are the parents unable to make any decision about the child’s needs (including education, religion, health, and activities) without intervention by a court?

c. Without defining “high conflict”, is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

d. Do the parents have a mutual disregard for the other parent’s ability to parent?

e. Do the parents blame each other for the dysfunction each describes?

f. Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

g. Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

h. What is the age of the child at separation and at the time of the request for the assessment?

i. Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

j. Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child?

k. Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

l. What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access?

m. What is the estimated cost? Do the parents have the financial resources to pay that cost?

n. Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?

o. Is an assessment in the best interests of the child?

[79] While the parents have been able to make some child-related decisions without court intervention (i.e. such as sending the children to school in-person), the past history demonstrates that decision-making is problematic. An important example is the husband’s refusal to consent to S. continuing in therapy with Dr. Slonim and the fact that S. has gone without any therapeutic assistance for over a year despite the fact that both parents recognize she has challenging behavioural issues and difficulty self-regulating. The parents demonstrate a mutual disregard for each other’s parenting abilities and blame each other for the dysfunction in the family. Based on the criteria set out in Glick v. Cale, I find that a s.30 custody and access assessment report is warranted in the circumstances of this family. Both parties have made serious allegations of psychological and physical abuse against one another. The wife alleges that the husband abused her psychologically and physically during the marriage and has raised issues respecting the appropriateness of the manner in which the husband deals with S.’s specific needs. The husband has made serious allegations regarding the wife in terms of her mental health – alleging that she has suffered from depression, anxiety and mood swings. He has deposed in general terms that the mother has been treated at Homewood Health Centre, which the wife has denied. While there is no evidence before the Court that the husband was concerned about the wife’s mental health during the six years that she cared for the children before returning to work on a part-time basis, or even after that but before the separation, I have a real concern that S. is in need of mental health support and the issue has not been addressed as a result of the conflict between the parents. The issue of the parenting plan that would be in S.’s best interests, in particular, which would address the question of the relative abilities and willingness of the parents to meet her needs in large part has led me to conclude that an assessment is needed in this case.

[80] Both children are vulnerable to the ongoing conflict and are demonstrating behaviours that are associated with the stress caused by the conflict and separation. The family has the resources to pay for a custody and access assessment and the husband has already agreed to pay for the cost upfront, the cost to be readjusted at a later date. While an assessment may delay the completion of the case to some degree, given the divergent narratives in this case, such an assessment report would be helpful for the court.

[81] Although the husband has proposed that Dr. Raymond Morris be the assessor, the wife did not have an opportunity to weigh in on the choice of assessor. Accordingly, I find that a custody and access assessment is in the best interests of the children and order that an assessment take place. If my jurisdiction to order a “s.30 assessment” does not lie in the CLRA, I have the authority to order an assessment under the rule 20.3 of FLRs and do so in the same terms as are set out in s.30. However, the parties are to attempt to agree on the assessor. If the parties are unable to agree on who the assessor will be, then they shall make written submissions to me as to whom they each propose as their first and second choice as an assessor and I will make the final determination. The parties are to confirm that the proposed assessors have agreed to become the assessor in this matter; confirm the date upon which the assessors are available to start the assessment and they are to provide a copy of the proposed assessors’ respective C.V.’s.

Issue 2: What Temporary Parenting Schedule Should be put into place at this time?

[82] The wife asks the Court to order a temporary parenting schedule where the children reside in her primary care and reside with the husband on alternate weekends, from Friday, after school until Sunday, at 6:00 p.m., and every Wednesday, from after school until 7:30 p.m., the time to be spent at his parents’ home. The wife submits that this proposed parenting schedule, more or less, replicates the time the children spent with each parent before the separation.

[83] The husband asks that this court order an equal-time-sharing parenting schedule: a 2-2-5-5 schedule - with the children residing with the wife on Mondays and Tuesdays, with the husband on Wednesdays and Thursdays, and with each parent on an alternating-weekend basis.

[84] Given that the parties have each claimed a divorce in his/her respective pleading and each has made a claim for custody, the applicable provisions are contained in the Divorce Act, R.S.C. 1985, c. (2nd Supp). The relevant sections are reproduced below, as they relate to parenting:

Section 16 of the Divorce Act provides 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.

Interim order for custody

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

Joint custody or access

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

Access

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

Terms and conditions

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

Factors

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

Past conduct

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

Maximum contact

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

[85] The Divorce Act does not currently contain a provision, which defines “best interests” or requires the Court to consider any specific criteria in determining the parenting arrangements that are in a child’s best interests. Reference to s.24 of the CLRA was instructive in terms of directing the Court’s mind to facts and circumstances that would be relevant to a determination of what would be in the best interests a child.

[86] In July 2019, the federal government passed an Act to Amend the Divorce Act. Although it was initially slated to come into force in July 2020, it is currently scheduled to come into force in March 2021. The amendments will substantially change the language that the court will use in determining “custody/access” issues. The government is moving away from the labels of “custody” and “access” toward a regime that authorizes a judge to make orders in relation to “parenting time” and “decision-making responsibilities.” What is now called a custody order (both sole and/ joint custody) will be called parenting orders. A parenting order will set out parenting time (with no reference to custody or access) and decision-making responsibility. The Divorce Act will now contain its own set of criteria that a Court must consider in determining the parenting arrangements that are in the best interests of the child.

[87] The new provisions that are particularly instructive in this case, are as follows:

Best interests of child

7.1 A person to whom parenting time or decision-making responsibility has been allocated in respect of a child of the marriage or who has contact with that child under a contact order shall exercise that time, responsibility or contact in a manner that is consistent with the best interests of the child.

Protection of children from conflict

7.2 A party to a proceeding under this Act shall, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding.

12 Section 16 of the Act and the heading before it are replaced by the following: Best Interests of the Child

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

Maximum parenting time

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[88] While the above provisions are not yet in force, they are instructive. In determining what is in the best interests of the children in this family at this time, I have considered the factors referred to in subsection 16(3) of the Divorce Act, which subsection is scheduled to come into force in the spring. In the extent that they are relevant to the best interests of the children in this case, they are of assistance in considering what is in the best interests of the children under the Divorce Act that is in place at present. To be clear, I have not considered any other subsections in the amended version of s.16, given that I am bound by the current version of s.16.

