COURT FILE NO.: FC-19-367-2 DATE: 2021/02/24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Amanda Purdy, Applicant – and – Jake Westley Purdy, Respondent

Counsel: Self-Represented (Applicant) Self-Represented (Respondent)

HEARD: January 25, 26, 27, 28, 29, February 1, 2, 3, 4, 5, 8, 9 and 12, 2021 via Zoom

Reasons for Judgment

Shelston, J.

Overview

[1] The applicant (“Amanda”) and the respondent (“Jake”) are the parents of two young girls age 8 and 10. Since separation in 2017, the parties have been unable to resolve many issues arising out of their separation, especially the custody and access to the girls. Since the litigation started in the summer 2019, both parties have engaged in very high conflict litigation requiring numerous court attendances, the appointment of a case management judge and the assistance of the Office of the Children’s Lawyer (“OCL”).

[2] The issues for the trial were as follows:

a. divorce. b. custody and access. c. income determination. d. retroactive and prospective child support. e. section 7 expenses. f. retroactive and prospective spousal support. g. security for support. h. equalization of the net family property. i. post separation adjustments. j. restraining order. k. costs.

Background

[3] The parties met in May 2007 and married on July 11, 2007. At the time they married, Jake was 28 years of age and employed with the Federal Government in Ottawa. Amanda was 31 years of age, fluently bilingual in French and English, and had just been laid off. From 1997 to 2007, she worked at various jobs including an executive assistant, paramedic, flight attendant/union representative and taught English in Korea.

[4] After marriage, Amanda worked at different jobs and by September 2008, she started working at the Bank of Canada as an executive assistant.

[5] The parties’ first child, Coral was born on September 7, 2010. Amanda was on maternity leave to September 2011. Jake was on paternity leave from May 2011 to September 2011. Both parties were involved in caring for the child.

[6] In September 2011, both parents returned to work and the child was placed in daycare. The parties shared the drop off and pick up of the child. While on maternity leave in 2011, Amanda started an in-home photography business, Purdy Impressions, which produced approximately $1000 a month in revenue.

[7] The parties’ second child, Jade, was born on February 9, 2013 and Amanda was on maternity leave until February 2014.

[8] In February 2014, Amanda intended to return to work at the Bank of Canada. At that time, she was advised that her job was changed due to a reorganization. She was offered the option of either returning to work or receiving a buyout of approximately 36 weeks of severance. After discussion, the parties agreed to take the severance to assist them with their financial situation, that Amanda would be a stay-at-home mom with both children and that she could contribute financially with the photography business. Amanda continued to be the main caregiver for the children during the day while Jake worked full time. Both parties cared for the children at night and weekends.

[9] In April 2014, Amanda started suffering from anxiety. Medication was prescribed. At this time, the parties were having marital problems. The parties attended three sessions of marriage counselling. The parties argued over many issues including over social issues, whether Coral was allergic to peanut butter and Jake’s perception that Amanda was overly aggressive in dealing with the children’s school. The parties were drifting apart.

[10] Jake testified that Amanda continually criticized him, asked him if he was gay and belittled him. Jake testified that on one occasion the summer/fall 2014, during an argument Amanda threw him to the ground in the kitchen with the children present. Jake testified that he stayed in the marriage for the sake of the children. Amanda did not deny these allegations. In December 2015, during a heated argument, the Ottawa Police were called to the matrimonial home. No further action was taken. The Children’s Aid Society attempted to contact the parties, did not receive a response and a letter of caution was sent.

[11] On August 22, 2017, the parties argued when Jake refused to hand to Amanda his cell phone because Amanda thought he was having an affair. This time and Amanda told Jake that the marriage was over.

[12] In September 2017, Coral was in grade 2 and Jade was starting junior kindergarten. Amanda was the main caregiver for the children during the day while Jake was pursuing his career and helping at night and on weekends.

Separation

[13] The parties agreed to stay in the matrimonial home until they sold it. The parties lived separate lives while jointly caring for their children. Both parties testified that the other had a girlfriend/boyfriend during this period of time. Both parties denied any such arrangement.

[14] Despite agreeing to separate, with both parents in the home, the situation was tense. On one occasion, on October 15, 2017, during an argument, Amanda punched Jake in the nose. The police were not called.

[15] In December 2017, Jake decided to take his children to visit his family in Alberta. When he returned, he advised Amanda that he was moving out at the end of January 2018. Both parties retained lawyers. At a meeting in January 2018 with counsel, the parties orally agreed that Jake would cover the mortgage and utilities of the matrimonial home until it was sold and pay Amanda $2000 a month in support.

[16] The tension in the house was having an adverse affect on Coral. In January 2018, Coral started seeing a social worker at her school because the school had noticed that Coral was tired, acting out and was not focusing. She saw the social worker for eight weeks. In March 2018, Jade started to see the same social worker for eight weeks.

[17] When the parties separated in February 2018, Jake told Amanda to go on welfare, unilaterally terminated her cell phone, car insurance and Costco card resulting her losing her MasterCard. Amanda’s only source of income was from Jake. These actions caused tremendous stress to Amanda.

[18] In May 2018, Jake advised Amanda that he could only pay $1500 rather than $2000 because he was financially strapped by paying expenses for two homes. Amanda’s stress increased as Jake was her sole source of income as Purdy Impressions studio was dismantled when the house was put up for sale.

[19] Starting in February 2018, the parties had the children on a 2/2/3 parenting schedule. Despite complaints by Amanda that Coral did not want to continue with the 2/2/3 schedule, the parties followed the schedule. At one point, Amanda unilaterally suspended Jake’s time with the children but by the end of the month it had resumed.

[20] Jake felt that Amanda was attempting to interfere with his relationship with his children. In August 2018, Jake’s parents travelled to Ottawa to see him and their grandchildren. After arguing with Amanda, Jake drove with the children to visit his parents. Later that afternoon, the Ottawa Police attended to perform a wellness check on the girls based on allegations from Amanda that Coral was very upset. After conducting the wellness check, the police left but were met by Amanda outside the grandparents’ campground. The police found nothing wrong with the children.

[21] The parties argued about when to sell the matrimonial home, whether to sell it privately or with an agent, whether to reduce the price and eventually whether to keep the agent. Despite these difficulties, the matrimonial home sold on October 17, 2018 and the parties agreed to keep the net proceeds of sale in trust pending further agreement.

[22] In December 2018, Jake and Ms. Zelena Van der Leeden moved in together at his home. They had started dating in April 2018. She has two children named Luca and Alexandra. She was involved in her own high conflict divorce proceeding with her husband.

Interim Separation Agreement

[23] On December 20, 2018, the parties signed an Interim Separation Agreement where the parties agreed to a 2/2/3 parenting schedule, a support payment for January 2019 and the release of $50,000 to each party from the proceeds of sale of the matrimonial home. The parties acknowledged that Amanda’s income was approximately $12,000 a year and Jake’s annual income was approximately $117,500. The terms were as follows:

a. the parties would share joint custody of the children and make major decisions together about the children’s education, healthcare and religion. b. the children would attend therapy with a child psychologist, Dr. Matheson. c. the children would reside with each parent on a two (2) week rotating schedule as follows: i. every Monday with Amanda. ii. every Tuesday and Wednesday with Jake. iii. every Thursday with Amanda. iv. alternate weekends but when the children were with Jake, they would be picked up by Amanda on Sunday evening. d. for the month of January 2019, Jake agreed to pay child support Amanda of $1270 and spousal support of $1345. e. with respect to the net proceeds of sale, the parties agreed that each would receive $50,000 by December 20, 2018 and that the balance of approximately $20,414.75 would continue to be held in trust pending further agreement of the parties. f. the agreement would remain in effect until the parties entered into a final separation agreement or minutes of settlement or further order of the court.

[24] Jake paid Amanda the sum of $2,615 due for January 2019. The agreement did not provide for a specific amount of support starting in February 2019. The parties intended to negotiate a final agreement by that date. However, they were not able to do so.

[25] By February 2019, the parties agreed to divide the remaining proceeds of sale with Amanda receiving $8,207.37 and Jake receiving $12,207.38. Jake testified that he agreed to have the monies released because he believed that there was an agreement reached on all issues. His counsel had prepared a draft agreement on all issues which was forwarded to Amanda.

[26] The relationship between Amanda and Jake was deteriorating. On February 11, 2019, Jake sent an email to Amanda to set boundaries as follows:

a. You are not authorized to enter her home without an invitation from Zelena or myself. b. I do not want you to show up at our home without an invitation. c. You are not allowed to talk/ask questions or worse interrogate Zelena’s kids without her present. If you wish to interrogate or spend time with their children do so on their father’s time who is your friend, apparently.

[27] An incident occurred on Family Day February 2019. Amanda anticipated that the children would be returned to her care at 7 PM that Sunday. They were not and neither were Jake’s stepchildren. Amanda and Mr. Van der Leeden contacted the police because the children were not returned at 7 PM and stated that they were worried about the safety of their children. The police investigated and confirmed that the children were deemed to be safe and they were returned on Monday evening. Amanda was very upset that her children were not returned. The next day, February 18, 2019, Amanda emailed Jake that she would not sign the draft agreement.

[28] From February to October 2019, Jake paid different amounts of support ranging from a low of $256 in March 2019 to a high of $2009 in September 2019. Most of the months in between the payments ranged from $1300-$1900 per. Jake never knew what he could afford and Amanda never knew what she was going to receive.

[29] Starting in January 2019, the parties followed the 2/2/3 parenting schedule but there were times when Amanda did not allow Jake to have access because she felt the children did not want to go and were uncomfortable.

Custody and Access

[30] On June 11, 2019, Amanda commenced proceedings where she sought an order for joint custody with the parties following a 2/2/3 schedule as well as financial claims for support and property division. In Jake’s Answer, he proposed joint custody with the children alternating residence on a week about basis.

[31] On June 25, 2019, Amanda returned the children to Jake at his home pursuant to the Interim Separation Agreement. When Amanda entered his garage with the two children in the family dog, Amanda alleged that Jake became upset and told Amanda not to step on his property, picked up the family dog and threw the dog out of his garage in front of the children which caused them to be very upset. Jake denies that he threw the dog or that the children were very upset. Amanda called the police and while waiting for them, the children left Jake’s house and went into Amanda’s vehicle. After speaking with the police, Amanda left with the children.

