Court File and Parties

COURT FILE NO.: 43741/20 DATE: 2021-02-22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALISON ELIZABETH GILMORE, Applicant AND: DEREK MICHAEL FREUDENTHALER, Respondent

BEFORE: Kurz J.

COUNSEL: Jonathan Kline, for the Applicant Irene Petrakis, for the Respondent

HEARD: February 18, 2021

Endorsement

Introduction

[1] Each party moves for relief in this motion that was argued as a long motion. The Applicant mother (“the mother”) seeks sole custody of the parties’ two young children, subject to supervised access by the Respondent father (“the father”). She also seeks temporary child and spousal support, retroactive to the date of separation and life insurance to secure that support. The father seeks sole custody as well, with a shared 50/50 parenting arrangement in the alternative, and with at least unsupervised access in the further alternative.

[2] The parties began to cohabit in 2010, they married on July 21, 2012, and separated on July 10, 2020. They have two children, B, aged 7 and M aged 4. [1] The father also has a child of a previous relationship, K, who resided with the parties through much of their relationship.

[3] Each party makes serious and at times lurid allegations against the other, most of which this court cannot determine at this time based on highly conflicting affidavit evidence. Each parent attempts to provide some expert evidence from a treating counsellor; a psychotherapist for the mother and a registered clinical psychologist for the father. For reasons set out below, applying my gatekeeper role, I find that the evidence of the mother’s therapist is inadmissible while I find that the evidence of the father’s treating psychologist is properly before the court as that of a participation expert.

[4] I note as well that the mother stands criminally charged with assaulting the father. Further, the Halton Child’s Aid Society (“HCAS” or “the Society”) has investigated a number of the mother’s allegations against the father and finds no reason to withhold the children from either party.

[5] For reasons set out below, I find that it is in the best interests of the children to primarily reside with the mother but that the father should exercise unsupervised access three times per week, for short but escalating periods of time, and upon other terms set out below. The issue of overnight access is adjourned sine die. I also adjourn the issue of interim support to a date to be set, upon terms set out below.

Consent Order to CLRA s. 30 Assessment

[6] At the commencement of this motion, the parties informed me that they agree to a Children’s Law Reform Act s. 30 assessment, which I agree is urgently necessary. I order that Howard Hurwitz, who has provided his consent, perform the assessment. The parties shall equally pay the cost of his assessment subject to reallocation at trial.

Preliminary Issue of the Admissibility of the Report of Peter Stathakos

[7] Before argument on this motion began, I raised the preliminary issue of the use to be made of the report of psychotherapist, Peter Stathakos, dated January 31, 2021. That report is contained in his affidavit of that day. Mr. Stathakos has signed a form 20.2 acknowledgment of expert’s duty. He is presented as a litigation expert within the bounds of the definition of that term in r. 20.2(1) of the Family Law Rules (“FLR”). In the alternative, he is presented as a participation expert within the bounds of that same definition subrule.

[8] The definition for those terms in the FLR r. 20.2(1) are:

“litigation expert” means a person engaged for the purposes of litigation to provide expert opinion evidence;

“participant expert” means a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue.

[9] In her factum for this motion, the father’s lawyer pointedly raised the issue of the admissibility of the Stathakos report, writing:

40. This Honourable Court has been provided the Affidavit of Peter Stathakos, dated January 31, 2021. The Respondent/Father requests that this be struck from the file on the basis that it is unethical for Mr. Stathakos to provide a psycho-analysis of the Respondent/Father solely based on the text messages that he has exchanged with the Applicant/Mother and without having had any discussion or interaction with him. Mr. Stathakos also makes recommendations regarding access without meeting the children.

[10] While I gave oral reasons for disallowing Mr. Stathakos’ evidence during the hearing of this motion, I expand upon them below, with reference to excerpts from Mr. Stathakos’ report and the relevant caselaw.

[11] Mr. Stathakos is a psychotherapist who has been treating Ms. Gilmore since January 8, 2021. After three treatment sessions with her over 23 days, Mr. Stathakos wrote an extensive report, dated January 31, 2021. Mr. Stathakos also reviewed documents provided to him by Ms. Gilmore, including supportive letters from her friends and a transcript of a WhatsApp text exchange between the parties. They are reproduced in his report.