[89] In making an order, the court shall give effect to s.16(10) of the Divorce Act, which provides that the “child should have as much contact with each spouse as is consistent with the best interests of the child”. It is the only specific factor that Parliament has seen fit to expressly require the Court to consider in determining what is in the best interests of a child in a custody/access determination. The Court should ensure that this contact is maximized.[^39] However, while the goal of maximum contact with each parent is mandatory it is not absolute.[^40] The maximum-contact-with-each-parent requirement is a right of the child, not a right of the parents.[^41] While the legislation is clear that “maximum contact” is an important factor to be considered by a Court, it is to be considered in relation to a child’s best interests. For absolute clarity, s.16(10) of the Divorce Act is not a presumption that the parties are to share their time with the children equally. It states clearly that a child should have as much contact with each spouse as is consistent with the child’s best interests. Each case is to be decided on its own particular facts.

[90] The husband submits that there is no impediment to both parents having an equal-time sharing schedule with the children. He submits that the wife has the onus of rebutting the presumption of maximum contact since she is the parent seeking unequal contact.[^42]

[91] In Bloom v Bloom, the Court confirmed that, “There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of a matrimonial dispute and the de facto custody of the children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof.” [^43]

[92] The wife maintains that the status quo in this family is that she was the children’s primary caregiver at the time of separation. Her evidence is that, even before the children were born, the parties together decided that she would not be employed and would care for their children. They agreed that this was the arrangement that would be in the best interests of their children. They structured their personal and professional lives around this fundamental principle. It is the wife’s position that even after she returned to the practice of law in 2018 (6 years after having left the practice of law and the majority of the children’s lives), she remained their primary parent. She acknowledges that the husband was an involved father, but it was she who had the day-to-day responsibility for the care of he children. The wife’s position is that it is not in the children’s best interests for the court to determine the status quo on the basis of both parties being at home between March and June 2020. According to her, the husband returned to work on a full-time basis in June. Until she started her part-time practice again in the Fall of 2018, the wife was the parent who handled the children’s daily care, liaised with their teachers, scheduled their playdates and volunteered in their classrooms. Once the wife resumed her part-time law practice, she only worked while the children were at school so that she could look after the children when they returned home from school. The “true” status quo upon which the court ought to rely are not the parenting arrangements that were in place at the time of the separation, at best, it was a short-lived status quo, as described in Bloom.

[93] In his September 16th affidavit, the husband deposes

“The children have several friends from separated/divorced families. I am aware that many of these children share equal or close to equal parenting time with both parents. This is the “norm” that the children have seen and will come to understand as they grow. I believe it would seem odd to the children if they did not also spend equal time with their own parents.”[^44] [emphasis added]

[94] These children are 6 and 8 years of age. This submission is a stretch on the husband’s part. In my view, any concern that their schedule is different from those of any friends they may have is a concern that the husband might have but would not be a concern of the children unless a parent were to impress this upon them.

[95] In Ciutcu v Dragan, the court determined that two children with additional needs especially required predictability and consistency in their schedules. The court determined that the children should be in the care of their mother from Monday to Friday, with weekend time provided with each parent. The court noted that this schedule allowed the children to have a stable and consistent Monday to Friday schedule.[^45] While the children in Ciutcu v. Dragan were autistic and non-verbal, with significant special needs, the wife submits that S. has additional needs and her challenging behaviours and difficulty self-regulating will be far better managed, if the parenting schedule has predictability and consistency.

[96] The husband’s claims that the parties were equal caregivers is simply not credible. He does not deny that the wife was a full-time stay-at-home mother for six years, while he pursued his career and built his practice as a dentist. He worked long hours.

[97] It is noteworthy that in his 35.1 Affidavit sworn February 11, 2020, the husband acknowledged that his work schedule does not allow him to be there for the children after school. At paragraph 1(e) of that affidavit, he proposed that if the wife is not available on a weekday after 3pm, he would likely send his office manager to pick up the children or have his parents do it.

[98] It is simply impossible for the husband to have taken on the same parenting responsibilities as the wife did when she was a stay-at home mother or worked part-time, given his full-time work as both a dentist and orthodontist, with a practice that ultimately came to have two locations.

[99] Further, the wife has voiced significant concerns about the husband’s parenting and, in particular, his physical aggressiveness and his practice of restraining S. when she acts out.

She has deposed that he loses his temper with S. when she exhibits her challenging behaviours and that their parent-child dynamic is very conflictual, devolving into screaming matches.

[100] In the husband’s September 22, 2020 affidavit, he explains that the incidents in which he has used physical force with S. are because she, “…has had significant problems regulating her emotions…There are several occasions when I have had to restrain S. from hurting herself and hurting me…S. used to be a biter. In 2018 she bit me so hard on my left arm that I have a permanent scar on my arm.”

[101] Again, the husband filed 8 affidavits from third parties to support his parenting claims. Counsel submitted that these affidavits are proof of the husband’s good character, calm nature and excellent parenting skills. In fact, counsel made several comments that the wife, unlike the husband, had failed to file corroborative affidavits from third parties to verify her parenting skills and allegations. I find these third-party affidavits to be of little, if any, use and give them very little weight. Some of the affidavits were sworn by friends of the husband who had little, or no, direct knowledge of the husband’s parenting skills or conduct toward the wife. Other affidavits were filed by the husband’s employees, who gave evidence about the husband’s character and nature in his dental offices. This latter evidence had no bearing on the issues before the court and was given by paid employees, which calls the relevance of these statements into question. The filing of these third-party affidavits is self-serving for the most part and provides no evidence to support the husband’s claims that the wife’s allegations about his aggressive abusive conduct toward her and the children are not true. The court finds the sister’s evidence to be somewhat helpful in that it confirms that the children are struggling as a result of the separation and are attached to their mother to the extent that they mentioned that their mother was there when the sister visited.