[32] By letter dated June 25, 2019, Ms. Van der Leeden’s counsel sent to Amanda a letter entitled IMMEDIATE CEASE AND DESIST. Amanda was warned that she was prohibited from entering Ms. Van der Leeden’s home (that she shared with Jake) and that her presence was not wanted and would be considered trespassing. On June 27, 2019, Amanda replied by email denying the allegations, stated that the letter would not stop her and that her client should cease putting herself where she does not belong.

[33] On June 27, 2019, Amanda sent Jake an email advising him that the Children’s Aid Society worker was going to her home the next day at 10 AM to discuss the incident of June 25. Amanda indicated that if Jake did not reply to the email that would confirm to Amanda that there would be no room to negotiate. Jake did not reply. In the first paragraph of the email, Amanda had proposed the following:

Jake if you want to sign the latest agreement and include inside of that agreement that both parties will make every effort to not cause any drama or bring any adults related issues in front of our children ever again we need to fake cordial and happy so out(sic) kids can feel safe when with you.

[34] Jake requested to see his children pursuant to the Interim Separation Agreement. Amanda refused and proposed that he have short visits with the children such as for lunch or at a movie. Jake refused and insisted on his parenting time as per the Interim Separation Agreement. He did ask to take Coral to her baseball games (where he was her coach) and asked to speak to the children. Amanda refused to both requests in profanity filled emails that were vulgar and completely inappropriate. He did not see the children until August 16, 2019.

Initial Case Conference

[35] On August 15, 2019, the parties attended a case conference before Justice Robertson who ordered as follows:

a. on consent, the children were to resume therapy with Dr. Matheson. b. on August 16, 2019, Amanda will drop the children off at 9 AM and Jake will return the children to Amanda at 7 PM. c. if the reintegration of August 16 is positive, Jake is to have the children on Sunday from 9 AM to Monday at 7 PM when his parents will be visiting. d. the court recommended that the parties to consider mediation. e. granted leave to the parties to bring any motions.

[36] Jake had the children on August 16 from 9 AM to 7 PM. The access went well and Jake saw the children on the subsequent Sunday from 9 AM to 7 PM as his parents were coming to Ottawa from Alberta to visit. In the face of Jake having access to the children and knowing that Jake’s parents were in town to visit, Amanda, decided at the last minute to fly with the children to Vancouver, British Columbia to visit one of her lifelong friends, whose husband provided the tickets. No notice was given to Jake. The children were in British Columbia for approximately 10 days.

[37] The situation with the parties worsened. On August 16, 2019, Jake’s girlfriend, Ms. Van der Leeden, filed a request for a peace bond against Amanda based on an interaction at the courthouse on August 15, 2019. Later in the summer, Amanda filed a peace bond request against Ms. Van der Leeden alleging that on September 18, 2019, she struck the family dog with her car in front of Amanda and her two children. The date for the peace bond hearing was set February 3, 2020.

[38] The parties could not agree on what arrangements were going to be in place for the start of school. On August 30, 2019, Jake emailed the school principal advising that the parties would be following the parenting agreement while Amanda sent the school a copy of Justice Robertson’s handwritten endorsement and insisted that the agreement is no longer in effect.

[39] On September 3, 2019, Jake filed an urgent motion seeking an expedited motion date and telephone access to Coral on her birthday on September 7. The order was granted.

[40] On September 12, 2019, the parties appeared before Justice Robertson for a continuation of the case conference. The court ordered that Jake would have the children on September 14 and 15, 2019 and the court noted in the endorsement that the parties had agreed to a temporary arrangement regarding child and spousal support. The parties never entered into a temporary agreement regarding child and spousal support.

[41] On September 9, 2019, Jake made allegations to the Children’s Aid Society that Amanda was inappropriately supervising the children because inappropriate videos were uploaded by his daughters. The Children’s Aid Society closed its file but verified the allegation that the children were subject to emotional harm or risk of emotional harm.

[42] On September 17, 2019, the custody/access motion was adjourned to allow the parties to file more detailed affidavits. Jake was granted specific access from 4 PM to 7 PM on specific days and on two weekends from Friday after school to Saturday at 7 PM. The last day that Jake had access was Saturday October 5, 2019.

[43] On September 23, 2019, Amanda reported to the Ottawa Police Service that her dog’s paw was run over by Jake on September 19, 2019 when dropping the children off. The police attended at Amanda’s residence and determined that the dog had not suffered any injury to his front left paw.

[44] On October 8, 2019, without any notice to Amanda, Jake picked up the children from school early. Amanda waited until after 7 PM and when the children were not returned home, she drove to Jake’s home and called the police. When the police arrived, Jake showed the police the Interim Separation Agreement. Not having the endorsement of Justice Robertson with her, Amanda drove home and returned with the endorsement. The police refused to consider a handwritten endorsement, Jake retained the children and returned them to school on October 9.

[45] In October 2019, the Children’s Aid Society advised both parents that they decided to close their file regarding the incident of June 25, 2019. The Children’s Aid Society determined that there was adult conflict in the presence of the girls, found no evidence the children were in need of protection and highly recommended third-party exchanges to mitigate conflict between the two parents and risk of exposure in front of the girls.

Access Schedule

[46] On October 17, 2019, the parties appeared before Justice Doyle who granted the following temporary order:

a. granted Jake access commencing October 22, 2019 on every Tuesday after school until Wednesday morning to the return to school. b. commencing October 25, 2019, every second weekend from Friday after school until Sunday at 7 PM with the access exchange of the local Tim Horton’s. c. the parents are not to discuss the adult issues and this litigation with the children. In addition, neither party will malign or speak ill of the other parent. d. Jake will bring the children to their scheduled activities being gymnastics and dance.

[47] On November 1, 2019, the parties attended a settlement conference and consented to an order that Jake pay $1694 per month as child support and to the appointment of the OCL. Further, the court encouraged the parties to discuss settling spousal support and recommended that the matter be case managed. The parties attempted to negotiate a temporary agreement to deal with child support, spousal support including expanded access. On November 24, 2019, Jake terminated negotiations.

[48] The relations between the parties worsened. At a Christmas pageant on December 19, 2019, Amanda approached Jake and his girlfriend. Jake became upset and said she threatened him. No charges were ever laid. By email dated December 27, 2019, Jake advised Amanda that she was not allowed to come to his home unless she had written consent.

[49] On February 3, 2020, Amanda and Ms. Van der Leeden agreed to a mutual peace bond which expired on November 3, 2020.

Parties Agree to a Week-About Parenting Schedule

[50] On March 4, 2020, the parties consented to an order that commencing Monday, March 9, 2020, the children would share their time equally with each parent on a week-about basis with the transfer day being Monday at school.

[51] Further, the parties consented to communicate exclusively by My Family Wizard, to check messages at least once per day no later than 4 PM and that the parties could bring temporary motions to deal with various issues including support and the need for Coral to have dental care.

March Break 2020 and Coral’s Teeth

[52] On March 5, 2020, Amanda sought leave for an urgent financial motion. In response, Jake sought leave to deal with Coral’s dental needs as well as March break. Amanda had written Jake that the March break needed to be divided in two parts despite the court order that the parties would alternate weeks with Amanda having the children the week of March break. Leave was given for Jake to proceed on his motions only.

[53] By endorsement dated March 12, 2020, Justice Engelking held that if Amanda did not take the children the week of March 16 resulting in additional costs incurred by Jake, she would entertain a motion to order Amanda to pay Jake’s additional costs incurred by Jake as a result of Amanda’s noncompliance.

[54] With respect to the dental issue, the court granted Jake permission to proceed to have Coral’s teeth removed, that Amanda not be present, that Jake pay for the non-insurable cost of the procedure and that Amanda pay costs of $200 for the motion.

[55] In mid March 2020, as result of the COVID-19 pandemic, Ottawa went into lockdown resulting in the suspension of all services including in-person school attendance as well as dental procedures.

[56] On March 16, 2020, Amanda emailed Jake asking him to care for the children because she was exhausted and suffering from burnout. Amanda testified that she asked Jake at the conference on March 4, 2020 but he refused. She asked him to keep the children until at least the following Monday due to mental health reasons. Within an hour, Jake replied that he would cancel his plans and that he told the girls they would be staying with him for another two weeks. The children stayed with Jake for the first three weeks of March 2019.

[57] After agreeing to take care of the children in response to Amanda’s request, later that evening, Jake filed a request for an urgent motion to appear before Justice Engelking because Amanda did not take the children on March 16, 2020 as ordered. On March 17, 2020, Justice Engelking refused to consider the motion because she only agreed to hear the issue of additional costs incurred by Jake for Amanda’s noncompliance with the order. Further she did not find the request urgent and did not deal with the matter.

[58] On April 3, 2020 the Ottawa Police Service became aware of two young girls age approximately 6 and 9 exposing themselves on videos. The source of the videos was identified as coming from Amanda’s home. The police contacted Amanda who was shocked. Police confirmed that they did not believe that Amanda was aware the children were uploading videos to a specific website. Amanda indicated that she was aware that the children were uploading dance videos but had no idea that they were being seen on other websites. The police provided both parents with online resources to help educate their daughters and themselves about Internet safety.

[59] The situation with Coral’s teeth worsened. The pain became so severe that over the Easter weekend, Jake contacted family dentist to obtain antibiotics for her. By Monday April 13, 2020, the child was in such pain that Jake made arrangements to have an emergency appointment with one of the few dental offices open during the pandemic to have her teeth removed. Later that day, Jake dropped both children off to Amanda for her parenting time. Amanda was shocked and angry at Jake for proceeding with the surgery during the pandemic.

Order of Justice Engelking May 8, 2020

[60] One week later, on Monday, April 20, 2020, Amanda did not return the children to Jake as required by the March 4, 2020 order. Amanda sent Jake an email advising that the children did not want to go and that the Children’s Aid Society was investigating a disclosure by Coral that she had seen Jake’s penis on a picture on his cell phone while in his care. Amanda contacted the Children’s Aid Society to report that Jake and taken Coral to the dentist for emergency work, that he did not advise her and that there was no legal guardian in the room with Coral at the time (Coral requested that Ms. Van der Leeden be with her during the surgery). After speaking with Jake, the child protection worker accepted that the photo was intended for his fiancée, did not verify the allegations and closed their file.