[12] Based on that limited information, Mr. Stathakos prepared a 125-page report offering numerous opinions about each of the parties. He opines that Ms. Gilmore suffered from domestic abuse and was “co-dependant” on the father. Mr. Stathakos also strongly infers if not directly diagnoses the father as suffering from a narcissistic personality disorder, pedophilia and other psychological maladies. He goes so far as to opine on the rationale behind the father’s refusal to agree to supervised access before the hearing of this motion. The breadth of Mr. Stathakos’ opinions is all the more remarkable because he never spoken a word with the father.

[13] The mother relies on Mr. Stathakos’ report to buttress her claims that the father suffers from mental illness, is abusive and dangerous to the children and to explain some of her own non-confrontational behaviour towards the father.

[14] Mr. Stathakos fails to provide the court with a curriculum vitae which would inform it when and where he obtained his training or what kind of training he received. I am not even certain what areas of social science he purports to have expertise in. Absent a c.v., I have no evidence that can lead to the finding of his expertise in any of the broad swath of matters upon which he opines.

[15] Mr. Kline argues that I should accept the Stathakos report, whether in part or in full as that of someone with expertise in sex addictions and abuse. At the very least, the Stathakos report will explain some of the conduct of the parties. Mr. Kline adds that the Stathakos report simply points to the need for caution and a better assessment of the father. At the very least, Mr. Stathakos can be considered to be a participation expert who can speak to his interactions with the mother.

[16] Based on the materials before me, I am not convinced that Mr. Stathakos is an expert at anything in the legal sense of the term as defined in r. 20.2(1) or the relevant caselaw, which I cite below. His only degree that I am able to discern that is relevant to any issue before me is a Master of Social Work (“MSW”). I have no idea what area of training he engaged in, even within that discipline. Not every MSW is an expert, particularly when the subject of that expertise is far from clear.

[17] Unlike even a treating family doctor or psychologist, who can be accepted as a participation expert because their doctorate offers some fundamental assurance of serious clinical training, I cannot say the same about Mr. Stathakos.

[18] I agree with Ms. Petrakis that the Stathakos report reads more as advocacy than clinical observation or participation. He opines about much that he does not manifestly have the right to opine on, and in a manner that does not read as being dispassionate. A few excerpted passages in particular are indicative of that concern.

[19] Mr. Stathakos writes that he is treating Ms. Gilmore for “Codependence, and for Complex Post-Traumatic Stress Disorder: Trauma Bonding, the latter of which arises from her relationship with Mr. Freudenthaler”. That diagnosis implicitly implicates the father as abusive and co-dependant. Mr. Stathakos then moves on to more directly offer his opinions of the father. While admitting that he should be careful about diagnosing someone he has not met, Mr. Stathakos effectively does just that, writing:

People experiencing Codependence typically partner with spouses who have an avoidant attachment style; and exhibit tendencies towards narcissism, borderline and anti-social personality disorders; and addictions. Although I cannot assess him directly, Mr. Freudenthaler’s behaviour, as described by Ms. Gilmore, as reasonably inferred from the conditions affecting her, and as demonstrated in his own words in a lengthy and intimate text message transcript, strongly indicates that Mr. Freudenthaler has narcissistic personality disorder, borderline personality disorder and anti-social personality disorder; and sexual addiction. If so, then he poses a high risk to the children of significant psychological harm, particularly by interfering with their attachment/bond with their mother. Further, the Mr. Freudenthaler's’s ongoing abandonment of the children, currently exhibited by his refusal of supervised access, exposes them to emotional harm.

Mr. Freudenthaler needs to be psychologically assessed. He presents with narcissistic and borderline traits. These personality disorders are difficult to identify and treat, which makes it essential to select an assessor with the correct skill set. He must be assessed for characterological disorders, attachment disorders, intimacy disorders, and narcissistic, borderline and anti-social disorders coupled with complex post-traumatic stress disorder from trauma re-enactment of his historical sexual abuse to gain insight into his paraphilic sexual disorders.