[102] The wife maintains that her proposed schedule allows the children to have stability and consistency of remaining in their home during the week, walking back and forth from school with her, doing their homework with her and going to sleep in their own beds, from Monday to Friday. Further, it provides for the children to spend time with the husband on alternating weekends and Wednesday evenings (the husband does not work on Wednesdays).

[103] The terms that the wife proposes, namely, that the husband spend his parenting time in his parents’ home with them present, she submits, allows for the children to spend time with their paternal grandparents, as is usual for them, while also ensuring that the father does not lose his temper with the children, as he tends to do when alone with them but does not do so, in the presence of others.

[104] While on the evidence before me, I am satisfied that the wife has been primarily responsible for the care of S. and L. and that the husband mainly focused on his career while the parties ensured that the wife would be available for the children’s day-to-day care, it is true, as well, that the husband has been an involved parent when he is not working, sharing in their care. He also has looked after their dental care and some health needs. Further, he enjoys doing activities with the children. It is important for the children to spend meaningful time with both parents.

[105] However, given the allegation of conflict between the parents and the resulting need in these children’s best interests, for these parents to stop residing in the same residence as soon as possible: S.’s behavioural needs and the distressing behaviours both children have exhibited since the separation, I find that the children will benefit from having a predictable schedule that reflects as much as possible, the caregiving arrangements that were in place before the separation; does not involve many transitions between one home and the other; and one where they sleep in one house for the majority of the school week. I decline to order a 2-2-5-5 schedule as proposed by the husband. I find that it is in the children’s best interests, at this point, that they reside primarily with the wife in the matrimonial home (as discussed below) and reside with the husband on alternate weekends, from Friday, after school, to Monday morning when they are to be dropped off at school, and every Wednesday, from after school to Thursday morning. The husband deposes that he does not work on Wednesdays and leaves work early on Fridays: he will be able to retrieve the children from school on Wednesdays and Fridays and all exchanges can take place at school. This will significantly reduce the children’s exposure to parental conflict. Pending the completion of the assessment and a case conference, once the assessor discloses the result of the assessment and his/her recommendations to the parties, the children shall reside with the husband at his parents’ home. However, there shall be no requirement that his parents be present during all of the parenting time he has with the children. I am not satisfied that such a requirement will be necessary once the parties physically disengage and the level of conflict abates somewhat.

Issue 3: Sale of the Matrimonial Home, Exclusive Possession for the Wife or a Nesting Arrangement?

[106] Both parties have an equal right to possess a matrimonial home: Family Law Act, R.S.O. 1990, c. F.3 (“FLA”, s19(1)). A joint tenant has prima facie right to have a jointly-held property partitioned and sold: Partition Act R.S.O. c. P.4., s.2 and s.3.

[107] Section 24(1)(b) of the FLA however, provides that a court may direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs. Section 24(2) provides that such an order may be made on an interim basis on motion.

[108] Subsections 24(3) and (4) of the FLA set out the criteria that the court must consider in determining whether to make an order for exclusive possession:

Order for exclusive possession: criteria

(3) In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children. R.S.O. 1990, c. F.3, s. 24 (3); 2014, c. 7, Sched. 9, s. 4.

Best interests of child

(4) In determining the best interests of a child, the court shall consider,

(a) the possible disruptive effects on the child of a move to other accommodation; and

(b) the child’s views and preferences, if they can reasonably be ascertained. R.S.O. 1990, c. F.3, s. 24 (4)

[109] In an Amended Notice of Motion, dated September 25, 2020, which was served after the material that Diamond, J. had ordered to be served was served, the husband sought an order for a nesting arrangement to be put in place as an alternative to the relief either party had sought. The husband submitted that an order for a nesting arrangement would provide the least disruption to the children’s lives since the children would continue to reside in the home and live near their schools and friends. [The wife did not have an opportunity to respond to this proposed order in her material].

[110] Where the parties have lived in the same home with little interaction and little conflict, a nesting order may be appropriate. While a nesting order may be in a child’s best interests because it would keep the child in the matrimonial home while the parents rotate in and out or it, requests for nesting orders have been rejected where they would create opportunities for conflict or perpetuate conflict between the parents: Grandy v. Grandy, 2012 NSSC 316 at paras. 33. In this case, the wife has alleged that the husband has interfered with her emails, surreptitiously accessed her computer and installed “spyware” on her computer. The husband admitted to the wife that he looked through ten years of her emails without her consent. When the wife purchased a new computer so she could have privacy to communicate with her family counsel, the husband again accessed her emails on the new computer, without her consent. I find that a nesting order would only perpetuate rather than reduce the conflict between the parties.

[111] I turn now to the analysis of whether the home should be sold at this time or exclusive possession granted to the wife.

[112] In Batler v. Batler, Granger, J. confirmed the prima facie right of a joint tenant to request sale of jointly-held realty prior to trial.[^46] Specifically, Granger J. held that

“a joint tenant was entitled to apply for partition and sale under the Partition Act, and Rule 20 of the Rules of Civil Procedure (which at that time was the rule that permitted summary judgment on all or part of a family claim). Granger J. stated that in order to successfully resist an application for sale, the responding party should have an order for interim exclusive possession or be able to show that the claims he/she intends to put forward at trial will be prejudiced by an immediate sale. Accordingly, an interim order for exclusive possession provides a defence against a co-joint owners motion for sale of a matrimonial home.”

[113] In Freeman v. Freeman, Stevenson, J., stated as follows:

“The case law is clear that while there is a prima facie entitlement to a sale of the matrimonial home by a joint owner, a sale should only be ordered where, in all of the circumstances, the order would be appropriate.[^47]

[114] In the case of Ruscinski v. Ruscinski[^48], the Court held that the list of factors set out in section 24(1)(b),

“…does not represent a hierarchy of importance; nevertheless, the best interest of the children affected is the first matter to be considered. The separation and divorce of parents, it should be emphasized, has a significant psychological and emotional impact on children and, in particular, on young children…One should not underestimate the need for stability and continuity.”