[61] Not having seen his daughter since April 13, 2020, on April 30, 2020, Jake sought and obtained leave to proceed to an urgent motion which was set for May 8, 2020. Amanda returned the children to Jake’s care on May 4, 2020. However, Amanda filed her own notice of motion requesting financial relief and an affidavit that contained only information with respect to financial issues and provided no information about the whereabouts of the children or her reason for withholding them. On May 8, 2020, in her endorsement, Justice Engelking warned Amanda that her failure to comply with the existing court order dated March 4, 2020 may result in the children being placed in the primary care of Jake. Justice Engelking noted that it was the third time that she had been involved in this matter and that on each occasion Amanda was not complying with an existing order.

Office of the Children’s Lawyer Report July 23, 2020

[62] Ms. Catherine Reed was appointed as the clinician to conduct the investigation. As part of her investigation she interviewed the parents, the children, observed each parent with the children, interviewed Ms. Van der Leeden and conducted interviews with Constable Brown and the Children’s Aid Society worker, Ms. Perry. In addition, the clinician reviewed police reports, Children’s Aid Society disclosure, emails exchanged between the parties, various letters from health care professionals and emails from the school principal and social worker.

[63] Amanda advised the clinician that she sought sole custody and weekend access for Jake because of the increasing conflict between the parties and Jake’s refusal to communicate with her. Jake told the clinician that he believed it was in the children’s best interests to share equal time with each parent as parallel parents. He indicated that is what the children wanted. The clinician interviewed Ms. Van der Leeden who indicated the children were thriving in their care and that the children enjoyed when they were with her children.

[64] The clinician made 21 recommendations including that sole custody should be granted to Jake, that the children should alternate residences weekly, that the children need counselling, that the parents need therapy, that Amanda obtain a referral to address her mental health issues and that the parties follow the Covid-19 guidelines.

COVID-19 Issues

[65] Amanda continued to monitor the COVID-19 protocols issued by the Ottawa Public Health and the provincial government. She continued to email Jake to ensure that he was following the necessary protocols when the children were in his care. For example, Amanda emailed Jake on July 22/23, 2020 opposing him going out of town during the pandemic with the children. Jake ignored her.

[66] On August 3, 2020, the children were returned to Amanda’s care after a week with Jake. By August 8, 2020, both children had fevers. Amanda decided to have the children tested for the virus on August 8, 2020. That same day, she became aware that while her children were in Jake’s care, Jake’s stepchildren had spent a week in camp. Amanda was extremely upset that her children may have been exposed to the virus. Amanda emailed Jake on August 10, 2020 advising the test results were negative.

[67] Jake testified that over the summer 2020, he went camping or rented a cottage on three separate occasions for a total of 14 nights. There was no restriction either in local or provincial guidelines preventing camping or renting a cottage in the summer 2020. Amanda opposed Jake taking the girls outside of Ottawa.

Order for In-Person School Attendance September 8, 2020

[68] On August 24, 2020, Amanda registered the children to attend school online without the consent of Jake. By the end of August, the parties still had not reached an agreement on the children attending school in-person or online. Not having an agreement, Jake filed a request for an urgent motion to have the children attend school in-person. On September 2, 2020, Amanda agreed that the children would attend school in-person. Further, the parties agreed that neither parent shall change the children’s schooling without written consent of the other party, the children were not to miss more than five days of school throughout the school year and should the children’s school or classroom be closed due to an outbreak, the parties shall ensure the children complete at least 90% of their assignments. On September 8, Justice MacEachern granted an order pursuant to those terms.

COVID-19 outbreak at children’s school

[69] On September 18, 2020, Amanda received a notice from the school that Ottawa Public Health included the following paragraph:

A child in your household who attends Michaelle-Jean school has been identified as a high-risk contact of COVID-19

Please do NOT send your child to school. Your child needs to isolate at home until September 29, 2020, unless advised otherwise by OPH.

[70] Amanda called Jake to advise him of the notice. I accept her evidence that he yelled at her and hung up. Amanda testified that when she told the children about the notice that they had to isolate because of an outbreak at their school, the children were terrified and crying.

[71] On September 20, 2020, a further notice was received from Ottawa Public Health advising that mobile testing would occur at school for students identified at a high-risk contact of COVID-19. The same day, Amanda asked Jake if he would have the girls tested. He ignored the entire issue in his reply email where he only requested confirmation that the girls had completed 90% of their work and that he would be at the local Tim Horton’s at 4 PM for the exchange.

[72] On September 21, 2020, Jake picked up his children with Ms. Van der Leeden’s mother and daughter in the car. The next day, on September 22, 2020, Amanda emailed Jake advising him that he had to isolate the girls, asked him if the girls were tested at the mobile site and criticized him for bringing Ms. Van der Leeden’s mother and her child, Alex, in the car at the exchange.

[73] On September 24, 2020, Amanda emailed Jake asking him to walk the children to school rather than allow them to take the school bus where they would be exposed potentially to the virus. There was no reply. On September 30, 2020, Amanda again requested that the children not take the school bus. Jake’s only response was “girls take the bus on my week”.

[74] On September 27, 2020, Amanda raised the possibility of starting an “education bubble” with other parents in the event that schools closed. Amanda testified that Jake refused.

[75] On October 1, 2020, Amanda emailed Jake asking him to drive the girls to school because she was concerned about her health if she was exposed to the virus because she had vitiligo and there was an echo from her heart test on October 13 at the Heart Institute. There was no reply. On October 3, 2020 Amanda emailed Jake that she would simply advise the school and bus company that her children would not be allowed to be on the bus because of COVID. Jake did not respond but the next week when they were in his care, the children took the bus to school.

[76] In October 2020, Amanda sent another email to Jake because he had been out of town while the girls were with Amanda. She asked him if he was in compliance with the Ottawa Public Health guidelines by travelling out of town. She wanted to know where he was and for what purpose. She wanted a four week wait and see approach before sending “our kids into this gong show’. Jake replied that she did not need to know where he was and that he would continue to follow local, provincial and federal public health guidelines.

[77] Unbeknownst to Amanda, Jake stopped going to work on September 23, 2020 for health reasons and has yet to return at the date of trial.

[78] On October 5, 2020, Amanda emailed Jake advising that the girls were scared about going to school. Jake responded by saying “stop wasting my time with quoting the kids. You’re full of lies and incoherent.”

[79] From October 9 to October 23, 2020, Amanda wanted to proceed with family therapy with Dr. Weinberger. After Justice Engelking released her decision on October 23, 2020, Jake advised Amanda that he could no longer afford to pay for the therapy. On October 27, 2020, Amanda filed a request for leave to proceed to an urgent motion seeking an order that the parties attend therapy and that they follow the Covid-19 guidelines. On November 4, 2020, the request was denied.

[80] On November 3, 2020, Amanda sent Jake an email with the heading, PEACE BOND EXPIRED where she advised Jake that she would now be able to knock on his door to retrieve whatever items he forgot to send with the children and that she could go to his home to pick the children up.

[81] On November 15, 2020 at approximately 5 PM, Amanda received a text message from Mr. Van der Leeden’s second wife, Gabrielle, that when they dropped Luca off to spend the week with his mother and Jake, he was ill and may have the virus. On November 16, 2020, Amanda sent Jake a lengthy email where she advised him that:

a. the girls were nervous to go to his home while Luca was sick and his refusal to follow public health guidelines. b. she was withdrawing her authorization for the girls to be in school in-person and that they would attend school on-line. c. the girls would remain in her care until they have had eight sessions with Dr. Weinberger. d. the girls would remain in Amanda’s care until Ottawa returns to the yellow zone and numbers are down drastically and she is satisfied that Jake’s actions do not put her life at risk, the girls or the community. e. There was no chance that Jake would be able to see the girls in person in light of Luca being sick and his parent’s refusal to have him COVID tested before being exposed to their girls.

[82] Jake immediately filed a request and was granted for leave to proceed on an urgent motion. The motion was scheduled to be heard on November 20, 2020. On November 19, 2020, Amanda sent Jake an email which included the following statement:

Don’t you realize that all you have to do was say you were going to get luca a Covid test. We could swap in a few days once test was hopefully negative That would have been cooperating during a pandemic and would have looked good for you for once.

Order Granting Jake Primary Temporary Sole Custody November 20, 2020

[83] On November 20, 2020, Justice MacEachern ordered that the children be returned to Jake’s care by 5 PM that day and, on a temporary basis, pending trial, placed the children in the primary care of Jake who would have sole custodial decision making, granted Amanda access to the children alternate weekends from Friday at 5 PM to Sunday at 5 PM commencing November 27, 2020 and authorized the Ottawa Police Service to enforce the terms of the order.

[84] Luca never contracted the virus.

Custody-Decision-Making

Amanda’s Position

[85] In her application, Amanda requested joint custody with a 2/2/3 parenting regime. In her interview with the OCL, Amanda sought sole custody and alternate weekend access for Jake. At the beginning of this trial, she proposed an alternating week-about schedule. In her closing submissions, Amanda’s proposed that she should have sole custody and that Jake have weekend access on a bi-weekly basis from Saturday at 8 AM until Sunday at 6 PM to start once Ottawa has returned to the “green zone” in the COVID-19 pandemic. Until such in-person access commences, she proposes that Jake have online/telephone communications with the children only.

Jake’s Position

[86] In Jake’s original Answer, he sought an order for joint custody with an alternating week about schedule. In his interview with the OCL, he proposed share joint custody of the children with equal, week-about access. On August 25, 2020, he amended his Answer to seek sole custody and primary residence with Amanda having access every second weekend. He maintained that position throughout this trial.

Legislative and Jurisprudential Considerations

[87] 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, any or all children of the marriage (Divorce Act, R.S.C. 1985, c. 3, s. 16(1)).

[88] The court may make an order under this section granting custody of, or access to, any and all children of the marriage to any one or more persons (Divorce Act, s. 16(4)).

[89] 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 (Divorce Act, s. 16(9)).