[Emphasis added]

[20] Mr. Stathakos then offers his opinion on the parenting issues before the court, writing: “[u]ntil assessment results [regarding the father] are available, I recommend a high degree of caution when determining the scope of Mr. Freudenthaler’s access to his children.”

[21] Then, having heard only from the mother, Mr. Stathakos offers his opinion on the father’s motivations in this litigation, describing his pursuit of custody as “disingenuous”. He goes on to predict that the father’s behaviour “will be to interfere with the children’s affectionate bond with their mother”, while describing the father’s motivations for that anticipated conduct as “satisfying his narcissistic desires at the expense of the emotional, psychological and sexual well-being of the children”. He closes this passage by effectively calling the father a pedophile on the basis of sexual banter between the parties about their desire for each other.

[22] I do not propose to repeat that sexual exchange in the interests of protecting some shred of the parties’ privacy (even though both parties reproduce it in materials that they have filed with the court). But I note that in the exchange, the parties speak of each other and not children, even if they use pet terms like “daddy” and “baby girl”. That exchange is an extremely thin reed upon which to perch so monstrous an allegation as pedophilia.

[23] Even when faced with a letter from the father’s treating psychologist, saying that she has no concerns with the father’s risk to his children, Mr. Stathakos shrugs that contrary opinion off as the result of the psychologist’s lack of disclosure. Dr. Harris, as will be described below, has been seeing the father weekly for about eight months, or about 32 sessions. Mr. Stathakos has seen the mother, at best, about one-tenth of that time. Dr. Harris has also spoken to the mother, who attended one of the father’s sessions. Mr. Stathakos cannot say the same of the father.

[24] The fact that the HCAS investigated the mother’s allegations and found no reason to limit the father’s contact with the child appears to be of no event to Mr. Stathakos either.

[25] While couched in part in a superficial diffidence, the breathtaking immodesty of Stathakos’ opinions is extremely troubling. The broad canopy of opinions that he spreads over so narrow a ground as his three sessions with the mother and the selected materials that she curated for him convince me that I must approach Mr. Stathakos’ evidence with the utmost caution. The fact that he calls for the father to be further assessed does not detract from the fact that he has so overtly overstepped his limited role as the mother’s therapist of three sessions over three weeks.

[26] I do not accept that the mother has proven that Mr. Stathakos has demonstrated sufficient expertise or objectivity to meet the test for the admission of expert litigation evidence set out in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. There, the court set out the two-stage analysis of the admissibility of expert evidence. The first or threshold stage involves the four elements of the test of expertise originally described as the Mohan test (R. v. Mohan, [1994] 2 S.C.R. 9):

1. Relevance (which has been defined as logical relevance);
2. Necessity in assisting the trier of fact;
3. Absence of an exclusionary rule; and
4. The need for the expert to be properly qualified.

[27] Each of those four elements must be proven on a balance of probabilities: R. v. Terceira (1990) 3 S.C.R. 866.

[28] In addition, the court in White Burgess added a second stage of analysis, the discretionary “gatekeeper” role. In that role, the court balances the potential benefits of admitting the evidence against the risks to the fair trial process of doing so. In other words, the court weighs whether the benefits of admitting the evidence justify the risk. If the balance swings towards risk, the court may exclude expert evidence, even if it meets the four Mohan parts of the test.

[29] The dominant approach in Canadian law is to treat the lack of independence or impartiality on the part of an expert witness as a matter that goes to the admissibility of their testimony, not just to its weight: White Burgess at para. 40.

[30] Exclusion at the threshold as opposed to the gatekeeper stage of the analysis is to be a rare step, taken only in very clear cases. Those occur when “the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence”: White Burgess at para. 49.

[31] The role of the expert is to offer evidence to the fact-finder. In Mohan at para. 29, after reviewing a number of authorities, the court offered the following principles that explain the utility of expert evidence:

The evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature.

The opinion must be necessary in the sense that it provides information which is likely to be outside the experience and knowledge of a judge or jury.

The subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge.