[115] Similarly, in Chaudhry v Meh[^49], Akbarali, J. confirmed that:

“the paramount consideration in determining exclusive possession of the matrimonial home where there is a child involved is that child’s best interests. Where the parties’ financial means allow for the maintenance of two households, a child’s interests should outweigh the proprietary interests of the spouses in possession of the matrimonial home.”

[116] In Somerville v. Olynyk, Ricchetti, J., when faced with a father’s argument that granting the mother exclusive possession of the matrimonial home would disrupt the status quo, Ricchetti, J. held that:

“the status quo has to change in any event because of the inability of both parties to get alone [sic] without serious conflict. They cannot be in the home at the same time. Out of sheer necessity, there will have to be a change.”[^50]

[117] The court in Ruscinski noted that the matrimonial home was the only home the children had known: that it was a short walk from their school, and they had friends in the area. The court further noted that the husband was in afar better financial situation than the wife and was in a much better position to arrange alternate accommodation than she was. Balancing the relevant factors, the Court ordered exclusive possession in favour of the wife.[^51]

[118] The court in Chaudhry v Meh noted that, while the parties offered materially differing accounts of the situation in the home, both parties’ accounts supported that there was tension and conflict in the home. The court heard evidence that the children were showing signs of stress, although each party blamed the other for it. The court found that the child was ‘trapped in the middle’, with each parent jockeying for her time. The court stated as follows:

“It is in the child’s best interests for her to have a regular parenting schedule with time with each of her parents. She also needs to remain connected in a significant way to her home and community.”[^52]

[119] As was the case in Chaudhry v. Meh, the parties in this case agree that the children are experiencing stress in the current situation, despite their vastly differing accounts of the source of same. At paragraph 14 of the husband’s September 22nd affidavit, he specifically acknowledges the conflict in the home, stating, “…Once we live separately, there will be limited opportunities for us to engage each other verbally…” S. and L. have been subject to the same ‘jockeying” for their time that the Court in Chaudhry v. Meh held ought not to continue. The wife’s position is that the husband has attempted to force a parenting schedule and a “new” status quo for the family by rushing to remove the children from the home in the mornings so they cannot be with the wife, and he has tried to impose rules that the children are to be with him on ‘his days’.

[120] According to the wife, both children have shown significant signs of stress since the separation, including L. wetting the bed and withdrawing into her bedroom and S.’s behavioural issues intensifying. As the court in Somerville v. Olynyk held, the status quo of living together should not be maintained where the children’s interests require a change.

[121] There is little doubt that the children have been experiencing significant stress over the last several months as a result of the separation conflict in the home. S. and L. have significant ties to their home and community. They can walk to school from their home and their friends live close by. Their backyard is Trinity-Bellwoods Park, where they spend much of their time. Given the children’s events and activities that have been cancelled due to the pandemic, and the very uncertain future we face ahead, it is in the children’s interests to remain in the matrimonial home pending the trial.

[122] The financial positions of the parties favour the wife having exclusive possession. In Somerville v. Olynyk,[^53] the court held that it was not in the best interests of the children for the parents to continue to live together. The court then considered which parent should remain in the home. The court noted that, among other things, the husband had left the home more routinely than the wife. The wife did not have significant assets and the husband’s income outweighed hers, making him more able to afford rental accommodation for himself than she was. On balancing the relevant factors, the Court held that it was in the interests of the children for the wife to have interim exclusive possession.

[123] The Court in Chaudhry v Meh considered the parties’ respective financial positions in assessing the wife’s claim for exclusive possession. The court noted that the wife was only working part-time and had very limited savings. By contrast, the husband’s annual income was more than $200,000 and he had investments far outweighing the wife’s. The court held that the wife’s financial situation was precarious and would depend on the outcome of the litigation, the duration of which was uncertain. Her ongoing support entitlement was unknown at the time. The court briefly considered but rejected the husband’s suggestion that he rent an apartment and the parties have a nesting arrangement, noting that there was evidence that the husband did not respect the wife’s privacy and that nesting ought may result in further stress and conflict. The husband was far more capable of finding alternate accommodation. The court granted interim exclusive possession to the wife.[^54]

[124] Chaudry v. Meh and Somerville v. Olynynk have application to the case at bar. The husband is in a far better financial position than is the wife and his disclosure thus far in this case raises concerns about the speed with which this case will proceed. The husband has two busy dental/orthodontic practices and a number of employees. The 2019 financial statements for the husband’s dental practice demonstrate that the revenue for his dental practice, of which he is the sole shareholder, was $1.9 million. The dental corporation had retained earnings of $1.5 million. In his February 11, 2020 sworn financial statement, the husband lists the value of his dental practice at $1,000,000 on the date of separation, but he has not yet provided any evidence supporting that figure. In terms of income, the husband’s February 11th, 2020 financial statement sets out that his annual income was $400,698. He more recently asserts that his current income is about $300,000 a year. This figure did not include $2,100 per month in rental income he receives from his interest in the property on Palmerston Ave. It is impossible for the wife to know at this time what she will reasonably have available to her to rent, let alone buy accommodation for herself and the children. The husband does not have that problem. The husband’s Financial Statement sets out that the husband spends over $34,000 a year on vacations. He can absolutely afford alternate accommodations.

[125] The wife was collecting CERB until the end of September 2020. She has her part-time legal practice, but deposes that in her busiest year, she grossed less than $45,000 and netted less than $25,000. The wife deposes that since mid-March 2020, with the onset of the Covid-19 health crisis, she has reduced her work drastically.

[126] Finally, the husband paid no spousal or child support for eight months after the separation, aside from the single payment uncharacterized payment of $5,000 he made in September. While he continued to maintain the expenses associated with the matrimonial home, he stopped depositing money into the joint account after the separation, which affected the wife’s ability to manage financially. The wife’s financial situation is such that she cannot afford alternate accommodation for herself and the children at this time.