[90] 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 the other 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 conduct (Divorce Act, s. 16(10)).

[91] The only relevant issue in custody and access matters is the best interests of the child (Gordon v. Goertz, [1996] 2 S.C.R. 27).

[92] In addition to the provisions of the Divorce Act, subsection 24 (2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”), provides the court with a more detailed list of factors to consider in determining the best interests of children as follows:

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

(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) any familial relationship between the child and each person who is a party to the application.

[93] The child’s best interests are not merely “paramount” – they are the only consideration in this analysis: Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 28; Mattina v. Mattina, 2018 ONCA 641.

[94] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents: Gordon v. Goertz, [1996] 2 S.C.R. 27.

[95] The child should have maximum contact with both parents if it is consistent with the child’s best interests: Gordon v. Goertz, [1996] 2 S.C.R. 27. The Court must view what is in the best interests of the child, not the parents. The “maximum contact” principle, as it is called, is mandatory, but not absolute. The maximum contact principle only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, [1993] 4 S.C.R. 3, at pp. 117-18, per Justice McLachlin.

Analysis

[96] While living together, the parties coparented their children. Up to the date of separation, both parties were involved in all aspects of their children’s lives and made decisions regarding their health, education and activities jointly.

[97] Since separation, Jake’s attitude and communication with Amanda has been curt, dismissive and condescending. There are numerous emails from Jake advising Amanda not to communicate with him and not to attend at its home. Rather than respond to inquiries from Amanda, Jake would either ignore her are simply state “Noted”. In one email, he referred to her as “a liar and incoherent”.

[98] Amanda has called Jake a sociopath, used profanity filled emails and belittles his decision-making regarding the girls. In her emails, Amanda has used very aggressive, rude and completely inappropriate language. It is clear to me, that Amanda wishes to be in control and make all decisions regarding her children. Amanda believes that she has the right to determine what is in the best interests of her children even if that means breaching an agreement or a court order. The evidence supports that she has done so in this case.

[99] Both parties are manipulative. Jake attempted to mislead the school principal and on August 30, 2019 when he alleged that the parties were following the terms of an Interim Separation Agreement. On October 8, 2019, Jake repeated the same false allegation to the Ottawa Police when he unilaterally picked the children up from school that day. On March 16, 2020, after Amanda reached out to Jake to care for the children because she was suffering from her burnout, he quickly agreed and then later the same evening, filed a request for an urgent motion which was denied the next day by Justice Engelking.

[100] Amanda has unilaterally suspended Jake’s parenting time since the separation including from June 25, 2019 to August 15, 2019, for the week of April 20, 2020 and the week of November 16, 2020. Amanda refused to sign a passport application for the girls for Jake to travel outside of Canada until he paid the arrears of support. Even after Amanda signed the passport applications in the face of a threat that Jake would go to court, she clearly was happy when Passport Canada refused to issue the passports because the parties had not entered into a final agreement.

[101] Amanda has exhibited some very poor judgment with respect to her children. In an email sent to Jake on January 15, 2020, she confirmed that she intended to bring the children to the peace bond hearing. In email she stated “so they will be with me at the courthouse… The girls are finally going to get to see the courthouse inside-they have been asking for months”. On February 3, 2020, Amanda brought the children into the courtroom and removed them after being advised to do so. The children remained outside the courtroom during the proceedings. Amanda originally testified that February 3, 2020 was a professional development day and she had no other alternative but to bring the children. However, when confronted with evidence that it was a school day, she changed her testimony. Bringing the children to the courthouse was not in the best interests of her children.

[102] Both parties have threatened the other that if they did not agree with the proposed course of action, an urgent motion would be brought. Both parties have resorted to the court to resolve any dispute between them.

[103] Amanda has called the police on numerous occasions with the children being present. This is inappropriate and can only cause stress to the children. Both parties have called the Children’s Aid Society complaining about the conduct of the other parent.

[104] I find that when Amanda became aware that Jake started to live with Ms. Van der Leeden, she was concerned that her role as the children’s mother would be challenged. The various emails exchanged indicate that Ms. Van der Leeden was placed directly in the middle of the ongoing dispute with Jake and Amanda. I accept Ms. Van der Leeden’s evidence that she sought therapy in 2019 to deal with the stress. She was required to retain a lawyer to write a letter to Amanda without success. Eventually, a request was made for a peace bond.

[105] The OCL clinician recognized the problem and recommended that Ms. Van der Leeden not be in attendance at exchanges and that Jake respect Amanda as the children’s mother and not convey the illusion that Ms. Van der Leeden is the mother during his weeks. Jake was aware that Amanda was agitated by Ms. Van der Leeden but it took a court order for him to stop bringing her to the exchanges. This action heightened the tension between the parties and continued to put stress on the children.

[106] Jake testified that they have made the necessary changes to avoid confusing his children as well as Ms. Van der Leeden’s children. Ms. Van der Leeden testified that she has no intention to replace Amanda and that she and Jake are very careful in not confusing the children as to each parent’s role.

[107] While the OCL recommended that each parent receive therapy, Jake currently has three therapists to address his own issues, the issues regarding his children and with his partner about blended families. Jake has completed the recommended course of Parenting Through High Conflict Separation and Divorce. Amanda apparently speaks to Dr. Budge by phone on a monthly basis but provided no evidence to corroborate this allegation.

[108] Despite agreeing to retain Dr. Weinberger including sending intake forms to him in September 2020, Jake withdrew his consent after the release of the child and spousal support order of Justice Engelking dated October 23, 2020. This was very upsetting to Amanda as she believed that the children needed therapy as recommended by the OCL. Despite not being able to proceed with the therapy in October 2020 for financial reasons, in December 2020, Jake, without notice to Amanda, started therapy for the children. The first time she heard about therapy was during the trial. That was wrong for Jake to undertake therapy without advising Amanda especially considering that therapy was a major issue as recently as October 2020.

[109] In my view, the issue with Coral’s teeth should never have been allowed to continue to the point where there was no other alternative but to remove her teeth without anaesthesia on April 13, 2020. I find that Amanda ignored the advice of three dental practitioners in favour of her allegation that the pain was due to Coral suffering from anxiety or that Jake was guilty of suffering from Munchausen by Proxy Syndrome.

[110] An issue arose about the children being baptised. Amanda, being Catholic, has encouraged it while Jake stated that if the girls want to be baptized, he would agree. However, if Amanda attended the ceremony, he would not attend. Jake testified that he does not believe in religion. I would hope that when the time comes, if the girls want to be baptized, that they will be.

[111] I accept that Amanda is fearful of virus based on her experience with the HIV virus when she worked as a paramedic in 1997 and the SARS virus when she worked in Toronto in 2003. Prior to the COVID-19 outbreak in March 2020, her anxiety over these issues did not affect her ability to parent. However, after being ill from November 2019 to January 2020 with what she believes was the COVID-19 virus, with the lockdown in March 2020, she became hypervigilant. I find that Amanda’s fear has been transferred to her daughters. Their reaction to the September 18, 2020 notice from the school as well as when Luca was apparently ill on November 15, 2020 illustrate that they are absorbing the stress that their mother feels about the virus.

[112] Even after the children were removed from her care, Amanda continued to email Jake to ensure compliance with the COVID-19 protocols. On December 1, 2020, she emailed Jake requesting information if his stepchildren were isolating. He ignored her. On December 13, 2020, Amanda sent an email asking if their children interacted with the paternal grandparents. He ignored her.

[113] In her report, OCL clinician made numerous observations:

a. Ms. Purdy has been committed to the children and has demonstrated an ability to provide for them and ensure their safety and well-being and that their needs are met, while in her care. Mr. Purdy has equally demonstrated his commitment to the children and appeared genuine in his wishes to be equally involved in their lives. (P.21) b. during Ms. Purdy’s observation visit, it was noted that the children were excited, interactive and enjoyed their time with their mother. They easily went to her and engaged with her during their activity and sought her attention and support, when required. Overall, it was a very positive, natural and healthy observation of Ms. Purdy’s interaction with her children. There were many laughs shared and organization in their activity. (P 21) c. during the observation visit with Mr. Purdy, the children were equally as engaging with him and their interactions were comfortable, natural and energetic. They interacted well with their stepmother, step siblings and overall, as a family unit. Mr. Purdy was calm and gentle in his response to the children and they laughed and giggled throughout the visit. Ms. Van der Leeden and was engaging with the children as well and together they organized activities with them and were present and engaged. The interactions were very natural, and all seemed to have a good rhythm and structure.

[114] The clinician made the following findings at pages 22 to 23 of the report:

a. The children were healthy, endearing and engaging young ladies who are creative, playful, with bounds of energy between them. b. The children share a very close bond with both parents. c. Following the official physical separation in January 2019, Ms. Purdy maintained her role as the primary caregiver with Mr. Purdy being mainly the access parent. However, in March 2020, with the access arrangements having changed to week-about, the children appear, although in its infancy, to have for the most part settled into the routine with the natural growing pains that result from these changes. d. In the clinician’s opinion, it is not the week-about access that has affected the children’s mental health but rather the conflict between the parties and the resulting impact on the children. e. The children have been and continue to be exposed to the acrimonious relationship of their parents. The parents are focused on the emotional and interpersonal issues and the children continue to be exposed to their strife, which appears to be increasing. The children have been placed within the conflict between the parties and are suffering as a result. f. Ms. Purdy is admittedly not attending any form of formal therapy or counselling to manage within these difficult times. The clinician was concerned that though Ms. Purdy maintains that she has never felt better, she has demonstrated that her affect is labile and she can be aggressive and attacking in her interactions in attempts to express her self to gain alignment to her position and wishes. The clinician suggested that an assessment regarding her current mental health may be warranted. g. Neither party has de-escalated in terms of anger, hurt feelings and potential impulsivity in acting these feelings out. h. Although both parties are highly intellectual and have their opinions of healthy co-parenting, they are not displaying an ability to manage their discord or build a solid co-parenting foundation for the sake of the children. While maintenance of civil parental conduct for children is optimal, the parties cannot achieve this while in the presence of the children.