[32] To assist the court, the expert must logically be an expert in the area in which they are testifying. As the authors of Sopinka, Lederman and Bryant, The Law of Evidence in Canada, fifth Ed., LexisNexis, Toronto, 2018 write at para. 12.87:

The proffered expert must possess special skill, knowledge or experience which is likely to be outside the knowledge or experience of the fact-finder.

[33] It is not sufficient that the proffered expert has some element of expertise. As Justice David M. Paciocco and Professor Lee Stuesser add in their text, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011) at p. 19:

To be clear, the question is not simply whether the witness is an expert. It is whether the witness has the expertise to offer an opinion in the relevant area.

[34] Here, as set out above, I cannot make a finding that Mr. Stathakos has expertise in any area in which he has opined. Even if he has, I find that his report demonstrates that he is willing to opine regarding matters in which he should have demurred in pronouncing. He also presents himself as so deeply ingrained in the role of advocate for the mother, that I cannot rely on his opinion in any manner.

[35] I recognize that the bar is far lower for participation experts than for litigation experts. They are by nature the treating expert for one party only, their patient or client, and write on their behalf. Nonetheless, participation experts must possess some degree of expertise and objectivity in order to assist the court. My findings regarding Mr. Stathakos’ expertise are already set out above. Even accepting a lower bar of objectivity for participation experts, I cannot find that Mr. Stathakos’ evidence reaches even that level.

[36] There is no motion before me to strike Mr. Stathakos’ evidence. Instead, I place no weight on it.

Parenting Issues

[37] In requesting that she be granted sole custody of the children and that the father be limited to supervised access, the mother’s main allegations are that:

1. She has always been the primary caregiver of the children,
2. The father has abused drugs and alcohol;
3. The father is a risk of trying to turn the children against the mother; and
4. The evidence that points to the father posing a low risk to the children is superficial and based on inadequate disclosure.

[38] The father points in response to:

1. The mother’s consistent “gatekeeping” attempts to control his contact with the children, particularly since the parties separated.
2. The mother’s texts to him in which she articulates a desire to negotiate and agree to “open access” terms that do not include supervision.
3. The HCAS investigation of the mother’s complaints, which found evidence of a risk of emotional abuse to the children from exposure to parental conflict but no evidence of the father’s abuse or mental health problems. The Society did not feel that supervision was necessary for either parent’s contact with the children.
4. The father’s treating psychologist, Dr. Harris, has been seeing him every week since May 2020. She has written two notes, attached to and adopted in her affidavit. Dr. Harris states that she sees no reason that the father’s access must be supervised.

Issues:

[39] This motion raises the following issues:

1. Where should the children primarily reside?
2. Should the father’s parenting time be restricted?
3. If the father’s parenting time should not be supervised, what parenting time should he enjoy?
4. What support terms should I apply to the adjournment of the mother’s support motion?

Issue No 1: Where should the children primarily reside?

[40] The mother has been the children’s primary caregiver throughout their relatively short lives. She took year-long maternity leaves when each was born. The father worked long hours and was frequently travelled for business. The children have resided with the mother since separation, although part of the reason for this is that the mother has unilaterally controlled the father’s contact with the children.

[41] The status quo has greater weight at the interim rather than the final stage of a proceeding. That is because of the court’s limited ability to make factual findings based on opposing affidavits and the need to stabilize a child’s living circumstances post-separation. Gray v. Canonico, 2020 ONSC 5885 at para. 39, citing Pancel v. Henri, 2012 ONSC 546, at paras 25 and 26.

[42] Nonetheless, a parent should not be able to rely on a status quo created by unilaterally excluding the other parent from their children’s lives. A parent who claims that the other parent’s contact with the children endangers their safety must bring the issue before the court at the first available opportunity: Gray v. Canonico at paras. 49-50.

[43] Yet, in this case, while the father seeks some form of sole or shared custody of the children, he has had little contact with them for some time. While much of the fault for that state of affairs falls on the mother, he did choose not to exercise the admittedly arbitrarily limited parenting time she has offered to him. He also does not deny that historically, the mother has been their primary caregiver. I also cannot ignore the fact that he has not presented a detailed parenting plan for the children, even as a half-time parent. Nor has he demonstrated that he even has an appropriate place for the children to sleep.