[127] The husband’s parents have told him that they are happy to have him and the children reside with them. They live close to the home. The wife does not have a similar option.

[128] Further, the wife submits that the husband’s conduct in the home since separation and during the marriage constitute violence as contemplated by section 23(4) (f) of the FLA.

[129] The court in Menchella v Menchella confirmed that the ‘violence’ contemplated by section 23(4)(f) is not limited to physical abuse, but includes:

“…an injury achieved by words and deeds. The violence in this context must be such that it makes continuation of joint cohabitation in the matrimonial dwelling impractical. Violence in my view includes psychological assault upon the sensibilities of the other spouse to a degree which renders continued sharing of the matrimonial dwelling impractical. Where, as here, the conduct of the husband in written and spoken communication to the wife is calculated to produce and does in fact produce an anxiety state which puts the wife in fear of her husband’s behaviour and impinges on her mental and physical health, violence has been done to her equilibrium as surely as if she had been struck by a physical blow.”[^55]

[130] In E.S. v A.S., the husband provided case law to support his claim that the wife’s motion for exclusive possession should be dismissed because the situation in the home did not amount to physical violence. The court held as follows:

“I do not find these older cases helpful in assessing what behaviour is now considered as making continued cohabitation unacceptable. They appear to minimize our current understanding of 1) what effect exposure to domestic conflict can have on children; and 2) what may constitute domestic conflict between the parties.”[^56]

[131] The wife has submitted that, since the separation, while the parties have been cohabiting in the matrimonial home, the husband has conducted himself in ways that have produced anxiety and fear in her. According to the wife, this conduct includes accessing her private communications, some of which are communications between herself and her lawyer. These actions have made the wife aware that she has no privacy in their home, which has resulted in her not feeling safe in the home and that the husband’s control over her will only continue. This court finds that these actions constitute the type of psychological assault on the wife that the court in Menchella described as constituting violence under section 23(4)(f) of the Family Law Act.

[132] In addition to his surreptitiously accessing her private communications, the wife maintains that the husband has committed other actions that constitute violence as defined by the Court in Menchella. As set out in the wife’s September 16th affidavit, the husband has berated and insulted her in front of the children since separation, including yelling at her, “Don’t you dare undermine my parenting authority! Who do you think you are? It’s not your place to undermine me.”;[^57] when she tried to retrieve the water bottle that he had thrown out the window.

[133] The husband himself deposes that the wife behaves in an inappropriate manner such as screaming and crying in front of the children and saying inappropriate things to the children, which confuses and distresses them.

[134] The situation in the matrimonial home is no longer tenable. Whether or not the wife was subjected to the verbal abuse, insults and rages at the hands of the husband, as she alleges, or whether the wife has been emotionally unfair/abusive to the children, as the husband alleges, the evidence in the written record before the court demonstrates that there has been significant conflict between the parties to which the children have been exposed during the period since January or February 2020.

[135] Although the husband wishes to obtain his equity from the matrimonial home, he has other assets available to him, such as a rental property and significant savings that he can liquidate if he wishes to purchase his own accommodation at this time. Furthermore, given that the husband has somewhere to live at no cost to him, there is no need to access his equity from the matrimonial home at this time.

[136] The impact of their parents’ separation combined with the Covid-19 health crisis has undoubtedly meant that the children have had to deal with significant changes in a short period of time. They have just recently started school in-person. The likelihood that they will be able to remain at school is far from certain. I have little doubt that they require the stability of the matrimonial home, the neighbourhood and friends in the ear, at this time.

[137] The husband actually agreed to move into his parents’ home, if the wife agreed to list the matrimonial home for sale and agreed to an equal parenting schedule, pending its sale. His agreement in this regard demonstrates to this Court that the husband knows intuitively that it would be in the children’s best interests for the parties to live in separate accommodation but was not prepared to permit this to occur unless he achieved his objectives of getting his equity out of the house and having the children in his care 50% of the time.

[138] The husband did not, in my view, put the parties’ parenting history before the court in a balanced manner. He neglected to say that the wife did not work outside the home for 6 years. When she returned to work in 2018, she did so on a part-time basis only. Further, on the evidence filed, I am satisfied that when she returned to work, she remained primarily responsible for the children’s care during the school week and both parties were involved with the children on weekends. While the wife appears to be capable of acknowledging the husband’s involvement in the children’s lives, the husband’s evidence is replete with suspicion – that is, he suggests that the wife has structured a case against him because she knows how to do so because she practices family law. When one reads the material as a whole, the wife’s allegations have a greater ring of truth overall than do the husband’s. On the evidence before me, I believe that for virtually 6 of the last 8 years, the wife was the children’s primary day-to-day caretaker. While the circumstances did change when the wife returned to work, she worked part-time only and, in my view, her role as the primary caretake did not materially change in terms of the school week. While the father may well have been home more between March and June 2020, due to the Covid-19 health crisis, he returned to work in June and the children returned to school in September. In my opinion, the status quo respecting the primary day-to-day caretaking role of the wife did not change because the husband was present and available more during the months he was at home. Unfortunately, both parties being at home added to the stress in the home.

[139] For all of the above reasons, the interests of stability and consistency will for the time being, be best met by the children continuing to live in their home and community; for the wife to have exclusive possession of the home, free from ongoing conflict with the husband, in the home or anxiety about the husband’s access to her property; and residing primarily with the wife in the home, as set out above in these reasons.