[115] On the issue of custody, at page 27-28, she made the following statements:

a. It is this clinician’s significant concern that should Ms. Purdy be granted sole custody of the children this would effectively be granting her more power and control in eliminating and alienating Mr. Purdy from his children’s lives. b. Although joint custody would be optimal, it would be remiss for this clinician to make such a recommendation given the ongoing and increasing difficulties with the parties’ ability to communicate for the children. The stress that this is causing them is affecting their ability to move forward with respect to the custody/access matter. It is for this reason that this clinician is recommending that Mr. Purdy be granted sole custody of the children and that both parties share equal access time on a status-quo, week-about basis. c. Police enforcement should be used as a last result should one party not be complying with the order and should not be used to further one party’s position over the other or in a manipulative manner.

Conclusion

[116] I have decided that Jake should be granted sole custody on major decisions such as education, health and activities. Jake has sought out and followed proper dental advice regarding Coral’s teeth, has complied with the COVID-19 protocols and has supported the children attending school in-person.

[117] I find that Amanda’s actions with Coral’s teeth, her fear over COVID-19 and its effect on herself and the girls, her view that the children should not attend school in-person and her history of unilaterally ignoring court orders, all indicate that she cannot make decisions which are in the best interests of her children. Further, Amanda testified that she does not believe that family doctors have sufficient expertise to make recommendations as to a child attending school in person and that only an epidemiologist had the necessary expertise. I find Amanda’s view very troubling.

[118] In Jake’s draft order regarding custody and access, he has proposed that he would have sole custody with Amanda having access every second weekend which would be expanded in September 2021. He proposed provisions for travel and access to information including that both parents would have access to all records and information regarding the children, regardless of custody, including but not limited to education, medical and dental records.

[119] On the other hand, Amanda’s draft order gives her the right to make all decision-making responsibilities while providing Jake with little information regarding the girls going forward. Amanda proposes that she meet with the teachers and provide updates to Jake and that Jake is not to communicate with the school. Further, she proposes that only she would be entitled to make an inquiry and be given comprehensive information from the children’s doctors, dentists, teachers, summer camp counsellors and others involved with the children.

[120] I am concerned that if Amanda was granted sole custody of the children, as set out in her proposed draft order, she would significantly reduce Jake’s involvement in any decisions regarding the children. This concern was echoed by the OCL clinician. While Amanda now submits that she supports the children attending school in-person, she does so because she believes that the educational and governmental authorities have exercised their due diligence to protect the children. Further, Amanda has shown that if she does not agree with the decision of the court, she will breach a court order if she believes is it is in the best interests of her children. She has indicated that she would rely on the defence of necessity, which in her mind justifies breaching the order.

[121] Both the OCL and the Children’s Aid Society have verified that these children have suffered emotional stress caused by their parent’s dysfunctional relationship. The OCL recommended that both parties seek counselling for the children to ensure their emotional and psychological needs are met. The children need counselling. In my view, the therapy started by Jake must be suspended until Amanda has an opportunity to meet with the therapist. If the parties cannot agree to continue with the therapist, a new therapist must be jointly selected. Both parties must participate in the therapy for their children. Further, this expense would qualify as a section 7 expense and would be shared on a pro rata to income basis after considering any coverage through Jake’s extended health benefit through his employment.

[122] I am concerned that if Jake is given sole decision-making authority, he may make important decisions regarding the children without even advising Amanda as he did with his decisions to have the girls start therapy in December 2020.

[123] Both parents have an important role to play in their children’s lives. Both parties should have input before any major decision is determined. Consequently, Jake will be required to advise Amanda prior to any final decision being made to obtain her input. In the end, if the parties cannot agree, Jake is granted the right to make the final decision.

Parenting Schedule

[124] The court’s focus is what is in the best interests of these children and it is not to reward or punish a parent. A parenting regime must focus on the best interests of the children and not the parents.

[125] Starting in February 2018, the children followed a 2/2/3 parenting schedule. When the litigation started, both parties advocated for an equal timesharing. Things changed because of the underlying and unresolved conflict between the parents. During this trial, each parent attempted to justify their actions or to portray the other parent in a negative light. The conflict between the parents continues despite warnings from the court, the OCL and the Children’s Aid Society.

[126] Amanda proposes that Jake’s access be significantly reduced because he does not follow COVID-19 protocols. She proposes that his access will not be in-person until Ottawa is in the “green zone” of the COVID-19 protocols. Jake submits that this access regime is appropriate in order to provide stability to the children and to guarantee their attendance to school.

[127] I find that both parties have the requisite parenting skills to care for their children. Both parents have suitable accommodations for their children. From their birth until February 2018, both parents cared for the children. From February 1, 2018 to November 2020, the children have lived in some sort of shared custody arrangement save and except the period of June 25, 2019 to March 8, 2020 when Jake had access.

[128] I have considered the report and testimony of the OCL clinician who recommended a week about schedule. The clinician identified that neither child had any concerns regarding either home environment except that their parents speak negatively of one another.

[129] The OCL clinician testified that Coral vacillated on her preferred access schedule but eventually confirmed that a week-about would be her primary wish if Jade wanted to. The children were interviewed one day at school when they were seven and nine years of age. Only Coral expressed a view to the clinician that she preferred week-about if Jade did. I have not relied on the hearsay statement made by Coral to the clinician in arriving at my decision.

[130] As a direct result of the parties’ conflictual relationship, the parties are not able to address each other’s concerns. Jake perceives that Amanda has attempted to dictate how he lives his life while Amanda’s concern is that Jake is disregarding the COVID-19 protocols and is trying to ruin her financially. This rift only grew larger over time until November 15, 2020 when Amanda became aware that the COVID-19 virus possibly was waiting for her children. What Amanda did was wrong. She should never have acted unilaterally. She should have insulated her daughters from the information that she received. However, her actions directly lead to the court removing the children from her care.

[131] Amanda has testified that she will abide by all court orders because she wants “her girls back”. Since the November 20, 2020 order, the girls see Amanda four days out of 28 days which is a significant reduction in their contact with their mother.

[132] In my view, these children need both of their parents. These children have been in the middle of a very highly conflictual situation where both parents have acted inappropriately. I do not find it is in the best interests of the children that they be in the primary residence of either Amanda or Jake.

[133] I find that when the children were in the alternating weekly schedule for March 8, 2020 to November 20, 2020, the children attended school online and in-person, interacted with their friends and were properly cared for by both parents.

[134] In considering all the evidence, I find that it is in the best interests of the children to alternate residences on a weekly basis on Monday morning to school. This will allow the children to maintain a close and loving relationship with each of their parents without interference by the other parent.

[135] Despite being warned by Justice Engelking that unilateral action could have a very serious effect on Amanda’s time with their children, she unilaterally violated two court orders. After considering all the evidence, I find that it is in the best interests of these girls to be in an equal time-sharing schedule.

[136] However, if either parent unilaterally violates the terms of this court order with respect to custody and access, if requested, the court will act and may significantly reduce that parent’s parenting time with their children.

Order on Decision Making and Parenting Schedule

[137] I make the following order:

a. Jake is granted sole custody of the children and shall have the right to make all decisions regarding the children including education, health and activities. Prior to making any such decision, Jake shall advise Amanda by email via Our Family Wizard of his proposed decision. Amanda shall be afforded a reasonable time to respond. In the event of a disagreement, Jake shall have the right to make the final decision. b. Commencing on Monday March 8, 2021, the children will alternate residences on a week-about basis every Monday after school. If Monday is a statutory holiday or professional development day, the children will be returned by 7 pm on Monday to the parent whose residence the children are to spend that week. If the children are not attending school in-person, the exchange for the children will be by 7 pm on Monday to the parent whose residence the children are to spend that week. c. In odd numbered years, Jake will have the children from December 24 at 10 AM until December 25 at 2 PM and Amanda will have the children from December 25 at 2 PM to December 26 at 5 PM. In even numbered years, Amanda will have the children from December 24 at 10 AM until December 25 at 2 PM and Jake will have the children from December 25 at 2 PM to December 26 at 5 PM. d. On Mother’s Day, the children will be with Amanda from Saturday at 7 PM until the return to school on Monday. e. On Father’s Day, the children will be with Jake from Saturday at 7 PM until the return to school on Monday.

[138] I further order:

a. The parties will communicate exclusively through Our Family Wizard unless there is an emergency. They shall check their messages at least once per day. They shall respond to any queries promptly. b. The children will be permitted to communicate with their parent while in the care of the other parent by telephone, text, email or Facetime. c. Each party shall provide to the other with a minimum 30 days notice of any change of address or telephone number. d. Jake shall apply for a passport for both children. Amanda will sign any documentation required to have the passports issued by Passport Canada. e. Jake shall retain possession of the children’s health cards, birth certificates, social insurance numbers and passports. Jake shall provide Amanda with a copy of the children’s health cards, birth certificates, social insurance number and passports by April 15, 2021. In the event that Amanda requires the children’s passports to travel outside of Canada, Jake shall provide same to her no later than seven days before the date of her departure and Amanda shall return the passports to Jake no later than seven days after the return to Canada. f. In the event of a medical emergency, both parents shall have the authority to make such decisions and shall inform the other parent as soon as practically possible. g. In the event of an emergency, the parties may use email, phone or text message to communicate any information regarding a medical emergency affecting the children. h. Both parties shall be entitled to travel with the children outside of Canada. The parent requesting to travel outside of Canada with the children must provide the other parent no later than 60 days before the date of departure, with a detailed itinerary including the date of departure, the date of return, the airline flight numbers, if applicable, the location where the children will be while outside of Canada and a telephone number where the children can be reached. A parent’s consent shall not be unreasonably withheld. Any vaccinations required for the children to travel outside of Canada shall be obtained by the parent proposing the vacation and that parent shall assume all out-of-pocket medical/insurance costs. i. Each parent shall take the children to their extra-curricular activities on their parenting time. Each parent shall be permitted to attend any of such extra-curricular activities which shall be limited to two activities per season. j. Both parties shall be entitled to make inquiries and be given information from the children’s doctors, dentists, health care providers, teachers, school officials, daycare providers, summer camp counsellors, extra-curricular leaders and others involved with their children. k. Jake shall provide to Amanda by April 26, 2021, the names and address of the children’s doctors, dentists, health care providers, daycare providers and any other person involved in the care of the children. l. Jake shall be responsible to arrange and attend all required appointments for the children. He shall advise Amanda prior to such appointments. Amanda shall not be permitted to attend such appointments with Jake but she shall have the right to communicate and receive all information from the third party including teachers, doctors and dentists. m. Each party shall attend a parent-teacher interview separately. n. The parties shall jointly agree on a therapist for Coral and Jade. They shall both be entitled to meet with such therapist and shall follow the recommendations made. Any cost of such therapy not covered by Jake’s extended health benefits through his employment shall be shared by the parties as a section 7 expense. o. Neither party will change any of the names of the children.