[44] As I understand his argument, the father’s main concern in this motion is to obtain the right to exercise frequent and consistent parenting time, in line with the children’s best interests. His main arguments concern parenting time, not primary residence. Mr. Hurwitz has been tasked with broadly and deeply assessing the needs of the children and the ability of the parties to meet them. A longer-term decision about parenting arrangements should await Mr. Hurwitz’s report.

[45] At this point, it is appropriate, and in the children’s best interests to continue their primary residence with the mother.

[46] Each parent may make day-to-day decisions regarding the children when they are in that parent’s care. The mother shall not make any major decisions regarding the children’s health, education and welfare without consulting with the father. As her present bail conditions prevent direct contact between the parties, they may consult through counsel. If they are unable to agree following a meaningful consultation, and subject to further court order, the mother may have final say.

Issue No. 2: Should the father’s parenting time be restricted?

[47] Supervision of access is “a great intrusion into the relationship between children and parent, and its continued imposition must be justified": Young v. Hanson, 2019 ONSC 1245, at para. 32. The person seeking supervised access bears the burden of establishing that supervision is necessary: Klymenko v. Klymenko, 2020 ONSC 5451, at para. 23.

[48] Supervised access is not generally intended as a long term solution. The hope and expectation when supervised access is ordered is that the problem(s) which justified supervision will be corrected or eliminated, and that a more natural and less restrictive parent-child relationship will be allowed to evolve: Izyuk v Bilousov, 2015 ONSC 3684 at para. 54.

[49] The mother argues that this is an exceptional case; one which demands supervised access. Her arguments in favour of supervision are inter-related. They point to a significant risk to the children’s emotional well-being if the father is allowed to care for them, unsupervised.

[50] In her counsel’s oral argument, the mother contends that the father’s parenting time should be restricted because of his substance abuse and the risk that he would turn the children against her.

[51] There is a great deal of dispute about the events upon which she relies for both arguments.

[52] With regard to substance use, she claims that he once drank a bottle of wine and then drove with the children, an allegation that he denies and for which there is no independent evidence. The father actually claims that it is the mother who consumes alcohol while with the children.

[53] The mother discussed her allegations of substance abuse against the father with her therapist in November 2020, who in turn contacted the HCAS. The mother then unilaterally suspended the father’s direct contact with the children during the investigation although there is no evidence that the HCAS insisted on the suspension. Even after the HCAS reported that it does not require any supervision of the father’s parenting time, she has continued to insist upon it. She even argues that the father’s failure to accept her unilateral imposition of supervision reflects either some element of his supposed pathology or a want of concern for the children.

[54] It was open to the father to accept the mother’s supervision terms until this motion is heard. He would have been well advised to do so if only to maintain his contact with the children. However both parents seem to have become increasingly entrenched in their conflict. They have become willing to ascribe illness or malign intentions to the behaviour of the other during the course of this fractious litigation. I will not penalize the father for his part of this dispute, at least based on the conflicting materials before me. That is particularly the case as the mother refuses to follow the direction of the HCAS or consider the comments made by the father’s treating psychologist, Dr. Harris.

[55] After its investigation, the HCAS found no safety concerns regarding the father’s mental heath or substance use. But in their letter of December 18, 2020, child protection worker, Sharon Persaud and her supervisor did raise the concern of exposure to partner conflict by the father. The Society workers warned the father against exposing the children to “partner violence/conflict”. Notwithstanding the submissions of the mother’s counsel, that is not a finding of abuse.

[56] In a subsequent letter of February 5, 2021, Ms. Persaud and a different supervisor clarified that they had “no immediate safety concerns with [the father] at the time of the investigation”. They added that “the Society does not endorse withholding access (from either party) where there are no immediate safety concerns”.

[57] The father points as well to evidence of Dr. Catherine Harris, a registered clinical psychologist with thirty years’ experience. Dr Harris has been the father’s treating psychologist. She has seen the father weekly since that time. The mother and the father’s parents each attended one therapy session to offer their insights into the father’s condition.