[140] In Petit v. Petit, the Court held that:

“…while the court certainly has the jurisdiction to order a jointly-owned matrimonial home be sold before trial, I am not prepared to make that Order in the circumstances of this case…such an order should only be made in cases where, in all circumstances, such an order is appropriate and not be made as a matter of course. The father’s interest in hoping to acquire in the future a residence where he can accommodate the children must yield to their interest in an emotionally safe and familiar home. The father’s motion to sell the home at this time is dismissed.”[^58]

[141] The court in Petit considered the wife’s claim for exclusive possession and the husband’s claim for sale of the home. Jarvis, J., dismissed the husband’s claim for sale and granted the wife exclusive possession, noting that while it was very likely the matrimonial home would be sold eventually, the parties’ antipathy to each other was palpable and the inconvenience and possible prejudice to the father had to give way to the children’s best interests. He held that awarding the mother temporary exclusive possession of the matrimonial home served the children’s best interests.[^59]

[142] In Goldman v. Kudeyla, McGee, J., noted that:

“There have been a number of cases in which the Court has denied an interim motion for sale prior to trial…In each case there were compelling circumstances in which one or both tests favoured the resisting party, such as the availability of trial within a short period, prejudice on the equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might well retain the home in the cause…one must always be mindful of the whole of the proceeding and the need to move forward as fairly and expeditiously as possible. At the same time, determination must have a starting point. The sale of the matrimonial home is often the most appropriate catalyst to effect the equal division of family assets and establish post-separation parenting patterns.[^60]

[143] As in the case of Salomon v Salomon, the court held that,

“while I agree that the wife’s financial position, and her ability to purchase a home, would be enhanced if the mortgage and secured line of credit were to be paid off on the sale of the matrimonial home, that factor is not sufficient in my mind to outweigh the considerations as to the best interests of the children previously discussed.”[^61]

[144] In Barbieri v Vistoli, the Court noted that while a joint owner of a property has a prima facie right to have the property sold,

“…when the property is a matrimonial home, one owner’s right to sell it is subject to any competing right of the other owner under the Family Law Act that would be defeated if the property were sold.” [^62]

[145] While the husband asserts that he requires his share of the equity from the matrimonial home to purchase new accommodation for himself and the children, even if this court were to order that the home was to be listed for sale and sold in due course after full disclosure has been made and the equalization payment is able to be calculated by the wife on a confirmed basis, there is a reasonable chance that the wife will seek to have the husband’s share of the proceeds held in trust for purposes of payment of the equalization payment to her, pursuant to s.9 of the FLA. In the absence of sufficient disclosure to enable the court and wife to know whether the wife would be prejudiced by the release to the husband of his share of the proceeds from a sale, it is by no means clear that if the property were sold at this point in time, the husband would, at this point, receive his share of the proceeds.

[146] In my view, it is not appropriate for the matrimonial home to be listed for sale at this time. Pleadings have not even been completed. The parties have not yet even had a non-urgent case conference, to address issues such as disclosure. The husband just retained an expert to provide an income analysis and value his professional corporate interests. Accordingly, the husband’s motion for an order for the sale of the matrimonial home is dismissed.

[147] It is impossible for the wife to know at this time whether she will be able to obtain any financing required to purchase a residence or the amount of rent she will be able to afford.

[148] If, after Mr. Ranot delivers his income and valuation reports, and the custody and access assessment has been completed, the case does not then proceed to trial in a timely manner through no fault on his part, then the husband may bring a new motion for the sale of the matrimonial home.

Issue 4: Should the Wife receive uncharacterized “without prejudice” payments of $5,000 or $10,000 a month?

[149] The wife seeks an order for temporary temporary child and spousal support on a “without prejudice” basis to her position on support after sufficient disclosure has been received, the husband’s income analysis has been produced and, if necessary, a valuator she retains has completed his/her analyses of the husband’s income.

[150] The wife proposes that the husband continue to pay the carrying costs of the matrimonial home and that he pay uncharacterized support to the wife of $10,000 a month, to be adjusted once the husband’s income report is completed and he has produced the necessary financial production.

[151] The husband has not produced sufficient disclosure to this point to allow the court to make a determination as to the income with which he is to be imputed for child and spousal support purposes. He has deposed that his Income Tax Returns are not sufficient to determine his income and that an Income Report from a chartered business valuator is necessary. He retained Steve Ranot of Marmer Penner Inc. in mid-September to complete an income report.

[152] The husband issued his Application in February 2020 but has not produced the necessary disclosure for the wife or a court to be able to reasonably determine what his income is for support purposes.

[153] In addition to paying the house-related expenses, the husband proposes that as a stop-gap measure, he pay uncharacterized support to the wife in the sum of $5,000 a month. The wife seeks $10,000 a month.

[154] The husband is self-employed, and it is his obligation to satisfy the court as to his income for support purposes. As Czutrin, J. set out in Blaney v. Blaney,[^63]

Particularly where a party is self employed, or is a shareholder of a company and works for that company they should know that, for support purposes, their Income Tax Returns may not be enough to establish income and that the value of their interests in a company will need to be established by the use of and need for experts in many instances. The obligation and onus to satisfy the court as to income and the value of assets and debts is on the person whose income or asset or debt is called into question. Here, the Respondent (husband) had that obligation. His obligation existed prior to any court orders, conferences or court attendances. [emphasis added by this court]

[155] The husband’s position is that his current annual income is about $300,000. The disclosure produced to date by the husband raises questions and concerns about his income as follows:

a. Although the husband’s sworn financial statement, dated February 11, 2020, shows an annual income of $400,000, the wife deposes that the husband told her during the marriage and showed her statements that his income was around $1.4 million a year. It is not clear whether the wife was referring to gross income or net income, after expenses. The husband denies this assertion in his affidavit materials.

b. On his 2019 income tax return, the husband showed employment income of $205,000. However, he had engaged in income-splitting with the wife and caused $153,000 to be treated as income of the wife in 2019, which would mean that the total income for the husband be treated as employment income in 2019 for a total of $358,000. Despite this, in his sworn financial statement, the husband lists his income at $25,000 a month, or $300,000 a year. Further, an analysis has not yet been done to ascertain whether income has been left in the practice or whether any family-related expenses have been treated as business expenses.

c. The husband’s dental practice shows that it had retained earnings of in excess of $1.5 million in February 2020, which was comprised of $500,000 in cash and $1.2 million in investments.

d. The husband’s second corporation, Metro Hygiene Services Corporation, which the husband had not disclosed in his financial statement, shows retained earnings of about $300,000 as at February 29, 2020.

e. The husband had not disclosed all of the rental income he had received.