Restraining Order

[139] Jake sought a restraining order as he is fearful of Amanda. Amanda’s position is that the request for a restraining order is without merit and is an attempt by Jake to minimize Amanda’s role in her children’s lives.

[140] Section 46 of the Family Law Act provides that a court may make an interim or final restraining order if the court finds that the applicant has reasonable grounds to fear for his or her own safety and for the safety of any child in his or her lawful custody.

[141] During the trial, Jake testified that he was fearful of Amanda and for that reason he wore a body camera and installed a dash cam on his vehicle. During submissions, Jake proposed the following order:

Amanda shall not harass the father or any member of his family by any means, including: sending messages with content not related to the children, approaching him or his family in public, using inappropriate or vulgar language and messages. Amanda is not permitted within 50 meters of the father’s residence.

[142] During submissions, Amanda opposed such an order and sought the ability to attend at Jake’s residence if required for the children. In support of that proposition, Amanda indicated that recently the parties have exchanged the children at each other’s home rather than at a Tim Horton’s. Jake confirmed that approximately five weeks before the start of the trial the parties have agreed to not communicate at the exchanges and remain in their vehicle.

[143] In my view, a restraining order is inappropriate at this time. While there has been a significant history of inappropriate behaviour, recently, the parties have been able to exchange the children at their residences with conditions agreed to by the parties. However, if circumstances warrant, either party may request a restraining order.

Income Determination

[144] In order for the court to decide the quantum of child report and spousal support, the court must determine the incomes of each party and the parenting arrangements for the children.

[145] In this case, there have been two orders dealing with the issue of support. On November 1, 2019, on consent, Jake agreed to pay $1694 per month as table child support for both children. On October 23, 2020, the court ordered as follows:

a. imputed an income of $30,000 to Amanda for support purposes. b. determined that Jake’s income was $120,000 for support purposes c. ordered Jake to pay child support based on a set off of $1257 per month retroactive to March 4, 2020. d. ordered Jake to pay Amanda $1587 per month in spousal support retroactive to March 4, 2020. e. ordered the parties to contribute to section 7 expenses for the children in proportion to their respective incomes found herein retroactive to March 4, 2020.

Amanda’s Income

[146] Jake submits that an income should be imputed to Amanda in the amount of $45,000 being the starting salary as an entry-level for the Federal Government. Amanda submits that her income should be determined as follows:

a. for the years 2018, 2019 and 2020, the sum of $12,000. b. for the years 2021, 2022 and 2023, the sum of $20,000. c. for the years 2024 and 2025, the sum of $40,000. d. for the years 2026 and 2027, the sum of $60,000.

Legislative and Jurisprudential Framework Regarding Imputation of Income

[147] The court has jurisdiction under section 19 of the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”), to impute an income to a spouse as it considers appropriate in the circumstances.

[148] In this case, the applicable subparagraph of section 19 is that a court may impute an amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

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

[149] The caselaw provides guidelines:

a. The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is intentionally under-employed or unemployed (Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28). b. Where the spouse is intentionally and unreasonably under-employed or unemployed, the court has a large range of discretion to impute as income an amount founded on a rational basis, as detailed in D.D. v. H.D., 2015 ONCA 409, 335 O.A.C. 376 (C.A.). c. The main factors a court should consider are the age, education, skills, and health of the parent, along with the number of hours that can be worked in light of competing obligations and the hourly rate the parent could reasonably obtain (Drygala v. Pauli, 2002 O.J. No 3731 at para. 45).

Analysis

[150] I find that Amanda is a bright, articulate, computer savvy and speaks both English and French. During the trial, she exhibited excellent computer and organizational skills. She has identified herself as having the ability for critical thinking and working under pressure.

[151] In 2011, Amanda started pursuing a Bachelor of Commerce degree from Athabasca University online when she worked for the Bank of Canada. When she left that employment in 2014, she had passed the two courses. However, to complete her degree she needed to complete 40 total courses. She re-started taking the course in 2019, has taken six courses and failed all six. Amanda’s plan is to complete the 38 remaining courses by January 2024.

[152] Amanda testified that she may write the LSAT exams during that period of time and apply to law school. Amanda testified that the parties had agreed that once the children started school full-time in September 2017, she was going to law school. She was going to focus on the photography business and prepare for the LSAT. This is not denied by Jake.

[153] After separation, the parties agreed that Amanda would take a real estate agent course from November 2017 to January/February 2018 and that Jake would pay the cost of $585. Amanda took the first part of the course but did not pursue it when she found out that the job involves weekends and nights which she found not possible because of her obligations with respect to her children.

[154] Amanda ran for school board trustee for June to October 2018 which would have paid her approximately $18,000-$20,000 per year. I accept Amanda’s evidence that she ran as a good opportunity to network for possible employment opportunities. In January 2019, she applied for employment with Air Canada as a station manager and has applied for five various jobs with the Federal Government. She has been unsuccessful in obtaining employment. In 2019, she volunteered with the naming of the Juno Bridge Project.

[155] Amanda testified that she is seeking employment that will pay her at least $60,000 which would be commensurate with her salary when she left the Bank of Canada. She indicated she really is not interested in seeking employment with the Federal Government because she does not feel the that the employment there would be innovative and that she would not be happy being an executive assistant.

[156] In my view, by 2020, Amanda should have sought out employment. Her failure to do so was determined to be intentionally underemployed by Justice Engelking.

[157] I am also aware that we are in the middle of a pandemic and finding employment at this time is very difficult. However, Amanda received CERB payments from the Federal Government commencing in March 2020 in the amount of $2000 per month. She continued to receive this amount up to and including September 2020 when the program ended. As of October 21, 2020, Amanda started to receive $1900 a month based on the new CERB program and she continues to receive today. She receives these benefits as a result of the suspension of her photography business.

[158] I reject Jake’s submission that I should impute an income of $45,000 to Amanda. There was no evidence provided that the starting level entry job salary at the Federal Government is $45,000. There is evidence that when Amanda left her job at the Bank of Canada issues earning approximately $60,000 per year. However, that was 7 years ago and there is no evidence that Amanda could return to her previous employment. I reject the request to imputed income to Amanda at $45,000 retroactive to 2018.

[159] In 2018 and 2019, Amanda earned income from her photography business. She had been out of the work force since February 2014 and separated in August 2017. I agree that her income for 2018 and 2019 should be set at $12,000 per year.

[160] In her decision dated October 23, 2020, Justice Engelking imputed income of $30,000 to Amanda on the basis that she was intentionally underemployed. For 2020, I impute an income to Amanda of $30,000.

[161] Starting in 2024, I accept Amanda’s submissions that I will impute an income to her of $40,000 and as of January 1, 2026, an income of $60,000 per year.

[162] I order that the quantum of child and spousal support may be varied if there is a material change in circumstances.

Jake’s Income

[163] I make the following findings regarding Jake’s income:

a. 2018, $118,154 b. 2019, $128,096 c. 2020, $120,000 d. 2021, $128,500 anticipated

Child Support

[164] Both parties requested that the court calculate child and spousal support back to January 1, 2018. I make the following findings regarding the children’s residence since January 2018:

a. In 2018, the children resided in a shared custody arrangement. The children resided together in the matrimonial home with both parents for the month of January. From February to December 2018, the children were in a 2/2/3 parenting arrangement. b. In 2019, the children resided primarily with Amanda. From January 1 to June 25, the children were in a 2/2/3/ parenting arrangement. From June 25 to December 31, 2019, they lived primarily with Amanda, albeit as a result of Amanda’s unilateral actions and subsequent orders of this court. c. In 2020, the children resided in a shared custody arrangement. The children resided primarily with Amanda from January 1 to March 8. From March 9 to November 20, the children were residing with each parent alternating weekly. From November 20 to December 31, 2020, the children resided primarily with Jake. d. In January and February 2021, the children have resided primarily with Jake. Commencing March 2021, the children will be in an alternating week about schedule resulting in a shared custody arrangement.

Year 2018

[165] Based on Jake earning $118,154, Amanda’s imputed income of $12,000 and the children in a shared custody arrangement, I order the Jake shall pay to Amanda table child support in the amount of $1694 per month commencing January 1, 2018 up to and including December 1, 2018.

Year 2019

[166] Based on Jake’s annual income of $128,096 and Amanda imputed income of $12,000 with the children residing primarily with Amanda, I order that commencing January 1, 2019 up to and including December 1, 2019, Jake shall pay to Amanda table child support of $1815 per month.

Year 2020

[167] Based on Jake’s annual income of $120,000 and Amanda’s imputed income of $30,000 with the children in a shared custody arrangement, I order Jake to pay table child support of $1716 per month to Amanda, I order Amanda to pay to Jake table child support of $459 per month resulting in a set off payment payable by Jake to Amanda in the amount of $1257 per month commencing January 1, 2020 up to and including December 1, 2020.

Year 2021

[168] Based on Jake’s income of $128,500, Amanda’s imputed income of $30,000, with the children living primarily with Jake, I order Amanda to pay to Jake table child support of $459 for each of month of January and February 2021.

[169] Based on Jake’s income of $128,500, Amanda’s imputed income of $30,000 with the children living in a shared custody arrangement, I order Jake to pay to Amanda table child support of $1820 per month, Amanda to pay to Jake table child support of $459 per month resulting in a set off payment owed by Jake to Amanda in the amount of $1361 per month. Consequently, commencing on March 1, 2021 on the first day of each month thereafter, Jake shall pay to Amanda set off child support of $1361 per month.

Spousal Support

[170] Amanda submits that she is entitled to spousal support while Jake denies that Amanda has any entitlement to spousal support. In the alternative, Jake proposes that Amanda have time-limited spousal support.