[58] Dr. Harris wrote of the father’s diagnosis of major depressive disorder, single episode, moderate, with significant anxious and panic features. A possible additional diagnosis is Attention Deficit Disorder. That diagnosis seems to cover both his general mental health and a single episode in July 2020 in which the father had a psychotic episode. Dr. Harris also spoke of the father’s prior use of Adderall and Ativan and well as cocaine, which the father alleged to have used six times in the spring of 2019. The father had denied use of any of those drugs during his treatment (from May 2020 onward) and the psychologist saw no reason to disbelieve him.

[59] In the therapy session that involved both parties, they spoke to Dr. Harris of the “escalation of behaviours of both parties”. This led to their decision in favour of a trial separation.

[60] With regard to the issue of turning the children against the father, the mother’s evidence is not persuasive. She points to the fact that after the parties’ separation, the father’s fifteen-year old son is angry at and incommunicative with her. She admits that they had an argument and that the boy believes that she broke a guitar of his. Nonetheless she blames the father for his son’s post-separation attitude towards her. She asks the court to extrapolate from this to find that this is evidence that if left alone with the children, he will try to turn them against her.

[61] The mother also points to the father’s willingness to publicly raise their private sexual matters, particularly to her own mother (the maternal grandmother). At the time of separation, the mother moved with the children to the home of the maternal mother. The father found video evidence of what he saw as her sexual infidelity with another man. He insisted on showing the video, on his phone, to the maternal grandmother. She says that his intent was to humiliate her. The father admits to the conduct but says that he did so in anger because the grandmother had taken her in after she took the children from him and, in his view, betrayed him.

[62] The mother also points to the sexual context of their texts being reproduced in the father’s materials before the court. However she did not move to strike them. In fact she filed and intended to rely on Mr. Stathakos’ report, which set out his interpretation of some of those same texts, which were reproduced in his report.

[63] I agree with the mother that showing the sex video to the maternal grandmother was highly inappropriate and demonstrative of remarkably bad judgment. This occurred around the time of the parties’ separation, when arguably their behaviour towards each other was at its worst.

[64] The father’s lawyer justifies his inclusions of the texts in his materials as demonstrating the sexual nature of their banter as they were negotiating a resolution that did not involve supervision of his contact with the children. It also shows that the mother too was motivated by sexual jealousy of the father. Further, as cited above, she relied on those text exchanges as well.

[65] The father’s publicizing of intimate matters does not reflect well on him but the mother’s own use of some of the same materials diminishes the force of her arguments.

[66] I also agree with the mother that the father has not offered a full explanation, for what appears to have been a single psychotic episode during the midst of the parties’ breakup. Dr. Harris does apparently refer to this episode in her diagnosis of “major depressive disorder, single episode, moderate, with significant anxious and panic features.” However there is no evidence of a similar previous or subsequent episode. The evidence of Dr. Harris points to his improved condition, under her care.

[67] None of this points to the father as an ideal father. He clearly has flaws. But so too does the mother, who arrogated the right to control his contact with the children before obtaining a court order. The parties appear to have been involved in a troubled relationship with each other. The mother is presently facing a criminal charge of assaulting the father.

[68] I also agree with the father’s counsel that there is evidence that the mother spoke ill of the father while they were living separate and apart in the same home. For example, there is evidence in a transcript of a video in which she described him to the children as “the monster”. The term was neither in jest nor an affectionate appellation. Further, the father alleges that the mother fails to discourage and even laughs when the children call the father “dumb dad” and “Dumb Derek”.

[69] All that being said, the issue for me is whether supervised access is in the children’s best interests. The bar is high and the onus rests on the mother. I find that the mother has failed to offer sufficient objective evidence to meet the high bar required to limit the father’s parenting time to supervised periods. In saying this, I rely on:

1. The findings of the HCAS, whose investigations involved the mother, children and mental health professionals, including presumably Dr. Harris. The Society was aware of the mother’s concerns;
2. The comments of Dr. Harris regarding the lack of risk that the father presently poses to the children;
3. The fact that Dr. Harris continues to counsel him weekly, a therapeutic relationship that I order below that the father continue;
4. My review of the texts exchanged between the parties confirms the father’s argument that the mother was willing to agree to unsupervised parenting time.
5. My view that the children can be protected during unsupervised access, particularly in light of the terms that I impose on that access.