[156] In my opinion, the wife has a prima facie entitlement to spousal support. The parties were married for 8 years and the wife was a stay-at-home mother, primarily looking after the children for 6 of those years. She then worked part-time only up to the separation date and since then. The husband has two successful dental practices. On the evidence before me, I am satisfied that the wife suffered an economic disadvantage by virtue of the roles played during the marriage. While the wife is now working part-time in her law practice, she requires spousal support to maintain the lifestyle to which she and the children were accustomed during the marriage. The husband has the means to pay support. The wife is entitled to receive temporary spousal support from the husband.

[157] Both parties depose that the pandemic affected their respective incomes. Certainly, this would not be surprising in relation to his/her income between mid-March 2020 and June 2020. Neither party adduced any evidence that would suggest that his/her income had not returned to its pre-March 2020 level.

[158] Each party only provided one Divorce Mate calculation in his/her material. Neither party sought an order that the payment by the husband of the house-related expenses be treated as third-party payments taxable in the hands of the wife and deductible by the husband,

[159] The wife is entitled to an order for temporary child support. If the wife is treated as having an income of $35,000 from all sources available to her at this time and if the husband’s income is imputed at $400,000 a year, then the table amount of child support for 2 children would be $5,077 a month. Spousal support at the high-range of the Spousal Support Advisory Guidelines (“SSAGs”) would require the husband to pay the wife spousal support in the amount of $8,659 monthly which would net her $5,564, after tax. Thus, in effect, the husband would pay the wife $10,641 in “non-taxable” support.

[160] The husband and wife have essentially agreed that the husband will pay the house-related expenses directly. These total approximately $6,827, inclusive of utilities (the amounts being taken from the husband’s financial statement, sworn on February 11th, 2020). For the foreseeable future, the husband will reside in his parent’s home. Thus, he will have no housing expenses. Assuming that it would be reasonable for the wife to pay one-half of the house-related expenses, which would be $3,413.50 a month, then after payment of that amount by the husband on her behalf, she would be left with $7,227.50 a month ($10,641 - $3,413.50). Thus, it would be reasonable for the husband to pay to the wife undifferentiated child and spousal support in the amount of about $7,227.50 on a temporary and without prejudice basis.

Conclusion

[161] Accordingly, on a temporary and “without prejudice” basis, this Court orders as follows:

a. A skilled professional shall conduct a custody and access assessment. If the parties cannot agree on the choice of assessor by November 13, 2020, then each party shall make written submissions to Kraft, J. as to his/her preferred first and second choices of assessor, the submissions to be no more than 2 pages. The submissions shall include confirmation that the assessors proposed have agreed to undertake the assessment and the date on which each proposed assessor can commence the assessment. Each party shall attach the C.V. of each proposed assessor to his/her submissions. Kraft, J. shall choose the assessor to conduct the assessor.

b. The parties shall have temporary joint custody of the two children of the marriage, namely, S. Mohajeri, born October 23, 2012 (“S.”), age 8, and L. Mohajeri, born May 25, 2014 (“L.”), age 6, and therefore shall make all major decisions about the children together, including decisions about their education, religion, health and extra-curricular decisions.

c. The children shall reside primarily with Tanya Stroedel and shall have their secondary residence with Ari Mohajeri at his parent’s home, as follows:

i. Alternate weekends, from Friday, after school, to Monday morning; and

ii. Every Wednesday, from after school to Thursday morning.

d. All parenting exchanges that take place under the parenting schedule set out in (c) above, shall take place at school when possible.

e. If the children are scheduled to be their father on a weekend and the weekend is a long weekend due to a school holiday or P.D. Day that includes Friday, then the father shall pick the children up from school on Thursday. Similarly, if the children are scheduled to be with their father on a weekend and the weekend is a long weekend that includes Monday due to a school holiday or P.D. Day, then the father shall return the children to school on a Tuesday morning.

f. The parties shall share all of the children’s school holidays equally, including the December school break; March Break and the summer school.

g. Starting on November 1, 2020, at 10:00 a.m., Tanya Stroedel shall have temporary exclusive possession of the matrimonial home, municipally known as 205 Crawford Street, Ontario.

h. On a temporary and “without prejudice” basis, Ari Mohajeri shall continue to maintain all of the expenses associated with the matrimonial home, including, but not limited to, the mortgage, property insurance, property taxes, minor repairs or maintenance and utilities.

i. Starting on October 1, 2020, and on the first day of each subsequent month, Ari Mohajeri shall pay temporary undifferentiated child and spousal support to Tanya Stroedel in the sum of $7,200 a month, without prejudice to either party’s right to seek a different amount of support and/or different start date after Ari Mohajeri delivers his income analysis from Mr. Ranot, and all financial disclosure requested by Tanya Stroedel and Tanya Stroedel delivers her own income analysis or critique, should she decide to retain an expert after receiving Ari Mohajeri’s income analysis.

j. If the parties cannot resolve the costs issue on consent within the next 14 days, then a party seeking costs shall serve and file written submissions that are no longer three pages (plus a bill of costs and copies of any dockets or disbursements) and any relevant offers to settle by November 13, 2020, and the other party shall serve and file any written responding submissions (in similar form as the submissions seeking costs) and a copy of any relevant Offer to Settle, filed within five days of receipt of a party’s submission for costs. Reply submissions, if any, shall be no more than 2 pages and served and filed within 3 days of receipt of responding submissions.

October 27, 2020

M. Kraft, J.

COURT FILE NO.: FS-20-15479

DATE: 20201027

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Aram Mohajeri

Applicant

– and –

Tanya Heidi Stroedel

Respondent

REASONS FOR JUDGMENT

Kraft, J.

Released: October 27, 2020

[^1]: Wife’s September 22nd affidavit, para. 23.

[^2]: Wife’s September 16th affidavit, para. 31.