Legislative and Jurisprudential Framework

[171] Section 15.2(1) of the Divorce Act provides that:

[a] court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sums and periodic sums, as the court thinks reasonable for the support of the other spouse.

[172] Subsection 15.2(2) states that:

[w]here an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of an application under subsection (1).

[173] Section 15.2(4) states that a court, in making an order under subsection (1) or an interim order under subsection (2), shall take into consideration the condition, means, needs, and other circumstances of each spouse and, more specifically:

a. the length of time the spouses cohabited. b. the functions performed by each spouse during cohabitation, and c. any order, agreement or arrangement relating to support of either spouse

[174] Section 15.2(6), states that an order under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:

a. recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown. b. apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage. c. relieve any economic hardship of the spouses arising from the breakdown of the marriage. d. in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[175] The Supreme Court of Canada in Bracklow v. Bracklow, [1999] 1 S.C.R. 420, stated at paras. 35-36:

Moge, supra, sets out the method to be followed in determining a support dispute. The starting point is the objectives which the Divorce Act stipulates the support order should serve: (1) recognition of economic advantage or disadvantage arising from the marriage or its breakdown; (2) apportionment of the financial burden of child care; (3) relief of economic hardship arising from the breakdown of the marriage, and (4) promotion of economic self-sufficiency of the spouses: s. 15.2(6). No single objective is paramount; all must be borne in mind. The objectives reflect the diverse dynamics of many unique marital relationships.

Against the background of these objectives the court must consider the factors set out in s. 15.2(4) of the Divorce Act. Generally, the court must look at the “condition, means, needs and other circumstances of each spouse”. This balancing includes, but is not limited to, the length of cohabitation, the functions each spouse performed, and any order, agreement or arrangement relating to support. Depending on the circumstances, such factors may loom larger than others. In cases where the extent of the economic loss can be determined, compensatory factors may be paramount. On the other hand, “in cases where it is not possible to determine the extent of the economic loss of a disadvantaged spouse … The court will consider need and standard of living as the primary criteria together with the ability to pay of the other party” … There is no hard and fast rule. The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown

[176] I agree and adopt the comments by Justice Chappel in Thompson v. Thompson, 2013 ONSC 5500, where at paragraphs 55 and 59, she identified the factors to consider on the issues of compensatory and non-compensatory support:

55. The basis for a spouse’s entitlement to compensatory spousal support may arise when parties separate and there is a need for the equitable distribution of the economic consequences of the marriage. There are many forms of compensatory spousal support. One form is where one spouse suffered an economic disadvantage and the other spouse has obtained an economic advantage as a result of one spouse assuming primary responsibility for childcare and domestic functions, permitting the other spouse to advance their career. The goal of compensatory spousal support in these circumstances is to compensate the other spouse for the sacrifice and contributions of the career of the other spouse

56. Spousal support entitlement can also arise on a non-compensatory basis, as a result of the needs of a spouse. The Supreme Court of Canada discussed this basis of entitlement in Bracklow v. Bracklow. It emphasized in that case that a spouse may be obliged to pay support based on the other spouse’s economic need alone, even if that need does not arise as a result of the roles adopted or sacrifices made during the marriage. Rowles, J.A. of the British Columbia Court of Appeal summarized the general concepts underlying this basis of entitlement in Chutter v. Chutter [40] as follows:

Non-compensatory support is grounded in the “social obligation model” of marriage, in which marriage is seen as an interdependent union. It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner, rather than the state (Bracklow, at para. 23). Non -compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the “means and needs” approach to spousal support.

Analysis

[177] I find that Amanda is entitled to compensatory spousal support for the following reasons:

a. Amanda worked at the Bank of Canada from 2008 to February 2014. During that period of time she received three promotions. She was on maternity leave of one year after the birth of Coral. She went on sick leave in November 2012 until Jade was born in February 2013 and then was on maternity leave. When it came time for Amanda to return to work in February 2014, she was provided an option to either return to work in a new position or to take 36 weeks of severance pay. The parties agreed that she would not return to work, the parties would use the severance pay and that Amanda would be responsible for the children during the day as well is work part time on the photography business. b. When Amanda started to work for the Bank of Canada and Jake was working for the federal government, both parties contributed to the financial obligations of the parties. However, when Amanda did not return to work in February 2014, Jake assumed the role as the primary wage earner for the family and the main source of financial support for Amanda. c. By the time the parties separated in August 2017, Amanda had been out of the work force since 2014 and her primary responsibility was to care for the children. d. As a result, I find that Amanda has suffered an economic loss as a result of the parties’ joint decision that Amanda would leave her job and care for the children. e. I find that Jake received a benefit by Amanda staying home and caring for the children because he has been able to advance his career in the Federal Government.

[178] I find that Amanda has a non-compensatory entitlement to spousal support for the following reasons:

a. I find that as a result of the separation, Amanda has not been able to maintain a standard of living close to what she enjoyed throughout the marriage. By separation, Amanda was reliant on Jake for financial stability. b. I find that since the separation, Amanda has suffered serious financial stress. Her financial situation worsened in February 2018 when Jake terminated her cell phone, her Costco card resulting in the cancellation of her MasterCard and the car insurance on her vehicle. Further, Jake unilaterally removed Amanda as a beneficiary of his extended health benefits. In 2020, she had to cash in $10,000 of her Lira to make ends meet. c. I find that Amanda was under incredible financial pressure. Even though the parties had agreed that Jake would pay $2000 a month as well as pay for the mortgage and utilities of the matrimonial home, by May 2018, Jake could not maintain the payments. The result was that Amanda was unsure how much money she would receive each month and when. On the other hand, Jake’s financial pressures were directly related to having to pay for two households. d. I find that Amanda needs spousal support to maintain some semblance of the standard of living that she enjoyed during the marriage.

Quantum of Spousal Support

[179] I have included Jake’s income from all sources in calculating spousal support. I do so because I have concluded that Amanda has both a compensatory and a non-compensatory entitlement to spousal support. I find it Jake’s increase in income postseparation is directly related to his career path with the Federal Government. This career started in 2001 and continued throughout the marriage.

[180] In Amanda’s closing submissions, she sought an order that Jake was to inform the Canada Revenue Agency that the child tax benefits for 2017, 2018, 2019 and 2020 shall be returned to her. This was not claimed in the pleadings or addressed in the opening statements. I decline to make such an order. Apparently, Jake claimed the children as dependents in 2020 which, according to Jake, precipitated a re-evaluation by the Canada Revenue Agency of the child tax benefits claimed by Amanda in previous years. As a result of the re-evaluation, Jake received approximately $9000 in December 2020 and Amanda was reassessed and now owes the Canada Revenue Agency $33,324.88 related to the child tax benefits. Amanda contacted the Canada Revenue Agency and is challenging the decision. She was advised to provide supporting documentation. Amanda testified that she plans to do so after this trial.

[181] In calculating the quantum of spousal support, I have not assigned either party the tax benefits for the years 2018, 2019 and 2020 because this issue is being challenged.

[182] Amanda seeks spousal support in the mid range of the Spousal Support Advisory Guidelines (“SSAG”) while Jake proposes the low range. Neither party provided any submissions and why each range is appropriate in the circumstances.

Year 2018

[183] In 2018, the children were in a shared custody arrangement with Jake paying $1,694 as child support. I find it appropriate that Jake pay $1418 per month being the low end of the SSAG’s, as spousal support which will result in both parties having approximately an equal net disposable income. In my view, where the parties are in a shared custody arrangement, the parties should have similar standards of living to care for their children.

[184] However, the spousal support for 2018 is not tax-deductible. Consequently, the net after-tax benefit/cost of the spousal support must be calculated. I find that Amanda’s after-tax benefit of spousal support is $1300 per month and Jakes after-tax cost of the spousal support is $802. I have taken the midpoint between the two parties’ after-tax cost\benefit and rounded the amount to $1051 per month. I order Jake to pay to Amanda $1051 per month from January 1, 2018 to December 1, 2018.

[185] I find that Jake owes Amanda child support of $1694 per month for a yearly total of $20,328 plus $12,612 in net spousal support for a total of $32,940. I have accepted the chart of payments submitted by Jake where in 2018 Jake paid Amanda $20,768.

[186] I find Jake paid monthly mortgage payments on the matrimonial home in the amount of $21,202 from February to October 2018. I find that it is reasonable to credit Jake with the amount of $10601 representing Amanda’s share of the mortgage payments, towards support for 2018.

[187] I have calculated the support owed and paid as follows:

a. $32,940 owed b. $20,768 paid c. $10,601 credit

Balance owing by Jake $1571

Year 2019

[188] In 2019, the children lived primarily with Amanda. Based on Jake’s income of $128,096, Amanda’s imputed income of $12,000, a child support payment of $1815 per month, a payment of $1214 per month for spousal provides Amanda and the children with 53% and Jake 47% of the net disposable income. The payment of $1214 per month is at the mid range of spousal support which is appropriate based on Amanda’s compensatory and non-compensatory entitlement to spousal support and her having primary residence of the children.

[189] I find that the midpoint between the parties’ after-tax costs benefit is $877 per month. As spousal support for the year 2019 is not deductible. I order Jake to pay to Amanda $877 per month commencing January 1, 2019 up to and including December 1, 2019.

[190] I find that Jake owes Amanda child support of $1815 per month for a yearly total of $21,780 plus $10,524 in net spousal support for a total of $32,304. I find that Jake paid $18,684 in support in 2019. I find that Jake owes Amanda $13,620 for the year 2019.

Year 2020

[191] In 2020, the children were in the primary care of Amanda for January and February and in the primary care of Jake from November 20 to the end of the year. The rest of the year the children were in a shared custody arrangement. I find that in the entire year to 2020, the children were in a shared custody arrangement. Based on Jake’s income of $120,000, Amanda’s imputed income of $30,000, a set off payment by Jake to Amanda for child support of $1257 per month, a spousal support payment of $1518 results, being at the mid range of the SSAG’s, in both parties having approximately an equal net disposable income.

[192] In 2020, Jake owed Amanda $1257 per month as child support for a total of $15,084. During the same period of time. I find that Jake should have paid Amanda $1518 per month in spousal support for a total of $18,216. The total amount owed by Jake to Amanda was $33,300.