Issue No. 3: If the father’s parenting time should not be supervised, what parenting time should he enjoy?

[70] During the course of argument of this motion, I indicated that I would reserve judgment but wished to hear argument from the parties on what access I should order if I were to order unsupervised access. They came to an understanding that if I were to make such an order it should be upon the following terms:

1. For the first three weeks: i. Tuesday from 3-6:00 p.m. ii. Thursday from 1-4:00 p.m. iii. Sunday from 12-3:00 p.m.
2. After three weeks: i. Tuesday from 3-6:00 p.m. ii. Thursday 1-4:00 p.m. iii. Sunday from 12-6:00 p.m.
3. The pick-up and return of the children shall be at the home of the mother with the exception of the Thursday pickup, which shall take place at the children’s school.

[71] Accordingly, commencing on February 22, 2021, the father may exercise parenting time as set out above. I further order:

1. As a term of the access, the father shall continue his weekly counselling with Dr. Harris.
2. Neither parent shall speak ill of the other to the children nor allow any third party to do so in the presence of the children.
3. Neither parent shall consume or be under the influence of any non-prescription drugs while caring for the children.
4. The father shall not consume alcohol during any parenting time or within 6 hours of the commencement of that time.
5. I adjourn the issue of overnight parenting time sine die, returnable on seven days’ notice.
6. I remain seized of this matter.
7. If there is any breach of the terms of this order, the matter may be returned before me on a date and time arranged between counsel.

Issue No. 4: What support terms should I apply to the adjournment of the mother’s support motion?

[72] The father is willing to pay temporary table and spousal support but requests an adjournment of the issue because of very recent changes to his pay structure which become effective on March 1, 2021. He asserts that those changes take him from a secure salary to a commission basis. He feels that that change will reduce his income. The mother does not agree.

[73] I do not have sufficient evidence before me to deal with that issue. For that reason, I am willing to adjourn the support motion to allow the parties to obtain that evidence. But as I pointed out the parties, there must be appropriate terms of that adjournment, which financially secure the mother and the children.

[74] Based on the parties’ 2020 incomes of $191,000 for the father (excluding a one time only payment) and $41,000 for the mother (both figures rounded), they agree that table support is $2,566 per month. The children are enrolled in the Waldorf School and the parties agree that they should reman there, at least at present. The parties agree that based on the 2020 income figures above, the father’s proportionate share of that expense is $1,389 per month.

[75] The SSAG range of monthly spousal support is low: $781, mid: $1,646; high $2,277. On an interim-interim basis I can say that this was a ten-year relationship and that it appears that there is compensatory claim. On an interim-interim basis I find that the appropriate figure is the mid-range of $1,646 per month.

[76] Accordingly, the portion of this motion dealing with support is adjourned sine die, to date on a regular motions list before me, to be selected by parties in consultation with the court’s trial office.

[77] As terms of the adjournment, I order that, commencing on January 1, 2021 and continuing on the first day of each succeeding month until further order, the father shall pay to the mother:

1. table child support of $2,566 per month;
2. s. 7 expenses for the children’s Waldorf School tuition of $1,389 per month, and
3. spousal support of $1,646 per month.
4. Those amounts are without prejudice and subject to reallocation upon the return of this motion.

[78] In addition:

1. The father will, until further order, designate the mother as the sole irrevocable beneficiary of the $250,000 life insurance policy that he presently holds.
2. He shall forthwith provide her with proof of that insurance designation, and
3. He shall provide the mother with full disclosure regarding the changes to his pay structure, including any correspondence from his employer regarding that change and any draft or final agreements setting out the new terms of his employment.
4. Until the return of this matter, the father shall provide the mother with each pay stub that he receives from his employer.

[79] The issue of costs of this motion is adjourned to the portion of this motion dealing with interim support.

“ Marvin Kurz J. ” Electronic signature of Justice Marvin Kurz, Original will be placed in court file Date: February 22, 2021

[1] I have initialized the names of the children to protect their privacy