[^3]: Ibid, at para. 45.

[^4]: Ibid, at paragraph 47.

[^5]: Ibid, at para. 31.

[^6]: Husband’s September 22nd affidavit, para. 20.

[^7]: Wife’s September 16th affidavit, para. 33.

[^8]: Supra, Note. 6, para.22.

[^9]: Supra, Note 7, para. 34.

[^10]: Ibid, at para. 35.

[^11]: Ibid, at paras. 36-37.

[^12]: Supra, note 6, at para. 24.

[^13]: Wife’s September 16th affidavit, para. 38.

[^14]: Ibid, at para. 78.

[^15]: Ibid, at paragraph 82.

[^16]: Ibid, at para. 96.

[^17]: Wife’s September 22nd affidavit, para. 24.

[^18]: Wife’s September 16th affidavit, para. 41.

[^19]: Wife’s September 22nd affidavit, paras. 47-48.

[^20]: Wife’s September 16th affidavit, at para. 11.

[^21]: Ibid, at para. 17.

[^22]: Ibid, at para. 12.

[^23]: Ibid, at para. 13.

[^24]: Ibid, at para. 49.

[^25]: Ibid, at para. 50.

[^26]: Ibid, at para. 53.

[^27]: Ibid, at para. 54.

[^28]: Ibid, at para. 57.

[^29]: Ibid, at apra. 58.

[^30]: Ibid, at paras. 62-66.

[^31]: Linton v. Clarke (1994), 1994 CanLII 8894 (ON SCDC), 21 O.R. (3d) 568 (Ont. Gen. Div.).

[^32]: Ibid, at p.7.

[^33]: Tamm v. Oddy, 1997 CanLII 11515 (ON SC), [1997] O.J. No. 5930 (QL) at para.1 (Ont.Gen.Div.).

[^34]: J.J.B. v. G.G.B., 2003 CanLII 64333 (ON SC), 45 RFL (5th) 253, at para.12 (Ont.S.C.J.).

[^35]: Kramer v. Kramer, 2003 CanLII 64318 (ON SC), [2003] O.J. No. 1418 (QL) at para.36 (Ont.S.C.J.).

[^36]: Tacit v. Drost [1998] O.J. No. 5256,(Ont. Gen. Div.).

[^37]: Osmak-Bonk v. Bonk, [2004] O.J. No. 3614 (QL) at para.16 (Ont.C.J.).

[^38]: Glick v. Cale, 2013 CarswellOnt 1409, 2013 ONSC 893 (Ont. S.C.J.) at para. 48.

[^39]: Young v. Young [1993] 4. S.C.R. 3, 1993 CanLII 34 (SCC), 108 D.L.R. (4th) 193, at paras 270-271 (S.C.C.).

[^40]: Berry v. Berry, 2011 ONCA 705, para 27. (Ont. C.A.)

[^41]: PCP v. LCP, 2013 ONSC 2564, para 124 (Ont. S.C.J.); and Wilson v. Wilson, 2015 ONSC 479, para 65.(Ont. S.C.J.)

[^42]: Fraser v. Fraser, 2016 ONSC 4720, para 59.(Ont. S.C.J.).

[^43]: Bloom v Bloom, 2017 ONSC 1568 at para 38. (Ont. S.C.J.).

[^44]: The husband’s September 16th affidavit, para. 18.

[^45]: Ciutcu v Dragan, 2014 ONCJ 602 (Ont. C. J.).

[^46]: Batler v. Batler (1988), 1988 CanLII 4726 (ONSC), 18 R.F.L. (3d) 211 (Ont. H.C.).

[^47]: Freeman v. Freeman, 2013 ONSC 4934, at para. 42. (Ont. S.C.J.).

[^48]: Ruscinski v Ruscinski, [2006] WDFL 2719 (Ont SCJ) at para. 144.

[^49]: Chaudhry v Meh, 2019 ONSC 6101 at para 10, (Ont.S.C.J.).

[^50]: Somerville v Olynynk, 2012 ONSC 2101 at paras 25. (Ont. S.C.J.)

[^51]: Ruscinski v Ruscinski, [2006] WDFL 2719 at paras 145-146. (Ont. S.C.J.)

[^52]: Chaudhry v Meh, 2019 ONSC 6101 at paras 27, 29, 31. (Ont.S.C.J.)

[^53]: Somerville v Olynynk, 2012 ONSC 2101 at paras 25, 28.(Ont.S.C.J.)

[^54]: Chaudhry v Meh, 2019 ONSC 6101 at paras 33, 34, 38, 40. (Ont. S.C.J.)

[^55]: Menchella v Menchella, 2012 ONSC 6304 at para 11. (Ont. S.C.J.).

[^56]: E.S. v A.S., 2020 ONSC 824 at para 21. (Ont. S.C.J.)

[^57]: Wife’s September 16th affidavit, at para. 38.

[^58]: Petit v Petit, 2016 ONSC 849, at 25. (Ont.S.C.J.).

[^59]: Petit v Petit, Ibid, at 30.

[^60]: Goldman v Kudeyla, 2011 ONSC 2718, at para 19. (Ont.S.C.J.).

[^61]: Salomon v Salomon, [2007] OJ No. 1247, at para 29. (Ont.S.C.J.).

[^62]: Barbieri v Vistoli, 2019 ONSC 6385, at para 97, (Ont. S.C.J.). Note, however, in Barbieri, the evidence was that neither could afford the property long-term and there was no question that it would have to be sold. There was no claim for exclusive possession that would be defeated by the sale of the property, nor was there a vulnerable spouse or child who required the preservation of the home. As a result, the Court ordered it sold.

[^63]: Blaney v. Blaney, 2020 ONSC 1777, at para. 5. (Ont.S.C.J.)

Mohajeri and Stroedel, 2020 ONSC 6554

Case Summary

Nature of Motion

Procedural History

Threshold Issue – Striking of Paragraphs

Analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 5

Legal Tests 2

Legislation 3