[193] I find that Jake paid $18,513 in 2020 which I have credited Jake with paying $15,084 of child support leaving Jake with a credit of $3,429 towards the arrears of spousal support of $14,787.

Year 2021

[194] In January and February 2021, the children have resided primarily in the care of Jake. Effective March 8, 2021, I have ordered a week-about parenting schedule resulting in a shared custody arrangement for child support purposes.

[195] I have decided to order child and spousal support for the months of January and February 2021 on the basis that the children are in the primary care of Jake. Starting in March 2021, I have ordered child and spousal support based on a shared custody arrangement.

[196] By the end of the year, the parties will have evidence as to what the parenting arrangement was for the entire year and may seek to vary child and spousal support calculations accordingly.

[197] I order Jake to pay to Amanda spousal support in the amount of $1087 per month for each of the months of January and February 2021. The payment of $1087 per month is at the high range of the SSAG’s which I find is appropriate because of Amanda’s entitlement to compensatory and non-compensatory spousal support.

[198] I order that commencing on March 1, 2021, that Jake pay to Amanda spousal support in the amount of $1660 per month which results in each party having approximately the same net disposable income.

Duration of Spousal Support

[199] Amanda’s position is that she should receive spousal support from January 2018 to December 31, 2027, a period of nine years. Jake’s position is, if Amanda is entitled to spousal support, she should receive it for five years ending December 23, 2023.

[200] The SSAG’s provide that the duration of spousal support would be for an indefinite (unspecified) duration, subject to variation and possible review, with a minimum duration of five years and a maximum duration of 18 years from the date of separation.

[201] At separation in August 2017, Amanda was 41 years of age with two young children at home. She stopped going to work in November 2012 and after Jade’s birth, she was on maternity leave until February 2014.

[202] Amanda proposed to complete the remaining 38 courses to obtain her Bachelor of Commerce degree by January 2024. Amanda did not provide any corroborative evidence such as school transcripts or registration forms to confirm that she is registered in Athabasca University in any capacity. Amanda has the burden of proof to provide such information. Even if the information was provided, I find that plan to be unrealistic that she will obtain her degree by January 2024. It may take to January 2025 or longer. Since 2011, she is passed 2 courses and failed 6. I do not see how she can complete 38 courses in less than 36 months. She testified that she may apply to law school and intends to write the LSAT examination. However, since separation, she has never written the examination.

[203] I find that Amanda has sustained an economic loss related to her potential advancement the Bank of Canada. She is been out of the workforce for over eight years and is now almost 45 years of age. She may have to re-examine her decision not to pursue employment with the Federal Government. Amanda needs a reasonable period of time to determine and complete her plan. I also note that Amanda has agreed to an imputation of income to $40,000 in January 1, 2024 and $60,000 on January 1, 2026. While she is entitled to spousal support, the quantum is subject to variation.

[204] I find that Jake’s proposal that Amanda will have been compensated both on a compensatory and non-compensatory basis by December 2023, fails to appreciate the challenges that she will face and the loss she has sustained as a result of the roles assumed during this marriage.

[205] Whatever plan that Amanda pursues, it is time for her to focus, select one plan and pursue it. I find that that a period of eight years from January 1, 2018 to December 2026 is a reasonable period of time. I order that Amanda’s entitlement to spousal support shall terminate no later than December 31, 2026.

[206] I order that the spousal support is subject to variation in the event of a material change in the circumstances of the parties or the children.

[207] I order that the parties shall provide a copy of their annual income tax return no later than May 15 of every year commencing with May 15, 2021 and a copy of the notice of assessment or reassessment within 10 days of receipt.

Section 7 Expenses

[208] In his opening statement, Jake made a claim for reimbursement for section 7 expenses. During his testimony, he withdrew that claim. Commencing on March 1, 2021, I order Jake to pay 68% and Amanda to pay 32% of the section 7 expenses set out in the guidelines set out in section 7 of the Guidelines.

[209] Before the pandemic, the children were involved in gymnastics and dance. Once it is safe for the children to return to extra-curricular activities, gymnastics and dance should be considered section 7 expenses and shared accordingly.

[210] The Guidelines set out specific expenses that are shareable under the legislation. Jake is to advise Amanda of any proposed such expense before the expense is incurred. In assessing such expenses, the parties shall consider whether the expense is necessary, the cost is reasonable and whether the expense is affordable by the parties.

Extended Health Coverage

[211] Jake has an extended health benefits through his employment. Amanda has no such benefits. Currently Jake has his children covered as beneficiaries of said coverage.

[212] In the event Amanda obtains employment which provides extended health coverage, she shall register the children as the beneficiaries of such extended health coverage and shall advise Jake within 30 days of said policy being in effect.

Life Insurance as Security for Support

[213] Jake has a life insurance policy through his employment being two times his salary. For 2021, his salary is anticipated to be $128,500 resulting in a current life insurance policy of $257,000. Amanda has no life insurance.

[214] As security for the spousal support obligation, I order Jake to designate Amanda as the irrevocable beneficiary his life insurance benefits available through his employment in the amount of $75,000. In the event that said life insurance is not in place at the time Jake’s death when he has an obligation to pay spousal support, I order that the obligation of spousal support shall be binding on his estate. I order Jake to provide to Amanda proof of said designation no later than April 15, 2021 and by May 1 of every year in which spousal support is payable.

[215] As Amanda has no life insurance in place, I order that Amanda’s obligation to pay child support shall be binding on his estate. In the event that Amanda obtains employment where life insurance benefits are available, she shall apply for said coverage and shall provide the particulars of the policy to Jake within 30 days of such insurance being in place.

[216] I order that the amount of life insurance is subject to variation based on a material change in circumstances.

Equalization of the Net Family Property

[217] At the beginning of this trial, there were a number of assets and liabilities that the parties could not agree on. During the trial, the parties agreed to the value of Amanda’s motor vehicle, the value of the notional income tax on Amanda’s Lira and Jake’s RRSP. They also agreed on the gross up percentage to be attributed to the equalization payment.

[218] The only remaining issue is to determine the amount owed by Jake to the Canada Revenue Agency for his home buyer loan. I find that as of December 31, 2016, Jake owed the Canada Revenue Agency $6.986 on his home buyer debt. I find that as of the date of separation Jake owed $6,539.06.

[219] Based on my findings, I have calculated the net family property of the parties as follows:

	Amanda	Jake
Assets
Matrimonial home	$108,207.37	$112,207.38
Lira	$40,011.84
Employment pension		$337,142.00
Volvo	$3,000.00
Tangerine RRSP		$12,371.80
Total	$151,219.21	$461,721.18
Debts
Personal line of credit	$17,992.12	$26,506.51
American Express	$2,666.76
Visa	$6,283.00	$9,287.45
Visa	$4,396.24
Notional tax on Lira	$3,321.00
Notional tax on pension		$73,834.00
Notional tax on RRSP		$3,216.66
MasterCard	$2,955.40
Canada Revenue Agency	$494.00	$6,539.06
Total	$33,712.28	$123,779.92
Net Family Property	$117,506.93	$337,941.28
Difference	$220,434.35
Equalization owing	$110,217.17

Postseparation Adjustments

[220] Jake seeks an order that Amanda reimburse him the following sums and that the amount be deducted from the principal amount owing by him to her for an equalization payment:

a. $545 for real estate course paid for by Jake in February 2019. b. $587.60 paid by Jake for an initial interview with Ms. Morinville regarding a potential custody assessment. c. $10,600 representing half of the monthly mortgage payments of $21,202 that he paid from February 1, 2018 until October 2018. d. $7,425 representing half of the rent of $14,580 that he paid for his townhouse that he moved to during the same period of time. e. $419.02 representing half of the Hydro payments made by Jake on the matrimonial home from February 1, 2018 to October 2018.

[221] I find as follows:

a. I decline to order Amanda to pay anything towards the real estate course that she took for six weeks in 2019. At this time, there was no agreement that it would be reimbursable and it was done for the purposes of Amanda retraining to return to the workforce. b. I decline to order Amanda to pay anything towards the initial interview with Ms. Morinville. This expense is properly claimed as part of a cost submission. c. In 2018, Jake paid the mortgage on the matrimonial home until its sale in October 2018. I accept that Jake made payments from February 2018 to October 2018 in the amount of $21,202.20. I find that Amanda owes Jake half of the amount being $10,601. I have applied the amount owing by Amanda to Jake against any arrears of support. d. I decline to order Amanda to pay half of Jake’s rent for his townhouse. I do so because Jake voluntarily left the matrimonial home. e. I decline to order Amanda to contribute towards the Hydro expense. I have considered that payment by Jake in my decision regarding retroactive spousal support.

Order on Equalization Payment

[222] I find that Jake owes Amanda an equalization payment of $110,217.17. Based on the consent of the parties, I have applied a 15% gross up for income taxes to the equalization payment. I order Jake to pay to Amanda $126,749.74 by a rollover pursuant to the terms of the Pension Benefits Division Act.

[223] I order Jake to complete and file the necessary documentation to complete such a rollover no later than March 26, 2021. I order Jake provide Amanda with a copy of the documentation filed and to provide her with copies of any correspondence received with respect to the rollover.

Divorce Order

[224] I find that the parties separated on August 22, 2017 and there is no chance of reconciliation. I grant a divorce order.

Case Management

[225] This is a high conflict matter that requires post trial case management. I will remain seized of any future litigation until further order of this court.

Costs

[226] I encourage the parties to settle the issue of costs by March 12, 2021. If they cannot, Amanda shall provide her cost submissions, not to exceed three pages plus a bill of costs, and any offers to settle by March 28, 2021. Jake shall file his costs submissions, not to exceed three pages plus a bill of costs, and any offers to settle by April 9, 2021. Amanda may provide reply costs submissions, not to exceed two pages, by April 16, 2021. All costs submissions are to be sent to SCJ.Assistants@ontario.ca to the attention of Justice Shelston.

Released: February 24, 2021

COURT FILE NO.: FC-19-367-2 DATE: 2021/02/24 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Amanda Purdy Applicant – and – Jake Westley Purdy Respondent REASONS FOR judgment Shelston J.

Released: February 24, 2021